1. Mr Ben Walker produced drawings of the six levels of the development on which were marked the units in the proposed development that would, in his estimation, receive the amount of sunlight required by Rule R222 and those that would not (Exhibit PJ1H). This revealed that a total of 122 units would not achieve the require three hours, some 38% of the total number. He agreed that the Rule was not met because the number receiving the required sunlight fell short of 70%.

2. Mr Ben Walker's evidence was that the site geometry was difficult but because they were required to provide the active street frontages, which are required by Criterion C38 of the GCD Code and the passive surveillance that is required by Criterion C207 of the MUHD Code, it was necessary to have some units facing Redfern Street which would not get direct winter sunlight, nor would some other south facing units. In response to Ms Coghlan's suggestion that a single row of units, rather than back to back units, would solve the problem, Mr Ben Walker said that in such a configuration there would be no corridor between the units so that external access would be required.

3. Recognising that the development would not meet Rule R222, they had attempted to maximise the number of units that did receive the required sunlight by having the thinner, one-bedroom units facing north and by "popping out" the living spaces and balconies of the two bedroom units at the building ends to increase opportunities for solar gain. In addition, of those units that do not receive the required 3 hours solar access on 21 June, forty do receive some sunlight during those hours.

4. In relation to Criterion C222, Mr Ben Walker contended that they had maximised the glazing of the north facing windows and that the living areas would all receive adequate sunlight which would reflect light into the inner bedrooms. He also observed that all the units achieved an energy rating of better than 6 stars, with many achieving 7 or 8 stars, which confirms that the orientation of the development will not create a burden of high energy use.

Mr Erskine, on behalf of the applicant, submitted that the developers had made no effort to achieve the greatest number of units with solar access. He observed that site is sloped facing north and had no impediments (such as a building blocking solar access) to having most units facing north, but they elected not to meet the Rule by rejecting possible design options such as narrower units running through the entire building, or having only one or two levels facing south. Instead, he said, they chose five storeys facing south with some units wholly or partially below ground level on the Redfern Street frontage.

The issue was whether Criterion C222 had been complied with. Mr Erskine submitted that the word "optimise" meant "to achieve the best possible result" or "to produce the maximum amount of"; however, there was no evidence that any such effort had been made to get the best possible solar access. In his submission, it was clear from the requirements in the Criterion that the buildings were to be sited and designed to optimise solar access and that the best possible or optimal result was to be assessed by reference to the development as a whole and not by reference to a unit that (by good luck) had a north-facing living area.

Mr Erskine argued that the developers' interpretation was that Criterion C222 could be met if those units that do face north optimise their solar access, such as by having larger windows. He submitted that this interpretation could mean that a development could comply with Criterion C222 by deliberately having no north facing units, which would be the exact opposite of the intent of the solar access provisions throughout the Territory Plan and that such an absurdity cannot have been intended.

Ms Coghlan also questioned the meaning of the Criterion and submitted that a logical reading of the provision is that it envisaged all residential units having sufficient windows so that at least one of those would have some northerly orientation and that this should, preferably, be in the living room. She considered the fact that 40% of the units in the buildings have no north facing windows makes the criterion a farce if it is interpreted in the way that the respondent's witness interpreted it.

Ms Zachara generally concurred with the views of Mr Erskine and Ms Coghlan and suggested that one floor should be removed from each building to allow greater sunlight penetration into the central open space of the development and to the lower levels of buildings D to G.

Dr Jarvis, on behalf of the respondent, relied on the evidence of Mr Ben Walker and submitted that the proposal did comply with Criterion C222, given the constraints of the site and that the extent of non-compliance with Rule R222 was small.

Mr Philip Walker, on behalf of the developers, submitted that with a consolidated block of this shape and with the requirements to build to the boundaries and to provide passive surveillance of the street there was little choice but to have some of the units facing south. In his submission, the Territory Plan recognises that it will not be possible to provide the same level of solar access with different styles of building (comparing Rules R86, 144-146 and R222). This becomes even harder when there is a requirement to provide active street frontages on a triangular block such as this. He reminded the Tribunal that those who purchased units with less than optimal solar access did not affect anyone else's amenity.

He rejected the applicant's suggestion that the 70% rule could be achieved by removing the south facing units, arguing that there would be no practical benefit to this. No greater level of solar access is achieved for anyone by talking away south facing units while to do so would detract from the quality of the amenity of the development, and reduce the passive surveillance which enhances the activity that would occur in Redfern Street.

1. The Tribunal notes that there is no obligation under the Territory Plan to "build to the boundary" on the consolidated block (as Mr Philip Walker suggested), although the requirement to provide "active frontages" to main pedestrian areas and routes may be so interpreted. However, the JMP did envisage that buildings would be required to be sited to front streets (p 8) and states (at p 6) that development should be required to build to and address access streets (including Redfern Street) and provide active frontages to key interfaces (including the public car park). Certainly, the Tribunal accepts that the commercial units on the ground floor of Buildings A to C would desirably be built to the boundary.

2. The Tribunal accepts that the site topography and orientation do pose design problems and that the proposed development does achieve many of the elements envisaged for mixed use development on the subject block in the JMP. We agree with Mr Ben Walker that buildings with only a single row of units would be impractical and that removing a floor from each building would achieve nothing of value in relation to solar access.

3. We accept Mr Erskine's interpretation of Criterion C222, that is, that it applies to the siting of buildings, but that observation, with respect, does not make its meaning much clearer. All it seems to say is that buildings should be sited and designed so that good solar access to private open space and living areas with north facing windows is achieved as far a possible, if one is unable to meet the 70% requirement of Rule R222. In our opinion, this development has achieved that, therefore, we find that there is compliance with Criterion C222 .

1. The most controversial issue in this matter was the adequacy or otherwise of the provision of parking to meet the requirements of the proposed development. The basic requirement is found in Criterion C48 of the GCD Code, which reads:

Car parking complies with the requirements of the Parking and Vehicular Access General Code

1. The Parking Code sets out in some detail the parking provision rates for the various zones including commercial zones which begins at section 3.2.1 by setting out the objectives for parking and vehicular access in the commercial zones. These include issues of Amenity, Safety, Efficiency, Access, Equity, Commercial Viability and Non-Commercial Use. Section 3.2.4 sets out the locational requirements, including for Group Centres and reads as follows:

(i) On-site or within 400m except for residential use where parking is to be on site.

1. Section 3.2.5 contains Schedule 2 which specifies the parking provision rates for the commercial zones including for various types of commercial uses in group centres. These vary from 1 space per 100m2 of floor space for some uses (such as cultural facility) to 10 spaces per 100m2 for others (such as restaurant or drink establishment). The rates include both staff (long stay) and visitors (short stay).

2. Evidence about parking was given by four expert witnesses, Messrs Nairn, Brimson, Isaks and Shoobridge. The parties, at the request of the Tribunal, arranged for them to consult with a view to reducing the areas of difference between them. This they did and they produced an agreed statement, which was tendered in evidence as Exhibit A10. Subsequently each of the experts agreed to amend their witness statements that had previously been filed to conform with the matters agreed in the statement.

3. The matters agreed may be summarised as follows:

The secure onsite parking to be provided totals 418 spaces;

Residential long stay parking - requirement 369 spaces - all provided on site;

Residential visitor parking - requirement 81 spaces - 52 provided on site or in adjacent on-street parking to be provided; shortfall 29 spaces;

Commercial long stay parking - 3 per 100m2 GFA - requirement 49 spaces - all provided on site; (absent any specific provision, this figure was agreed as a reasonable allowance for staff of commercial unit lessees)

(a) assuming 2 per 100m2 GFA - requirement 32 - (none provided - shortfall 32 spaces (based on an overall rate of 5 spaces per 100m2 GFA);

(b) assuming 7 per 100m2 GFA - requirement 110 - shortfall 110 spaces (based on an overall rate of 10 spaces per 100m2 GFA).

The combined shortfall in resident and commercial visitor parking was agreed to be 61 spaces assuming a commercial demand of 2 per 100 m2, or 139 assuming a commercial demand of 7 per 100m2 GFA. The difference arises from disagreement among the parties as to the appropriate rate to apply for commercial parking, which as stated above, varies with different commercial uses.

There are 11 commercial tenancies proposed for the ground floors of buildings A, B and C, ranging in size from about 90m2 to over 2,000m2 (T1133) and the permitted commercial uses include club, commercial accommodation use, community use, drink establishment, indoor recreation facility, non-retail commercial limited to office and financial establishment, place of assembly, restaurant and shop. No one was able to forecast the uses to which the commercial spaces would be put, but the lower demand rate used in the agreed statement was based on an overall requirement of 5 spaces per 100m2, which assumes a mix of uses ranging from low to high demand, while the higher demand rate was based on an overall requirement of 10 spaces per 100m2, which assumes that all the commercial uses would be of the kind with the highest demand (such as restaurant or drink establishment).

Whatever the shortfall, the issue of concern to the applicant and the third and fourth parties joined was whether, and if so how, the shortfall could be accommodated. During their consultations, the traffic experts identified (on a preliminary basis) 67 potential additional spaces that could be provided either within the existing public car park on Block 31 Section 50 (29 spaces) or on Bowman and Redfern Streets (38 spaces) - a total of 67 spaces. However, they emphasised that these would require more detailed consideration as to their design and safety by road traffic engineers before they could be assumed as available options and it was made clear that they would need to be provided by the developer as there were no government funds available. Nevertheless, it seemed clear that many, if not all, of them could be provided and would assist in reducing the shortfall substantially.

Much evidence was given about the availability of parking in the public car park adjacent to the subject site. Mr De Marco, a director of the applicant company which owns the Jamison Plaza, was particularly concerned about the demand for parking in the public car park that would be created by the proposed development. He supported redevelopment of the Jamison Inn site, but not at this scale. He contended that it would put unsustainable pressure on parking and traffic management in the Jamison area (which was already a problem at times) and could lead to patrons going elsewhere. His company had spent a considerable amount of money on improving the car parking arrangements and he had been trying to acquire additional land by direct grant to further improve the parking, so far without success.

Other evidence included the results of a number of surveys of the occupancy rate of available parking spaces and about the peak demand for parking at particular times. Much of this evidence focussed on whether the parking was available within 200m or 400m of the proposed development (which is required under section 3.2.4 of the Parking Code, as discussed above) and how that distance should be measured.

Section 3.2.4 of the Parking Code requires that if visitor parking is not provided on site, then it may be found within 200m of the site, save for long stay parking (which is defined in the Parking Code as "generally longer than 4 hours duration") for commercial uses which must be within 400m. While not explicit, it seems clear that the off-site parking is to be found in publicly available on-street or off-street car parking areas.

The Introduction to the Parking Code sets out the following guidelines under the heading Using the code:

In cases where the physical constraints of a site make on-site provision impracticable, or the Territory may consider it undesirable for efficiency, traffic operation, pedestrian amenity or other reasons for the specified parking to be provided totally on-site, special arrangements may be negotiated or requirements may be waived at the discretion of the Territory. In such situations the ability to consolidate parking in publicly accessible off-street locations provides a superior outcome. Costs can be reduced by eliminating the need for costly on-site basement car parking, and greater efficiency can be achieved through the increased potential for shared and complementary use

and under the heading Calculation of parking provision requirements,

after setting out the basic approach to calculating the requirement, the

However, the performance approach adopted in these codes provides the flexibility to enable a proposal to be supported where the proponent can demonstrate to the satisfaction of the Territory that the objectives can be met either by provision of a lesser on-site rate or by utilising spare capacity in publicly available on-street or off-street parking. The utilisation of spare capacity in on-street and off-street parking areas is at the discretion of the Authority having regard to, inter alia, the potential demand which may be generated by a particular proposal as well as the potential for nearby lessees to seek to expand their activities and lay claim to a proportion of the available capacity in publicly available on-street and off-street car parking areas.

These words raise a number of issues that need consideration, in particular the concept of "spare capacity", which is not defined.

A matter on which there was considerable disagreement was the precise level of parking that should be provided for commercial short term visitors. Some witnesses took the view that an "average" provision of 5 spaces per 100m2 GFA would be sufficient, given that there was likely to be a range of uses made of the 11 commercial units. Others insisted that provision should be made for the "worst case" scenario in which all the units would be occupied by restaurants, bars and other uses requiring 10 spaces per 100m2 GFA. In each case, it was agreed that 3 spaces per 100m2 GFA for staff would be provided on site, leaving 2 spaces or 7 spaces per 100m2 GFA to be provided elsewhere, yielding the alternative shortfalls of 32 or 110 set out above. There was no way that this difference of opinion could be resolved.

A second issue was just what public parking spaces were available within 200m and 400m of the subject site and from where and how the distances should be measured. While it is clear that there are a large number of spaces in the public car parks on Block 31 immediately adjacent to the northern boundary of the subject site, and part of Block 45 adjacent to the north-east, and part of Block 36 to the north of Block 31, the evidence was that the remainder of Block 36 was also developed and used as a car park, even though it is zoned CZ2 and could, at some stage be redeveloped under the same Rules and Criteria as apply to the subject site. The "approved" public car parks are identified in the GCD Code at Figure B3 and are subject to Rule R31 and Criterion C31 which broadly require that any development on these sites would need to retain the existing level of car parking and accommodate on-site any additional parking generated by the development.

Mr Nairn stated that the number of spaces in the car parks within 200m of the subject site was 327 (excluding disabled or permit spaces). If all those within the area bounded by Bowman Street were counted (not just those within 200m) the number rose to 654 and, if those spaces to the east of Bowman Street were included, the number rose to 744 spaces (Exhibit A15 page 3). Surveys of the level of occupancy of these car parks were undertaken by Mr Nairn and Mr Isaks on different days and using somewhat different methodologies, but the Tribunal will not attempt to analyse them in detail here. It suffices to note that there are times during the week (apart from Sunday morning which will be dealt with separately below) when all the car parks are full or almost full, in particular on public service pay days between 9.30 am and 1.30 pm. At other times and on other days, there is a substantial vacancy rate, but these vacant spaces were not always within 200m of the proposed development.

The question of how to measure the 200m and 400m provoked some discussion. There was general agreement that it should be measured from the property boundary (although that would mean that some of the southernmost buildings in the proposed development were a further 100m or so from the public parking) but whether it should be measured in a straight line or whether it should take account of any impediments to straight-line walking was a matter of dispute. The evidence of Mr Brimson was that the 200m limit was based on 3 minutes walking time which translated to about 230m but subsequently 200m was adopted by traffic planners. He did not agree that this was done to take into account any deviations from a straight-line walk.

A related issue was whether the spaces to be counted were to be within the 200m limit, or whether the whole of a car-park should be counted provided one of its boundaries was within the 200m limit. These issues could not be fully resolved by the evidence before the Tribunal - they remained matters upon which the expert opinions differed.

A complicating factor was that the Trash and Treasure Markets took place on Sundays on a portion of the north-eastern car park at Jamison between about 8.00am and 1.30 pm, operating under licence from the ACT Government and had done so since 1974. According to Mr Nairn's evidence, they occupied 185 of the available car parking and a parking survey conducted by him on 18 September 2011 revealed that no vacant spaces were available within the whole of the Jamison centre between 8.00 am and 12.30 pm and that there were 79 cars parked illegally at 9.00 am. A survey conducted by Mr Brimson on Sunday, 11 September 2011, revealed a deficit of 61 spaces, comprising 48 illegally parked vehicles, 18 vehicles searching for a parking bay and 5 empty spaces - "vehicle un-parking" (Exhibit A23, page 8).

Mr Isaks contended that as this was a weekly event which occurs outside normal business hours, it should not be used to restrict development in other parts of the Group Centre. He had monitored the parking at the Trash and Treasure Markets in October 2011 and found 121 cars parked illegally. He advised that he had been discussing this issue with Parking Operations and they were considering options to deal with it, including encouraging the use of unused car parks at Canberra High School and Aranda No 2 Oval. He also suggested that tighter controls on the current illegal car parking might be contemplated.

Mr Shoobridge also took the view that the Tribunal should not take into account the parking demand created on Sunday mornings by the Trash and Treasure Markets. He observed that the Markets were established at a time when there was unused car parking at Jamison, but that it may now be desirable to consider relocating them. He observed that the JMP envisaged some development taking place on the northern car park, and if that happened it might well be necessary for the Markets to move. In the meanwhile, he considered that better policing of parking on Sundays would ease the situation and observed that people will make up their own minds as to whether to come to the Trash and Treasure Markets or to visit residents of the proposed development on Sundays.

Evidence was also given about the likely timing of parking demand by short-term visitors to the proposed development. Mr Nairn's original evidence was that there was substantial short-term "social" visiting of friends during weekdays that would conflict with peak demand for customers of the Jamison Centre and because social visits tended to be twice as long as shopping or personal business visits, they needed to be weighted by a factor of about two. An alternative view was that a significant part of the commercial short-term visitor demand would be in the evening by patrons of restaurants and bars and that the timing of visits to residents would adjust to take account of parking availability. There was little empirical Canberra data to support either view, other than a 1997 Canberra/Queanbeyan Household Interview Travel Survey which indicated that most visits to friends and relatives took place during the day, with a second smaller peak in the evening (Exhibit A17 paragraphs 24, 25 and figure 4). However, it is to be noted that only 4.21% of all trips were to visit friends and relatives.

An issue raised by Mr Nairn was that of equity, the basic principle of which he defined as "no-one should be penalized to provide gain for others". Equity is one of the objectives of the Parking Code for commercial zones at section 3.2.1. It is there defined as:

The maintenance of an adequate supply of public parking for the level of development and activity approved in the centre.

Mr Shoobridge had stated that, in his view, this objective would be achieved (except for the need to find a remedy for the overspill of parking during the Trash and Treasure Markets on Sundays) but Mr Nairn disagreed, as he contended that the existing patrons of the Jamison Centre would be forced to walk longer distances or travel to less convenient destinations due to the potential future parking shortage. Mr Shoobridge reminded the Tribunal that the former Jamison Inn was one of the original developments at Jamison and that the public car park was intended to serve the needs of all the adjacent lessees. Based on the approved plans and applying current parking requirement rates, he estimated that the Jamison Inn would have had an excess demand of about 50 spaces during the day, but as it was now derelict it was not putting any load on the public car park.

Mr Erskine, on behalf of the applicant, submitted that the proponents of this development had not demonstrated that its excess parking requirements could be met by utilising spare off-site public parking, nor had they taken into account the potential for nearby lessees to expand their activities and lay claim to a proportion of the available capacity.

In relation to the demand generated by the proposed development he submitted that the Tribunal should not adopt 5 spaces per 100m2 GFA as an "average" demand for the commercial units as there was neither a mathematical nor a logical basis for it. In his view, there was every reason to think that with 322 new apartments on the doorstep, the commercial units are likely to develop into a strip of restaurants, cafes and bars which would create a demand of spaces 10 per 100m2 GFA and that if there was to be any discount from this rate, it should only be modest.

Mr Erskine further submitted that the evidence supported the view that social trips overlapped very considerably with shopping or personal business trips. He noted that the peak demand for parking was on Thursdays, Fridays and Saturdays, after public service pay-days and it was reasonable to expect that the peak demand for commercial units parking would be at the same times. In his view, it was clear that there was insufficient parking within the southern and western car parks and that there was not always sufficient parking in the northern car park, which is intended for mixed use development. Because the latter is not zoned as a public car park, it would only be required to replace existing parking if the Land Development Agency imposed this as a condition of sale.

He observed that the JMP envisaged mixed use developments on all the car parks save the western car park and that the current Crown Lease for the Jamison Centre allowed it to effectively double in size. The potential for current lessees to expand their activities and lay claim to a proportion of the available capacity (as the Parking Code provides) was very high indeed. Why then, he asked, should the current proposal be permitted to claim virtually all the capacity in the public car parks and in doing so, make it unlikely that a future developer could develop the northern car parks as envisaged in the JMP because of the enormous amount of parking that would have to be replaced in such a development?

Mr Erskine also rejected Mr Isaks' proposition that if a parking area's boundary was within 200m of the proposed development, then the whole of that parking area should be considered as within 200m. He said this defied the whole logic of the distances in the Parking Code which are derived from convenient walking distances as Mr Brimson's evidence showed. If Mr Isaks' view was correct, then a visitor to Building G in the proposed development who had to park in the northern car park might have a walk of well over 300m.

Ms Coghlan was critical of the extent of tandem parking proposed for the development which she considered inefficient and in excess of the 50% of the total spaces provided for 2 or more bedroom units permitted under the Parking Code. In her submission, this resulted from the floor plan of the buildings being designed to incorporate two rows of residential units. She suggested that the best solution to this and other problems would be a new design that comprised only a single row of units in each building, or by removing one whole storey from some or all of the buildings, any of which would reduce the need for car spaces so that the demands of the Parking Code could be met.

Ms Coghlan was also critical of the developer's proposed on-street parking to accommodate the shortfall (in part), in particular, those proposed for Redfern Street which she said were not close to anything save buildings D to G. While regular visitors might learn to use them, they would not be congenial places to park as Redfern Street catered largely to through traffic and those leaving the Jamison Centre. She was also concerned about the joint traffic experts' suggestion that more on-street parking could be provided on Bowman and Redfern Streets immediately adjacent to the complex, as neither site was particularly safe for parallel parking on the roadside.

Ms Zachara was also concerned about the suggested additional parking on Bowman Street, particularly, on the western side opposite Building H and the two entrances to the development which, together with parking in the eastern side of the street as proposed by the traffic experts, she considered, would be too congested for such a small street. This would lead to safety problems and there would not be places to leave shopping trolleys after they had been emptied, leading to theft of the trolleys and their use in damaging property.

Dr Jarvis, on behalf of the respondent, submitted that while it was conceivable that all the commercial units would be used as club, bar or restaurant, the evidence was that this was unlikely as all of the units were 90 to 100m2 GFA other than one in building C which was 290m2 GFA and that, with this configuration, a mix of restaurant, shop and office uses was likely, possibly with a gym. It was, therefore, not appropriate to adopt the "worst case" highest commercial rate of 10 spaces per 100m2 GFA, which would be inconsistent with the flexible approach permitted by the Parking Code. In his submission,

5 spaces per 100m2 GFA would be an appropriate rate because a proportion of visitors to the commercial units would be residents of the development who would walk to these venues and, in accordance with Mr Shoobridge's evidence, this rate was consistent with the original planning of the Jamison Group Centre, which was to have 12,000m2 of commercial GFA and 640 publicly provided car spaces. He noted that the planned capacity for commercial space was yet to be reached, even with the additional 1,580m2 in the proposed development.

Dr Jarvis also rejected Mr Nairn's suggestion that it would be inequitable for existing shoppers to have to compete for parking spaces with new visitors generated by the proposed development. He submitted that the publicly-provided car parks in the Centre were provided for the benefit of all users of the centre, and that existing residents and shoppers had no prior claim to the parking spaces. He contended that if some of these short-stay users were displaced into the northern car park, they would nevertheless be well within the permitted 200m of the shopping centre.

Dr Jarvis did not support the proposal that additional on-street and off-street parking spaces should be provided at the developers' cost. He submitted that if the rate of 5 spaces per 100m2 GFA for the commercial units was used, the shortfall was only 61 spaces and, with the exception of Sunday mornings, there was sufficient parking supply in the northern car parks to accommodate some or all of that demand. In his submission, the northern car parks were within 200m of the proposed development, because Mr Isaks' evidence was that there was a long standing convention or practice in the ACT to take account of the available spare capacity as long as the "crow flies" distance between the nearest boundary of the development and the car park boundary was less than the 200m specified in the Parking Code and, in his view, weight should be given to the convention in the interests of administrative consistency. Furthermore, the Parking Code required the parking spaces to be generally within the specified distances and the use of that word has been held to imply flexibility, for example in Mainore Pty Ltd and ACT Planning and Land Authority [2010] ACAT 18.

Regarding the evidence about available parking spaces, Dr Jarvis submitted that that of Mr Isaks was to be preferred, because unlike Mr Nairn, he had included all of the car parks in his surveys. He had concluded that there were 120 to 132 unoccupied spaces within the Bowman Street parking areas during busier periods of weekdays, though Mr Isaks had conceded in his oral evidence that Mr Nairn was likely to have picked up the absolute peak demand because his surveys were done every half hour.

However, Dr Jarvis agreed that if the Tribunal was concerned about the number of spaces available in the current car parks, it could require a combination of reliance on existing spare capacity, some on-street provision additional to the 23 proposed in the DA, and some new off-site provision as suggested in the traffic experts joint report, but these would need to be at the expense of the developer.

Dr Jarvis submitted that the temporary problems caused by the Trash and Treasure Markets on Sunday mornings should not burden the proposed development, because despite their 30 year history, they were only a temporary use under licence from the ACT which owns the car parks. Mr Isaks had indicated a number of new measures that were being considered to address the problems they caused.

126. Finally, Dr Jarvis drew attention to the fact that while the basement car parking met the Parking Code's requirements for disabled parking, it did not meet the requirement for disabled residential visitor and commercial spaces on the ground floor. The Parking Code required 3% of the 159 spaces, that is, 5 spaces, to be disabled spaces, but only 2 had been provided initially and a third space had since been identified adjacent to Building H. He submitted that the Tribunal should make it a condition of approval that 2 additional disabled spaces should be provided on site.

127. Mr Philip Walker, on behalf of the developers, observed that the applicant, Amarso Pty Ltd, did not own the car park and had no right to assume a prior claim to the spaces occupied by its customers. The car park was available for the Group Centre as a whole which includes this development and was also available to the Jamison Inn. He submitted that the applicant cannot complain if its tenant's customers have to walk 200m to its entrance, only if they are required to walk excessively more than 200m and noted that Amarso appeared to have closed off one entrance when it refurbished the centre which had reduced access to the Plaza from the car parks.

1. Mr Nairn's theory of "equity" was also rejected by Mr Walker. which he argued was designed to protect the interests of the status quo. It assumed that no person who would presently park close to the Jamison Centre should be required to park any further away, irrespective of whether the car park concerned was within 200m of the Centre. In his submission, there was no basis for the application of this principle in either the Territory Plan or the Parking Code.

2. Mr Philip Walker also rejected Mr Nairn's contention that applying the "worst case" scenario to the commercial visitor parking provision was based on the respondent's precedent, because Mr Isaks' evidence was that the Authority does not apply such a worst case rule and has not done so here. Moreover, such an approach would pay no attention to the issue of parking efficiency

(Objective (c) at section 3.2.1 of the Parking Code). Mr Shoobridge and Mr Isaks agreed that the Parking Code discourages the oversupply of car parking and Mr Nairn's approach would result in an overprovision of car parks and a waste of resources. Mr Brimson was realistic enough to agree that oversupply of parking was undesirable for economic reasons and that something less than the highest rate would be acceptable. Mr Walker submitted that the Tribunal should adopt the 5 spaces per 100m2 GFA rate because people with experience consider it a reasonable number.

3. Mr Philip Walker then submitted that Mr Nairn's car park survey figures suggest that at many times there is enough car parking for all in the car park, even on his "worst case" scenario, and if a more realistic approach is taken, there is more than enough at all times. However, if the Tribunal finds that more public car parks are desirable, then there is capacity to house additional car parking in the streets.

4. He also noted that while the Trash and Treasure Market was an authorised use under licence, it was not an approved use under the Territory Plan and therefore was not required to be taken into account under Objective (e)(i) at section 3.2.1 of the Parking Code (the maintenance of an adequate supply of public parking for the level of development and activity approved in a centre). In his submission, the solution for any parking problems that arise on Sunday mornings lies with the management of the Trash and Treasure Markets and there was no evidence to suggest that alternative parking sites could not be used if properly directed.

It is evident that the Jamison Centre car parks are, on occasions, full. Nevertheless, with the exception of long-stay car parks, such as those used by office workers, any car park rarely remains "full" for very long. They are usually in a continual state of flux, with parked cars leaving and new cars arriving looking for a parking place. The timing of arrivals and departures is entirely fortuitous - sometimes a number of places will become vacant and remain so for some time, while at other times they will be filled almost instantaneously.

This brings us to the issue of what is meant by "spare" parking. Ms Coghlan asserted that, based on a Port Macquarie survey, a car park needed a 15% buffer of vacant spaces to accommodate arrivals and departures without "cruise parking", but that evidence was not tested in relation to the development under review. Whether that is so or not, the evidence here is that for much of the time on most days, there are numbers of vacant spaces among the 748 parking spaces identified by Mr Isaks, all of which are within 200m of either the Jamison Centre or the proposed development (Exhibit R8).

The AAT referred to "spare parking capacity" in Cvetanoski and Commissioner for Land and Planning [1999] ACTAAT 42 at [61] and [62] but did not consider the meaning of the term. The Australian Oxford Dictionary (2nd ed) definitions of "spare" include "not required for ordinary use' and "reserved for emergency or occasional use" and "not wanted or used by others". The Tribunal accepts that the vacant spaces may be regarded as "spare" though they will not necessarily be "spare" all of the time.

The Tribunal do not accept that it is necessary to provide for the "worst case" scenario of 10 spaces per 100m2 GFA for commercial visitor parking. We consider that it is highly improbable that all the commercial demand will occur at peak hours at the highest level, but more likely that there will be some increased demand during the lunch hour if there are a number of restaurants/cafes in the commercial units and another increase in the evening, but it will clearly depend on just what mix of businesses occupy them. It is conceivable that they may all be occupied by low demand businesses. We consider that allowing 5 spaces per 100m2 GFA is a reasonable compromise. That being the case, the surplus parking demand is 61 spaces, and even if the rate is increased to 7 per 100m2 GFA, the shortfall becomes only about 100.

While we understand the concerns of Ms Coghlan and Ms Zachara about the safety of the proposed on-street parking in Bowman Street, we accept the advice of the parking experts that up to 67 additional spaces could be provided either on-site or in extra on-street spaces (as shown in Exhibit A10) subject to them satisfying traffic engineering and road safety requirements and will make that a condition of approval, with the spaces to be provided at the cost of the developers.

If an additional 30 to 40 spaces are required, we consider that they can be found from the hundreds of car parking spaces within 200m of the boundary of the proposed development. The evidence is that this number of spaces will be available for most of the time and to that extent they are "spare". We take note of the evidence that the former Jamison Inn had an entitlement to about 50 spaces in the public car park and consider it equitable that this number of spaces should be available to the replacement development.

There may be occasions (other than Sunday mornings) when residential or commercial visitors have to seek out a vacant space by circling the car park (as Canberra motorists are used to doing) or even park further than 200m away on other occasions. We consider that this will happen only rarely at peak hours and expect that visitors will adjust their visiting hours if they find it inconvenient to do so. It is also important to recognise that the proposed development will bring some hundreds of new residents to Jamison, many, if not all of whom, may be expected to use the shops at the Centre, usually without generating any parking demand. These new patrons should compensate for any present customers who may abandon Jamison should the parking become too inconvenient for them.

The Tribunal agrees that the problems arising from the Trash and Treasure Markets on Sunday mornings should not be an impediment to approval of this proposed development. We agree that the excess parking demand arising from the weekly markets should be managed by encouraging the use of other available public parking not far away and by more effective policing to reduce illegal parking.

Finally, we accept Dr Jarvis' suggestion that an additional 2 disabled parking spaces should be provided on site so that the development complies with the Parking Code's requirements for disabled parking. This will also be a condition of approval.

1. The Tribunal notes that, in their joint report (Exhibit A10 page 3) the parking experts expressed a view that their preference was for a roundabout to be constructed at the intersection of Bowman and Redfern Streets. However, the evidence of Mr Sornalingam Jatheendran was that the Territory and Municipal Services Directorate did not consider the intersection to be unsafe (Exhibit R19 at [20]). Further, Mr Shoobridge's evidence was that in November 2010, the Jamison Plaza traders were not willing to support a roundabout at this intersection and expressed a preference for a Tee-intersection (Exhibit PJ1P at [41] and [42]).

2. The Tribunal considers that the evidence about the need for a roundabout at this intersection is inconclusive and expresses no view about the issue, other than to note that the approved plans (T1214) provide for a Tee-intersection.

PARTY JOINED 1: TOWNSEND & ASSOCIATES ARCHITECTS PTY LTD

COUNSEL APPEARING: APPLICANT: Clayton Utz Solicitors

TRIBUNAL MEMBER/S: Professor P. Spender, Presidential Member

DATE/S OF HEARING: 28 & 29 November 2011 PLACE: CANBERRA

DATE/S OF DECISION: 2 Dec 2011 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] We note that elsewhere the GCD Code uses the term 'future desired character' but attach no significance to the change in word sequence

[2] Planning and Development (Draft Variation Number 306) Consultation Notice 2011. NI2011-273, Appendix G, p.2