Bowral Garage Development Pty Ltd v Wingecarribee Shire Council

The site and the locality

1. The site is known as 421-425 Bong Bong Street, Bowral and has a frontage of 21m to Bong Bong Street and a 66m frontage to Bowral Street. It has a total area of 1720m2. It is at the southernmost end of the Bowral business district, which runs to the north along Bong Bong Street.
2. The building occupies the front portion of the site. It is not a listed heritage item or within a heritage conservation area.
3. The development in the vicinity of the site is predominantly characterised by commercial and retail premises. Across the road from the site on Bowral Street is Lions Park, and further to the south and south east is an area predominantly characterised by single dwellings.

The planning framework

1. The site is situated within the B2 Local Centre zone, pursuant to the provisions of the Wingecarribee Local Environmental Plan 2010 ("WLEP 2010"). Commercial premises, residential flat buildings (or shop top housing) and food and drink premises are all permissible in the zone. Clause 2.3(2) requires that the Court, in exercising the functions of the consent authority, have regard to the objectives of the zone when determining a development application. The objectives of the B2 Local Centre zone are as follows: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To generally conserve and enhance the unique sense of place of business centre precincts by ensuring that new development integrates with the distinct urban scale, character, cultural heritage and landscape setting of those places. • To provide opportunities for a compatible mix of residential living above retail, commercial, recreational, cultural and community activities at street level. • To ensure that adequate provision is made for infrastructure that supports the viability of business centre precincts, including public car parking, traffic management facilities, public transport facilities, cyclist facilities, pedestrian access paths, amenities, facilities for older people and people with disabilities and general public conveniences. • To maximise the efficient use of land in business centre precincts to promote more compact and accessible places. • To ensure that new development has regard to the character and amenity of adjacent and nearby residential areas.
2. Pursuant to cl 4.3(2) of the WLEP 2010, and the Height of Buildings Map, the site is subject to a maximum height of 10m in its eastern portion, and 15m at its western portion. The proposed development breaches the height development standard for the eastern portion, as a result of the height of the lift shaft. Clause 4.6 of the WLEP 2010 allows consent to be granted notwithstanding the breach of the height development standard, subject to the provision of a written request pursuant to cl 4.6(3) and the consent authority's satisfaction of the matters in cl 4.6(4). A written request dated 28 June 2018 has been provided in support of the development application. There is a prohibition on the grant of development consent unless the consent authority is satisfied of the matters in cl 4.6(4). As such, in the event that the matters in issue between the parties are determined in favour of the applicant, the Court, in exercising the functions of the consent authority, would need to be satisfied of the matters in cl 4.6(4) as a pre-condition to the exercise of jurisdiction to grant development consent.
3. Pursuant to cl 4.4 of the WLEP 2010, the maximum floor space ratio ("FSR") that applies to the site is 1.5:1. The proposed development complies with this development standard, and has a FSR of 1.46:1.
4. The State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ("SEPP 65") also applies, and provides at cl 28(2) that: (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
5. Clause 30 of SEPP 65 provides: (1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.
6. The Apartment Design Guide ("ADG") is therefore relevant in the context of cll 28 and 30, and the relevant provision is considered in more detail below.
7. The Bowral Township Development Control Plan 2010 ("BDCP 2010") also applies to the site. Part B Section 4 of the BDCP 2010 concerns on-site car parking, and is set out below.

The issues concerning car parking

1. The Council raises a number of issues concerning car parking. The first is that the proposed development does not provide a sufficient number of car parking spaces. The shortfall in car parking space concerns the café and restaurant uses. The café use has a shortfall of 7 spaces, and the restaurant use a shortfall of 34 spaces, with the latter shortfall reduced to 19 spaces if a shared arrangement with the 15 spaces for the commercial premises can be achieved. The second issue is that the Plan of Management is inadequate to facilitate the shared use of the commercial spaces for the evening restaurant use. The third is that the parking spaces for the commercial component do not comply with the minimum design requirements for parking facilities. The fourth issue raised by the Council concerning the car parking is that there is a lack of separation or security provided for the car parking for residential occupants.
2. Expert evidence on the traffic and parking issues was given by Mr Dean Brodie, a traffic consultant engaged by Bowral Garage, and Mr Tom Steal, a traffic consultant engaged by the Council.
3. Expert evidence on the town planning matters, including whether the development should have the benefit of parking credits, was given by Mr Scott Lee, a consultant town planner engaged by Bowral Garage, and Mr Jeremy Swan, a consultant town planner engaged by the Council.

The parking requirements of the BDCP 2010

1. The requirements for on-site car parking for business zoned land are set out in Section 4 of the BDCP 2010, which contains the following introduction: "All new commercial development must make adequate provision for the off-street parking of cars associated with it, either by providing on-site parking, or by making a contribution towards the provision of public car parks. Where on-site parking is provided, the development must ensure that vehicular access to and from the site is safe and does not impede traffic flow."
2. Clause B4.2 sets out of the following objectives for Section 4: "Council's vehicular access and off-street parking controls seek to achieve the following objectives: (a) To ensure that adequate off-street parking is provided in conjunction with development in order to discourage the use of streets for the parking of vehicles associated with additional traffic generated by new developments. (b) To provide communal public car parking in appropriate areas, funded from developer contributions, where the development cannot accommodate adequate on-site parking, and/or where Council chooses to aggregate parking into a centralised location(s). (c) To ensure that car parking areas are safe and functional. (d) To ensure that car parking areas are visually attractive. (e) To ensure that vehicular access points to the site are located to minimise danger or disruption to vehicles and pedestrians on the public street system."
3. Clause B4.5 of Section 4 of Part B of the BDCP 2010 provides the controls in relation to the provision of on-site car parking for new development or redevelopment, including the requirement to provide the requisite number of car parking spaces.
4. The precise number of car parking spaces required for business zoned land is set out in Figure B4.4. For retail, office, and commercial the rates are "1 space per 30m2 of gross leaseable [sic] floor area for buildings of single storey."
5. For restaurants, the requirement is as follows: "1 space per 3 seats OR 15 spaces per 100 m² of gross floor area. NB: Council may reduce the above parking requirements where it considers that ample parking will be available in the vicinity for patrons during evening hours, without adversely affecting the amenity of the surrounding locality during the day or evening."
6. The requirement for cafes has a similar notation, but a different rate, as follows: "1 space per 30 sqm of gross leaseable floor area. Council may reduce the above parking requirements where it considers that ample parking will be available in the vicinity for patrons during evening hours, without adversely affecting the amenity of the surrounding locality during the day or evening."
7. Clause 3.16.2 in Section 3 of Part C of the BDCP 2010 concerns the rates for residential parking, which requires the provision of 1 space per 1 and 2 bedroom dwellings, and dedicated visitor parking at a rate of 1 space per 3 dwellings. The total requirement, when applied to the proposed residential apartments, is for 22 spaces. The proposed development complies with this requirement.
8. The remaining 15 spaces (after the 22 residential car spaces are deducted) are proposed to be used for the commercial uses, which results in compliance with the requirement for "1 space per 30m2 of gross leaseable [sic] floor area for buildings of single storey."
9. However, the proposed development does not provide any spaces for the proposed café and restaurant uses. It instead proposes that, during the evening period, the commercial spaces will be made available for the restaurant use.
10. As a result, this means that the requirement to provide 7 spaces for the café use (which is limited to during the day) has not been met. Similarly, the requirement to provide 34 spaces for the restaurant (limited to during the evening) has not been met, but 15 spaces are proposed to be available for the restaurant use. If this shared arrangement is acceptable, then there is a shortfall of 19 spaces for the restaurant use.
11. Clause B4.9 in Section 4 of Part B of the BDCP 2010 provides the following with respect to deficiencies in the provision of car parking: "B4.9 On Site Parking Deficiencies a) In circumstances where it is not physically possible or where, for traffic reasons or otherwise, it is impracticable to provide on-site, the total number of parking spaces required under this Plan, the applicant shall make appropriate arrangements for the provision of the car parking shortfall with Council. b) Council's preferred approach for such arrangements is through a voluntary Planning Agreement (VPA) lodged with the Development Application. Council's adopted policy in relation to Planning Agreements sets out the requirements and process. c) If there is a deficiency in the required number of car spaces, and no Planning Agreement is entered into, or alternative arrangements made, the Development Application may be refused."
12. Whilst the Council acknowledges that it cannot require a developer to offer to enter into a planning agreement, it notes that Bowral Garage has not approached the Council with respect to the parking shortfall or made any offer to enter into a planning agreement with respect to that shortfall.

The applicant's position that a parking credit should be applied

1. Bowral Garage claims a credit for the car parking requirements for the existing building located on the site. Bowral Garage says that if the credit is applied, there is no longer any shortfall in car parking for the café use and the shortfall for the restaurant use is reduced to 7.
2. In support of its claim, it relies on Clause B4.6 in Section 4 of Part B of the BDCP 2010, which concerns requirements for additions or alterations for existing buildings. Specifically, at (d), the clause provides: "B4.6 Requirements for Additions or Alterations to Existing Buildings … (d) A redevelopment is to comply with the Schedule of Car Parking Requirements in the terms of amount of car parking generated by the new proposal. Any claim for car parking credits for an existing building and / or usage will need to be substantiated by appropriate documentary evidence, ie previous development consents, with the development application for Council to assess. In circumstances where the applicant cannot demonstrate a previous requirement, the amount of car parking that is deemed to be credited shall be based upon the rates in Table B3.4 located at the end of this section of the Plan. Council may decide to accept car parking credits to offset the demand deemed to be generated for the new development proposal."
3. Bowral Garage relies on a previous consent that was granted for the site in support of its application for parking credits. That development consent was granted in 2014 (14/0546) for alterations and additions to the existing building to create a butcher shop and a restaurant/bar with onsite parking at the rear ("the 2014 consent"). In granting that consent, Bowral Garage says that a credit was given of 12 spaces for the existing floor area. It says that this is calculated on the basis of 1 space per 30m2 of gross floor area for a shop, which was the previous land use, for the area of 377m2, the area of the existing building.
4. Bowral Garage submits that the parking credits that applied to the 2014 consent ought to be replicated in the current development application. Further, it submits that it ought to get the benefit of parking credits for the parking not required to be provided by that 2014 consent. Bowral Garage makes this submission on the basis that the 2014 consent may be recommenced, works completed, and the premises used for the Butcher's shop, restaurant and small bar without requiring the provision of any additional car parking. It relies on the decision of Commissioner Nott in FHR Holdings Pty Ltd v Wingecarribee Shire Council [2005] NSWLEC 60, in which the Commissioner considered that the redevelopment of a supermarket had the benefit of parking credits in circumstances where the consent that applied to the supermarket use in the existing building did not require the provision of any car parking, and the supermarket use could be recommenced in the existing building at any point.
5. Bowral Garage also submits that the Council has considered other development applications which rely on the proposed development benefitting from a credit for previous consents, including the 2014 consent and the consent granted to a change of use at 310-318 Bong Bong Street.
6. In support of its submissions, Bowral Garage relies on the evidence of Mr Lee, who opines that existing floor space should not retrospectively be expected to provide on site parking. He considers that the 2014 consent sustains the claim for the parking credit.

The Council's position on the car parking credits

1. The Council's position is that the proposed development ought not to benefit from parking credits.
2. Firstly, the Council submits that B4.6 of Section 4 of Part B of the BDCP 2010, applies only to additions or alterations of existing buildings, and therefore B4.6(d) is not available to Bowral Garage to claim parking credits. The Council submits that the proposed development goes beyond alterations and additions, and is a redevelopment such that its character changes, the whole of the internal area is removed, the floor level is changed, the roof is removed and all is changed other than three walls. The Council submits that the proposed development is therefore a redevelopment, and the applicable provision is B4.5, to the exclusion of B4.6.
3. Secondly, the Council submits that, even if B4.6(d) does apply to the proposed development, what is required by that clause is documentary evidence that establishes that the "existing building and / or usage" has no requirement to provide car parking, and did not, in fact, provide parking on the site. The Council submits that there is no such evidence, and that the evidence is instead that the parking was provided on the site. In support of this, the Council relies on the painted sign on the front of the building that says "Parking at rear" and the historical photographs showing the driveway on Bowral Street leading from the street to an open area behind the building. The Council therefore submits that there is no evidence that there is a current and operative consent that allows the use of the floor space without the provision of car parking, and the requirements to establish that the site benefits from parking credits has therefore not been met.
4. Thirdly, the Council submits that there is no basis upon which the 2014 consent can be relied upon for establishing a parking credit. The Council says that, apart from there being a difference between the number of spaces required by the development under the BDCP 2010 and the total number provided, there is no evidence that a parking credit was applied by the Council in the grant of the consent. The Council also submits that the 2014 consent was for a development that is not comparable to the substantial redevelopment of the site that is presently proposed and did, in fact, provide 18 dedicated parking spaces to the use that was proposed in that particular development application. The Council submits that this is distinct from the proposed development, which does not provide any spaces for the proposed café and restaurant uses.
5. Fourthly, the Council submits that the present proposed development is distinguishable from the availability of parking credits in the development in FHR Holdings Pty Ltd v Wingecarribee Shire Council, in which the existing supermarket was not required by the operative consent to provide any car parking. The Council submits that this is not the case here, where the evidence is that the current building provided car parking at the rear of the site.
6. The Council also notes that, in that case, the Commissioner ultimately dismissed the appeal on the basis that: "the proposed development should clearly not make the parking situation any worse than would be the case if the previous uses were to recommence in the existing building. The presently proposed development is unacceptable because it would have a parking demand of 106 spaces, 11 more than the previous uses".
7. On the basis of this general principle that development in the Bowral town centre ought not make the parking situation worse, the Council relies on the evidence of Mr Steal and Mr Brodie that the proposed development will utilise on-street parking, therefore making the on-street parking worse.
8. Finally, the Council relies on the evidence of Mr Swan that the application of parking credits is not appropriate in circumstances where a site is being fully redeveloped, where a building has been vacant for any substantial length of time, and where the applicant has not demonstrated that the parking cannot be provided onsite.

The car parking design requirements

1. The BDCP 2010 also sets out the requirements for carpark design. This includes, at B4.10, that the "minimum design requirements for parking facilities are the Australian Standard AS 2890 series". This includes a requirement for the parking spaces to be 2.5m wide for visitors to residents, and for restaurant visitors. This means that, assuming the shared arrangement can be achieved, a total of 21 spaces must be 2.5m wide.
2. The proposed development only includes 6 spaces that are compliant with this width, with all remaining spaces 2.4m wide. Mr Steal opines that this means that the proposed development does not provide for the parking needs of visitors to the site. Mr Steal considers that the widening of the spaces could be achieved by a redesign, but that this would result in the loss of one car parking space.
3. Mr Brodie, on the other hand, points out that the adjacent aisle is 200mm in width greater than the minimum required under the AS 2890.1:2004. In those circumstances, he considers that the spaces that are 2.4m wide are "still considered a functional space for use" and can be accessed by a visitor "albeit in a greater number of vehicle movements than a single movement" (Ex 4 p 42).
4. Further, Part 4S of the ADG concerns mixed use development containing residential uses and non-residential uses. Objective 4S-2, which is required to be considered by cl 30(2)(b) of SEPP 65, is as follows: "Residential levels of the building are integrated within the development, and safety and amenity is maximised for residents".
5. That objective is following by the following design guidance: "residential car parking and communal facilities are separated or secured".
6. The carpark of the proposed development does not separate or secure the residential car parking from the remaining car parking with the basement. Mr Brodie gave evidence that if this was achieved through a roller shutter between the commercial spaces and the residential spaces, there would be an additional loss of two spaces.

The applicant's position that the design issues can be managed

1. Bowral Garage submits that, notwithstanding the marginal shortfall in the width of the parking spaces, the facilities meet the functional requirements of such a car parking space. Bowral Garage considers that, should the Court take a different view, it would be within the scope of the Court's power to impose a condition for the removal of one of the residential visitor car parking spaces to allow the widening of the additional visitor and shared spaces.
2. Further, with respect to the separation of the residential car parking from the commercial use car parking, Bowral Garage relies on the evidence of Mr Brodie that this can be appropriately done through the installation of collapsible bollards on each of the residential car parking spaces as well as the use of CCTV security cameras. Mr Folino-Gallo, counsel for Bowral Garage, relies on clause B4.7(a) of the BDCP 2010, which provides as follows: "(a) All parking spaces shall be used solely for the parking of motor vehicles for owners, staff and customers, and on no account shall such spaces be used for storage or garbage purposes."
3. In light of this, Bowral Garage submits that there is no basis for providing security for the purpose of protecting chattels, and has provided a condition of consent that requires the installation of the collapsible bollards in order to provide the security that is sought to be achieved by objective 4S-2 of the ADG.

Proposed shared use of the commercial car spaces

1. As set out above, Bowral Garage proposes that the 15 car spaces available for the commercial tenancies will be shared with the evening restaurant use. It proposes to achieve this through signage, set out in the following proposed condition: "Prior to the issue of a construction certificate, plans and details demonstrating the following shall be prepared: … (d) Appropriate signage for the designated dual use car parking spaces to achieve the following outcome: (i) the dual use spaces may only be used for the purposes of the commercial premises until 5 p.m. daily (ii) the dual use spaces may only be used for the purposes of the restaurant from 5 p.m. daily"
2. The detail around the lease arrangements is contained in the Plan of Management, as follows: "There are 15 parking spaces on the site that are used for retail car parking during the day. From 6pm onwards, restaurant customers will have access to on site car parking within the basement of the building. This parking is allocated to other commercial uses during the day and tenancy agreements with commercial lease holders would include dual use of all commercial parking spaces after 6pm for evening operation of the restaurant. The availability of this on site parking is to be made known to customers at the time of booking and by appropriate signage, website information and media channels".
3. The Council submits that the Plan of Management is not adequate to manage this shared arrangement. The Council submits that there ought to be some condition of consent that actually limits the use of those particular commercial tenancies, irrespective of whether the occupier is a unit owner or a tenant, so that they cannot use that commercial unit after 5pm on any day, and that they must remove any vehicle that they have in the carpark after that time. The Council points out that, without such a condition, a person may simply move their vehicle to the street to comply with a lease agreement, which does not resolve the issue with respect to the impact of the development on the availability of on-street parking.

The applicant relies on the availability of on-street parking

1. Bowral Garage relies on the availability of on-street parking to meet the parking demands of the café and restaurant uses, regardless of whether or not a credit is applied. It relies on the evidence of Mr Brodie, who opines that any parking generated by the café use that is not linked to a vehicle trip to surrounding developments can be catered for within the capacity of surrounding streets. He considers that the parking surveys show that "a potential overflow parking demand of the development of 10 short term parking spaces would be adequately accommodated within the public parking network without issue." Mr Brodie also considers that there is sufficient parking in the evening hours to accommodate the overflow parking demand for the restaurant use.
2. The position of the Council is instead that there is insufficient appropriate on-street parking available to support an approval of the proposed development.

Evidence on the parking demand

1. It is acknowledged by both Mr Brodie and Mr Steal that the actual parking demand may differ from the parking rates prescribed by the BDCP 2010. Mr Steal's evidence is that the rate in the BDCP 2010 implicitly allows for some on-street parking reliance, and states as follows (Ex 4 p 9): "neither the café or restaurant car parking rate provided in the DCP is likely to accommodate the total parking demand of the site if all seats are occupied and… the DCP implicitly allows for some on-street car parking reliance even if the car parking rates are met".
2. Mr Brodie and Mr Steal agree that the parking demand for the café is lower than that for a restaurant, in circumstances where the daytime operation of a café allows a degree of multi-purpose trips by patrons, such that the use of the café can be linked to a vehicle trip to other developments in the town centre.
3. Mr Brodie also opines that the rates for cafes and restaurants in the RTA Guide to Traffic Generating Developments (2002) ("RTA Guide"), which were taken from venues in metropolitan Sydney in 1981, are out of date and do not reflect the qualities of a more rural town such as Bowral. Nevertheless, Mr Brodie relies on the RTA Guide to establish that there is no distinction between a restaurant or café when calculating parking requirements. He refers to the RTA Guide parking provision rate based on a type of use within a shopping centre environment. By extracting a coefficient used in the RTA Guide for aggregated retail categories in a shopping centre, Mr Brodie calculates that a café has a parking demand of 4.5 spaces per 100m2, which results in a demand of 10 spaces for a 210m2 café and 15 spaces for the restaurant (Ex 4 pp 30-31).
4. However, Mr Steal disagrees with this, and opines that the café rates within a shopping centre are not appropriate to apply to the proposed development in circumstances where the proposal is not in a shopping centre and is at the very edge of the Bowral town centre. As such, Mr Steal considers that the café cannot rely on the same degree of mixed-use trips as a similar use within a shopping centre. Further, he opines that it would not be appropriate to apply the same parking demand to both the café and the restaurant, given that the development application and the Plan of Management make a clear distinction between the daytime use of the food and drink premises as a café and the evening use as a restaurant.
5. Mr Steal instead considers that the parking demand for the use of the food and drink premises would be close to 1 car for each 2 patrons. His evidence is as follows: "41. Whilst the application does define the number of seats in the development as 100 for the restaurant use of the site, which corresponds to a requirement for 34 spaces under the DCP when applying the 1 space per 3 seats rate, this does not reflect the likely parking demand of the site when fully utilised. It is my opinion that the parking demand of the site, being the number of cars parked associated with the development when 100 patrons and staff are on-site will be closer to 50 vehicles. 42. A demand of 50 spaces reflects a driving rate of 1 car per 2 patrons, not including staff, which is similar to the average car occupancy rate of 2.23 found in surveys of restaurants in the Sydney Metropolitan Area for the RTA in 1981. No newer data is available to my knowledge." (Ex 4 p 11).
6. Although Mr Steal did not give an estimated demand for the café use, he acknowledged that it would be greater than the required rate in the BDCP 2010 and less than the restaurant use due to multi-purpose trips (see Ex 4 p 9, quoted in part above at [60]).

Evidence on the availability of street parking

1. In support of the proposed development, parking surveys were carried out and are provided in the Traffic and Parking Assessment Report dated November 2018. Surveys were undertaken between the hours of 4pm and 8pm on both a Monday and a Saturday.
2. The survey included at total of 613 parking spaces, although the extent of the distance of these survey zones from the site was not provided. Only 137 of those spaces are within a 200m radius of the site. Unfortunately there was no data available to me that limited the surveys to that 200m radius. Nevertheless, in order to narrow down the 618 to those in the vicinity of the site, I note that 48 are on Bowral Street to the nearest intersection (zones 2 and 7 of Map 2 of the survey), 20 are on Bong Bong Street to the nearest intersection (zone 11 of Map 2) and 36 are on Moss Vale Road to the nearest intersection (zone 4 of Map 2). This is shown using the pink lines on Figure 1 below. The zones referred to by Mr Steal (beyond what I considered to be the nearest intersections) are shown in orange.
3. The surveys of those zones on a Monday (Ex B p 127) show that on-street parking is at its highest at either 4:30pm (for Bowral Street) or 4pm (for Bong Bong Street and Moss Vale Road), following which on-street parking significantly reduces. In particular:

• On Bowral Street, there are 8 spaces available at 4:30pm, increasing to 15 at 5pm, 34 at 5:30pm and progressively more thereafter to 47 spaces at 8pm.
• On Bong Bong Street, there are 7 spaces available at 4pm, increasing to 12 at 5pm and 14 at 8pm.
• On Moss Vale Road, there are 13 spaces available at 4pm, increasing to 21 at 5pm and progressively more thereafter to 35 at 8pm.

1. Therefore, from 5pm on a Monday when the restaurant commences operation, there would be 27 parking spaces available on Bowral Street and Bong Bong Street, and an additional 21 on Moss Vale Road.
2. On Mr Steal's analysis of the survey data and the appropriate zones (which he considers to be Zone 9 South, Zone 7, Zone 8, and Zone 11 west), he found there to be 34 spaces available at 5pm, increasing up to 73 at 8pm (Ex 4 p 16).
3. The surveys of those zones on a Saturday (Ex B p 129) show that there are at least 43 spaces available within Bowral Street (zones 2 and 7) from 4pm to 8pm, and that there are at least 41 spaces available within Bong Bong Street and Moss Vale Road (zones 11 and 4) from 4pm to 8pm. That means that, across those 4 zones, there are at least 84 spaces available on the two streets within the period 4pm to 8pm on a Saturday. Even if one were not to rely on the parking on Moss Vale Road, given it is outside the B2 Local Centre zone and its eastern side is a residential zone, there would be at least 48 spaces available from 4pm to 8pm on a Saturday. Similarly, Mr Steal's analysis of the survey data within the zones he considered appropriate (Zone 9 South, Zone 7, Zone 8, and Zone 11 west) was that there would be at least 44 spaces available from 4pm to 8pm on a Saturday.
4. There are no equivalent parking surveys carried out for the day period. Instead, the Council has carried out surveys (Ex 4 Annexure E). Those surveys show more limited availability of on-street parking during the day as what is shown above in the period from 4pm-8pm. For the purpose of ensuring an adequate comparison, I have assumed that the total available parking spaces is that which is contained in Figure 1 above (taken from the Traffic and Parking Assessment Report). I have then used the occupancy rates from the Council's survey (Ex 4 pp 111-112) for the equivalent zones considered above (Zones 2 and 7 are the total of rows 53, 56, 59, 61 and 63 of Ex 4 p 111, Zone 11 is the total of rows 31 and 35 of Ex 4 p 111 and Zone 4 is the total of rows 29 and 31 of Ex 4 p 112).
5. In considering the evidence in this way, the daytime on-street available parking at the peak time of 12 noon is as follows:

• On Bowral Street there are 6 spaces available.
• On Bong Bong Street there is one (1) space available.
• On Moss Vale Road there are 18 spaces available.

1. The analysis of Mr Steal is based on slightly differing zones, and he concludes that there is only 10 spaces available at 12pm within the zones he considered appropriate.
2. In addition, there is a public car park located at Wattle Lane (also referred to being on Banyette Street). However, the parking surveys show that although there is availability in the evening, the car park experiences occupancy rates of 90% or higher between 9:30am and 2pm, and is at around 100% occupancy at the peak period of 12 noon.

Future public parking provision

1. Mr Brodie also relies on the Bowral Parking, Traffic and Transport Strategy (Issue A) that was adopted by the Council on 12 December 2012, which outlines a number of future public parking facilities, including a 300 space public car park in Merrigang Street, and the expansion of the carpark at Wattle Lane. However, there is no evidence on when these will be delivered.

The Council submits that reliance on on-street parking is not appropriate

1. The Council submits that it is not appropriate for Bowral Garage to rely on on-street parking in circumstances where there is limited on-street parking available, and where it has not demonstrated that that full car parking rates required by the BDCP 2010 cannot be provided on the site.
2. The Council submits that, consistent with the findings of Commissioner Nott in FHR Holdings Pty Ltd v Wingecarribee Shire Council, the proposed development should not make the parking situation "any worse than would be the case if the previous uses were to recommence in the existing building" (at [96]). The Council relies on the agreed evidence of Mr Steal and Mr Brodie that the proposed development will make the parking situation worse. Where this is in a context in which there is limited available on-street parking, the Council submits that this is not acceptable.
3. The Council relies on the evidence of Mr Steal, who opines that, based on the parking surveys within the zones he considers appropriate, there is insufficient on-street parking to cater for the proposed use as a café during the day. In support of this data, he also relies on his observations at 12:30pm on Wednesday 16 September that "very few car spaces were available" in the zones he considered appropriate, and that this occurred during the period in which COVID-19 restrictions limited the capacity of retail stores, cafes and restaurants.
4. Mr Steal also considers that, based on the older demographic of residents of Bowral and the traffic volumes at the Bong Bong St/Bowral St roundabout, some of the other zones considered in the parking surveys relied upon by Bowral Garage do not provide a safe pedestrian path of travel for the majority of café and restaurant patrons.
5. Further, Mr Steal opines that if the proposed restaurant is approved, the parking overflow required to accommodate the parking demand would cause 45% of the on-street car parking capacity to be utilised by patrons of the restaurant. In his opinion, it is unreasonable for a single site to occupy 45% of the on-street car parking capacity.
6. In particular, the Council submits that the objective of the BDCP 2010 car parking provisions is for the redevelopment to provide its own parking on its own site at the rate that the BDCP 2010 requires, which doesn't necessarily correspond with the demand of the development itself. In light of the fact that the proposed development does not provide any car parking for the café use and the restaurant parking is inadequate (in terms of size of the spaces, the shared arrangement, and the number of spaces), and does not demonstrate that it cannot be so provided, it is not appropriate for it to rely on the on-street parking to meet the parking demand of those uses.

The proposed basement carpark is not adequate or satisfactory

1. I am not persuaded that the proposed development benefits from a parking credit, and I consider that the proposed development ought to be refused on two grounds. The first is that there is insufficient car parking provided to cater for the proposed use as a café during the day, and it is not appropriate to rely on on-street parking given its limited availability and in circumstances where it is discouraged by the BDCP 2010. The second is that the design of the car parking within the basement is not satisfactory. The reasons for reaching these conclusions are set out below.

No parking credits ought to apply

1. I accept that the terms of B4.6(d) of Section 4 of Part B of the BDCP 2010 refer to redevelopment, so I will proceed on the assumption that it applies to the proposed development. I proceed on this basis notwithstanding that it appears that the inclusion of (d) within B4.6 under the heading for alterations and additions reflects an intention by the Council for it to apply to alterations and additions, and not to redevelopments that fall within B4.5.
2. Nevertheless, the use of the word "may" in the final sentence of B4.6(d) confers a discretion on the Council as to whether to apply parking credits. On the appeal, the Court has all of the functions and discretions of the consent authority, including the discretion concerning parking credits. Pursuant to the clause, the credits must relate to "an existing building and/or usage" and must be supported by documentary evidence.
3. Parking credits are based on the premise that there is a current use for which the parking that is not provided by the development is being catered for on-street, and that it is reasonable that this be continued such that the only parking to be provided is any "new" demand (see FHR Holdings Pty Ltd v Wingecarribee Shire Council at [49] and The Lebanese Moslem Association v Fairfield City Council [2015] NSWLEC 1570 at [37]). The purpose of affording a credit is to acknowledge that there is already an existing reliance on on-street parking to meet an existing parking demand, which will continue with the proposed development. However, for the following reasons, this premise is not met in the circumstances of the proposed development and there is no basis upon which it is appropriate to afford parking credits.
4. There is, firstly, no current use of the site. The above described premise for parking credits is not met by any existing building or usage. Accordingly, it is not appropriate to afford any parking credits for the building on the site. In that respect, I accept the evidence of Mr Swan that, where a building has been left vacant, it effectively removes the justification that the parking demand is currently being catered for on-street.
5. Secondly, there is no evidence that has been furnished by Bowral Garage to establish that the current building on the site was not required to, and did not, provide on-site car parking, such that it would be reasonable to give a credit for the parking demand that would be generated if the use of that building were to recommence. Instead, the evidence is to the contrary. The sign that remains on the building for "parking at rear", together with the historical aerial photograph showing that the driveway provides access to the rear of the site, is evidence that parking for the use of the current building was provided onsite. As such, even if the use of the existing building were to recommence, there is no evidence that there is a reliance on on-street parking that would justify parking credits.
6. Thirdly, the 2014 consent cannot be relied upon for the purpose of obtaining parking credits. There is no evidence that there is any use of the site in accordance with the 2014 consent, such as to constitute a current use of the site for which the parking that is not provided is currently being catered for on-street.
7. I do not accept the submission made on behalf of Bowral Garage that the 2014 consent can be "recommenced" in the same way as the supermarket the subject of the decision in FHR Holdings Pty Ltd v Wingecarribee Shire Council. To the contrary, for a use to commence in accordance with the 2014 consent (assuming the 2014 consent has not lapsed pursuant to s 4.53 of the EPA Act), a construction certificate would need to be issued, the work would need to be undertaken, and an occupation certificate issued. The decision concerning the parking credits in FHR Holdings Pty Ltd v Wingecarribee Shire Council is therefore readily distinguishable from the present circumstances, and the 2014 consent does not give Bowral Garage a general entitlement to parking credits.
8. Fourthly, the grant of the 2014 consent cannot be relied upon as a precedent that it is appropriate to apply parking credits to the site. There is no evidence that, in granting the 2014 consent, the Council afforded parking credits. Instead, what is clear is that there is some parking provided for the new use, but the full rate under the BDCP 2010 was not provided. I accept the submission made on behalf of the Council that there is no evidence of how the ultimate calculation of 18 spaces that was provided for that development was actually arrived at, or what credit, if anything, it allowed or how it calculated the particular number of spaces required for that development.
9. Finally, in addition to the site not having a basis to found any parking credits, I accept that the proposed development is a redevelopment of the site with extensive demolition and excavation. In that context, there is capacity to provide the full car parking requirements under the BDCP 2010, which is supported by the agreed evidence of Mr Steal and Mr Brodie that an additional basement floor of parking could be accommodated within the site (although I note that this is but one way that the BDCP 2010 parking requirements could be met). There is no evidence before the Court (beyond a mere assertion) that it is not physically possible or feasible to provide parking at the rates required by the BDCP 2010. As such, even if there was a proper foundation for parking credits, it is not reasonable for that credit to be afforded to Bowral Garage in circumstances where there is capacity within the scope of the redevelopment to accommodate the total number of parking spaces required.
10. For those reasons, no parking credits ought to be afforded to the proposed development.

Inadequate car parking for the café use

1. Without the benefit of car parking credits, the full number of car parking spaces must be provided, and B4.5(a) of the BDCP 2010 requires that the number of car parking spaces to be provided on the site is that which meets the requirements for the development. This is reinforced by B4.6(d), which states that the redevelopment must "comply with the Schedule of Car Parking Requirements in the terms of amount of car parking generated by the new proposal."
2. Whilst the proposed development provides the requisite spaces for the residential and commercial uses, and a limited number in the evening for the restaurant through the shared arrangement, there are no parking spaces provided for the café use.
3. Where a development control plan sets standards with respect to an aspect of the development, including the number of car parking spaces to be provided for a particular use, s 4.15(3A)(b) of the EPA Act requires that the Court, in exercising the functions of the consent authority, "be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development."
4. The objects of those standards are set out at [20] and [21] above, and include the object to "ensure that adequate off-street parking is provided in conjunction with development in order to discourage the use of streets for the parking of vehicles associated with additional traffic generated by new developments."
5. Bowral Garage relies on the availability of on-street parking to meet the demand for the café use. However, there is no satisfactory evidence of what that parking demand is. I do not accept Mr Brodie's evidence that the demand can be ascertained from the demand generated by a café in a shopping centre. I accept Mr Steal's evidence that the proposed café can be distinguished by its location from a café in a shopping centre, as the proposed development is on the edge of the local centre and is not within a shopping centre. Based on Mr Steal's evidence, I consider that the parking demand would be between 7 spaces (the rate under the BDCP 2010) and 28 spaces (if the vehicle occupancy rate for patrons is 2). At the peak time of 12noon, when the café would be in operation, there are 25 spaces available in the areas I confined the survey data to, or 10 spaces available in the areas that Mr Steal has confined the survey data to. I cannot be satisfied that these vacancy rates are sufficient to meet the parking demand of the café. Even if the vacancy rates within those areas were sufficient, the café use during the day would take up a significant portion of available on-street parking in the vicinity of the site, on a daily basis, including on residential streets. This is clearly contrary to the object of Sections B4.5 and B4.6 of the BDCP 2010 to "discourage the use of streets for the parking of vehicles associated with additional traffic generated by new developments".
6. Additionally, as set out above at [30], B4.9(a) requires that: "In circumstances where it is not physically possible or where, for traffic reasons or otherwise, it is impracticable to provide on-site, the total number of parking spaces required under this Plan, the applicant shall make appropriate arrangements for the provision of the car parking shortfall with Council."
7. Bowral Garage has not furnished any evidence to establish that it is not physically possible, or that it is impracticable, to provide the total number of parking spaces required by the café in addition to what is already provided. Whilst the plans for the basement demonstrate that there is no excavation below the building that is to be retained, there is no evidence that such excavation cannot occur and that it is not physically possible to provide additional parking. Further, no "appropriate arrangements" through an offer to enter into a Voluntary Planning Agreement, or otherwise, have been made with the Council with respect to car parking for the café use. This also means that the proposed development does not meet the object in B4.2(b) to "provide communal public car parking in appropriate areas, funded from developer contributions, where the development cannot accommodate adequate on-site parking".
8. As a result, the failure to provide the car parking for the café use is contrary to the controls and objects of the BDCP 2010 concerning off-street parking. This will cause an unreasonable impact on the on-street parking within the vicinity of the site, in clear contravention of the objectives in the BDCP 2010 to avoid such an impact, and the proposed development should be refused on that basis.
9. I note that, in reaching this conclusion, I have not considered the acceptability or otherwise of the shortfall in parking for the evening restaurant use. There is some onsite capacity for the restaurant use through the shared spaces, there is a greater on-street capacity in the evening periods based on the parking surveys, and the BDCP 2010 clearly contemplates the evening use of on-street parking where it is available. Therefore, the conclusions I make with respect to the failure to provide onsite parking for the café use cannot be inferred to apply to the shortfall in the onsite parking provided for the evening restaurant use. However, there is no utility in considering the adequacy of the onsite car parking for the evening restaurant use in circumstances where I have determined that the proposed development should be refused on the basis of the inadequate parking for the daytime café use.

The design of the car parking is not appropriate

1. I also consider that the design of the basement car parking is not appropriate and warrants refusal of the proposed development in the circumstances.
2. Firstly, I accept the evidence of Mr Steal that the additional width of the spaces should be applied to the spaces to be used for the residential visitors and the restaurant use in the evening. Whilst the additional aisle width will assist with manoeuvrability for the narrower spaces, the evidence of Mr Brodie remains that this will require additional movements to access the car spaces. Given the transient nature of visitors and restaurant patrons, it is appropriate that manoeuvrability in accordance with the standards is achieved.
3. Secondly, I accept the Council's position that the bollards and the CCTV camera system are insufficient to provide the separation and security that is contained within the design guidance in the ADG for mixed use developments. Given the transient nature of restaurant patrons who will utilise the shared car parking spaces in the evening, something more than bollards and CCTV are required. I accept the evidence of Mr Steal that typical separation is by a roller gate and floor to ceiling barrier, and that without such separation there is an increased likelihood of the stealing of other vehicles stored in the basement in car spaces (such as bicycles or scooters), and of the theft of motor vehicles or the contents of motor vehicles. In failing to provide such a barrier, the proposed development does not achieve the design objective that "safety and amenity is maximised for residents".
4. Each of these design problems with the basement can be readily resolved through the imposition of conditions of consent requiring changes to the plan for the basement. Mr Brodie and Mr Steal agree that such changes can be achieved, but will require the loss of one car parking space to increase the width of the spaces, and the loss of two car parking spaces to provide the roller door to separate the residential parking. This will result in a total loss of 3 car parking spaces, which is not appropriate in circumstances where it will increase the shortfall in the parking provided by the proposed development. Given that there is already a shortfall in parking from the café and restaurant uses, it would not be appropriate to create a further shortfall that relates to the other uses.

Outcome of the appeal

1. For the above reasons, the absence of parking for the proposed use as a café during the day will cause an unreasonable impact on the limited available on-street parking and is in direct contravention of the objects of the BDCP 2010 to discourage on-street parking. Further, the design of the basement carpark is inadequate and requires modification, which will create further issues with the shortfall in car parking provided by the proposed development. In the absence of evidence that it is not physically possible to provide the total parking required (in accordance with B4.9 of the BDCP 2010) and without any other alternate arrangement for the provision of the car parking shortfall, the proposed development should be refused on the basis of its failure to provide adequate car parking or appropriate carparking design.
2. The Court orders that: 1. The appeal is dismissed. 2. The development application (DA 18/0643) for alterations and additions to the existing building and the construction of a 4-storey mixed use development with basement carparking at 421-425 Bong Bong Street, Bowral, is refused. 3. The exhibits are returned, except for Exhibits B and 4.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2021