Caversham Property Pty Ltd v The Hills Shire Council

Land and Environment Court (NSW)|2012-04-03

Mr M Fraser, barrister (Respondent) Gadens Lawyers (Applicant)

The Hills Shire Council (Respondent) File Number(s): 11195 of 2011

Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal of The Hills Shire Council (the council) of an application to further modify condition 5 of Development Consent No. 30/2008/HA which was granted by the council on 25 October 2007 for the erection of a private hospital, associated medical suites and car parking for 690 vehicles at Norbrik Drive, Bella Vista (the site). The hospital is located within the Norwest Business Park

Background 2Condition 5 of Development Consent No. 30/2008/HA states: 5. Pay Parking Pay parking is permitted within the basement parking area. A final car parking management plan is to be submitted to and approved by Council prior to the issue of the Occupation Certificate for the hospital building. The management plan is to include a pricing strategy to manage the availability of car parking areas. The pricing strategy must allow a minimum two (2) hour free car parking period for visitors and patients, and must allow free parking for staff. 3On 23 November 2007 an application to modify condition 5 of Development Consent No. 30/2008/HA was lodged and read as follows: 5. Pay parking Pay parking is permitted within the development as proposed in the development application subject to the provision of at least 16 free short term parking spaces at the entrance to the hospital and medical centre. A final car parking management plan is to be submitted to the Council prior to the issue of the Occupancy Certificate for the hospital building. The management plan is to include a strategy to manage the availability of car parking areas for all users. Not later than 12 months from the date of the Occupancy Certificate, a car parking study must be conducted and submitted to Council by a qualified traffic engineer to assess the impact of paid car parking on the surrounding streets and developments. Should this study conclude that a 1 hour free parking period will substantially mitigate the problems (if there are any) with on street parking, the car parking management plan must be modified to provide for a 1 hour free parking period. 4As proposed in the development application, a pay parking system was outlined, subject to the following rates/fees: 0-1/2 hour - $1.00, 1/2 -1 hour - $4.00, 2 hours - $6.00, 3 hours - $8.00, and 3 or more hours - $11.00. 5On 26 February 2008 the council refused the application to modify development consent and on 21 April 2008 an appeal was filed in the Land and Environment Court of NSW (Land and Environment Court Proceedings No. 10402 of 2008). 6On 28 August 2008, the Land and Environment Court upheld the appeal (Health Projects International Party Limited v Baulkham Hills Shire Council [2008] NSWLEC 1477), modifying the terms of condition 5 to read as follows 5. Pay Parking (a) Pay parking is permitted within the lower level (basement) car park area and the ground floor car park area as provided in paragraphs 5(c) to 5(h) inclusive below. (b) As marked on the approved ground floor plan NWP-P-G-AL T-issue 16, the ground floor car park area is to make available: (i) sixteen short-term car park spaces near the entrance of the medical centre and hospital, providing free parking for up to 30 minutes; and (ii) a dedicated drop-off and pick-up lane for patients, visitors and staff at the entrance of the medical centre and hospital limited to a 10 minute period. (c) A final car parking management plan is to be submitted to Council prior to the issue of the Occupation Certificate for the hospital building. The management plan is to include: (i) a direction to all health care providers to advise patients making bookings that on-site parking is available on a pay-for-parking basis (and the scale of fees for such parking); and (ii) a pricing strategy for the lower level (basement) and ground floor car park areas, providing: A. patient and visitor parking fees not to exceed the following rates (which may be adjusted by the operator each anniversary of the issuing of the Occupation Certificate for the premises at a rate no greater than the increase in the Consumer Price Index since the last adjustment to the parking fee): Period Fee 0-1/2 hour $1 1/2 -1 hour $2 1 - 11/2 hours $3 11/2 -2 hours $4 2-3 hours $8 3 or more hours $11

B. discounted parking fees for visitors of the hospital and medical centre who require and request parking for 5 or more consecutive days, or for patients of the hospital and medical centre who require and request parking for multiple days; C. a fee for staff of the hospital and medical centre not to exceed a rate of $3 per day (which may be adjusted by the operator each anniversary of the issuing of the Occupation Certificate for the premises at a rate no greater than the increase in the Consumer Price Index since the last adjustment to the parking fee). (d) The fees for patient and visitor parking for the period up to 2 hours as provided in paragraph 5(c)(ii) above shall be permitted for five (5) years from the date of issue of the Occupation Certificate for the premises and/or the commencement of the use of the hospital, whichever is the later. (e) Prior to the fifth anniversary of the issue of the Occupation Certificate, the person with the benefit of the consent in relation to the car parking must submit to the Council a car parking study prepared by a suitably qualified traffic and parking consultant (Car parking Study). The Car parking Study is to include: (i) a car parking survey undertaken following the fourth anniversary of the issue of the Occupation Certificate; and (ii) an assessment, based on the results of the car parking survey, in relation to whether there are unacceptable impacts directly caused by the provision of pay parking for patients and visitors in respect of the period up to 2 hours, in the form of spill over parking onto Norbrik Drive, Circa Bid, or Entertainment Lane, or onto business premises fronting those streets. (f) The fees for patient and visitor parking for the period up to 2 hours as provided in paragraph 5(c)(ii) above shall be permitted after five (5) years from the date of issue of the Occupation Certificate for the premises and/or the commencement of the use of the hospital, whichever is the later, unless: (i) the Council is reasonably satisfied, based on the assessment of the Car parking Study, that there are unacceptable impacts as described in paragraph 5(e) (ii) above; and (ii) the Council provides written notice to the person with the benefit of the consent in relation to the car parking, specifying: A. the unacceptable impact(s) based on the assessment of the Car parking Study; and B. that no fees are to be charged for visitors and patients for the period up to 2 hours, after the date being five (5) years from the date of issue of the Occupation Certificate for the premises and/or the commencement of the use of the hospital, whichever is the later. (g) Notwithstanding paragraph 5(f) above, the fees for patient and visitor parking for the period up to 2 hours as provided in paragraph 5(c) (ii) above shall be permitted after five (5) years from the date of issue of the Occupation Certificate for the premises and/or the commencement of the use of the hospital, whichever is the later, if: (i) a new development consent is obtained for the continued operation of pay parking for patients and visitors for the period up to 2 hours; or (ii) this development consent is modified to permit for the continued operation of pay parking for patients and visitors for the period up to 2 hours. (h) Nothing in paragraphs 5(d) to 5(g) inclusive above affects the continued operation of pay parking for patients and visitors with respect to the period of two hours or more, or the continued operation of pay parking for staff. 7On 28 October 2011, a further application to modify condition 5 was lodged with the council to read as follows: 5. Pay Parking (a) Pay parking is permitted within the lower level (basement) car park area and the ground floor car park area. (b) As marked on the approved ground floor plan NWP-P-G-AL T-issue 16, the ground floor car park area is to make available: (i) sixteen short-term car park spaces near the entrance of the medical centre and hospital, providing free parking for up to 30 minutes: and (ii) a dedicated drop-off and pick-up lane for patients, visitors and staff at the entrance of the medical centre and hospital limited to a 10 minute period. (c) A final car parking management plan is to be submitted to Council prior to the operation of this amendment. The management plan is to include: (i) a direction to all health care providers to advise patients making bookings that on-site parking is available on a pay for-parking basis (and the scale of fees for such parking); and (ii) discounted parking fees for visitors of the hospital and medical centre who require and request parking for 5 or more consecutive days, or for patients of the hospital and medical centre who require and request parking for multiple days; (iii) a fee for staff of the hospital and medical centre not to exceed a rate of $3 per day (which may be adjusted by the operator each anniversary of the issuing of the Occupation Certificate for the premises at a rate no greater than the increase in the Consumer Price Index since the last adjustment to the parking fee). 8The council refused the modification application on 12 March 2012.

Relevant planning controls 9The site is within the Employment Area 10(a) Business Park under Baulkham Hills Local Environmental Plan 2005. The development is subject to the requirements of Baulkham Hills Development Control Plan (the DCP), relevantly. Part D, Section C Parking (Parking DCP), where par 2.1.1(b) provides: All car parking spaces must be provided on-site. 10Baulkham Hills Development Control Plan Part E Section 14 Norwest Business Park (Norwest DCP) also applies and par 2.4.11(i) provides the following objective: To ensure that all car parking demands generated by the development are accommodated on the development site.

The contentions 11The council raised the following contentions:

the proposed modification will have an unacceptable spill over impact on surrounding streets and other existing developments in the locality,
the proposed modification is contrary to the development controls of the DCP,
the proposed modification will result in car parking demands generated by the development being accommodated on existing roads,
it is unreasonable to burden the council with the financial consequence of having to introduce kerbside parking restrictions (and the regulation/monitoring of such kerbside parking restrictions) within and around surrounding streets so as to ensure all car parking demands generated by the development are in fact accommodated on-site, and
the proposed modification will act as an unreasonable economic burden and disincentive to visiting patients of the development. 12The amendment proposed by the applicant to condition 5 raises matters relating to firstly, the removal of the pricing strategy (condition 5(c)(ii)) and secondly, the removal of the five-year trial period and car parking study to determine whether ultimately no fee should be charged for visitors and patients for the first two hours (condition 5(d) to (g)). While the evidence provided by the council addresses parts of the issues raised by the deletion of these two matters from condition 5, the consequences were not fully addressed by expert evidence although they were addressed by Mr Fraser in his submissions.

The evidence 13The council provided expert evidence from Mr Michael Doyle, a traffic engineer. The applicant provided expert evidence from Mr Craig McLaren, a traffic engineer, Mr Andrew Darroch, a town planner and Ms Jackie Ohlin, a social planner although Mr Darroch and Ms Ohlin were not required for cross examination.

The pricing strategy 14The concept of paid parking for the hospital was not an issue. The council, through condition 5, accepted that paid parking was appropriate although the pricing strategy allowed for a minimum 2 hour free car parking period for visitors and patients, and free parking for staff. Payment for other parking was subject to the car parking management plan required by the condition. 15The amendment by the Court provided for paid parking for all visitors, patients and staff in accordance with conditions 5(c)A and 5(c)C respectively, subject to a 5-year trial period and the provision of a car parking study at the completion of this trial period. A table of fees was included in condition 5(c)(ii)A. Whether fees could be charged for the two-hour parking period would be subject to the findings of the car parking study. 16In the applicants proposed condition 5, the table of fees is to be removed. Mr Galasso SC, for the applicant, submitted that the inclusion of a table of fees is unnecessary as the appropriate fee will be driven by "market forces". Mr Fraser however submits that the table of fees in condition 5(c)A should be maintained. He refers to the objectives in par 2.1.1(b) of the DCP and par 2.4.11(i) in the Norwest DCP. Mr Fraser also submits that the appropriate principle is set out in Westfield Limited v Sutherland Shire Council [2011] NSWLEC 1333 at [80] were it states: ... visitor and staff parking required by the DCP should be available for those people who wish to use it and any fee should not act as a deterrent to its use. Therefore to meet the objectives for parking under the DCP any fee regime should ensure reasonable access to the parking required to meet the demands of the development. Any fee regime should also meet the reasonable objectives of Westfield for the improved operation and management of the centre. 17In general terms, I agree with the submission of Mr Fraser. I do not accept that it is reasonable or appropriate to abandon a table of fees, for to do so would give the applicant total control over fees. This would effectively deny the opportunity for the council to properly consider the relevant and necessary objectives identified by Mr Fraser. In the absence of any table of fees, the important question of whether fees would act as a deterrent to people using the car park cannot be properly addressed. While Mr Galasso may be correct that "market forces" will determine the appropriate fee structure, I do not accept that this approach should be given preference over the more structured approach of providing a table of fees, so that the council can properly address its planning obligations. 18On the question of the appropriate fee structure, Mr McLaren conducted a survey that measured car parking numbers for the fee structure contained within condition 5(c)(ii)A against a 5-day trial period where the fee structure was increased to the following: Period Fee 0-1/2 hour $2 1/2 -1 hour $4 1 - 11/2 hours $6 11/2 -2 hours $6 2-3 hours $9 3 or more hours $12

19The trial period fee structure also included overnight parking ($14) and a lost ticket fee ($12). 20The findings of the comparative parking survey indicate that no increase in off-site car parking occurred as a result of the increase in car parking fees at the hospital. 21On the basis of these survey results, and the modest increase in parking fees, I accept that these fees are appropriate and are unlikely to act as a deterrent to people using the car park. The unchallenged evidence of Ms Ohlin was that most large Sydney hospitals have car parks which operate under control parking conditions and that there is likely to be a general social expectation, amongst users of hospital facilities, that a form of paid parking will operate. In this case, Ms Ohlin concludes that there will be no unreasonable economic burden or social impacts given the demographic groups identified as most likely to be attending the hospital. 22In accepting that a fee schedule is appropriate, the appropriate adjustment over time should be the Consumer Price Index (CPI), although I accept that the opportunity should be provided for the applicant to seek amendments to the fee structure, beyond the CPI, if any further increases can be justified by way of a traffic study and the approval of the council. 23I note that the $3 all day parking (with adjustments) is unchanged from the fee in condition 5(c)(ii)A.

The 5-year trial period/ on street parking 24The imposition of the 5-year trial period was based on the potential impact of overspill parking within the Norwest Business Park, as it was largely undeveloped at the time of 2008 hearing. The undisputed evidence was that little development had taken place since 2008 around the site, with the exception of the Q Central Building located at 10 Norbrik Drive. 25The issue of on street parking was addressed by Mr McLaren and Mr Doyle. They agreed that on-street car parking within a 400 m radius of the hospital is fully utilised between 8 a.m. and 7:30 p.m. on weekdays and at the same time, the off street car parking within the hospital is at least 50% utilised. 26Mr McLaren, in his oral evidence, indicated that surveys of the existing use of on street car parking with four staff over 16 hours resulted in observations that the on street car parking around the hospital was used predominantly by hospital staff, with some visitor usage. The identification of hospital staff was made through uniforms and identification badges. I did not understand Mr Doyle to seriously challenge these observations, and he helpfully conceded that it was likely that at 9 am., the on street car parking would be exclusively used by staff. He did indicate that he had obtained on street parking during personal visits to the hospital and that later in the day street parking is likely to a mix of staff and visitor car parking. 27In considering the evidence of the traffic experts, I am satisfied that the issue of on street parking by visitors and staff is not a matter that support the council's concerns over the modification application for the following reasons. First, the traffic experts agree that the parking of vehicles on the street surrounding the hospital creates no unacceptable impacts. Second, there are no legal restrictions to prohibit or restrict vehicles parking on the streets around the hospital. Third, the council has the power to restrict parking on the streets around the hospital by way of time limits and while there are no other street within the Norwest business Park that have such restrictions, there is no barrier to the council providing these restrictions. Fourth, the use of streets around the hospital for parking is not necessarily a function of the cost associated with the hospital car park but also convenience, as witnessed by the high utilisation by hospital staff. Fifth, there is no power to force staff for visitors to use the hospital car park given the unrestricted parking available in streets adjoining the hospital. Sixth, the unchallenged evidence of Ms Ohlin was that there will be no unreasonable economic burden or social impacts of the car parking fees for persons likely to be attending the hospital. Seventh, and as agreed by the traffic experts, any future development around the hospital site will be required to provide parking in accordance with the DCP requirements and that if future employees and visitors choose to park on the street, then there will be competition for the available car parking spaces and which may ultimately force staff and visitors to use the hospital car park. 28For these reasons, and the ongoing uncertainty over the development of adjoining properties, the time since the 2008 modification approval and the imposition of a fee schedule, I see little utility in maintaining the need for the 5- year trial period.

Orders 29The orders of the Court are:

The appeal is upheld, in part.
Condition 5 of Development Consent No. 30/2008/HA (as amended) for the erection of a private hospital, associated medical suites and car parking at Norbrik Drive Bella Vista is deleted and replaced with the following condition:
Pay Parking (a) Pay parking is permitted within the lower level (basement) car park area and the ground floor car park area. (b) As marked on the approved ground floor plan NWP-P-G-AL T-issue 16, the ground floor car park area is to make available: (i) sixteen short-term car park spaces near the entrance of the medical centre and hospital, providing free parking for up to 30 minutes: and (ii) a dedicated drop-off and pick-up lane for patients, visitors and staff at the entrance of the medical centre and hospital limited to a 10 minute period. (c) A final car parking management plan is to be submitted to Council prior to the operation of this amendment. The management plan is to include: (i) a direction to all health care providers to advise patients making bookings that on-site parking is available on a pay for-parking basis (and the scale of fees for such parking); and (ii) discounted parking fees for visitors of the hospital and medical centre who require and request parking for 5 or more consecutive days, or for patients of the hospital and medical centre who require and request parking for multiple days; (iii) a fee for staff of the hospital and medical centre not to exceed a rate of $3 per day (which may be adjusted by the operator each anniversary of the issuing of the Occupation Certificate for the premises at a rate no greater than the increase in the Consumer Price Index since the last adjustment to the parking fee). (iii) a pricing strategy for the lower level (basement) and ground floor car park areas, providing: A. patient and visitor parking fees not to exceed the following rates (which may be adjusted by the operator each anniversary of the issuing of the Occupation Certificate for the premises at a rate no greater than the increase in the Consumer Price Index since the last adjustment to the parking fee): Period Fee 0-1/2 hour $2 1/2 -1 hour $4 1 - 11/2 hours $6 11/2 -2 hours $6 2-3 hours $9 3 or more hours $12 Overnight-($1.10 + fee) $14 Lost ticket $12

(iv) The fees for patient and visitor parking provided in condition 5(c)(iii) may be amended following the submission of a traffic report that substantiates any increased fee and is approved by the council. 3. The exhibits are returned with the exception of exhibits 5, A and E. G T Brown Acting Senior Commissioner 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: 04 April 2012

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