City West Housing Pty Limited v Council of the City of Sydney

Effectively, the applicant made an application to the council that the parking controls, as adopted by the council on 2 November 1998, apply to the tenants of the building.

During the opening of the proceedings, Mr Wilson conceded, on behalf of the applicant, that the underlying objective and purpose of the application, made pursuant to s 96 of the Environment Planning and Assessment Act 1979 ("the EP&A Act"), is to have condition 37 deleted.

In the course of the opening it became apparent that the council is concerned that the modification of the consent by the deletion of condition 37 will have the effect of obliging it to issue parking permits to the occupants of the building. This concern is further reflected in the reasons for refusal of the application for modification, which included the likely contribution to further parking congestion in the locality and the proximity of public transport to the building.

After discussion and submissions it became evident to the Court that the deletion of condition 37 could not have such an effect, that the Court formally held that to be the case. The condition is no more than a requirement that the owner of each unit in the building give the specified advice to all tenants and occupants. The note to condition 37 appears to take the matter no further.

Christopher Hallam, a Consultant Traffic Engineer, commissioned parking surveys in Jones Street in February 2002 and compiled data from photographs taken in December 2001. His evidence is that there are substantial vacant parking spaces in Jones Street. The evidence of Mr Hallam was admitted subject to relevance. It is not within the Court's power to determine entitlement to participate in on street resident parking schemes in these proceedings. In the Court's view, it is clearly not a matter the subject of the appeal contemplated by s 39(2) of the Land and Environment Court Act 1979 ("the Court Act").

The Court does not propose, therefore, to take account of the evidence of Mr Hallam, except to the limited extent where it shows, on an attachment to his report, that at the time development consent was granted Jones Street did not have a Resident Parking Scheme ("RPS") in operation. The evidence shows that Pyrmont Precinct Area 20, in which Jones Street is situated, is now the subject of a RPS and Resident Visitor Parking Scheme. These facts are relevant to an argument which developed out of the decision by Bignold J in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236.

In a draft statement of reasons in support of a request that the proceedings be heard by a judge, the applicant informed the Court that the following questions of law were likely to arise on the hearing of the appeal:- (a) Whether condition 37 of the development consent is a valid condition which may be imposed under the terms of the Act; and

(b) Whether condition 37 is, on its true construction, a condition of consent which may be imposed to exclude [sic].

Notification of the subject development consent, in accordance with s 104A of the EP&A Act, as it then applied, was given on 10 December 1997. This effectively precludes the raising of issues questioning the validity of the condition in any proceedings.

Nevertheless it is the applicant's contention that condition 37 was not imposed for any purpose relating to any matter referred to in s 90 of the EP&A Act, as it then was, and that the imposition of the condition was "political" . Relying upon the authority of Pyx Granite Co Ltd v Ministry for Housing and Local Government [1958] 1 QB 554 at 572 and Building Owners and Managers Association of Australia Limited v Sydney City Council (1984) 53 LGRA 54 at 68, the applicant says the condition was not imposed for a planning purpose and was not fairly and reasonably related to the subject development. Accordingly, it is not such that a reasonable planning authority, duly appreciating its statutory duties under the EP&A Act, could have properly imposed.

Furthermore, as the condition expresses itself to be advisory, the applicant says there is no power either in law or as a matter of merit, to impose it in a development consent.

The council's response to the applicant's submission is that the purpose of the required notification under condition 37 is to ensure that residents do not take up occupation with the expectation that they will be able to participate in any on street parking scheme, and that, as the underlying issue is on street parking demand created by the development, it is clearly a condition related to planning.

The argument in relation to Wednesbury unreasonableness has not been fully developed by the applicant and it is difficult to see how this argument can be maintained from the evidence except that, by its inherent nature, the consent condition may be so unreasonable it should not be maintained.

Rather than the condition being described as "advisory" , Mr Ayling, on behalf of the council, asserts that it imposes a direct obligation upon the owners of each of the individual units to act in a certain way with a particular objective in mind. Accordingly, it is not inconsistent with the legislative scheme.

The council places considerable weight on the discretionary matters that fall to be considered, in the circumstances of an application for modification of a development consent, in the manner analysed and discussed by Bignold J in Progress and Securities . It is the Court's opinion that care should be taken not to transform the matters that Bignold J identified as being matters for appropriate consideration when exercising the relevant discretion into a formal finding of principle. The Court prefers to regard the decision in Progress and Securities as being an explanation of the matters that Bignold J took into account in the circumstances of that case. His Honour's reasoning and determination is nonetheless a useful guide as to the way in which the task should be approached. The Court should take into account the difference between the present legislation comprised in s 96 and the former regime considered by Bignold J. For example, the consent authority is now expressly directed to the matters that arise for consideration under s 79C, whereas the now repealed s 102 made no reference to s 90 as it then appeared in the EP&A Act.

Apart from the matters referred to in s 79C, the exercise of the discretion is uncontrolled or fettered by any overriding principle except in the context of s 96 itself. There has, in any event, been a relevant change of circumstance of the type postulated by Bignold J, not only in respect of the legislative regime but also because an on street parking scheme in Jones Street was introduced subsequent to the grant of development consent.

The Court accepts that it is able to consider whether condition 37 should be retained either on the basis of merit or principle. Notwithstanding the effect of s 104A (now s 101) of the EP&A Act, the appropriateness and efficacy of maintaining a condition of consent is an open question on the hearing of a s 96 appeal.

Mr Ayling contends that condition 37 is a reflection of the application of present policy of the council as a matter of practice. This, he says, is shown by the existence of condition 37 itself and the response made by council officers to an application by one of the residents of the building for a parking permit, namely that she was informed that any application for a permit would not be considered. On the other hand, Mr Wilson says there is nothing contained in the parking scheme itself to suggest that residents of this development are ineligible, nor is there any other document in evidence which precludes an application by them. Accordingly, he submits, there is no justification for maintaining condition 37, particularly having regard to the evidence of Mr Hallam, which confirms that there appears to be ample opportunity for residents to park in Jones Street.

Mr Wilson agrees that the terms of condition 37 do not preclude any resident from making an application for a resident parking sticker. However, that being so, he says, then condition 37 can serve no relevant purpose. According to the applicant, it is inappropriate to impose an obligation to advise individual residents they are not eligible to participate in on street resident parking schemes. The terms of the relevant parking schemes cannot be regarded as having an indefinite application. They are a reflection of current practice and policy of the council at any given time.

The Court considers it relevant that condition 37 itself does not create ineligibility for any resident to participate in a parking scheme. Any question of eligibility, if there is one, arises out of the manner of administration of the scheme as applied by council from time to time.

Although Mr Ayling concedes that condition 37 is merely a means of advising the residents about their lack of entitlement, it is nevertheless advice that is required to be given for a valid public purpose. It is, according to Mr Ayling, clearly a matter in the public interest that persons who intend to become residents of the building, and to whom parking may be an important issue, should be informed about the availability of on street parking in the area.

Having heard arguments on behalf of both parties and taking into account all of the evidence before it, the Court agrees with the applicant that condition 37 does not serve a planning purpose by requiring the owners to advise intending residents that they are not eligible to take advantage of a resident parking scheme. The Court is not satisfied that, beyond a bureaucratic decision not to entertain applications from the residents of the subject building, there is any evidence which supports the view that the condition should remain. However, in saying this, the Court is not expressing any opinion as to whether an application, if it is made, should be granted. That is a determination that lies wholly within the discretion of the council.

The Court holds that condition 37 should be deleted as although it is peripherally related to a planning purpose, it does not in fact serve such a purpose. Furthermore, it tends to perpetuate a circumstance which existed when development consent was granted, namely that Jones Street was not included in any scheme. It is Mr Hallam's evidence, which is not refuted, that Jones Street is now included within a scheme. That change alone is sufficient to justify a reconsideration of the necessity for maintaining condition 37. For example, it might be assumed, but without finding the fact, that at the time the development application was considered in 1997, the condition was imposed to make it clear that the residents of the new building were not entitled to participate in a resident parking scheme that applied in the other nearby streets.

The decision to delete condition 37 will have no direct consequence in respect of any of the matters raised for consideration pursuant to s 79C of the EP&A Act. Indeed, the deletion of condition 37 will have no effect on any aspect of the development or its impact. The only consequence is that the owners of the individual units will not be required to give the specified notification.

Even if condition 37 was justified at the time it was imposed in 1997, at the present time it is not.

The Court, therefore, proposes to uphold the appeal and determine the application for modification of the development consent by deleting condition 37.

The formal orders of the Court are as follows:- (1) The appeal is upheld.

(2) Application for modification of development consent No D/DB/97/00272 is determined by deleting condition 37 from the development consent. (3) The exhibits may be returned.

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.