Hardiman v Parramatta City Council

19. If the Tribunal is against the Respondent on this submission, then it submits that any relief the Tribunal orders under s 108(2)(b) and/or (c):

(a) must be certain, measurable, ascertainable and achievable and not so vague or uncertain as to leave the Respondent guessing as to how to meet, or comply with, and order. Words like 'adequate', 'close to', 'more rigorous' and the like, as used by the Applicant in her submissions, could not properly form part of any order for relief, being too vague and uncertain as to be immeasurable, unascertainable and unachievable, and therefore unenforceable for the Respondent and would leave it exposed to contempt (of the order) and,

(b) should not put the Respondent, a publicly funded and elected statutory authority, in a position where it is ordered to, for example, make changes to public roads, pedestrian areas, public reserves and/or public parking spaces, that would:

i) circumvent public consultation processes, in which the public is provided an opportunity to give feedback to proposed changes that will impact them and others in the community, noting that in 2020 the Respondent engaged Cred Consulting to conduct an extensive public consultation about Dan Mahoney Reserve, as part of its Heart of Play Master Plan, and listened to and received a wide variety of divergent wishes, concerns and views of the public about it and its future; and/or

ii) jeopardise and/or compromise its allocated funding and budgets for public works across its extensive asserts in its LGA, being an LGA comprising of a resident population of 256,729 people (according to the 2021 Census) and spanning an area of 84 square kilometres across suburbs in Greater Western Sydney including the Hills District, and a small section of Northern Sydney to the far north east of its area; and/or

iii) limit or place restrictions on the time required for Council to prepare and complete design, refer to required committees for approval, complete consultation the process, and attend to any approved works.

1. Finally, the Council submitted that the kinds of matters where orders under s 108(2)(b) and/or (c) are appropriate to be entered involve egregious and intentional forms of contravention such as victimisation and vilification matters and then referred to Jones v Scully [2011] FCA 1066, Jones v Toben [2002] FCA 1150 and Eatock v Bolt (No 2) [2011] FCA 1180.

1. We do not accept that this is a case where we should decline to take any further action.
2. The Council on the evidence before us has not taken any step to end the discriminatory conduct which is the subject of our reasons.
3. The Applicant has been striving for change for a long period of time without any result. The measures taken by the Council to upgrade access into the Reserve have, despite complaints, not addressed the issue of accessible parking on Isabella Street.
4. As Mr Murray testified, he previously recognised the need for the Council to take action to remedy the issue of parking and access to the Reserve but the Council had failed to take his advice, or remedy the problem.

1. In considering this argument we bear in mind the following:

(1) In interpreting s 108 regard must be had to the purpose and context of the section within the ADA as a whole. The long title of the ADA is: An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons.

(2) The overriding purpose of relief under the ADA is to provide redress for injury and loss suffered.

(3) Section 108 provides the Tribunal with a broad power in circumstances where it has found unlawful conduct extending to making restraining orders or requiring positive steps to be taken to remedy the unlawful conduct.

(4) The legislation must be interpreted as beneficial in nature and the question of what amounts to "any loss or damage" must be interpreted in that context.

(5) Any orders made under s 108(2)(c) should be framed with a degree or precision to ensure that the reasonable act or course of conduct to redress any loss or damage suffered by the complainant is clearly understood.

1. The evidence of the Applicant, which we accepted, was that the absence of accessible disability parking in close proximity to access to the Reserve makes her fearful of her safety particularly when exiting a vehicle, or when she is required to cross the road.
2. That fear is directly related to her inability to enter the Reserve on the basis of what she regards as safe. It creates a level of stress and anxiety which is not endured by others without a disability.
3. The absence of accessible disability parking restricted the Applicant's ability to access the Reserve in a safe way. Although she can access the Reserve, if assisted, or if someone else drives a vehicle, her inability to do so on her own has resulted in a loss of the full enjoyment of the amenity offered by the Reserve and enjoyed by others without a disability.
4. The amenity provides the Applicant with contact and potential friendship of other dog owners which is curtailed if she cannot access other than with the assistance of others.
5. We recognise that the Applicant has continued to access the Reserve but her ability to do so has been curtailed by reason of the fear of falling in the path of traffic or crossing the road. It is not a question of whether she can access the reserve but whether she can do so safely.
6. Contrary to the submission by the Council the fear and anxiety, limitation on safe access to the Reserve and full enjoyment of the amenity offered by the Reserve is in our view "loss or damage" within the scope of s 108(2)(c): Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 at [151] - [155]; Lawson v State of New South Wales (Housing NSW) [2013] NSWADTAP 5 at [91].

1. As the Applicant has not sought an order for compensation we do not intend to make any award to that effect.

1. In our view, this is a case where an order should be made pursuant to s 108(2)(c) of the ADA to require the Council to redress at least to a degree, the unlawful conduct established.
2. As we set out in our Reasons, Mr Murray identified a parking space near the corner of Isabella Street and Waugh Avenue which is suitable for conversion to an accessible disability parking space within the requirements of the Australian Standards.
3. The precise position of the parking space is clearly marked by Mr Murray on Exhibit R5 with his initials.
4. We are of the view that the Council should be required to implement what Mr Murray said by providing that space as an accessible disability parking space. In our view, given Mr Murray's evidence that the space has both the width and appropriate gradient, and that it can be converted to an accessible parking space with very little cost, it is a reasonable act to require the Council to perform to redress the loss or damage suffered by the Applicant identified above.
5. This requirement is, in our view, certain, measurable and achievable. It is specific and not vague and will not leave the Council guessing as to what is required. The Council did not argue otherwise in respect of this specific relief identified by the Applicant in her submissions. The specifications in the Australian Standards further inform the Council as to what must be done.
6. As to the matters set out at paragraph 19(b)(i) of the Respondent's submissions set out above, Mr Murray's evidence did not identify any need for public consultation in respect of converting this space into an accessible disability parking space. This requirement is not concerned with what is to be done about the Reserve or within the Reserve itself.
7. As to paragraph 19(b)(ii) set out above it cannot, in our view, be said to jeopardise and/or compromise allocated funding and budgets for public works across the Local Government Area for which it is responsible, as the costs are likely to be very low.
8. It will be necessary to ensure that kerb side access is provided as required by the Australian Standard.
9. We will require the Council to give effect to this requirement within 3 months. In our view, such a time limit is not unreasonable to allow the Council to prepare and complete the design, and obtain any required approvals, and complete the works.
10. We do not accept the Council's submissions that the discretion available to the Tribunal under s 108(2)(b) or (c) is circumscribed or conditioned by the requirement to establish egregious conduct or intentional forms of contravention. The decisions referred to (at [15]) above are not relevant authority to the exercise of the powers under s 108 in the circumstances of this case.

1. The Applicant also seeks specific changes to access into the Reserve. Mr Murray's evidence was to the effect that providing access into the Reserve adjacent to this parking space would require work to be performed by the Council in the form of new access gates, a ramp, and potentially work inside the Reserve to permit persons entering at that corner of the Reserve to access the main area. This currently cannot be done.
2. In our view, this is work which potentially intrudes into the Council's areas of concern set out at paragraph 19(a) and (b) of its submissions set out above.
3. The evidence before us is insufficient to allow us to conclude to the requisite level of satisfaction precisely how any work of this kind will be achieved, the costs of which will not be unsubstantial, and it may well impact adversely on ongoing plans for the redevelopment of the Reserve.
4. There is too much uncertainty as to precisely how this work should, or can be achieved, in order to enable an order under s 108(2)(c) to be made with the requisite certainty.
5. We do not consider it reasonable in the circumstances to make any order in respect of additional access into the Reserve in close proximity to the identified accessible disability parking space.
6. We recognise that this leaves the Applicant with some distance to go to access the Reserve from the nominated accessible disability parking space. However, the Applicant, if using this parking space, will not be required to cross any road and will be able to exit the vehicle on the driver's side on a more level gradient and thus with less risk. The Applicant will be able to access the footpath more safely.
7. This is not the most preferred outcome but, in our view, presently goes some way to redress the identified loss or harm currently suffered by the Applicant.
8. Nonetheless, it is to be expected that Parramatta City Councillors, and Council Officers, will take seriously the findings made against the Council, and the fact that the Applicant has been discriminated against, and will promptly take reasonable steps to provide, in the very near future, access into the Reserve from the nominated accessible disability parking space as described by Mr Murray in his evidence to the Tribunal.
9. No other relief, in our view, should be granted in this case.

1. The orders which we now make will therefore be as follows:

(1) Within 3 months from the date of this decision the Respondent is to provide an accessible disability parking space on Isabella Street between Waugh Avenue and Macarthur Street adjacent to the footpath with kerb access in the position marked X on the Schedule attached to the orders.

(2) The accessible disability parking space is to comply with Australian Standard AS 2890.5, 2020 Edition.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.