Health Projects International Party Limited v Baulkham Hills Shire Council

Zhang v Canterbury City Council (2001) 115 LGERA 373 CASES CITED: Randall Pty Limited v Willoughby City Council [2004] NSWLEC 295 Randall Pty Ltd v Willoughby City Council 92005) 144 LGERA 119; [2005] NSWCA 205

APPLICANT Mr A Galasso SC INSTRUCTED BY Corrs Chambers Westgarth LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser, barrister INSTRUCTED BY Baulkham Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10402 of 2008 Health Projects International Party Limited v Baulkham Hills Shire Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court's decision in this appeal is the modification of the conditions of a development consent. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: The Baulkham Hills Development Control Plan, in Part E, deals with specific controls for the North West Business Park and describes that business park as being a 377 ha employment, commercial, business and residential development area located in Baulkham Hills. The business and commercial elements of that fall into two separate geographic parts.

2 The site, which is the subject of the appeal, is located in the south-eastern quadrant of that development area. This appeal relates to the parking regime that should apply to a private hospital complex being developed by Health Projects International Party Limited. In November 2007, the company was given an approval for a private hospital and medical suites comprising a substantial private hospital and an almost as substantial medical centre, significant parking at ground level and a large basement level car park.

3 The requirements of the Council's Development Control Plan for the provision of parking have been more than satisfied numerically by the development as a total of 690 car-parking spaces (of a controlled nature, in the submissions of the applicant) are to be provided in conjunction with sixteen additional car-parking spaces near the entrance to the hospital which are to be uncontrolled short term spaces. "Uncontrolled" is used in the sense that these spaces will not be subject to barrier or other entry requirements but will be limited in the amount of time for which they can be occupied.

4 When the Council gave development consent in November 2007, it rejected the element of the development application which sought to utilise a pay parking system for patients and visitors. This proposal was to be based on a scale of $1 for the first half hour; a further $3 for the second half hour; a further $2 for the second full hour; a further $2 for the third full hour; and $11 thereafter for that day.

5 The Council considered that that a fully paid parking basis was inappropriate and required that a minimum two hour free parking period should be provided for visitors and patients and that there should be free parking for staff. The parking arrangement that had been proposed for staff was a charge of $3 per day. The present appeal seeks the reinstitution of a payment regime that would commence, with the exception of the sixteen spaces near the entrance to the hospital, with paid parking from the time of admission to the parking area.

6 The Council resists this alteration to the conditions and does so on the basis of what it says would be non-compliances with the Development Control Plan provisions applying and potential unacceptable impacts, both in the surrounding industrial commercial area and potentially in an area of the residential suburb known as Bella Vista (being generally to the north-east of the site).

7 Before turning to the requirements of the Development Control Plan and the detailed merits, I propose to deal shortly with the Council's contention that there might be an unacceptable impact on the residential area in the streets of Bella Vista.

8 At present, the site (which is located in Norbrik Drive) is separated from that suburb by a series of undeveloped industrial commercial sites and portion of the precinct of the Bella Vista Farm Park and the Bella Vista Oval. There is no lawful pedestrian right-of-way between the nearest public road adjacent to the site and the Bella Vista Farm Park and (through that Farm Park) to the adjacent residential area.

9 There has been some discussion, during the course of the proceedings, about what might be the future intention, desire or hope of the Council to create a pedestrian connection between a nearby element of the public roadway system to a portion of the Bella Vista Farm Park precinct. The Landscape Master Plan contained in the Bella Visa Farm Park Plan of Management shows such a proposed pedestrian connection. 10 I set aside the questions of the likelihood of that being realised; I have considered the proposition put against the applicant at the highest for the Council; and I have assumed that that pedestrian connection could and would be established.

11 If that were the case, on the evidence of Mr King, the Council's consultant planner, the pedestrian pathway needing to be traversed through the Bella Vista Farm Park and, through such pedestrian connection, to the industrial land would be least 700 m. I am satisfied that that distance is sufficiently great to fall outside the range of the desirable or desired pedestrian distances so that a person would be prepared to traverse it for the purposes of avoiding a parking fee such as that proposed by the applicant.

12 I understand that conclusion to be consistent with the evidence of both Mr King and Mr Sannikov, the applicant's traffic engineering consultant. I therefore reject the possibility of there being any adverse impact on the Bella Vista residential area and have proceeded to consider the matter on the basis of what might be the impacts on the surrounding industrial/commercial precinct.

13 Mr Fraser, counsel for the Council, has taken me to a number of provisions in various Parts of the Baulkham Hills Development Control Plan. Although not in the order to which he has taken me to them, the first to which I refer is that contained in the Baulkham Hills Development Control Plan Part A, being the introductory portion to the Development Control Plan, where under the heading 1.7, "Objectives Performance Criteria and Development Controls", it specifically states, with respect to development controls (a number of which are relevant) that compliance with the standards set out in the DCP will not necessarily ensure the approval by Council of any application. Each application will be considered on the individual circumstances and merits of the case and its achievements of the objectives.

14 It is consistent with that that I turn to the two relevant detail provisions of the Development Control Plan dealing with parking. The first is contained in Part D of the Development Control Plan which is the general section dealing with parking. At 1.2, the Development Control Plan sets out a variety of objectives and that which is relevant to the present case is (ii) to ensure satisfactory access, parking provisions, circulation and goods loading and delivery facilities are provided within developments. The objective thus described is one of the broad objectives for the whole of this section of the Development Control Plan.

15 Under 2.1, General Parking Requirements, there is a single objective and it is to provide sufficient parking that is convenient for the use of residents, employees and visitors of the development and, relevantly, that all car parking spaces must be provided on site (that is contained in development control B to 2.1.1) and that car parking spaces (in development control A) are to be calculated in accordance with a table which is included in the section. That table has been provided and, in Mr Sannikov's Statement of Evidence, he explains how the calculations have been undertaken to ensure that the 690 car parking spaces being provided on site comply with those provisions. This is not contested by the Council.

16 There are, however, in Part E, as I have earlier noted, separate provisions relating to the Norwest Business Park. As to car parking, it states in 2.4.11, three objectives, the first of which is relevant in this appeal, and that is to ensure that all car parking demands generated by the development are accommodated on the development site. It then sets a series of development controls, only one of which is relevant to the first of the objectives. That is development control A, "Car parking is to be in accordance with the provisions, dimensions and construction standards as in Part D s 1 parking of this DCP". That provision takes me back to the numerical calculation I have cited and which has been satisfied.

17 Council puts the proposition to me that, in addition to all of that, there are qualitative matters to which I need have regard. It is clear to me from the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 that I am required to treat the Development Control Plan as a focal or starting point for my consideration but that, even if it is satisfied, I am still required to have regard to general environmental assessment issues arising under s 79C of the Environmental Planning and Assessment Act 1979 in considering the impact of a proposal.

18 I am satisfied that the proposal meets the numerical requirements of the Development Control Plan. Mr Fraser, however, puts to me the proposition that, in considering the terms of the Development Control Plan, satisfactory parking provisions (as required by 1.2(ii) of Part D of the Development Control Plan) and the requirement that the accommodation of the parking has to be on the development site, these combine to mean that that parking must be free. This is required, he says, to ensure that all persons seeking to park at the site will, in fact, use the parking and that there will not be an economic disincentive to such use thus causing unacceptable impact on surrounding streets or future developments in the vicinity.

19 The first observation to make, with respect to that proposition, is that, during the course of the view, Mr King specifically took me to a number of other locations where there was on-street parking taking place in the relevant parts of the Norwest Business Park. It was also the evidence that was given by the two traffic experts that people may well choose for reasons of convenience, proximity to the entrance, weather and a whole host of both predictable and unpredictable reasons to park on the street despite the fact that there might be free parking provided for them on the site that they were seeking to attend.

20 I am satisfied that what I should do is to consider whether or not there would be likely to be an unacceptable impact on the surrounding commercial streetscape and on the surrounding future commercial developments if I were to grant the application as sought by the applicant and, if there were, firstly, whether remedy is required and secondly, whether the remedy proposed by the Council is the appropriate one to apply.

21 It would seem to me that there will inevitably be, based on the evidence of Mr King and Mr Sannikov, some spill of parking into the surrounding streets, possibly into surrounding commercial developments, whether the parking is free for the first two hours or whether it is requires payment from the time of arrival - for the reasons I have briefly noted above. During the course of the site view and consistent with the evidence subsequently given, it is reasonable to expect that there would be about, after full development took place, some 50 on-street, lawful and appropriate parking spaces available.

22 There is no suggestion that the Council proposes to ban on-street parking in the vicinity, nor is there any suggestion that the Council proposes to depart from the Development Control Plan parking calculations for future developments in the area.

23 consider I should regard those 50 on-street parking spaces as being bonus and at large and in addition to any of the parking that would be provided on the present development or on any future development. I have been taken by Mr Fraser to decisions of Talbot J in Randall Pty Limited v Willoughby City Council [2004] NSWLEC 295 and the decision of the Court of Appeal in the same case (Randall Pty Ltd v Willoughby City Council 92005) 144 LGERA 119; [2005] NSWCA 205). This case concerned a decision by Bly C concerning a proposal for the conversion of free parking to paid parking at a shopping centre in Willoughby.

24 With respect to the decision and the chain of reasoning that is discussed by both of the decisions, I am satisfied that there will be some spillover likely by the imposition of paid parking from the beginning. The question that I am considering, in my view, is whether that is unacceptable (both in its impact on the surrounding streets and on other developments) and whether, consistent with the matters discussed in paras 38 and 39 of the decision of the Court of Appeal, there would be an unacceptable economic and social impact on those who might otherwise be using the proposed parking.

25 As to the question of economic impact, I accept the uncontradicted proposition contained in a letter on behalf of the company on 8 January 2008 which indicates that the revenue from paid parking is a matter of financial significance for the applicant. In part, the question then requires me to consider whether the imposition of paid parking would be financially or socially significant on those who would otherwise be going to avail themselves of it. There are two matters in this regard.

26 There has been vigorous attack made on the evidence given by Dr Stubbs, a social planner on behalf of the applicant, about the demography and patients' catchment area as well as for the patient visitors' catchment area. The joint statement has Dr Stubbs saying that 95% of those using the hospital as patients will come from a relatively advantaged demographic profile and about 90% of visitors from the catchment are expected to have a relatively advantaged profile and she thus concluded that the cost of parking is unlikely to be a deterrent for the vast majority of people. Those comparatively simplistically and briefly expressed conclusions have been subject of a vigorous attack by Mr Fraser.

27 In conjunction with that evidence, I consider I should have regard to the uncontested evidence given by Mr Sannikov of the likely periods of time that persons visiting patients in a hospital are likely to spend in that process. Mr Sannikov has extensive experience in dealing with parking issues associated with hospitals and he has provided uncontested evidence, which I accept, that, in broad terms, the average period of time for a person visiting a non-maternity patient in a hospital will be about two hours. It was also his evidence that the average time of visiting a patient in a maternity hospital was between seven and eight hours. The present proposal now provides, after a change agreed to by the applicant, for a discount for patients who require a degree of frequent and longer staying over a period of time and, for visitors who require longer parking for five or more consecutive days, these visitors being given a discount for those purposes.

28 I consider that a combination of the evidence, to the extent that I accept it, from Dr Stubbs and Mr Sannikov is that the critical period of time for which I should consider the likely impact of paid parking is going to be in the first two hours and the charges for it. I also accept the submission put by Mr Galasso SC, on behalf of the applicant, that because this is a private hospital rather than being a taxpayer funded public facility, it is reasonable to assume that there will be a preponderance (if not necessarily an exclusive) take up rate of its patients by those who have private health insurance and who are persons who have made a conscious decision, for medical, economic, convenience or other reasons, that they consider it appropriate to use the facilities of a private hospital as opposed to taking advantage of the broader system provided by the taxpayers through the public hospital system.

29 As a consequence, it is reasonable, in my view, to assume that there might be some spill over for persons undertaking short visits. It is also reasonable to assume that, in a strictly numerical sense, the parking that is required can be accommodated on the site. There is, at the present stage, a significant degree of underdevelopment in the area.

30 One of the matters that was put and discussed with the experts was the desirability or otherwise of a trial period for any regime which would apply. Mr Galasso opposed a trial period (if there were to be a free period attached to it) on the basis that it was impossible to measure the impact of the take-up or non take-up of free parking. I accept his submission in that regard.

31 However, as I have concluded that it would be appropriate to permit paid parking on a slightly differing basis to that proposed by the applicant from the beginning of parking time, it would seem to be to be desirable to be able to assess whether there is a significant impact of that regime on the surrounding streets or on future retail developments in the area. I accept the evidence of Mr Sannikov and Mr King that at least three years would be necessary for that and, indeed, I accept Mr King's view that five years might be a reasonable time for any trial. However, it would clearly be unnecessary for the applicant to undertake a study over a full five year period and a study in the fifth year itself it would seem to me to be appropriate.

32 What is necessary, in my view, to fulfil the underlying objectives of the Development Control Plan and ensure that there is no unacceptable spill over impact into the surrounding streets or cannibalisation of any other site's parking provision is to leave the longer rates proposed by the applicant unchanged, that is the longer than two hours rates unchanged, but to have slightly lower rates so as not to act as an unreasonable economic burden and disincentive for those visiting patients in the hospital during the ordinary expectable period of such a visit.

33 Therefore I have concluded that the charge for the first half hour of $1 is reasonable. The charge for the second half hour should be a total of $2, that is an addition $1 for the second half hour and that the continuing proportionate rate of $1 per half hour should continue until the end of two hours. That is, $1 for half an hour, $2 for one hour, $3 for one and a half hours and $4 for two hours, would be reasonable and would not act as a disincentive for short term visitors. I am satisfied that the rates beyond two hours of $8 for the period after two hours and up to three hours is reasonable and that the rate of $11 thereafter is also reasonable.

34 The question was also agitated as to whether staff should have free parking. The charge that is proposed is $3 per day to be adjusted from time to time in accordance with movements in the consumer price index. I do not consider that to be unreasonable (consistent with the decision of Brown C taken some years ago in a different context) but also because it is a matter capable of being dealt with, if it is a burden, in industrial negotiations between the employers and the employees involved.

35 I now turn to the detailed terms of the condition proposed by the applicant to give effect to the regime. I have dealt with the rates that require to be changed in condition 5C(1). I turn to consider two other matters.

36 There was discussion with the witnesses, during the course of the hearing, as to whether it was appropriate that the number of short-term car parking spaces near the entrance to the medical centre and the hospital should be increased from the 16 proposed. Whilst I canvassed the option of increasing them by a reallocation of staff parking spaces to the north-west of that location, I am not satisfied that any proper evidentiary basis exists for me to require that. However, I do consider that the free parking time proposed in the condition (of up to 15 minutes) is inconsistent with that which was advocated by the company in a letter to the Council of 14 November 2007 which suggested that such free parking should be for between 20 and 30 minutes. The longer period would seem to me to be appropriate under the circumstances and is consistent with the offer made by the company.

37 The company's letter also proposed, and has been adopted by Mr Galasso during the course of closing submissions, the definition of the times permitted for the drop off lane and the like and they should be incorporated in the condition. I drew to Mr Galasso's attention the desirability of a rearrangement of the wording of the price adjustment formula so that it took place after the occupation certificate (and using the date of the occupation certificate as a base date) and there were other changes to the formulation of those words so that the price adjustments were at the discretion of the company and did not automatically follow in odd amounts of money on an annual basis. Those changes should be made to the conditions. The changes should be made to reflect the position accepted by the company about differentiating between patients and visitors who have frequent needs to visit the hospital.

38 I turn, finally, to the question of whether the documentation should draw the attention of patients to the fact that parking will be charged. In some respects that is a matter which is of some but only marginal relevance in a planning context and, equally, some but only marginal context in a commercial sense to the company. However on balance, I am satisfied that making sure that patients and, through patients, potential visitors to them, are aware of the circumstances that would be confronting them when they are admitted to the hospital is desirable. Hence, the various operators of businesses in the hospital complex should be made aware of and required to notify their patients of the parking charge regime which will apply. That, it would seem to me, will put persons on notice and will perhaps assist, to some small extent, in dealing with people who would otherwise arrive and find the fees to be a deterrent.

39 The consequence of all of the foregoing is that: o the appeal will be upheld; and o the development consent will be modified in the terms outlined. 40 It remains therefore for the applicant and the Council to settle the agreed terms of a revised condition to give effect to my decision.

Tim Moore Commissioner of the Court The following relevant exchanges then took place: COMMISSIONER: Gentlemen, how long do you require for that purpose?

COMMISSIONER: Perhaps what I might do - maybe in terms of your note taking and need to come back and clarify if there is any dispute about--

GALASSO: The only thing I need to clarify is in your ex tempore judgment, the trial. If we could have some judicial direction as to what it is the court had in mind in respect of the trial.

COMMISSIONER: It is to be during the fourth year prior to the expiry of the fifth year but no earlier than the fourth year, a study which deals with ascertaining whether or not there has been any adverse impact of paid parking on the applicant's premises causing a spill over into either an unaccePartable impact in surrounding streets or into free parking provided on other commercial or business premises within what I would describe as the Norbrik Drive precinct of the Norwest Business Park - the doughnut area as it were. I will leave the parties to describe that in better terms. The three elements to which I drew the attention of the Council's condition dealing with trial periods should not appear in such a condition.

GALASSO: Commissioner, is that a study that's to be provided to the Council?

COMMISSIONER: Yes indeed. It will require a further application to the Council prior to the end of the five year period for the pay parking to continue.

GALASSO: May we take it that the upholding of the appeal is only for a limited period then?

COMMISSIONER: Yes, subject to a five year trial period.

GALASSO: I'll have to get some instructions on that.

FRASER: It may be we come back to you with some competing conditions and you can resolve it Commissioner.

COMMISSIONER: What I am proposing to do is to set the matter down for call over before the registrar either late next week or early the following week at your convenience on the basis that if settled conditions to give effect to my decision are filed prior to that date I'll make orders in chambers. I will also grant liberty on 48 hours to come back before me if there is further matters that require clarification.

FRASER Commissioner, there's no great rush for this to be finalised in terms of the need for the development to be operational with these conditions so how long will it take for the transcriPart to produce a judgment that we can review for your precise findings and directions? Can we make the timetable lethargic rather than speedy because there's no great rush to get the conditions finalised. The development is not anywhere near completion yet so if we took a month or so it's not going to really matter.

GALASSO: I don't understand why you need the judgment to settle this condition.

COMMISSIONER: That's why I endeavoured to go through it in sufficient detail to enable you to do so and to give you liberty to come back if it requires clarification.

GALASSO: Commissioner, we'd like this bedded down so to speak sooner rather than later. As I understand it I need to make a change to condition 5B(1), an addition to condition 5B(2).

GALASSO: A change to the preamble to 5C(1) to deal with the consumer price index adjustment.

GALASSO: A change to the wording at the end of 5C(2) for the alternate instead of consecutive days.

GALASSO: And a change to the employee component for consumer price index which will be the same as in 5C(1) preamble.

COMMISSIONER: Yes. And the addition of words about notifications to patients.

GALASSO: I need to add that operators should be instructed to notify patients that paid parking is available.

GALASSO: And provide the rates if requested. Then I need to draft something about the five years.

COMMISSIONER: Yes. I am happy to have you, if there is a difficulty about getting agreement as to the appropriate wording, to have you come back. It would seem to me that one or other of you might seek to have it dealt with elsewhere. That the time for that runs from now, so it should seem to me that rather than being at a relaxed pace in order for certainty on both of you seeking instructions on that point it should be done quicker rather than at a longer pace.

GALASSO: Can I simply, and I don't wish to act to appeal your decision, but the result that the consent is only of a limited period is not as I understand it an alternative that either party has advanced.

GALASSO: No, no. That the consent is a limited period. As I understand it the effect of the decision, as I said I don't wish to cavil with it, in many respects I'm not able to, but even on the Council's alternatives there would have been a resulting consent that had a component of pay parking. What the court's determined is that there's a consent that--

COMMISSIONER: No, no, no. I am happy to make that clear so that you - if you'll give me 30 seconds while I find the relevant piece of paper here now. It is that the parking fee for the first two hours is subject to a trial period of five years. That the parking period for the period from the expiry of two hours onwards will be an enduring consent. Does that make that clear? I will amend my reasons.

GALASSO: It does Commissioner save for this, and again I don't wish to cavil although I've now done it twice. The Council itself expressed its oPartion 3 as a preferred condition and it was for one hour.

COMMISSIONER: I'll let you have a discussion with the Council about that. If the parties can reach agreement I certainly see no reason why the period beyond two hours should be the subject of any trial period.

FRASER: Although the increment in fees is part of the impact. So what you're really talking about is people parking for up to two hours.

COMMISSIONER: That's right. Two hours is consistent with the matters that were of concern to me arising out of the evidence.

COMMISSIONER: An enduring consent for the fee range and fee regime for two hours and beyond. A trial period of five years for the up to two hour parking regime and an application to the Council some time during the fifth year supported by a study without all the verbiage about the Council staff being involved.

GALASSO: I understand that. Perhaps the cleaner way is to split 5C.

COMMISSIONER: Yes. I'm content to have the drafting done to give effect to it in the most elegant and informative fashion. But I propose to set the matter down for call over before the registrar on the 5th, that's Friday of next week. On the basis that if an agreed version of the proposed revised condition is filed by say midday on the Thursday then I'll issue orders in chambers and vacate the call over - that is by midday on the 4th. I'll give liberty on two days if there's any need to come back and discuss drafting with me. The exhibits are returned.

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