Jack Ziade v Randwick City Council

[2001] NSWSC 18

Supreme Court of NSW|2000-11-30|Before: Bergin J, Mr P, Gregory J

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Source facts

Court

Supreme Court of NSW

Decision date

2000-11-30

Before

Bergin J, Mr P, Gregory J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

The applicant referred to the Amendment which was lost is the plaintiff. 16 In November 1998 the plaintiff lodged a further Development Application with the defendant seeking approval to construct an additional two cinemas. The plaintiff did not seek any amendment to the limitation of 1253 seats being occupied at any one time. 17 In December 1998 the defendant adopted a new Development Control Plan in relation to parking which provided that parking in relation to theatres would be derived from assessment based on a transport survey. 18 On 13 April 1999 the defendant gave notice to the plaintiff of its refusal on 6 April 1999 of the plaintiff's application on the basis that: 1. Inadequate on site car parking has been provided in association with the proposed development; 2. The proposal is likely to adversely affect the residential amenity of the surrounding area by way of noise associated with the intrusion of car parking within residential streets; and

[2]

The circumstances of the case and the public interest. 19 The plaintiff appealed to the Land and Environment Court which Appeal was heard by the Chief Judge, Pearlman J, on 12 and 13 October and 4 November 1999. Her Honour delivered judgment on 29 November 1999 granting Development Consent subject to conditions. 20 Pearlman J summarised the evidence called by the defendant in relation to the parking problems as follows: (i) There is at present significant pressure on parking and traffic in the Spot, generated by the Ritz Cinema, and also by approximately 16 restaurants which are located in and around the Spot; (ii) There are times when traffic in St Paul's Road and adjacent streets is chaotic, which results in gridlock, delay, noise, increased air pollution, driver frustration and hazard for pedestrians; (iii) There are times when there is little or no parking available in St Paul's Road and in adjacent streets for local residents, local business owners and their customers; (iv) Insufficient parking has led to blocking of bus stops, double parking, and parking in private driveways and on footpaths; (v) The Ritz Cinema appears to local observers to contribute significantly to the parking and traffic problems so described; and (vi) There are times when the parking and traffic problems are compounded by the operation of the Ritz Cinema, such as evenings and on weekends, and especially at times of changeovers of sessions, that is, when one session is finishing and another is about to start. 21 The problems referred to in this summary were the subject of 173 written objections lodged with the defendant and a petition of approximately 840 signatures. The plaintiff produced a petition of support containing over 6000 signatures and 30 letters of support predominately from people who owned or operated businesses at the Spot. 22 In the Land and Environment Court the plaintiff relied upon the evidence of two experts, Mr PD Leyshon, a Research Analyst and Town Planner and Mr BJR Masson, a Traffic Engineer. Mr Leyshon analysed the impact upon audience attendance of the Ritz of the opening of a 16 screen complex at Fox Studios in Moore Park and the proposed expansion of the existing cinema at Westfield in Bondi Junction expected to open in 2002. 23 Mr Leyshon concluded that audience attendances at the Ritz would decline by 32.6% if the proposed development proceeded and by 22.4% in any event. Mr Masson, in considering these matters, gave evidence that there will be considerable alleviation of parking pressure in the vicinity of the Spot which would be further improved by the 8 on site parking spaces on the proposed development. He concluded that the proposed development would not have adverse impacts on parking availability or on local residential amenity. 24 The Council relied upon the evidence of a Traffic Engineer, Mr CE Hallam, who concluded that there would be an increased demand for parking of between 42 and 60 spaces and that such demand would exacerbate an already unsatisfactory situation. In reaching this conclusion Mr Hallam did not take into account the increased competition by Fox and Westfield or the limit of 1253 seats. 25 Her Honour found that there was incontrovertible evidence that there will be a reduction in attendance levels at the Ritz over the next few years whether or not the proposed development proceeded. Her Honour concluded: I accept therefore that there will be a reduction in parking demand. I accept also that the applicant will be required, if consent is to be granted, to limit the maximum number of patrons attending the Ritz Cinema at any one time to 1253. These two factors combine to underpin a conclusion that the proposed development will not have an adverse impact upon the parking and traffic situation in the vicinity of the Ritz Cinema. In the balance, it seems to me that the concern of the local residents and occupants does not justify refusal of development consent.

[3]

Ziade v Randwick City Council [1999] NSWLEC 255, unreported at pars 30 and 32. 26 In November 1997 the defendant distributed a further questionnaire to all residents in the five streets (excluding residents in St Paul's Street west of Perouse Road) seeking their views on changing the 2 hour residents' preferential parking scheme to 1 hour. 27 Once again the questionnaire was simple. The residents were asked to complete 3 "questions", (1) the number of vehicles registered at the address, (2) the number of off-street parking spaces at the address available for the residents' usage, including garages, car ports and hard-stand areas, and (3) whether the resident was in favour of the proposal to change the existing 2 hour limit to 1 hour. The residents were also requested to provide comments regarding parking conditions in their street. 28 The responses were for St Paul's Street (22% response) 60% in favour of changing to 1 hour; Daintrey Crescent (53.5% response) 87% in favour; Lee Street (25% response) 80% in favour; Stewart Street (48% response) 79% in favour and Hardiman Avenue (83% response) 40% in favour. 29 After considering these responses in February 1998 the RTC recommended to the defendant that the existing 2 hour residents' preferential parking signs in the five streets, excluding St Paul's Street west of Perouse Street and Hardiman Avenue, be changed to 1 hour resident preferential parking signs. At its meeting held on 3 March 1998 the defendant resolved that "a further report be prepared for a future meeting" of the Finance Committee "following consultation with the Chamber of Commerce, the Precinct Committee, the Ward councillors and other interested councillors". 30 On 2 April 1998 the Randwick Consultation Committee (the RCC) involving the "stakeholders" met and agreed to a number of "outcomes" including the following: - Consider changing 2 hour residents preferential parking in Daintrey Crescent to 1 hour time restriction. - Investigate an updated traffic study of the area. 31 At a meeting on 28 April 1998 the defendant resolved that "the outcomes of the Consultative Committee be noted and a further report be prepared for a future meeting of" the Finance Committee "following further discussion by the Consultation Committee". 32 The RCC met on 7 May 1998 and agreed to meet in six to eight weeks time and considered certain actions as an outcome of the meeting including the following: Include the proposal of providing angle parking in the recently surveyed residential streets and change the existing 2 hour residents' preferential parking to 1 hour (note previous residents survey in streets around the Ritz). 33 The RCC met again on 16 July 1998 when further discussion of the matter occurred. Mr Deegan, the Chamber of Commerce representative, was consulted by telephone and he advised that 2 hours was a better sharing of available space and that changing to 1 hour would be grossly detrimental to commercial interests and viability of businesses at the Spot. 34 On 18 August 1998 the Finance Committee resolved: 1. That a traffic consultant be engaged to investigate traffic conditions at the intersection of Perouse Road and St Pauls Street, noting the high number of predestrian and vehicle/STA bus movements. The consultant's report should contain a preferred traffic treatment and also include other options, depending on the cost of the preferred treatment, so that a staged treatment may also be considered; 2. That the final draft of the traffic consultant's report investigating the traffic conditions at the intersection of Perouse Road and St Paul's Street, and the resident survey be referred to the Spot consultative committee; 3. (i) That the alteration of the existing 2 hour period parking on the northern side of St Paul's Street between the Ritz cinema and Daintrey Crescent to 2½ hour period parking 8.30 am -10.00 pm Monday - Sunday be approved, subject to the concurrence of the Randwick Traffic Committee; (ii) That the alteration of the existing 2 hour period and residents' preferential parking 8.00 am - 10.00 pm Monday - Sunday restrictions on both sides of St Pauls Street between Avoca Street and Perouse Road to 2½ hour period and residents' preferential parking 8.00 am - 10.00 pm. Monday - Sunday restrictions be referred to the Randwick Traffic Committee for consideration; 4. That the matter of retaining the existing 1 hour period parking in the commercial area of Perouse Road and St Paul's Street up to 6.00 pm Monday - Friday and 12.30 pm Saturday and the proposal to restrict this area with 2 hour period parking at other times up to 10.00 pm Mon - Sun be referred to the Randwick Traffic Committee for consideration; and 5. That the existing residents' 2 Hour preferential parking restrictions in St Paul's Street east of Perouse Road, Daintrey Crescent, Hardiman Avenue, Lee Street, Stewart Street, and Perouse Road between St Paul's Street and Barker Street, including the possible extension of the existing scheme be reviewed and evaluated. 35 On 8 June 1999 the plaintiff wrote to the defendant advising that he had received numerous complaints from Ritz patrons that the defendant had engaged special officers who had been "quite busy giving out Parking Infringement Notices at night". The plaintiff alleged that the conduct was not legal and sought undertakings from the defendant that it would desist and in default threatening injunction proceedings. 36 On 20 July 1999 the RTC considered the plaintiff's complaint and the report in which it was noted that: Council in August 1998 considered a report on parking and traffic in the Spot following community consultation and resolved that the three existing 1 Hour period parking spaces outside the Ritz Theatre and 2 Hour 60 angle parking spaces between the Ritz and Daintrey Crescent be signposted as 2½ hour period parking. Mr Ziade is now seeking an extension of the time of the above restricted parking signposting in St Paul's Street to three hours or three and half hours. It is considered that whilst Mr Ziade has contributed to the provision to additional parking spaces in St Paul's Street as part of the redevelopment of the Ritz Theatre any extension of the time period would reduce the parking turnover in the Spot Shopping Centre area. Furthermore there are some outstanding issues relating to on-street parking that are yet to be resolved in the Spot precinct and the above request should be considered in light of these investigations and not dealt with on an ad hoc basis. 37 The report recommended the plaintiff's application to extend the period to three or three and half hours be referred to the SCC. The SCC met and reported to the RTC. On 29 July 1999 the defendant's Director Asset and Infrastructure Services, Michael Savage, reported to the defendant with recommendations which included the following: 1. Local residents at St Paul's Street, Stewart Street, Lee Street, Hardiman Avenue and Daintrey Avenue be surveyed with regard to changing the existing 2 hour resident parking scheme to 1 hour parking; 2. The 61 angle parking spaces in St Pauls Street which were provided in conjunction with the Ritz Cinema development be signposted as 4 hour parking, with the existing resident parking spaces within the angle parking areas being retained; and 3. The feasibility of providing "area/zone" resident parking in The Spot, be investigated and introduced if possible, by 1 January 2000. 38 It is clear on the evidence that although, on 18 August 1998, the Finance Committee resolved to review and evaluate the existing 2 hour preferential parking restrictions and the possible extension of them, no such review and evaluation had been completed by 29 July 1999 when Mr Savage made his recommendation to the defendant to survey the residents. At its meeting on 10 August 1999 the defendant deferred its decision in relation to Mr Savage's recommendations until the outcome of the plaintiff's appeal in the Land and Environment Court. 39 On 20 August 1999 the plaintiff's solicitor, Gregory J Halpin, wrote to the defendant noting the contents of an article " Back on Boil" in the Southern Courier on 17 August 1999 in which a survey of residents in the five streets was referred to with regard to changing the 2 hour limit to 1 hour. Mr Halpin requested the defendant to notify him if it was presently considering altering any parking conditions affecting persons other than residents. 40 On 23 August 1999 the Spot precinct committee considered the recommendations Mr Savage had made to the defendant on 29 July 1999 and voted against a further survey (15 to 1) and against 61 angle parking in St Paul's Street being signposted as 4 hours (15 to 2) and in favour of investigating the feasibility of an area/zone scheme (15 in favour). 41 In late November 1999 when the Land and Environment Court judgment was delivered the review and evaluation referred to in the Finance Committee resolution on 18 August 1998 had still not been carried out. The matter had progressed to the point that the RTC had, after one year, recommended a further survey and even later the Spot precinct committee had voted against such a survey. 42 On 7 December 1999 the defendant held a meeting. The Mayor reported to that meeting reminding it of Mr Savage's recommendations of 29 July 1999 and made recommendations which were the subject of resolution (the December Resolution) which included: That the existing 2 hour resident parking scheme in St Paul's Street, Stewart Street, Lee Street, Hardiman Avenue and Daintrey Crescent, be changed to a 1 hour resident parking scheme. 43 When the plaintiff became aware of the December Resolution he approached this Court and obtained an injunction on 22 December 1999, by which the defendant was restrained from implementing any change to the parking arrangements the subject of the December Resolution. That injunction was in force up to and including 31 January 2000. On 31 January 2000 the injunction was continued until further order by consent. 44 On 21 January 2000 the plaintiff received a copy of a Rescission Motion to be considered by the defendant at a meeting on 1 February 2000. That Motion advised that if the December Resolution was rescinded the following Motion was to the moved: That the current parking arrangements at "The Spot" be retained, pending a further review, such review to include the opportunity for interested individuals and or groups to make submissions on parking issues and problems at the Spot.

[6]

The February Resolution was quite different to the proposed resolution in the Motion of which the plaintiff had received notice on 21 January 2000. In that notice there was no proposal to reduce the 2 hour limit to 1 hour. 47 The effect of the February Resolution was identical to the December Resolution but for the exclusion of the portion of St Paul's Street west of Perouse Road. The plaintiff once again approached this Court and Bryson J granted an interim injunction on 22 February restraining the defendant from implementing the scheme the subject of the February Resolution. 48 On 3 March 2000 Bryson J granted an injunction pending final disposition of these proceedings and restrained the defendant from implementing the parking arrangements in the December Resolution and the February Resolution. One of the conditions of the injunction granted by Bryson J was that the plaintiff was to pursue the proceedings expeditiously. That was done. I ordered expedition of the matter subject to directions and fixed the matter for hearing for 3 days on 31 July 2000. 49 On 18 April 2000 the defendant resolved on what it described as a "without prejudice" basis pursuant to "legal advice", to undertake a further survey of residents and businesses at the Spot in relation to changing the 2 hour resident preferential parking scheme to a 1 hour parking scheme in the five streets (the April Resolution). 50 The survey was once again in the simple form of the previous questionnaires that had been circulated. There were two questionnaires sent to each of the five streets. The response rates to each were lower than the previous survey. In Daintrey Crescent responses dropped from 53.5% in the original survey to 20.5% and 13.6% in these two surveys; in Hardiman Avenue it dropped from the original survey of 83% to 16.2% and 10.8% in these two surveys; in Lee Street from 25% in the original survey to 22% and 12% in these two surveys; in St Paul's Street from 22% in the original survey to 8.3% and 5.2% in these two surveys and in Stewart Street from 48% in the original survey to 23.6% and 16.4% in these two surveys. 51 On 17 May 2000 Mr Savage recommended to the defendant that due to the low response of the overall survey it was considered that the proposed "precinct parking scheme" should not be implemented. However he advised that because of the higher response rate in Daintrey and Lee Street he recommended further analysis. The report noted: Daintrey Crescent There was high support for the proposed parking restrictions in both surveys and a demonstrated demand for on-street parking. It is recommended that the proposed parking restrictions be implemented. Lee Street The survey results indicated no clear support for the proposed extension of the existing scheme, however the second survey indicated support to change the existing 2 Hour Resident Parking Scheme to a 1 Hour Resident Parking Scheme. It is recommended that the existing 2 Hour Resident Parking Scheme be changed to a 1 Hour Resident Parking Scheme. Hardiman Avenue The responses received were evenly split for and against changing the existing restrictions and the response rate was low. It is recommend that no action be taken to implement the proposed parking restriction. St Pauls Street The majority of the responses received did not support changing the existing 2 Hour Resident Parking Scheme to a 1 Hour Resident Parking Scheme. However, the first survey did reflect some support for the proposed scheme - 12 out of 19 - 63%. It is recommended that no action be taken to implement the proposed parking restrictions. Stewart Street On consideration of both survey results, there is a majority support to change the existing parking restrictions to the proposed restrictions. It is recommended that the proposed parking restrictions be implemented. 52 On 23 May 2000 (the May Resolution) the defendant resolved: 1. Council proceed with the implementation of an area based residents' preferential parking scheme, which is to include all streets in the Spot Precinct which currently have residents' preferential parking restrictions, subject to the concurrence of the Randwick Traffic Committee being obtained. 2. The following parking restrictions be implemented, subject to the concurrence of the Randwick Traffic Committee and the outcome of the current legal proceedings in the Supreme Court. a. Daintrey Crescent: Commencement from St Pauls Street, eastern leg West or Inner Side 0-10 No Parking 10-82m 1P 8am-10pm Authorised Residents Vehicles Excepted 82-96m No Stopping

[9]

Issues 57 The defendant claims that the only Resolution now before the Court is the February Resolution because the August Resolution rescinded the May Resolution which in turn had rescinded the February Resolution. In these circumstances the defendant claims the February Resolution was revived. 58 The plaintiff seeks a declaration that the February Resolution is invalid, void and of no force or effect. The plaintiff also claims that, if effective, the August Resolution rescinded the May Resolution and to the extent that it purports to revive the February Resolution it is invalid , void and of no effect. The plaintiff claims that the February Resolution has not been revived. 59 The plaintiff challenges the defendant's 3 March 1997 Resolution introducing the Resident Parking Scheme (the RPS Resolution) claiming a declaration that it is invalid, void and of no force and effect. 60 The plaintiff's unchallenged evidence is that if the parking arrangements are changed so as to exclude the Ritz patrons from parking their cars for enough time to see a movie at the Ritz then the plaintiff's business would not be viable. 61 The plaintiff has personally surveyed the area which shows that the majority of Ritz patrons use the residential streets in the Spot to park to attend the Ritz and that the majority will not go to the streets further away because they would rather go to other theatres which provide parking. 62 There are four cinemas presently operating at the Ritz with 15 minutes between each session. Some movies are 3 hours in length and it is conceded that the plaintiff's business at the Ritz is hemmed in between two Westfield Cinemas which will significantly affect the financial viability of the Ritz in any event. The major parking difficulties are from 5 pm onwards. 63 During the trial I allowed the plaintiff to amend his Summons to challenge the RPS Resolution. The challenge to the RPS Resolution included an argument based upon what counsel for the respective parties thought to be the Regulation in force at the time prohibiting a Council from "issuing a permit except in accordance with the Guidelines issued by the Authority". However that Regulation (91CA(4)) did not come into force until 4 months after the RPS Resolution in July 1997. 64 At the time the defendant passed the RPS Resolution in March 1997 Regulation 91CA of the Motor Traffic Regulations 1935 read as follow: Resident's Vehicle Permits 91CA. (1) A council may issue a permit authorising the holder to park a motor vehicle without charge or time restrictions in a metered space or a pay parking space: (a) located within the street, zone or area specified in the permit; and (b) designated by the council for use by holders of resident's vehicle permits. (2) A resident's vehicle permit must specify: (a) the street, zone or area to which it applies: and (b) the registration number of the motor vehicle to which it relates. (3) For the purposes of this Regulation, a metered space or a pay parking space is designated for use by holders of resident's vehicle permits if the words "AUTHORISED RESIDENTS VEHICLES EXCEPTED" are displayed on, or next to, the traffic control sign that designates the space to be a metered space or pay parking space.

[11]

The Guidelines 67 In 1987 the "Traffic Authority of NSW" issued "Guidelines for Traffic Facilities" including Part 3.2 which related to "Resident Parking Schemes" (the Guidelines). The Guidelines were produced in response to the problem that residents in certain urban areas were facing increasing difficulty in gaining access to on-street parking spaces as a result of competition from other motorists. The resident with no access to off-street parking and who could not provide such facility was identified as the "most disadvantaged" (3.2.1.1). 68 The "technique" utilised to provide preferential treatment for residents to have kerbside parking in front of or close to their residence was the introduction of "period parking" with exemptions for authorised residents known as a Resident Parking Scheme (RPS) (3.2.1.2). 69 The RTA (or its predecessor) issued delegations to Councils for the authorisation and control of RPSs (3.2.1.3). The Guidelines stated that any RPS "should be subject to review after an initial operation of six months, during which surveys should be conducted to determine the effectiveness of the Scheme" (3.2.2.1). 70 Applications for the introduction or the extension of an RPS was able to be approved by a Council under delegated authority, subject to the concurrence of the Police Department and the Department of Main Roads, usually obtained through the local representatives of those departments on the Council's Traffic Committee (3.2.2.2). 71 The Guidelines provided for specific matters to be included in such an application. These included the boundaries of the area involved; the total number of residences within the area; the number of residences with off-street parking; the total number of on-street spaces; the estimated number of potential "resident parking" spaces; the hours, and days, of operation of the resident parking scheme; the qualifications for receiving a permit; and the number of permits expected to be issued (3.2.2.3). 72 The Guidelines also provided: 3.2.4 Survey 3.2.4.1 Parking Surveys A survey should be carried out to determine the supply of, and likely demand for parking spaces. By counting the number of residences without off-street parking in each block, an estimate of likely demand can be made.

[13]

The Guidelines then directed the reader to appendix A for a sample of a typical questionnaire. 73 The typical questionnaire requested the name and address of the applicant and detail of the type of the dwelling. The questions included the following: 3. How many vehicles registered to the above address are owned by members of the household? (The choices were private or commercial under 3 tonnes) 4. Do you have a company car and park it at or near the address above? (The choices were given as never, sometimes or regularly) 5. How many of the vehicles above can be parked off-street at the address above? 6. Do you have difficulty finding parking space at or near your residence? (The alternatives were never, sometimes or often) 7. When does that difficulty occur? (The options were day or night on each day of the week) 8. Do you think that special parking zones for local residents are needed to ease your parking problems? (The alternatives were yes or no) 9. Are you willing to pay a fee for a permit once a year to have exemption from a 2-hour parking limit (if this is introduced) in your street? (Note - the money would be only to cover the cost of the Scheme). (The options were yes or no) 10. A Scheme as suggested in 8 and 9 may make parking more difficult for visitors. Do you still support the Scheme? (The options were yes or no) 11. Your further comments and suggestions (if any)? 74 The preamble to the questionnaire in the appendix stated as follows: Set out below is an example of a resident parking survey questionnaire. This may be used as a guide when devising a form, with more or less detail as Council considers necessary. An explanatory notice or letter giving the reasons for the survey and all necessary background information, should be issued with the actual questionnaires to householder. 75 The Guidelines stated that the introduction of an RPS should be restricted to "any area or street where residents experience difficulty in parking their vehicles within a reasonable distance from their places of residence".

[14]

The RPS Resolution 76 After judgment was reserved the parties were notified that they had relied upon a Regulation that was not in force at the relevant time and invited to make any further submissions in writing. The plaintiff's submissions were received on 3 February 2001. Those submissions abandoned the claim originally made relying upon Regulation 91CA(4). However the submissions propounded a different, and new, basis upon which the plaintiff claims the RPS Resolution is ultra vires. 77 That new ground is that the Resolution was ultra vires the Traffic Act 1909 (the Act) and the Motor Traffic Regulations 1935 (the Regulations) in force on 4 March 1997. 78 The basis of the attack is that the Act and Regulations in particular 91CA of the Regulations, only authorised the defendant to exempt residents' vehicles from "metered spaces" or "pay parking spaces". It is submitted that neither metered spaces nor pay parking spaces were in place or part of the RPS Resolution from which residents were able to be exempted. I am satisfied that there were no metered spaces or pay parking spaces in the five streets under consideration. 79 After the RPS Resolution was passed and the Regulation was amended the term "period parking zone" was defined to mean the part of a public street to which a direction referred to in Regulation 54(6)(al) relates. At the time the RPS Resolution was passed Regulation 54 (6)(al) provided as follows: (6) Where appearing on a traffic control sign that is erected or displayed upon or near, or marked upon a road or road related area: (al) the word "Parking" or the symbol "P" preceded by words or numerals to indicate a period of time shall mean, and the direction represented by a traffic control sign on which they appear shall be, that the driver of a motor vehicle shall not cause the vehicle to stand, wait or be parked for a period exceeding the period of time shown or indicated on such traffic control sign between such traffic control sign and the next traffic control sign displaying such words or numerals on the same side of such public street* in the direction indicated by the arrow shown on such firstmentioned traffic control sign or, where there is only one such sign erected, displayed or marked, between that sign and the intersection next to it in the direction indicated by an arrow shown on such traffic control sign. *This was changed subsequently to "road or road related area". 80 After the amendments to the Regulation the defendant was able to issue permits for residents to be exempted from a period parking zone. Those permits were required to be issued in accordance with the Guidelines issued by the Authority (91CA(4)). 81 The plaintiff submitted that although the defendant was authorised by the amended Regulation to introduce a system of zone or area parking together with a permit system for residents' exemptions, no such power existed at the time the RPS Resolution was passed. 82 After providing further time to the defendant to respond to the plaintiff's further submissions further evidence was admitted. That evidence was a delegation of 20 May 1994 which delegated certain powers of the Roads and Traffic Authority to the defendant, in particular the exercise of all the Authorities' functions under s 4D of the Traffic Act 1909. Part 1 Legislative and Administrative Framework and Part 3.1 Preferential Parking Zones of the Guidelines were also admitted into evidence. The defendant submitted that the RPS Resolution was a valid exercise of the delegated power under s 4D of the Traffic Act 1909 and the Regulations. 83 Section 4D of the Traffic Act 1909, as at 4 March 1997, provided relevantly as follows:

[15]

4D Traffic control signs (1) In this section traffic control sign means a standard, sign, notice or device in or similar to a form, or generally answering a description, prescribed for the purposes of this section and a reference to a public street includes a reference to a public street or part of a public street for the time being designated as a shared traffic zone. (2) The Authority may, by notice in writing, give such a direction as, in its opinion, is necessary or desirable for the control of pedestrians or the drivers or riders of vehicles or horses on a specified public street or specified public streets. (2A) A direction given under subsection (2) may be limited as to time, place or subject-matter. (2B) The Authority may from time to time, by notice in writing, vary or revoke a direction given under subsection (2). (3) A direction given under subsection (2) has effect only: (a) while there is erected or displayed on or near, or marked on, the public street to which the direction relates a traffic control sign that is notice of the direction, or (b) where the direction relates to a network of 2 or more public streets within a defined area - while there is erected or displayed on or near, or marked on, each of the public streets that provides access to that area a traffic control sign that is notice of the direction. (3A) The fact that a direction given under subsection (2) relates to a network of public streets within a defined area does not preclude the erection or display of traffic control signs in accordance with subsection (3) (a). (4) The direction appearing upon, or prescribed as given by, a traffic control sign that is erected or displayed upon or near, or marked upon, a public street with the authority of the Authority shall, whether the traffic control sign was so erected, displayed or marked before or after the commencement of section 3 of the Motor Traffic, Metropolitan Traffic and Transport (Amendment) Act 1968, be deemed to be a direction, for the time being in force, given pursuant to subsection (2) in relation to that public street and the traffic control sign shall, for the purposes of subsection (3), be deemed to be notice of that direction. (5) Regulations may be made for and with respect to: (a) the control of pedestrians or the drivers or riders of vehicles or horses upon public streets by means of traffic control signs, (b) prescribing the form or description of traffic control signs, (c) the interpretation of words, figures, symbols or abbreviations appearing on a traffic control sign, (d) the direction represented by a sign or device comprising, or partly comprising, a traffic control sign, (e) the observance of a direction appearing on, or prescribed as being represented by, a traffic control sign. 84 The defendant also relied upon Regulation 54 of the Motor Traffic Regulations 1935 in force at the time. Relevant parts of Regulation 54 provided as follows: Traffic Control Signs 54(1) There are hereby prescribed as traffic control signs for the purposes of section 4D of the Act: (a) a standard, sign, notice or device in or similar to a form or generally answering a description illustrated in the Schedule to this Regulation, with or without the addition of words, figures, abbreviations or symbols or, in the case of a standard, sign, notice or device illustrated in Diagram 6, 7, 8, 10, 49, 50 or 51 in that Schedule, with: (i) the symbol and the words; or (ii) the symbol or the words, shown thereon; (b) a standard, sign, notice or device that would, but for the arrow or one of the arrows shown thereon pointing in a different direction, be the same as a standard, sign, notice or device illustrated in Diagrams 2, 9, 9A, 11, 12, 13, 13A, 14, 16, 18, 21, 22, 22A and 44 in the Schedule to this Regulation, with or without the addition of words, figures, abbreviations or symbols; (c) a standard, sign, notice or device that would, but for the specification thereon of different abbreviated times and days, be the same as a standard, sign, notice or device illustrated in Diagrams 14, 15, and 48 in the Schedule to this Regulation, with or without the addition of words, figures, abbreviations or symbols; (d) a standard, sign, notice or device that would, but for the specification thereon of any number, whether by words or numerals, with or without the substitution of the word "lanes" for the word "lane", be the same as a standard, sign, notice or device illustrated in Diagram 17 in the Schedule to this Regulation. 85 Those standard signs are illustrated in the Schedule to the Regulations. The defendant relied upon standard sign number 48 which is as follows: 86 Regulation 54 continues: (e) any such standard, sign, notice or device that includes additional words, figures or symbols so as to indicate that the direction represented by the traffic control sign applies only to certain classes or descriptions of vehicles or to certain times or periods of time or certain days, or so as to indicate that certain classes or descriptions of vehicles or certain times or periods of time or certain days are excepted from the direction represented by the traffic control sign; (f) a give way line; (g) a stop line, other than a stop line marked in respect of a traffic control sign displaying the words "Children Crossing" or a traffic control light signal (whether or not the light signal is functioning); (h) a clearway (no stopping) line; (i) a no stopping line. (2) For the purposes of referring to any day on a traffic control sign: (a) the abbreviation "Mon" shall mean Monday; (b) the abbreviation "Tue" shall mean Tuesday"; (c) the abbreviation "Wed" shall mean Wednesday; (d) the abbreviation "Thu" shall mean Thursday; (e) the abbreviation "Fri" shall mean Friday; (f) the abbreviation "Sat" shall mean Saturday; (g) the abbreviation "Sun" shall mean Sunday. (3) Where a period of time is indicated on a traffic control sign by reference to two days of the week, it shall be inclusive of both such days but, unless otherwise indicated, shall not include any public holiday. (4) Where appearing on a traffic control sign the words: (a) "business hours" shall mean any time between 8.30 a.m. and 6 p.m. on Monday to Friday inclusive (any Public Holiday excepted) or between 8.30 a.m. and 12.30 p.m. on any Saturday (any Public Holiday excepted); (b) "goods vehicle" shall mean a motor vehicle constructed principally for the conveyance of goods; (c) "C de C Plate" or "CC Plate" shall mean a number-plate issued by the Authority and having thereon the letters "C de C" or "CC" in blue on a white background and numerals in white on a blue background; (d) "Diplomatic Plate" shall mean a number-plate issued by the Commonwealth Department of the Capital Territory and having thereon the letters "DC" and numerals in blue on a maroon background; (e) "Authorised Disabled Person's Vehicle" means a vehicle: (i) that is driven by, or is being used for the conveyance of, a disabled person; and (ii) to which is affixed, in a manner directed by the Authority, a disabled person's parking authority issued by the Authority and in force; and (f) "school days" means any days other than Saturdays, Sundays and public holidays or days notified by the Minister for School Education as school holidays. (4A) * * * * * (5) Except to the extent that this Regulation otherwise provides, words appearing on a traffic control sign shall have the same meaning as they have in these Regulations. 87 Although in March 1997 when the RPS Resolution was passed, Regulation 91CA did not refer to any zone or area parking and Regulation 91C did not include any definition of period parking zone, the Regulations did include the definition of "period parking sign" which provided: "Period Parking Sign" means a traffic control sign of the kind referred to in Regulation 54(6)(al). 88 Period parking signs were referred to in the Regulations dealing with metered parking zones and ticket parking zones. The words "meter" and "ticket" were added to the period parking sign by force of the Regulation 91D(2)(a) and 91L(2)(a) respectively. 89 The Guidelines contained the following section on parking control: 3.2.5 PARKING CONTROL 3.2.5.1 Duration of Parking Generally, the sections of kerbspace allocated for preferential parking for residents should be sign posted to impose a parking limit of 2 hours for non-permit holders. In special circumstances a 2 hour limit may be unsuitable, in which case consideration should be given to restrictions of shorter duration. The standard times for the parking restrictions are 8.00 a.m. to 6.00 p.m., Monday to Friday. Where the problem occurs during weekends or evenings, as in the case of areas adjacent to beaches or entertainment and sporting centres, special consideration should be given to additional or alternative times. 24 hours/day schemes will not be considered because of intense enforcement requirements. 3.2.5.2 Signposting An example of a typical resident parking sign is given in Figure 3.2.4. The inclusion of the word "Authorised Residents' Vehicles Excepted" is necessary to prevent the indiscriminate parking of residents' vehicles in streets where 'period' parking is permitted primarily to afford a rationalisation of kerbside space for commercial and retail business activities. 3.2.5.3 Enforcement The enforcement of resident parking restrictions, as with other parking restrictions, is the responsibility of the Police Department. Council shall consult with officers of that Department during the planning stages of the Scheme regarding the adequacy of enforcement measures. The success of any Resident Parking Scheme is dependent on adequate enforcement and turnover of parking spaces in restricted parking areas. The extent of the Scheme should be taken in the knowledge that additional numbers of Parking Police may be required as a consequence, and that full enforcement would not be practicable until such additional police are available. 90 The example of the typical resident parking sign in figure 3.2.4 of the Guidelines in force at the time of the RPS Resolution is as follows:

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91 The Council was authorised to install traffic control signs as referred to s 4D of the Traffic Act 1909. The delegation enabled the Council to authorise and install the traffic control sign excepting classes of vehicles from the direction on the sign as authorised by Regulation 54(1)(e). In particular the Council was able to provide an exception for "certain classes or description of vehicles". 92 Regulations 54(1)(a) to (d) deal with each of the signs contained in the diagrams in the Schedule to the Regulations. In respect of the signs referred to in Regulation 54(1)(a) to (c) the Regulation prescribes that the sign may be "with or without the addition of words, figures, abbreviations or symbols". In relation to the sign referred to 54(1)(d) the Regulation permits a "substitution of the word 'lanes' for the word 'lane'". 93 The Regulation focused upon by the defendant (54(1)(e)) refers back to those traffic control signs referred to in (a) to (d) and that include "additional words, figures or symbols so as to indicate that the direction represented by the traffic control sign applies only to certain classes or descriptions of vehicles". It also refers to such traffic control signs that include additional words, figures or symbols so as to indicate that certain classes or description of vehicles are excepted from the direction in the traffic control sign. 94 The traffic control sign in this case is a period parking sign as defined in the Regulations at the time of the RPS Resolution. Thus it was a traffic control sign "of the kind referred to in Regulation 54(6)(al)". Such a sign prohibited the driver of the vehicle from causing the vehicle to stand, wait or be parked for a period "exceeding the period of time shown or indicated on such traffic control sign". 95 Regulation 54(2) regulates the manner in which abbreviations are to be placed on the control sign. Regulation 54(4) defines the particular meaning of certain words that may be placed on a traffic control sign. These include "business hours", "goods vehicle", "C de C Plate", "CC Plate", "Diplomatic Plate", "Authorised Disabled Person's Vehicle", and "school days". 96 Regulation 54(6) defines numerous terms appearing on traffic control signs erected upon or near a public street. They include "give way", "keep left", "no U turn", "one way", "loading zone", "from one lane", "clear way", "bus lane" and others. Nowhere in Regulation 54 was there mention of the words "authorised residents' vehicles excepted". 97 Regulation 54(5) is important. It provides that except to the extent that Regulation 54 otherwise provides, "words appearing on a traffic control sign" shall have the same meaning as they have in these Regulations. It is therefore necessary to ascertain the "meaning" that "authorised residents' vehicles excepted" is given in the Regulations. 98 At the time of the RPS Resolution such words appeared only in Regulation 91CA(3) as follows: (3) For the purposes of this Regulation, a metered space or a pay parking space is designated for use by holders of resident's vehicle permits if the words "AUTHORISED RESIDENTS VEHICLES EXCEPTED" are displayed on, or next to, the traffic control sign that designates the space to be a metered space or a pay parking space. 99 A Residents Vehicle Permit is defined as "an authority given by a Council under Regulation 91CA". 100 The question is whether there was power in the Authority, and thus delegated power in the Council, to add the words "Authorised Residents Vehicles Excepted" to a period parking sign which did not relate to a metered space or a pay parking space. These two categories were the only two mentioned in Regulation 91CA to which the exemption related. 101 The July 1997 Amendment assists. Regulation 91CA(5) provided: (5) For the purposes of this Regulation a space is designated for use by a holder of a permit referred to in Column 1 of the table to this Regulation if the words set out opposite in Column 2 of that table are displayed on, or next to, the traffic control sign that designates the space as a metered space or pay parking space or designates the street, zone or area where the space is located as a metered zone, pay parking space or period parking zone:

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102 In this amendment "Authorised residents vehicles excepted" was given a broader meaning applicable to resident parking permits or residents' visitor parking permits which were used to exempt residents from period parking zone restrictions. However in March 1997 when Regulation 91CA related only to metered spaces and pay parking spaces the term restricted the Authority and the Council to exempting authorised residents vehicles from only metered spaces or pay parking spaces. 103 There was, in my view, no power to exempt the residents from the period parking zones until the amendment was introduced in July 1997. That is so notwithstanding the fact that the Authority had issued Guidelines upon which the words "Authorised residents vehicles excepted" appeared on a period parking sign. 104 In any event these were not the words that the RPS Resolution approved. The RPS Resolution approved the words "Residents' Preferential Parking Scheme". That concept and these words appear nowhere in the Regulations in force in March 1997 and thus have no recognition by reason of the Terms of Regulation s 54(5). 105 In those circumstances I am of the view that the RPS Resolution was ultra vires the Act and Regulations. 106 An additional or alternative challenge was made to the RPS Resolution on the grounds that no reasonable person would have on the material available passed the RPS Resolution, and that the plaintiff was entitled to and was not afforded procedural fairness. 107 Although the application of the then Guidelines issued by the Authority were not mandatory I am of the view that a reasonable Council, properly exercising a delegated power of the Authority, would have close regard to those Guidelines in implementing any scheme referred to in those Guidelines. The survey to which the Guidelines referred was for the purpose of determining the "supply of, and likely demand for parking spaces". The Guidelines also referred to the process of counting the number of residences without off-street parking in each block to estimate the likely demand for parking in the area. 108 The method utilised by the defendant in December 1996 was to ask the residents whether they were in favour of the scheme and to provide details of the number of vehicles without an off-street parking space. The residents were also invited to comment on the parking conditions in their street. The reports that are in evidence focus upon whether the residents support the scheme, rather than details of any difficulties that were experienced in parking and the time during which such difficulties were experienced. There is no evidence that the defendant ever properly ascertained the number of residences with off-street parking as recommended in the Guidelines. 109 Although the weight to be given to matters relevant for Council's consideration is a matter for Council it seems to me that the Guidelines, although not mandatory in application, provide an important list of matters that are relevant in such consideration. 110 A matter of significance is the period during which the residents claim they experience difficulty in parking. The Guidelines recommend such information should be obtained (Q. 5 & 6 of the Questionnaire). In my view unless that is known a Council would not be in a position to firstly impose appropriate parking restrictions and secondly fix the number of spaces within the period parking zones from which residents are exempted. 111 There is no basis upon which the defendant in this case could have known the times during which the difficulties were experienced, unless the careful resident in answering the simple questionnaire provided such detail. There is no such evidence before me. This is a relevant and significant matter which the defendant did not have before it when the RPS Resolution was passed. This is not simply a matter of weight to be placed upon a relevant factor. This was a failure to take into account a significant relevant matter. 112 A further matter of significance in the passing of the RPS Resolution is that the plaintiff, who had been required to fund the implementation of the scheme, was not provided with an opportunity to be heard at the meeting at which the RPS Resolution was passed. The minutes disclose that two councillors unsuccessfully moved an amendment to attempt to provide the plaintiff with an opportunity to address the meeting. The plaintiff was not afforded such opportunity. To impose a 2 hour parking restriction between 10.00 am and 10.00 pm seven days a week would obviously have an impact upon the capacity of the patrons of the Ritz to find parking. That would have an adverse impact upon the plaintiff's business and in the circumstances I am satisfied that he was entitled to procedural fairness which was not afforded to him. 113 If I am wrong in my interpretation of the Act and Regulations then I am of the view that no reasonable person, with the information then available to the defendant, would have passed the RPS Resolution. I am also of the view that the defendant was obliged to and did not afford procedural fairness to the plaintiff. In these circumstances I am of the view the RPS Resolution is void and of no effect.

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Issuing of Permits 114 By reason of Regulation 91CA(4) introduced in July 1997 the defendant was required to comply with the Guidelines in issuing permits as part of any parking scheme. The Guidelines which were in force until June 1997 provided relevantly as follows: 3.2.6.2 Eligibility Residents within the area of the proposed Scheme will be eligible to receive a permit provided that: (i) the applicant can establish his/her residential status by virtue of being a resident as shown on the electoral roll or by some other method to Council's satisfaction. (ii) Off-street parking is not available either at the place of residence or elsewhere in the area. (iii) The place of residence could not reasonably, in the Council's judgment, be converted to allow for off-street parking for the number of vehicles for which permits are sought. (iv) The nominated vehicle, not being a caravan or other trailer, is registered to the resident in NSW and may legally be parked on-street overnight. (v) Where the nominated vehicle is a company vehicle and is normally taken home each evening, an authorised statement of circumstances is supplied by the resident. (vi) It is recommended that councils nominate a maximum of 2 permits per household. However, in circumstances of high population density this number may be increased to 3 permits per household as an absolute maximum. (vii) The maximum number being reduced by one permit for every off-street parking space provided or which may reasonably be provided: see clause (ii) above …… Applicants for resident parking permits should apply to Council in writing on a standard form (to be devised by Council) giving the following information: (a) Name (b) Address (c) Proof of residence (d) Proof that the nominated vehicle is registered to the resident or proof that the vehicle is solely used by the resident (in case where vehicle is registered to other than the resident). 115 The RTA issued new Guidelines in June 1997 entitled "Permit Parking" (the Permit Guidelines). The Permit Guidelines relate to the "introduction of permit parking schemes (PPSs) on public streets including for residents, and residents' visitors". The Permit Guidelines state that the procedures within them are "mandatory" (cl 1). The Permit Guidelines superseded the 1987 Guidelines insofar as those Guidelines related to RPSs. 116 The Permit Guidelines, provide relevantly: 5.2 Council Council is responsible for introducing PPSs on public streets in accordance with this manual. Council's responsibilities include: parking studies, planning, implementation, advertising and all costs associated with the PPS. 6 Planning for Permit Parking Schemes It is important that councils undertake appropriate planning before a PPS is introduced. Such planning should include formulation of strategic transport planning policies. In particular, policies are required to cover schemes on a street-by-street basis and schemes on a network of streets (area-wide) basis. Councils should consult with the appropriate authorities such as adjoining councils, Department of Transport, RTA, Police Service and also with local residents; associations and commuter groups if necessary in respect of any parking issues arising from the introduction of PPSs. 7 Permit Parking Schemes 7.1 Types of Schemes There are four different types of PPSs namely: · Business Parking Scheme (BPS) · Commuter Parking Scheme (CPS) · Resident Parking Scheme (RPS) · Residents' Visitors Parking Scheme (RVPS) A PPS involves obtaining a permit (s) from the council and displaying it on or inside the vehicle. 8 Eligibility Criteria Parking permits can only be issued by councils. Before issuing a parking permit, council must set a list of eligibility criteria and these should be incorporated in the council parking permit application form. Sections 8.1-8.4 indicate the minimum eligibility criteria which must apply to parking permits. 8.3 Resident Parking Permit A maximum of two parking permits (or three in exceptional circumstances) may be issued per household. Residents within the RPS are eligible to receive a parking permit provided the: · applicant establishes residential status within the RPS to the satisfaction of the council, e.g. entry on the electoral roll

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This demonstrates that 23 additional spaces have been allocated (4 in Daintrey Crescent, 10 in Hardiman Avenue and 9 in Stewart Street). 121 It is also clear that in May 2000 the plaintiff complained to the defendant about the permit system. He went to quite a deal of trouble in providing the defendant with colour coded maps detailing the streets and the various restrictions in each of the areas within the street. He also detailed the number of off-street parking spaces available to the residents in each of the five streets (Ex. F). 122 It is apparent on the evidence, particularly of Mr Savage and Mr Stephens, that little if anything was done in relation to these approaches made by the plaintiff. There has never been a proper assessment by the Council of the number of off-street parking spaces which the plaintiff claims are available. Indeed it is not clear at all whether the Council has ever made such an assessment even prior to the plaintiff's approach. It is highly improbable that it did, having regard to the fact that applicants for permits were able to obtain a permit without even answering the question as to whether any off-street parking was available. 123 Neither of the defendant's officers responsible for this permit system would admit that the system was in disarray. However their evidence demonstrates beyond any doubt that permits have been issued inappropriately. Mr Savage gave the following evidence: Q It is obvious that these stickers or entitlements are extremely valuable, do you agree with that? A Yes. Q How is it that the system Mr Downes has taken you through over such an apparently valuable asset has got into such disarray? A I would suggest that by and large the system works well, but there are certainly circumstances where that is not the case and it is to be reviewed and tightened up. I would agree with that. (Tr. 145-146) Q I wanted you to have the opportunity in the circumstances to explain to me how it could have happened that the number of permits in relation to a valuable asset of the council could have been issued without proper particulars being provided? A I am not able to answer that question, your Honour. (Tr 147) 124 Mr Stephens gave the following evidence: Q If it comes to your attention that applications for resident parking permits have been wrongly filled out yet permits have been issued, don't you consider that you should take some action within the Council with respect to that? A I don't know if it is my role or not. Q Might it at least be your role to speak to someone whose role it might be? A I wouldn't argue against that, yes. Q But you didn't do that? A No I didn't. Q Why not? A Well, I was just going on what I was asked to do by the solicitors. (Tr. 108) 125 Mr Stephens also gave evidence that so far as the defendant was concerned, as at December 1999, there had been no further evaluation of the parking permit scheme other than through the input of the residents saying that they did not want to be surveyed again and with reference back to previous surveys that had been conducted prior to July 1999 (tr.132). As at December 1999 there had been no current evaluation or review (tr. 133). The August Resolution 126 This Resolution is attacked by the plaintiff on the basis that it was a resolution for an improper purpose namely, that the decision to rescind the May Resolution with the object of reviving the February Resolution was based upon legal advice associated with these proceedings. The plaintiff claims that this decision amounted to an exercise of power for an improper purpose namely, acting upon tactical considerations relating to these proceedings rather than upon relevant parking considerations and seeking to revive the February Resolution which no longer represented the considered view of the defendant. 127 Alternatively the plaintiff claims that it involved the taking into account of irrelevant considerations and Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229 - 230. 128 The transcript of the discussion in relation to the August Resolution and the documents that were before the defendant on that occasion are in evidence (Ex. L and M). Access to these documents, which are unedited, was opposed on the basis of client legal privilege. I allowed access to the unedited versions, which is the subject of a separate judgement : Ziade v Randwick City Council [2000] NSWSC 1198, 28 November 2000. 129 The transcript of the debate on 8 August records that the defendant moved into closed session to consider a report dated 7 August 2000 from Mr Hummerston. After giving a history of Council Resolutions and events since 1996 the report recommended a rescission of the May Resolution because a "compromise offered by Council's decision of 23 May has effectively been rejected by" the plaintiff and there seemed little purpose in the defendant maintaining that compromise given it was being challenged by the plaintiff. 130 The Mayor is recorded as saying: You will recall that after the February decision - part of the February decision- there was an amendment moved that went to a further survey. We did that further survey and that survey was reported back in May. We actually amended the February decision by the May decision. Our lawyers are now telling us that because of that decision in May, we are severely hindering our case…but the essential thing that we're trying to do tonight is to make sure that we don't prejudice our case. The lawyers have said that the decision that we made in May - whether it was right or wrong is beside the point - we'll really only give an opportunity to Mr Ziade to further amend his statement of claim. To further claim for costs against this council and may also place in jeopardy our prospects of success. So on the advice of the lawyers, we've been told that we ought to rescind the May decision. That means that what decision would stand would be the February decision. (Tr. 16-17)

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After further discussion about the matter the following is recorded: Its only an administrative - even if he wins, it would be set aside and we could then go and make whatever decision we want again. We will be here all decade. Except that we would be up for his costs - I mean that's why I do not want to lose this court case. Just change a few signs in the Spot - we could be up for about $150,000. 131 There is a further discussion about the negotiations between the plaintiff and the defendant and one of the Council members indicated a wish to propose that the defendant revisit the situation after the legal proceedings, to which the Mayor responded: No we shouldn't do that now. We should deal with this in a clear cut way so as to clear away any difficulties in terms of the court case. Once the court has determined the matter and the legal action is finished, what we would should do - council can then do - is empowered to do…it should follow this sort of procedure and we will just make sure that the procedure followed doesn't get us in the same problem. (Tr. 26) 132 There was then discussion that the plaintiff was throwing "the administrative law handbook" at the defendant with the prospect of an adverse costs order against the defendant because it was defending something "silly". The following then appears: Unidentified speaker: And then council could then properly make a subsequent decision to achieve the same end. Baccus: And what will he do? Protest that as well? Unidentified speaker: He'll be running out of money by then. Mr Hummerston: What we want to do - what the legal advice is - is to limit the range of issues that can be challenged. Now the five issues there are ones that he's raised in respect of every decision. If the main decision is not rescinded because it refers to an area parking scheme it opens the door for him to seek to introduce new issues - he's already leave of the court to do - but that's in abeyance because we've told the court that a rescission was being considered and it may be that the decision no longer stands. So our legal advice is saying we ought to limit the number of grounds on which this man can be found and that the best grounds are the five that are already stated and referred to in the February decision. (Tr.28) 133 There is then a suggestion that the defendant should park its garbage trucks out the front, presumably of the plaintiff's premises. Mr Hummerston is then recorded as saying: The other expectation of this that if we fight on the basis of the February decision which counsel advise that we have the best opportunity of being successful, we would then be hoping for some statement or observation from the court which makes it clear that council does have the power to deal with parking matters. Because at some stage in the future council will consider the issue of paid parking meters and Mr Ziade has already said he intends to challenge that decision if council ever arrives at it. So all the more reason for us to get a favourable decision that confers councils' ability to deal with these matters without being harangued from the sidelines by Mr Ziade or anyone else for that matter. (Tr. 28) 134 After further discussion the Mayor is recorded as follows: Well the truth of the matter is that between February and May we did do a very exhaustive traffic survey and I think the officers put a lot of time into that and the results of that deserved our consideration and deserved to be implemented. Now the truth of that is we can't do that now because we are in court but I would suggest that as soon as this court case is over, we jump right into it. (Tr. 33) 135 There is no doubt that on a reading of the transcript and the documentation before the defendant at the 8 August meeting, the defendant considered that it had adopted an appropriate Resolution in May that was consistent with its information and survey. Notwithstanding that view it is obvious that the reason the defendant wished to return to the February Resolution was not because of its appropriateness to the parking regime but because it had been advised that it would be the best position for it in these proceedings. Notwithstanding this approach the Mayor said on 8 August 2000 that he would be suggesting that the defendant "jump right in" and return to the May Resolution after these proceedings. 136 I am satisfied quite comfortably that the purpose of the August Resolution was a tactical one to revive a resolution which the defendant no longer believed was an appropriate one. It had nothing to do with appropriate and relevant considerations of the parking needs of the constituents, but was an attempt to obtain a forensic advantage in these proceedings irrespective of parking considerations. 137 In Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87 the High Court said at 105: In Westminster Corporation v London and North Western Railway Co (1905) AC at 430 Lord Macnaghten said: "It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first". 138 In analysing the facts before it the High Court expressed the view that the Council in that case was not acting in good faith and continued at 106: By that we do not mean that the Council is acting dishonestly. All that we mean is that the Council is not exercising its powers for the purposes for which they were granted but for what is in law an ulterior purpose. It is not necessary that this ulterior purpose should be the sole purpose. 139 I am satisfied that the August Resolution was for an ulterior purpose and is invalid and of no force and effect. In those circumstances the May Resolution is not rescinded.

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May Resolution 140 I am satisfied that as at May 1999 the Permit Guidelines were in force and that it was necessary for the defendant to comply with them. The nature of the scheme put in place by the May Resolution was something quite different from that which had purportedly been in place prior to May 2000. The Resolution defined the areas of the street and the particular measurements within which the various restrictions applied. 141 The May Resolution makes no reference to the purported RPS contained in the RPS Resolution. The May Resolution is that the defendant proceed "with the implementation of an area based residents' preferential parking scheme". This was something quite different from the RPS purportedly authorised in March 1997. This was an area based PPS. This was recognised by the defendant and reflected in the debate which occurred on 8 August 2000 (see Mr Hummerston's statement as extracted above) when the defendant was trying to obtain a more forensically comfortable position in these proceedings. 142 I am satisfied that the May Resolution involved the implementation of a permit parking scheme or PPS pursuant to the Permit Guidelines and thus required compliance including a parking study pursuant to clause 13 of those Guidelines. 143 The Council did not cause a parking study to be undertaken prior to the May Resolution. Such a study was "necessary" for any new permit parking proposal of which this was one. The defendant well knew that such a study had not been done because the Traffic Engineer advised the RTC in March 2000 that the defendant's Planning Department "was preparing to engage a consultant to carry out a parking needs study at the Spot and Randwick". At that meeting the RTC observed that it "may be possible for the proposed resident parking survey to be included in this study". 144 Finally on 8 August 2000, the day it purported to rescind this Resolution, the defendant confirmed its acceptance of the quotation of Sinclair Knight Merz for the provision of the "Randwick Transport Study Stage 1". In the brief delivered to prospective consultants the defendant stated: Randwick Junction & The Spot Council currently provides public carparks in Silver Street and on-street facilities in Arthur Street, Silver Street, Mears Avenue, Barker Street and Perouse Road. These facilities supplement the normal on street parking in Belmore Road, Alison Road, Avoca Street, Short Street, Perouse Road, St Pauls Street, High Street and Waratah Avenue. The current parking facilities are also subject to demand created by The Prince Of Wales Hospital, The University of New South Wales and the Randwick Ritz cinema & adjacent restaurants as well as periodic demand created by Randwick Racecourse. There are also two high schools in the study area, Brigidine College and Marcellin College, as well as a significant residential population both within and immediately adjacent to both centres all adding to the transport and parking demands in the area. The schedule of works under the current Contributions Plan has largely been completed, with one outstanding item for increasing the on-street parking capacity of Waratah Avenue. The current parking facilities in Randwick and The Spot are believed to be at capacity, however there continues to be strong demand for additional parking in these two centres. The inclusion of The Spot within the contribution catchment last year has added to the need to review the Schedule of Works to ensure that future contributions are spent in such a manner to benefit the entire catchment. 145 The "exhaustive traffic survey" to which the Mayor referred in the 8 August debate was presumably the questionnaire to which I have referred previously to which the average response in the five streets was approximately 18% and 12% respectively. It is puzzling that such a suggestion was proffered when the defendant was in the process of briefing prospective consultants to conduct a proper transport or traffic study. 146 I am also satisfied that the Council knew or ought to have known that permits had been issued to residents who were not entitled to have permits issued without the relevant information being provided and in the circumstances ought not to have decided on restrictions and arrangements without determining the legitimate need of residents for such permits. 147 In the absence of any statutory indication of the weight to be given to various considerations, it would be a matter for the defendant as to what it took into account and what weight it gave to those matters in deciding to implement the parking scheme: Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1985-1986) 162 CLR 24 per Mason J at 41. 148 However in this case there is a regulatory provision requiring the defendant to issue permits in compliance with the Permit Guidelines. Additionally the defendant adopted the Guidelines in December 1999 and thus provided limits within which its decision making in respect of parking arrangement took place. Once adopted the defendant knew that the Guidelines required it to formulate the strategic transport planning policies on a street-by-street basis or a network of streets basis before implementing a parking scheme. There is some recognition of this requirement in the defendant's briefing of the consultants to conduct a proper transport or traffic study. However this had not been done at the time of the May Resolution and was not completed at the time of the hearing. 149 The defendant did not give the plaintiff any notice of the intention of the Council to pass the May Resolution nor was he given an opportunity to be heard. The fact that the plaintiff paid for the implementation of the original scheme combined with the obvious adverse effect these changes would have upon the Ritz satisfies me that procedural fairness was required and it was not afforded to the plaintiff: Kioa v West (1985) 159 CLR 550 per Mason J at 584. 150 The defendant's conduct in passing the May Resolution without the benefit of the parking study was, it seems, to provide what was described as a "compromise". This was what Mr Hummerston called it in his 7 August Report that was before the defendant on 8 August 2000. This approach provides an insight into what has been going on within the defendant's operations since the plaintiff achieved his success in the Land and Environment Court in November 1999 to extend the Ritz. 151 Whether the defendant likes it or not, this is what the Land and Environment Court decided and it is now the defendant's responsibility to allow the development in "good faith". The statements made during the 8 August debate also give an insight into the defendant's approach to the plaintiff's position. The appalling suggestion that the defendant might park its garbage trucks outside the plaintiff's business when it is at the heart of the Spot, apparently enjoyed by so many of the defendant's constituents, was allowed to be made without rebuke in the 8 August 2000 meeting. 152 Here is a plaintiff who has successfully utilised the appropriate mechanism put in place in our civilised society for resolving legal disputes. The unsuccessful defendant moved into a mode of passing and rescinding resolutions in an inappropriate manner and for inappropriate reasons. 153 The uncivilised suggestion of the garbage truck mechanism demonstrates the defendant's lack of cool headed and fair minded assessment of parking needs for the community over which it has jurisdiction. A reading of all of the transcripts of meetings and in particular the 8 August 2000 meeting demonstrates a bitterness at the loss suffered by the defendant in the Land and Environment Court and its requirement to be involved in these proceedings. I am satisfied that this bitterness has permeated the defendant's approach and has undermined the proper performance of its responsibilities in relation to the parking requirements of the Spot area. 154 The plotting for tactical advantage without integrity of reasoning and a fair minded approach is further evidenced in the 8 August transcript in which the Mayor suggests that the defendant should "jump right in" to the substance of the May Resolution after these proceedings are concluded. Such a suggestion when the parking study is not even completed may justify a cause for concern that an open minded and fair approach may be at risk in the future. It is certainly not an approach that has been available to this plaintiff thus far. 155 I am satisfied that the May Resolution was in breach of the Guidelines and therefore invalid and of no force or effect. Alternatively I am satisfied that the May Resolution was made in a manner which failed to provide procedural fairness to the plaintiff. I am also satisfied that the May Resolution was one which, on the material available to the defendant, no reasonable person would have made.

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February Resolution 156 I am not satisfied that the invalidity of the May Resolution revives the February Resolution, however in case an ultimate view to the contrary were to prevail I shall express my view in relation to it. The February Resolution was also one which was governed by the Permit Guidelines. 157 The debate that occurred in February demonstrates beyond any doubt that the Motion, notice of which was given to the plaintiff, that was before the defendant did not include any proposed change to the 2 hour restriction RPS purportedly in place. That amendment occurred after Mr Deegan had addressed the Council and was not the subject of any notice to the plaintiff prior to the meeting. The only Motion that was notified to the plaintiff in January 2000 was that the "current parking arrangement at the Spot be retained pending a further review, such review to include the opportunity for interested individuals and/or groups to make submissions on parking issues and problems at the Spot". 158 The introduction of the reduction from 2 hours to 1 hour came effectively at the heel of the hunt of a meeting that went for some time. The Motion suggesting the change from 2 hours to 1 hour only appears within the last three pages of the transcript of the meeting, such transcript running for some 44 pages. It is clear that the plaintiff was never given an opportunity to address this matter at the meeting. 159 It has been submitted that the plaintiff had the opportunity to address the meeting through Mr Deegan. I am satisfied that Mr Deegan's interests were different from those that were pertinent to the plaintiff's position, particularly having regard to the fact that it was the plaintiff who paid for the implementation of the scheme in the first place and that none of the other businesses represented by Mr Deegan paid any money towards the scheme. 160 I am satisfied in all the circumstances that the plaintiff was not afforded procedural fairness in respect of the February decision. I am also satisfied that by reason of the mandatory application of the Permit Guidelines in February 2000, the defendant failed to comply with its obligations in respect of a parking study or appropriate survey prior to the Resolution. 161 Additionally as the Permit Guidelines applied as at February 2000, this was not simply a change to what had been purportedly implemented in 1997. A new regime was in force whereby Councils were required to comply with the Permit Guidelines and in particular formulating the strategic transport planning policies which had not been formulated as at February 2000. 162 I am satisfied in those circumstances that no reasonable person would have passed this Resolution and it is invalid and of no force and effect. The same principles and findings apply to the December Resolution if necessary to consider. 163 I will therefore make declarations that the RPS Resolution is ultra vires or invalid and of no force or effect and that each of the December, February, May and August Resolutions are invalid and of no force or effect. The parties are to bring in Short Minutes to reflect these findings including an order as to costs. If the parties are unable to agree on an order as to costs I will hear argument.