Jaguar Investments Pty Ltd v City of Sydney

Building Application - Development Consent :- s96 application for car stacker impact of additional car spaces KEY ISSUES: allocation of residential and visitor car spaces impact of car stacker

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Draft State Environmental Planning Policy No 66 - Integration of Landuse and Transport South Sydney Local Environmental Plan 1998

CASES CITED: Ireland v Cessnock City Council [1999] NSWLEC 250

APPLICANT Mr C McEwen SC SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES:

RESPONDENT Mr A Galasso, Barrister SOLICITORS City of Sydney

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11402 of 2004 and 10029 of 2005 Jaguar Investments (NSW) Pty Limited v City of Sydney

JUDGMENT Introduction 1 The proceedings are two separate appeals. Appeal 10029 of 2005 relates to the deemed refusal of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act). The application is to modify condition 25 of a development consent (No. U01-01310) to permit a car stacker and 10 additional residential car spaces. 2 The original application was approved by South Sydney Council (now the City of Sydney) on 26 June 2002 for the conversion of the existing Rex Hotel to residential apartments and other ancillary alterations and additions at 50 - 58 Macleay St. Potts Point (the site). 3 Appeal 11402 of 2004 relates to the refusal by the City of Sydney (the council) of a Building Certificate under s149D of the EPA Act for the works sought in Appeal 10029 of 2005. 4 The appeals were heard concurrently and the parties agreed that if Appeal 10029 of 2005 was upheld then Appeal 11402 of 2004 should also be upheld. The modification application 5 Condition 25 states: "That a maximum of 148 basement car spaces shall be provided. The spaces shall be located as follows: 122 residential parking spaces; two car wash bays; 13 visitors spaces; 7 retail parking spaces and 4 community parking spaces all located within the basement levels of the approved development. The four (4) community spaces shall be dedicated to the City of Sydney at no cost and shall be exclusive of any spaces provided a ground level. The car stacker shown on plans numbered S96.4.01(1) and S96.4.02(1) dated 21 August 2003 is NOT APPROVED (Amended 3 November 2003)." 6 The proposed modification seeks to delete the words "The car stacker shown on plans numbered S96.4.01(1) and S96.4.02(1) dated 21 August 2003 is NOT APPROVED". The proposed modification also seeks to provide a maximum of 158 car spaces with 132 spaces allocated for residential parking. The applicant proposes that condition 25 now reads: 7 "That a maximum of 158 basement car spaces shall be provided. The spaces shall be located as follows: 132 residential parking spaces; two car wash bays; 13 visitors spaces; 7 retail parking spaces and 4 community parking spaces all located within the basement levels of the approved development. The four (4) community spaces shall be dedicated to the City of Sydney at no cost and shall be exclusive of any spaces provided a ground level". 8 The car stacker provides parking for 14 cars but is located where four spaces were approved. Therefore it provides a net increase of 10 spaces. During the hearing the Applicant agreed that one existing car space should be allocated as a car stacker waiting space, which would result in a net increase of 9 spaces. Planning Framework

Statutory Controls 9 The site is within a Mixed Use 10 zone pursuant to South Sydney Local Environmental Plan 1998 (LEP 1998). The site is located within an area previously under the control of South Sydney Council however with recent adjustments to the local government boundaries the site is now under the control of the City of Sydney although the South Sydney Council planning controls still apply. 10 Clause 21 provides objectives for the Mixed Use 10 zone. The relevant objectives are: (b) To promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel . (f) To encourage the integration of a suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas. 11 South Sydney City Council Development Control Plan No. 11 - Transport Guidelines for Development (DCP 11) provides objectives at Section 1.2. The relevant objectives are: · to encourage the reduction in the level of vehicular travel in South Sydney by reducing parking requirements and improving facilities for pedestrians, cyclists and public transport users. · to ensure an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking to surrounding streets. 12 Section 3.1 provides "Guideline rates" for parking to be provided for different land use categories. Section 3.2 addresses departures from the Guideline Rates. It states that: …..the parking rates do not represent a code that should be blindly adhered to, rather they are generalised rates that meet most circumstances. Applications are assessed under a system of merit and there is scope for parking provision to be flexible to suit particular circumstances and local conditions. Any departure from the Guideline rates must be fully explained and justified in the departure if that departure is to be considered. Provision above the guideline rates will not generally be favoured….. 13 South Sydney City Council Development Control Plan No 1997: Urban Design (DCP 1997) also applies. Section 1.6 of Part E has objectives and controls for parking, access and servicing of all development. The relevant performance criteria for car parking provision is: · car parking provision is reduced in relation to availability of public transport and proximity to CBD, services, etc: 14 Draft State Environmental Planning Policy No. 66 - Integration of Landuse and Transport (SEPP 66) also applies. Section 2 provides aims for the draft policy. The relevant aims are: (a) improve the choice of transport and reduce dependence solely on cars for travel purposes; (b) moderating growth in the demand for travel and the distances travelled, especially by car; and (c) supporting the efficient and viable operation of public transport services.

Other controls 15 The following documents are not statutory but Mr McEwen SC, for the Applicant, submitted that they are an indication of the changing planning framework and were considered by Mr Hallam, the Court Appointed Traffic Expert, in his assessment of the merits of the application. 16 In 2003 the South Sydney Land Use and Transport DCP Study was undertaken. Working Paper No 6 of this study provides parking rates for different land uses. These were incorporated into Draft South Sydney Land Use and Transport Development Control Plan (February 2004) (Draft DCP). 17 The Roads and Traffic Authority Guide to Traffic Generating Developments (RTA Guidelines) also provides parking rates for particular land uses. 18 Since amalgamation, the council has made a number of resolutions relevant to the issue of traffic generation and parking. On 2 August 2004 the council resolved, inter alia, to adopt the existing controls as an interim measure; to review the parking rates and to support the use of some discretion in applying visitor car parking rates. Background 19 The Statement of Basic Facts provides a detailed history of the application and subsequent s96 applications. The provision of car parking can be summarised in the following table. No. of car spaces for use DA Approval 8 May 2002 s96 approval 18 Aug 2002 S96 approval 5 Nov 2003 S96 current application residential 86 86 122 132 visitor 25 25 13 13 retail 31 31 7 7 community 4 4 4 4 Car wash 2 2 TOTAL 146 146 148 158

20 The original approval included a car stacker and the provision of car parking complied with the requirements of DCP 11. The 2002 approval deleted the car stacker but maintained the parking numbers by adding two extra levels of parking. The 2003 application sought approval to reinstate a car stacker and provide parking for 158 cars. This was not approved but an increase in residential car parking above the DCP 11 requirement was approved. The overall numbers remained the same (148) but car spaces were reallocated to residential largely from approved retail spaces on the basis that residential use generates less traffic movements than retail use. 21 A mechanical car stacking device was installed in the site at a date unknown, but after 18 December 2002, providing a total of 158 spaces on site instead of the approved 148 spaces. 22 On 15 April 2004, an Order was served on the owner to remove the mechanical car stacker. An application was made on 20 August 2004 for a Building Certificate for the mechanical parking system. This was refused by the council and subsequently led to Appeal 11402 of 2004. 23 An application was made on 6 December 2004 to modify the development consent , but was not determined by Council. This led to Appeal 10029 of 2005. 24 Even though the car stacker was erected without approval, s 149G of the EPA Act expressly enables a building certificate to be issued to rectify a breach of the planning law (Ireland v Cessnock City Council [1999] NSWLEC 250). The issues 25 The council filed on the Statement of Issues containing 9 separate issues. Issues 1 to 3 are essentially statements of fact and the remaining issues can be conveniently grouped into the following issues: i. whether the additional car parking spaces would have an acceptable impact on traffic and parking levels within the locality.

ii. whether the location and operational aspects of the car stacker are acceptable

The evidence 26 The parties agreed to the appointment of Mr Chris Hallam as the Court appointed parking and traffic expert. 27 Mr Stan Fitzroy - Mendis, provided additional evidence for the council and Mr James Harrison for the Applicant. 28 Mr Fitzroy - Mendis states that the s96 approval in 2003 permitted an increase from 86 to 122 residential spaces by relocating 36 existing visitor and retail spaces to residential use. This represents a 42% increase over the original approved residential parking permissible under DCP 11 for the building. The proposed 14 car stacker will result in a further net increase by 10 spaces and result in a 53% increase in residential parking from the original consent. 29 In the opinion of Mr Fitzroy - Mendis, the increase in residential parking would be contrary to the principal of minimising vehicular travel as it will encourage private motor vehicle use and will not contribute to maximising public transport patronage or other modes of transport such as foot and bicycle travel. He concludes by stating that the increase in residential car parking is inconsistent with the relevant requirements in LEP 1998, DCP 11, DCP 1997 and draft SEPP 66 and should not be supported. 30 Mr Harrison disagrees with the conclusions of Mr Fitzroy - Mendis. He states that the demand for resident parking on site is strong. Given the locality of the site, resident cars are likely to be for weekend use or the occasional mid week trip associated with recreation rather than for commuting. He concluded that the provision of additional spaces is unlikely to lead to any significant increase in vehicle movements to and from the site or to deter use of public transport. The proposal provides an appropriate level of car spaces in an area that is well served by public transport and within walking distance to employment, facilities and services. 31 Mr Harrison states that improving choice of transport and reducing dependence solely on cars is influenced by a number of factors including critical densities that make mass transit systems viable, the frequency of those services, pricing, reliability of services and quality of service. Choice of transport mode is also more likely to be influenced by the availability of parking at trip destination rather than the origin. For this reason he considered that the increased parking should be allocated to residential use rather than to visitors. 32 In Mr Harrison's opinion there is little evidence to suggest that restricting off street parking provision for residential development in a location like Potts Point will lead to increased efficient and viable public transport operations or reduced peak hour vehicle movements. The provision of the additional spaces is not, in his opinion, inconsistent with the objectives of LEP 1998, DCP 11, DCP 1997 or draft SEPP 66. 33 Mr Hallam stated that the principle behind the relevant objectives in DCP 11 is: That if parking supply is controlled, travellers will opt for public transport, and hence reduce the level of vehicular travel. If travellers choose to still travel by car, and seek parking wherever they can find it, the second of the objectives above [DCP objectives] might be compromised. In practice the achievement of these objectives requires a comprehensive parking strategy, including off street - public and private - and on street parking. 34 Mr Hallam notes that the demand for on street parking is high and that parking is generally time restricted which limits its use by workers and visitors but not residents with parking permits. This encourages the use of public transport by workers and visitors. 35 In Mr Hallam's opinion, the key question to be answered is whether the restriction on resident parking in the development reduces the level of vehicular traffic and thereby achieves the DCP objectives. 36 To answer this question Mr Hallam relies on previous surveys undertaken in residential developments in North Sydney that establishes there is: no statistical relationship between parking supply and the peak period traffic generation of the units surveyed, meaning that increased parking provision does not correlate with the increase traffic generation in peak periods. 37 Mr Hallam also relies on surveys undertaken in developing the Draft South Sydney Land Use and Transport Development Control Plan. From the surveys he concludes that: · car ownership in new residential developments in the original South Sydney area are higher than census data indicates for the whole area and substantially higher than the rates allowed under DCP 11 · there is an indication of lower car usage for commuting in a development with high public transport accessibility · recreation is an important car trip purpose for many residents, particularly on the weekend. 38 In relation to the relationship between residential parking supply and travel Mr Hallam concludes that: · there is very limited correlation between the on site parking supply and weekday peak period car usage, · there is an indication of lower car usage for commuting in a development with high public transport accessibility · before on-site parking is unduly limited, consideration should be given to the desires of residents in owning a car for use for non-commuting purposes, · when the planning objectives extend beyond peak period travel to travel at any time on any day, some restriction on parking can assist in achieving these objectives. 39 In considering these surveys, the rates in DCP 11, the draft DCP and Working Paper No 6, Mr Hallam concludes that a restrictive parking policy is appropriate for the area, but that the parking rates must meet the end objective. In this appeal he concludes that the objectives of DCP 11 can be achieved if the car stacker remains but a total of 127 spaces be allocated to residential units and an additional four spaces be allocated to visitor parking. He further states that as the distribution of the visitor spaces is relatively random within the parking area, the visitor spaces should be grouped or signposted. 40 He notes that some car parking spaces on Basement Level 2 are not allocated to any of the units based on the Strata Plan. He recommends that these spaces be designated and signposted as visitor spaces and described accordingly on the Strata Plan. These spaces are near the entrance and can be combined with the four existing visitor spaces on this level to provide a block of spaces that are more accessible to visitors of the building. 41 Mr Hallam considered that the location of the car stacker near the entry ramp was not ideal but that the arrangement would be acceptable if a car space were allocated as a wait bay and the car stacker was used only by residents and accessed by a remote control and swipe cards to minimise the time taken to access the stacker. He recommends the allocation of car parking space 59 as the wait bay, although this will require reallocation under the Strata Plan. If this is not possible, car parking space 152 should be the designated wait bay. Findings 42 In balancing the different evidence from Mr Hallam, Mr Harrison and Mr Fitzroy - Mendis, I am more persuaded by the evidence of Mr Hallam. While all embraced the general principle that a reduction in on site parking will promote public transport usage consistent with the intent of the planning controls, they did so with different conclusions on the appropriate number of car spaces to be provided. 43 The rates proposed in DCP 11 are not justified by traffic studies and council has resolved that the DCP is an interim document that is to be reviewed. Nonetheless the document must be the focal point for the consideration of the merits of the application. In varying the parking rates the objectives of the DCP are to be met. 44 In my view, Mr Hallam's experience of similar issues in North Sydney and his review of recent surveys in the local area demonstrates the relationship of the supply of residential parking in a development to traffic generation. The conclusion to be reached is that provision of residential parking on site in an area that is well serviced by public transport and in close proximity to employment and other facilities does not increase peak hour traffic. However, the objectives of DCP 11 and LEP 1998 have the wider objective of reducing reliance on cars generally, not only in peak hours. This is to be achieved by the location of compatible uses in close proximity to each other, the improvement in facilities for pedestrians, cyclists and public transport users and the restriction of on site parking to a level that does not result in an over flow of parking to surrounding streets. 45 The level of restriction is the question that needs to be answered in this appeal. The various documents presented to the Court provide different parking rates for residential and visitor parking. The key difference between the rates is that DCP 11 treats residential parking in a similar manner to commercial and that WP6 includes a "multiplier" for whether the site is located in close proximity to public transport. Mr Hallam has analysed the different parking rates and I am satisfied that those recommended by Mr Hallam achieve the objectives of the planning controls. 46 Mr Hallam's recommendation that the visitor parking number be increased and that they be located close to the entrance would improve the current arrangement where visitor parking is randomly distributed within the building and therefore not easily accessible. I do not accept the Applicant's submission that the extra spaces should be all residential and that no extra visitor spaces should be provided. The number of visitor space is already significantly less than the number required under DCP 11, while this accords with the August 2004 resolution of Council, there is little evidence to favour this number over that proposed by Mr Hallam. In the circumstances where the council has approved residential spaces above the requirements of DCP 11, it is appropriate that a proportion of the additional spaces be allocated for visitors. 47 I also reject the applicant's submission that if additional visitor spaces are to allocated these be limited to a total number of 15. I note that this is the number that can be provided on the Basement 2 level and that two other spaces would need to be allocated on other levels. These two spaces would be less accessible and not as easily utilized by visitors but I do not accept that this is sufficient reason that they should not be provided at all. 48 I accept the evidence that parking space 59 is already allocated under the Strata Plan and that space 152 should therefore be allocated as the wait bay for the car stacker.

Orders 49 For the above reasons the orders of the court are:

2. In Appeal No 10029 of 2005, the Development Consent (No. U01-01310) granted on 26 June 2002 for the conversion of the existing Rex Hotel to residential apartments and other ancillary alterations and additions at 50 - 58 Macleay St. Potts Point, is amended in accordance with Schedule A.

3. In Appeal 11402 of 2004, the Council is directed to issue a Building Certificate for the car stacker based on the findings in this judgement.

4. The exhibits, except exhibits 5 and B, may be returned.

          Annelise Tuor
          Commissioner of the Court

Existing condition 25 to be replaced with the following:

" 25. That a maximum of 158 basement car spaces be provided. The spaces shall be allocated as follows: 127 residential spaces; 2 wash bays; 17 residential visitor parking spaces; 7 retail parking spaces; 1 car stacker waiting space and 4 community parking spaces all located within the basement levels of the approved development. The four (4) community spaces shall be dedicated to the City of Sydney at no cost and shall be exclusive of any spaces provided at ground level."

69. That the parking space currently allocated to space 152 on the Strata Plan be converted to a waiting bay for the car stacker, and be signposted accordingly. This space is to be left available at all times for the purpose of being used as a waiting bay.

Visitor Parking 70. That the allocation of the visitor car parking spaces within the basement car park be reconfigured so that parking spaces "153" to "158" and "160" / "160" to "162" (inclusive) be designated and signposted as Visitor spaces, and described accordingly on the Strata Plan. These spaces are to be made available for use by visitors at all times. Two other visitor spaces are to be provided elsewhere within the car park. No other visitor spaces are to be required or maintained. No by-law or other arrangement shall be made which restricts the use of the visitor spaces by visitors, or which allows the use for any other purpose. 71. That the residents who are allocated parking spaces within the car stacker are provided with remote controls to allow for operation of the roller door of the car stacker with the remote control. 72. That the residents who are allocated with parking spaces within the car stacker are provided with swipe card access to the mechanism allowing for retrieval and storage of cars within the car stacker.

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