Pirasta Pty Ltd v Parramatta City Council

Land and Environment Court (NSW)|2019-09-30

Introduction

This is a Class 1 appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the Sydney Central City Planning Panel's refusal of an application to modify an approved development application, known as DA/485/2016 ('DA') which applies to the subject land described as 44-48 Oxford Street Epping ('site').
The notice of determination for the DA was dated 1 November 2018. The notice described the development as follows (Amended Statement of Facts and Contentions - Ex 2): "Demolition of all existing structures including the Heritage listed dwelling on the site, tree removal, construction of a mixed use development in the form of 2 towers (15 & 18 Storeys tall) over a podium and basement car parking."
The modification application under appeal would allow an additional 30 car parking spaces and revise the allocation of car parking between the residential and commercial uses on site.

Site and setting

The legal description of the site is as follows: Lots A & B DP 390454 and Lots 1 & 2 DP 206646. The site is quite rectangular in shape and totals some 3877.1m² in area.
The site is located within the Epping Town Centre. It falls within Zone B2- Local Centre under Hornsby Local Environmental Plan 2013 ('LEP'). Land immediately north, west and south is also within Zone B2. Land to the east is within Zone R4 - High Density Residential. The site is about 200m from Epping Station's eastern entrance.

The proposed modification

The modification application under appeal is referenced as DA/485/2016A and was lodged on 12 December 2018. The modification application ('MA') was made pursuant to s 4.55(2) of the EPA Act. It seeks to vary conditions 1 and 15 in Schedule 2 of the DA.
Condition 1 lists the approved plans, with their reference annotations.
Condition 15 provides as follows: "15. The number of car parking spaces and bicycle spaces provided on site are to be modified to the following: (i) A maximum of 173 car parking spaces (comprising a maximum of 108 resident owned car parking spaces, a maximum of 25 and a maximum of 40 commercial/retail car parking spaces, and a maximum of 25 visitor car parking spaces) Note: no more than 108 resident car parking spaces and 25 visitor car parking spaces may be provided even where commercial parking is provided at a reduced level. (ii) 5 car share spaces (additional to the above car parking spaces); and (iii) Bicycle parking: 200 secure bicycle parking spaces."
The MA would: 1. Amend Condition 1 to reference a revised architectural plan for basement level 4. The revised basement plan would, along with the other approved basement levels, provide a total of 203 car parking spaces and end-of-trip facilities. 2. Amend Condition 15 to allow an additional 30 car parking spaces and revise the allocation of car parking between the residential and commercial uses on site. The revised allocation according to Council (Ex 2, p3), and as I understand not disputed by the applicant, is outlined in the table below: Approved Proposed Change Residential Occupant 108 max 160 +52 (+48%) Residential Visitor 25 max 18 -7 (-28%) Residential Sub-total 133 max 178 +45 (+33%) Commercial/Retail 25-40 25 N/A TOTAL 173 203 +30 (+17%)

Statutory framework

Section 4.55(3) of the EPA Act provides: In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
Matters referred to in s 4.15(1) of the EPA Act include relevant environmental planning instruments and development control plans.

Hornsby DCP 2013

At the centre of this matter is Hornsby Development Control Plan 2013 ('DCP'), and in particular the provisions at "Section 1C.2.1 Transport and Parking". Relevant provisions include: 1. The "desired outcomes" of these provisions, which are reproduced below (the most pertinent of which are the first two): "a. Development that manages transport demand around transit nodes to encourage public transport usage. b. Car parking and bicycle facilities that meet the requirements of future occupants and their visitors. c. Development with simple, safe and direct vehicular access." 1. "Table: 1C.2.1(e) On Site Car Parking Rates (Epping Town Centre Core)" which includes the identification of maximum rather than minimum parking rates for different types of land use in the identified Epping Town Centre Core area. This table was introduced into the DCP on 31 May 2019 by way of an amendment (Ex 2, p5). The more pertinent provisions are reproduced below.
There are several further points which warrant mention by way of background: 1. The DA (which is sought to be modified in this MA) was approved prior to the amendment to the DCP to include Table: 1C.2.1(e); but nonetheless the DA was essentially determined on the basis of parking rates which coincide with the provisions shown in Table: 1C.2.1(e). 2. Council's assessment report in regard to the DA, to the Sydney Central City Planning Panel ('Planning Panel') of 29 August 2018 (Council bundle of documents, Ex 4 folios 67-80), indicates these rates are in accordance with the minimum "RMS rates" for "Metropolitan Regional (CBD) Centres". 3. The applicant's bundle of documents (Ex C behind Tab 1) provides an excerpt from "RTA Guidelines for Traffic Generating Developments 2002" which indicate these as recommended minimum parking rates for "high density residential flat buildings" in Metropolitan Regional (CBD) Centres (while not apposite, for the record, I note these RMS parking rates do not indicate a rate for studio apartments). 4. The MA was lodged on 12 December 2018, thus prior to the amendments to the DCP and its shift to maximum parking provision controls for developments in Epping Town Centre Core, which occurred on 31 May 2019. The DCP does not include any savings provisions of relevance.

Issues

The core issues in the evaluation of the MA can be synthesised down to two: 1. Weight to applicable DCP parking provisions. 2. Flexibility in the application of DCP provisions.
Relationships to LEP and zone objectives and wider policy provisions have implications for both issues, and are considered as such below.
The experts providing evidence in regard to the issues are nominated below. Expert Expertise Association M Higgins Planning Applicant A McDougall Planning Respondent B Maynard Traffic Applicant A Giyahi Traffic Respondent

Weight to applicable DCP parking provisions

There is well established authority on the application of DCP's. Two key cases referenced by the parties in the hearing are cited now. I note Zhang v Canterbury City Council (2001) 115 LGERA 373 ('Zhang'), where at [62] the statutory obligation under (now) s 4.15(1)(a)(iii) of the EPA Act, to "take into consideration" a DCP, is formulated as requiring "proper genuine and realistic consideration of the DCP". A conclusion is drawn from earlier case law that "the applicable DCP standard" ought to have served as a focal point for, or constituted a fundamental element" in deliberations concerning the making of DA determinations [77]. Zhang also distinguishes DCPs from environmental planning instruments such as LEPs. That is to say that while LEPs are "determinative", and a contravention (in principle) must require refusal, DCPs are discretionary instruments, which need to be taken into account ([74]-[75]).
The second case is Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 ('Stockland') which provides advice on the correct approach to consideration of, and weight to be given to, DCPs. Five principles are cited at [87]. Each principle is analysed in turn below with a view to the expert evidence provided (while not so in the judgement, they are numbered here to assist in the explanation of their consideration).

Stockland principle 1 "A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan."

In regard to what I reference as Stockland's Principle 1, it is pertinent that the provisions of relevance are intended to apply only to an identifiable area at the core of the Epping town centre.
There was argument about the consistency with the provisions of the LEP, albeit there are no (pertinent) direct LEP provisions in relation to parking. Council's view was that the provisions were entirely consistent with the third objective of the LEP's B2- Local Centre zone. This is the objective to: "…maximise public transport patronage and encourage walking and cycling."
In considering this principle from Stockland, the applicant's planning expert linked up different definitions in other policy documents, to suggest an implied intention of the LEP with which the DCP parking provisions were inconsistent (Planning Joint Expert Report, Ex 6 [15]-[25]). The more direct and for me pertinent argument in regard to this Stockland principle was that suggesting the DCP's provisions in regard to parking limitations were at odds with the first nominated zone objective, that concerned with: "… (providing) a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area."
To support the applicant's case it could be held that the proposal (with parking as proposed) would help allow the widest flexibility for land use and the serving of needs.
While noting this argument, I prefer Council's position. It is clear to me that it was at least the intention of the DCP to achieve the third of the B2-Local Centre zone objectives. The specificity of this third objective, certainly when compared to the first objective, and its alignment with the relevant DCP provisions intention, means the DCP parking provision has good alignment with Stockland's first principle.

Stockland principle 2 "A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation."

The suggestion from the applicant was that the DCP provisions had been predetermined. This predetermination was evidenced by earlier positions taken in regard to the DA assessment report and the conclusions drawn from Epping Town Centre Traffic Study as included in Council reports dated 26 November 2018 (Ex C behind Tabs 10 and 11). That is, Council's position had already been determined prior to the exhibition of the DCP between 1 February 2019 and 4 March 2019 and no regard had been given to objectors, in particular, to the submissions of the applicant. It does not seem to me unreasonable that the lead-in process to the preparation of a DCP might include the exposition of triggering factors or signalling of (then) intention. A consultation process has the potential to change any prior intention. The Council report of 29 April 2019, after the conclusion of the DCP consultation, evidences reasonable regard to the submissions made (Ex C behind Tab 12).

Stockland principle 3 "A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied."

Stockland's third principle is concerned with the consistency of application of the DCP. Annexure B to Ex 6 provides particulars on how parking controls were applied to more recent DAs. Only one DA (of 130 residential units) has been determined subsequent to the DCP's amendment in May 2019. In this case the DCP (ie maximum) parking rate approach was applied. Council's position on the current application is of course also aligned with the current DCP approach. Another application (84 units) is referenced as yet to be determined where the maximum parking rate was indicated as to be applied, but this can have no weight. More relevantly, according Annexure B to Ex 6, three applications have been determined since the "Epping Town Centre Traffic Study (was released in) 10 May 2018". The current DCP rate was also applied to two of these applications. The third application seemed to be a modification application, which resulted in a reduction to the approved parking levels (but not to the current DCP maximum rates). Prior to this a minimum parking rate was generally applied.
It is clear that there has been a quite consistent position on the part of the consent authority, based on the parking rates now adopted in the DCP, since, it would seem, the question came to a head with the release of the Epping Town Centre Traffic Study. The traffic experts in this hearing agreed that this study "identified the potential for significant future traffic congestion", albeit noting that "a significant proportion of future traffic congestion is a result of background traffic growth external to Epping Town Centre" (Traffic Joint Expert Report, Ex 5 [12]).

Stockland principle 4 "A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies."

Stockland's fourth principle is concerned with the appropriateness of the planning "solution" brought about by the DCP, or, whether it provides a "sensible planning outcome consistent with other policies". This was a central question examined in the hearing and essentially can be separated into two separate areas of analysis.

The finer outcomes

The first point of attention was on the finer detail, or the expected practical effects of this DCP for this particular MA. Mr Maynard argued approval of the MA would have a net positive effect in traffic congestion terms as, and agreed by both traffic experts, "residential parking typically generated less road network peak hour traffic per parking space than retail/commercial uses" (Ex 5, [13]). Mr Maynard noted that the current approval provides for up to 40 commercial/retail parking spaces, and only 25 are proposed with the MA. The evidence of Mr Giyahi was that appropriately detailed traffic modelling of peaks had not been supplied to demonstrate the precise effects.
While there was some difference on expectations on likely effects of the proposal when compared to the current approval, there was general agreement that this application of itself, due to its scale, would not have a significant effect in regard to traffic congestion.
I accept Mr Giyahi's evidence that there is insufficient predictive data to adjudge the detailed effects of the proposed changes in parking. While I accept that changes of this scale would be unlikely to have any noticeable effect, this does not seem to me sufficient to suggest a policy provision provides for other than a sensible planning outcome. The DCP objective is concerned with "(encouraging) public transport usage" around transit nodes like Epping. This is a larger objective seemingly relating to demand management and modal shift, which aspires to, over time, assist in addressing what is evidenced to be a problematic setting in regard to current and (modelled) future traffic congestion, evidenced from the Epping Town Centre Traffic Study.

Wider considerations

In the evidence, the interpretation of whether the parking provisions as contained in the DCP provide "a sensible planning outcome consistent with other policies", drew in the following other policy instruments: the LEP, the RMS Guide referenced above, State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) (and the associated "Apartment Design Guide" (ADG)), and two non-statutory regional or city-wide plans - the current Greater Sydney Commission, Greater Sydney Regional Plan - A Metropolis of Three Cities (2018) ('GSRP') and Department of Planning and Environment (NSW), A Plan for Growing Sydney, (2014) ('PGS') (while published in 2014, as indicated in the applicant's evidence, still pertinent in regard to Planning Proposals - which this application does not involve).
It seemed to me that on this point the applicant's arguments centred on four sometimes interlinked points: 1. The DCP controls were inconsistent with other parking policy, in particular the RMS Guide itself and SEPP 65 which involved a jurisdictional test which was not satisfied; 2. There was insufficient evidence, in wider planning terms, to support the change adopted in the DCP in the first place; 3. Epping was generally not suitable for these types of "maximum" parking controls because of both physical characteristics (especially lack of commercial development) and its relative planning status when compared with other (CBD-like) centres defined as such in other plans or policies - this was a serious inconsistency with these higher order plans and the LEP itself, and; 4. It was premature to impose such a control, mindful of the planning processes now underway, under direction from the State government.
In regard to the first point, I agree with the submissions of Mr Seton that the RMS Guide and the particulars relating SEPP 65 to parking are concerned with ensuring there is not an undersupply of parking in development projects. The tenor (and words at cl 30(1)(a) of SEPP 65) are concerned with "minimum amount of car parking supplied". The intent of the policy change contained in the DCP in May 2019 is in an entirely different direction. It is concerned with limiting parking in areas like the site which are close to the public transport hub at Epping to encourage its use over private cars. There is no inconsistency of concern here, and the "cannot be used as grounds to refuse" test of cl 30 of SEPP 65 does not apply.
Turning to the second point, Mr Staunton submitted that it was clear that Council's intentions with the DCP changes was to minimise traffic impacts and that this was evidenced from the reason given for the applicable condition to the DA (Ex 4, folio 94). As discussed above, Mr Maynard argued a (marginal) improvement in terms of traffic impact with a change to parking as proposed in the MA. He suggested over-provision of commercial parking, as might be suggested occurs in the DA as approved now, would encourage driving to work. He also noted the "Green Travel Plan" to encourage PT use for residents. Further, Ms Higgins indicated that the Traffic Study did not draw conclusions to suggest the need for the parking changes adopted in the DCP. Council's position is that the adoption of this (maximum parking levels) approach is not a new formulation, is relatively modest and is the appropriate approach given the rapid change in housing development occurring in Epping over the recent past, following a significant change to the development controls which is indicated to have been imposed by State government.
In regard to the third and fourth points, Ms Higgins referenced both GSRP and PGS to suggest Epping was too low in the ordering of centres to warrant any such parking controls, including in regard to the relatively low levels of employment generating development located in Epping. In her view to apply the maximum parking controls would be inherently wrong. Ms Higgins also referred to the need for more integrated planning work linking to the preparation of Local Strategic Planning Statements before a change like that involving maximum parking controls. Council's submission was that Epping was feeling the actual effects of the planning (zoning) changes and public transport improvements, and the DCP (notably objective (a) concerned with "(managing) transport demand around transit nodes to encourage public transport usage) was an appropriate response.

Finding

Both GSRP and PGS, relevant here mindful of Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318 ([25]-[27]), are concerned about the effects of traffic congestion (certainly in economic terms, and in regard to the "well connected city" idea in the current GSRP). Then, a test involving "sensibleness" and alignment with other policy, becomes a matter of an inquiry as to whether Epping town centre might have "work to do" in regard to that policy ambition. By looking at Epping there is the chance (and requirement in planning terms it seems to me) to go beyond any descriptor used for Epping town centre in other city/regional plans. It seems to me the evidence makes plain: 1. there is considerable growth proposed and occurring in Epping; 2. there is significant traffic congestion now and projected in the future with direct effects on Epping, and; 3. (3) the existing public transport availability in Epping is of a high order. It is public knowledge that this availability has recently been augmented significantly with the Sydney Metro Northwest, and there would be expectations of further improvements to connections via the committed Metro (rail) work. The evidence taking me to the current regional plan also indicates the possibility of a future rail link to Parramatta.
It seems to me that in regard to public transport potential, Epping stands out from many other, what might be termed, "non-CBD centres" to a considerable extent. Council's arguments in regard to future residents residing in the Epping core "self-selecting" use of public transport over private vehicles is aligned with wider policy including infrastructure provisioning. Here I agree with the view of Mr Giyahi as follows (Ex 5, [19]): "The imposition of capped parking rates by the Planning Panel is not specific to this development. Where it is used as the control for all future development applications moving forward in the Epping Town Centre, it can be reasonably expected that there will be an overall reduction in traffic volumes generated."
In turn I see the DCP provision in regard to maximum parking controls in the immediate area around Epping Station does provide a sensible planning outcome consistent with other policies.

Stockland principle 5 "Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property."

The final principle again, points to the appropriateness of consistency of decision-making but here there is also a regard to predictability for those making decisions in relation to their property, and development prospects on nearby property. I agree that predictability in regard to planning decisions is, generally, a positive ambition. But in some instances planning decisions are taken, sometimes reasonably sometimes otherwise, which are at odds with this ambition. Here my attention is particularly drawn to the applicant's submissions that the DCP includes no savings provisions. In this instance it is the case that the policy intention, essentially established with the deliberations of the Planning Panel, gave priority to the immediate implementation of the change. This priority was evidenced in the determination of the DA. However it does not seem to me, in regard to the MA (which is before me in this judgement) that the DCP's provisions would properly be seen as surprising in that sense. While the DCP was not in effect at the time of the lodgement of the MA, the consent authority was already implementing maximum parking controls as a matter of principle.

Conclusion on Stockland

On the basis of the Stockland principles, the DCP parking provisions should be afforded considerable weight.

Flexibility in the application of DCP provisions

Mr Staunton drew attention to s 4.15(3A) of the EPA Act, which provides relevantly as follows: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - … (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application.
The critical objective in regard to cl 1C.2.1 of the DCP is at (a): "Development that manages transport demand around transit nodes to encourage public transport usage".
Of particular pertinence is the argument around the direct effects of the proposal in regard to the objects of the parking standards. I note again here Mr Maynard's views on the implications of the reduced provisions for commercial/retail parking in the development and the possibilities for this to effect a positive relative outcome (in terms of "public transport usage") notwithstanding the additional 52 spaces for residents. Mr Giyahi indicated that there was insufficient modelling to prove that claim. In the circumstances I am not persuaded that the objects of the standard are achieved even having regard to Mr Maynard's opinion.

Returning to statutory considerations

At [10] I refer to cl 4.55(3) of the EPA Act which nominates matters a consent authority must take into consideration when considering modification applications under cl 4.55(2) of the EPA Act. The considerations include matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. I have reviewed and taken into consideration these matters. Of most particular relevance are the LEP and in particular the DCP provisions which are considered above in light of the expert evidence. I also take the opportunity here to note the oral submission made at the hearing by a representative of the Epping Civic Trust where it was indicated that it supported the position adopted by the Sydney Central City Planning Panel with the original DA in regard to parking.
The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. The reasons for the decision of the Sydney Central City Planning Panel in regard to the DA were provided to me (Ex 4, behind Tab 1) and I have also considered them, noting in particular "reason 8" in regard to the DA having no unacceptable adverse impact on the local road system.

Conclusion

In consideration of the evidence as outlined above, I have not found that the case has been made to override the applicable DCP standards in regard to parking provision. In turn I find that the application must be refused.
The Court orders: 1. The appeal is dismissed. 2. Modification application DA/485/2016A to reconfigure parking arrangements for approved development at 44 - 48 Oxford Street Epping is refused. 3. The exhibits are returned with the exception of Exhibits 2 and A. ………………………… P Walsh Commissioner of the Court

Amendments 10 January 2020 - Correction of clerical error - The name of the Applicant's solicitor, previously "Lindsay Taylor Lawyers", has been corrected to "Messenger & Messenger". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 January 2020

(2004) 136 LGERA 254

(2001) 115 LGERA 373

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (3)

Cited By (1)