Randall Pty Ltd v Willoughby City Council

Land and Environment Court (NSW)|2004-09-09|Before: Mr J

CITATION : Randall Pty Ltd v Willoughby City Council [2004] NSWLEC 507 APPLICANT Randall Pty Ltd PARTIES : RESPONDENT Willoughby City Council FILE NUMBER(S) : 11226 of 2003; 10071 of 2004 CORAM: Bly C KEY ISSUES: Development Consent :- Amendment of existing consent - car parking station - question of fact and degree Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sydney Regional Environmental Plan No. 5 Land and Environment Court Act 1979 Penrith City Council v Waste Management Authority (1990) 71 LGERA 376; CASES CITED: Foodbarn Pty Ltd & Ors v Solicitor-General (1975) 32 LGRA 157; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 DATES OF HEARING: 23/08/2004 DATE OF JUDGMENT: 09/09/2004

APPLICANT Mr D Hammerschlag, SC SOLICITORS Moloney Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr J Ayling, SC SOLICITORS Mallesons Stephen Jaques

11226 of 2003 and 10071 of 2004 Randall Pty Ltd v Willoughby City Council

JUDGMENT 1 On 19 March 2004, pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979, I determined the applicant's Class 1 Appeal No. 10071 of 2004 which, inter alia, involves an application to amend Condition 41 of Development Consent No. 1996/0643 ("the consent") which was described in that judgment as "the lease application".

2 Condition 41 of the consent reads as follows: 41. 861 car parking spaces are to be provided on site. These spaces are to be physically identified on site, maintained free of obstruction and under no circumstances used for the storage of goods or waste products. Of these 861 spaces, a maximum of 552 are to be allocated to individual residential units. The remaining 59 spaces allocated within the secured residential parking area are to be provided for use by residential visitors to the site. The remaining 250 spaces are to be provided for staff and visitors to the retail and leisure centre and for short-term residential visitor parking. In this respect all 250 spaces are to be maintained as accessible by all these user groups. All car parking spaces are to be managed in accordance with a car parking plan of management which shall be submitted PRIOR TO RELEASE OF THE BUILDING APPROVAL and be to the satisfaction of Council's Director of Environmental Services. The car parking plan of management shall provide a schedule of fees for the use of the car park and such fees shall be commensurate with other similar car parks in the Chatswood area or as the Director of Environmental Service otherwise directs.

3 The lease application seeks the variation of Condition 41 by replacing the words: All 250 spaces are to be maintained as accessible by all these user groups.

4 With the words: Up to 60 spaces may be made available for lease provided at least 190 spaces are maintained as accessible by all these user groups.

5 In pars 28-36 of my judgment I assessed the lease application. At par 34 I concluded that "… on its merits the application …" for the leasing of 60 spaces" … should be refused". 6 This site to which the consent relates is in the 3 (c1) Business Retail Zone in Sydney Regional Environmental Plan No. 5 (Chatswood Town Centre) ("SREP 5") and a car parking station is prohibited in that zone.

7 At par 35 I considered the question of whether or not the 60 spaces the subject of the lease application comprised a car parking station, as defined in SREP 5. A car parking station is defined as: Car parking station means any land (including a building on that land) open to the public and used for the purpose of accommodating vehicles, whether upon payment of a fee or not, but does not include:

(a) land (including a building on that land) which is used for parking, being parking that is ancillary to other development on or adjoining that land, (b) a metered zone, or (c) a metered space.

I therefore agree that the provision of a number of leased car spaces would result in those spaces comprising a car parking station as defined and as a consequence would be prohibited by the LEP.

9 The applicant subsequently appealed under s 56A of the Land and Environment Court Act 1979 against various aspects of my decision in the Class 1 appeal. The appeal was heard by Talbot J and at pars 33 and 34 in his judgment dated 11 June 2004, which deal with the prohibition question, he concluded: 33. It is not clear to me that the Commissioner turned his mind to any question of fact and degree. That is a question that he was required to consider in the course of deciding whether the proposed lease of 60 car spaces was excluded from the definition of car parking station in SREP 5 by reason of [(a)] of that definition.

It appears to me that the underpinning reason for the refusal of the appeal in matter No. 10071 of 2004 is that the Commissioner preceded on the basis that the leased car parking spaces would effectively become a car parking station. In my view, therefore, it is appropriate that the matter be referred back to the Commissioner to enable him to consider whether the proposed lease of 60 spaces will create a car parking station as defined applying the relevant principles adopted by the Court of Appeal and reflected in the extracts from the judgment in Waste Management Authority [Penrith City Council v Waste Management Authority (1990) 71 LGERA 376], Foodbarn [Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157] and O'Donnell [Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404] set out above.

10 I am thus required to consider "any question of fact and degree" in deciding whether the proposed lease of 60 car spaces would be caught by the definition of car parking station, particularly the relevant part (a) of that definition. There was no disagreement that the 60 spaces if leased could meet the principal requirements of the definition and that parts (b) and (c) are not relevant. The essential disagreement was whether the 60 spaces would, after leasing, continue to be "ancillary to other development on or adjoining that land" as required by part (a) and thus be excluded from the definition. 11 In applying the definition of car parking station, I agree with Mr Ayling's submission that in this case "the task is one of fact and definition, not degree or characterisation".

12 I am satisfied that the actual number of parking spaces is of no relevance in determining whether or not those parking spaces are caught by the definition because there is no numerical requirement or limit as to a maximum or minimum in it. The fact that 60 spaces is less than 25% of the 250 car parking spaces is thus of no relevance. In a practical sense I do not accept the argument that a car parking station cannot be constituted by 60 spaces. Therefore, in the 3 (c1) Zone if a development comprises a car parking station it is prohibited irrespective of its size.

13 The next question that needs to be answered is whether, as a matter of fact the 60 spaces that are proposed to be made available for lease are caught by Pt (a) of the car parking station definition. More particularly will these 60 spaces continue to be "ancillary to other development on or adjoining that land" where "that land" comprises the site of the Regency Development?

14 Mr Hammerschlag submitted that the question of who occupies the 60 spaces and why are irrelevant and that licensing is an event of neutral character. 15 To the contrary it is essential to know the likely utilisation of the 60 spaces if they are to be leased. This is necessary to enable an understanding of whether the 60 spaces will or will not be ancillary, in this case, to the Regency Development. If they are not ancillary, the exclusionary Pt (a) of the definition does not apply and the 60 spaces would then comprise a car parking station.

16 In accordance with cl 41 of the consent the 60 spaces are part of the 250 car parking spaces which are required to be maintained as accessible to staff and visitors to the retail and leisure centre and for short-term residential visitor parking. Clearly these 250 spaces are ancillary to the Regency Development and as I have already decided, are all required by it.

17 If the 60 spaces, as a consequence of being leased, become unavailable to the "user groups" in the Regency Development then they cannot be said to be ancillary to it. The question which thus arises is whether the leasing of these 60 spaces will have this effect and I am satisfied that it will. 18 The amendment of Condition 41 as sought would facilitate the leasing of the 60 spaces unconditionally as to who might use them and how long they might use them for. This would be inconsistent with the requirement in Condition 41 that the required 250 car parking spaces are to be made accessible by all of the "relevant user groups" within the Regency Development. This reaffirms my opinion that the proposed leasing is inappropriate. Moreover this is the essence of how I concluded that the 60 spaces, even though they would continue to be used for the parking of cars, once leased would have a different land use character.

19 If the leasing of the 60 spaces were able to be carried out consistent with any associated conditions of consent and the users of these car spaces comprise the "relevant user groups" then one could conclude an ancillary relationship. However the wording of the proposed modification sought by the lease application clearly points to a different and independent purpose for these 60 spaces. By making reference in the amendment to the condition to a requirement that the remaining "… at least 190 spaces are to be maintained as accessible by all these user groups" must mean that the 60 spaces available for lease are able, indeed likely to be excused from this accessibility requirement.

20 In these circumstances I can comfortably conclude that the 60 spaces would be independent and not incidental or ancillary to the Regency Development as is required by the definition if they are to be excluded from it.

21 I therefore conclude that to make 60 spaces available for lease as proposed in the lease application, would result in the affected part of the existing Regency Development no longer being subordinate thereto, becoming instead a separate use, in particular a car parking station, which is a prohibited purpose.

22 For these reasons I reaffirm my earlier conclusion that approval of the lease application would result in the 60 car parking spaces becoming a car parking station as defined and as a consequence would be prohibited by SREP 5. I also reaffirm my decision that on its merits the lease application should be refused for the reasons which I gave in my earlier judgment.

23 The orders of the Court will therefore be in the same terms as the orders that I made on 19 March 2004. __________________ T A Bly Commissioner of the Court rjs

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