Sharjag Pty Limited v Wingecarribee Shire Council

Land and Environment Court (NSW)|2024-08-07|Before: Dr J

The Applicant submits that the previous development was originally the subject of consent in 1939 at a time - as counsel puts it - of 'horse and cart'. Accordingly, car parking spaces were not conceived of at the time.
A succession of approvals then follow the development in 1939, none of which require car parking to be provided on the site, beyond the two spaces provided in the previous development.
The experts agree on the number of car parking spaces that accrued to the previous development, and also agree on the number of car parking spaces required by the proposed development. The result is a reduction in car parking demand.
I consider the above circumstances to be factually distinct from the circumstances set out in Bowral Garage Development Pty Ltd v Wingecarribee Shire Council [2021] NSWLEC 1032 (Bowral Garage) so as to distinguish the matters.
As explained by the Commissioner in Bowral Garage, at [86]:

"86 Parking credits are based on the premise that there is a current use for which the parking that is not provided by the development is being catered for on-street, and that it is reasonable that this be continued such that the only parking to be provided is any "new" demand (see FHR Holdings Pty Ltd v Wingecarribee Shire Council at [49] and The Lebanese Moslem Association v Fairfield City Council at ). The purpose of affording a credit is to acknowledge that there is already an existing reliance on on-street parking to meet an existing parking demand, which will continue with the proposed development."

In this case, as was the case in Bowral Garage, I accept the proposal before the Court is for the redevelopment of the site. So much of the building fabric associated with the previous development is clearly absent that the proposal cannot be described as alterations and additions.
In this case, as was the case in Bowral Garage, I accept that redevelopment is dealt with at Part B4.4 and, for whatever reason, at Part B4.5(d) of the Bowral DCP.
The provision at Part 4.5(d) permits parking credits to be applied in circumstances where any claim for such credits is substantiated by appropriate documentary evidence and, where unable to demonstrate a previous requirement, the parking rates in Table B5.4 are to be adopted.
In this case, the Applicant has, in my view, provided sufficient documentary evidence, in the form of previous consents contained in Exhibit F. Furthermore, as the experts agree as to the parking requirements of the Previous Development, I consider the previous requirements to be adequately demonstrated.
Additionally, I consider the exercise of the discretion permitted by Part B4.5(d) of the DCP for the reasons that follow:

(1) The circumstances of this proposal are materially different to those usually considered by the Court in Bowral Garage. In this case, the development was razed by fire, and the proposal seeks consent to replicate a similar, although not identical, development that results in a reduction in car parking demand.

(2) The site has not provided more than 2 car parking spaces since 1939, so it is reasonable that the development now sought to be redeveloped has accrued parking credits by the passage of time, during which parking has historically been absent from the site but for the two space that are proposed to be retained.

(3) While the terms of Part 4.5(d) affiliate the claim for credits to an existing building or usage, the absence of either or both is owed to fire, described by the Applicant as the involuntary demolition of the structures on the site. As it is commonly held the removal of structures from the site was not due to an act of the Applicant, I consider such circumstances worthy of weight when considering whether to exercise the discretion to apply parking credits.

While the parking credits, when applied, accommodate the parking requirements in full, I will also now consider the impact of the proposed development on the Bowral Town Centre.

The nature of driver behaviour and car parking arrangement in Bowral was the subject of a number of parking surveys.
Mr McCarthy conducted parking surveys on Friday 10 May 2024 (Exhibit 4, Annexure K), and Saturday 25 May 2024 (Exhibit 4, Annexure L) which show, according to Mr McCarthy's evidence:

(1) The worst case scenario occurs at 12pm noon on a Friday when there were 10 on-street parking spaces available within 200m of the site and 42 spaces within 300m of the site.

(2) At the same time, there were four off-street parking spaces available within 200m of the site, and 72 within 300m of the site. Most of the off-street parking is located within the Bowral Train station commuter car park located close by, to the west of Station Street.

(3) As such, there were a total of 114 spaces available at 12pm noon within 300m of the site.

(4) The worst case period on a Saturday was also at 12pm noon, when 20 on-street car spaces were available within 200m of the site, and 84 within 300m.

(5) At the same time, there were 39 spaces available within 200m of the site, and 188 within 300m.

Mr McCarthy's written evidence is that the parking required by the proposed development would over-saturate the parking available within 300m of the site, unless the Station Street commuter car park located to the south west of the site (Station Street car park), located more than 300m from the site, is included at which point the car parking capacity of the area is adequate and the result acceptable.
According to a Factsheet published by the Respondent (Exhibit J) in April 2020, the Station Street car park was upgraded to provide "long term parking for the town centre" (final page).
A parking survey conducted by SECA (SECA Study) (Exhibit 4, Annexure E) was undertaken on Friday 19 May 2023, between 10am-4pm) and Saturday 20 May 2023 (10am-2pm), the results of which are summarised as follows:

(1) Friday, 19 May (12pm noon): 22 spare on-street spaces, and 204 spare off-street spaces, for a total of 226 spare spaces.

(2) Saturday 20 May 2023 (12pm noon): 34 spare on-street spaces, and 279 off-street spaces, for a total of 313 spare spaces.

The SECA Study also found the following (comments below Figure 2 - Parking survey area):

"Consistent with earlier studies, parking preferences see people parking in areas closest to what s perceived as the centre of town being Bong Bong Street and parking to the rear of Springetts Arcade. This may reflect the high number of visitors to the town who may not be aware of other parking opportunities or reflect convenience for short shopping trips.

Parking is regularly turning over with a space typically available or becomes available whilst circulating.

..."

A further study was also conducted by the Institute for Sensible Transport to support the preparation of The Wingecarribee Car Parking Occupancy Study (Occupancy Study) (Exhibit F, Tab 2), on behalf of the Respondent, which shows 49% occupancy of on-street car parking spaces, and 39% occupancy of off-street car parking spaces.
As it is put by the Applicant, the Occupancy Study finds, in essence, that there are sufficient car parking spaces, but it is difficult for drivers to know where to find them.
Mr McCarthy considers the Occupancy Study to have shortcomings, described by him as follows:

(1) The study was generated by high resolution aerial imagery which he considers an inaccurate method of identifying parking occupancy.

(2) The conclusion that "the utilisation of car parking in Bowral's CBD district is highly skewed. Car parking occupancy is very high in the township's retail and civic core" is consistent with parking surveys undertaken with a walking distance of 300m.

(3) The wider a catchment area selected, the greater parking availability can be expected.

The significant difference between parking studies, according to Mr McCarthy, is explained by whether or not the Station Street car park is included in the survey.
Mr McCarthy takes the view the Station Street car park is so remote from the subject site that it would be discounted by drivers seeking a car park. Instead, drivers would continue to circle an area close to the subject site, causing congestion and putting pedestrians at risk.
As I understand it, this is because of behaviour Mr McCarthy relies on from AustroadsPart 13, not provided to the Court, which opines:

"Many pedestrians prefer to minimise their walking distance and will often take unusual short-cuts to save even a few steps or a few seconds of time. For example, a vehicle driver will usually attempt to park as close as possible to a retail facility, and yet, within the facility, the total walking distance involved in shopping itself may exceed several kilometres. Acceptable walking distances are highly dependent on trip purpose, total travel time involved, physical conditions, walking environment, and perceived personal safety and security along the route. For example, many school children walk up to 2km to school and people walking for recreation and exercise may walk 4km or more at a time. The practical limit for most non-recreational walking trips is in the order of 1.5km, approximately a 15 minute walk, for the average person with no disabilities."

The experts disagree on the appropriate distance from the site that should be assumed in determining the car parking catchment. Whereas Mr McCarthy considers 300m to be the maximum distance safe to assume, Mr Nettle cites research in support of 400m.
Mr Nettle argues that the former development on the site operated without onsite parking, without evidence of adverse impacts, and there is ample evidence that uses such as that now proposed on the site are secondary to the principal trip undertaken by a driver of a vehicle.
When understood in this way, the choice of a car park would not be based on the subject site as a sole destination, but likely be part of multiple destinations undertaken while the vehicle is parked. In such circumstances, Mr Nettle notes the RTA Guide to Traffic Generating Development (RTA Guideline) (Exhibit K) advises that a 20% reduction in car parking provision may be acceptable.
However a close read of the RTA Guideline reveals such discounts "apply to trip generation but not to parking demand." (p 3-7).
A further reduction is also suggested by Mr Nettle where development is an 'extension of a centre'. However, I note here that a reading of such a reference at p 3-7 of the RTA Guideline appears more directed to alterations and additions to an existing development, and not to development that, in effect, extends the town centre.
Adopting Mr McCarthy's worst case scenario at [55(3)], car parking spaces outnumber the number of parking spaces required by the site - regardless of any reduction on the site's car parking requirement that may or may not be supported by the RTA Guideline.
In the event the Station Street car park is also considered within an acceptable walking distance of the subject site, the parking spaces required by the site would be fully accommodated in that car park alone. I note Mr McCarthy agrees that the Station Street car park (south) is suited to long term parking for future staff of the proposed development.
While the Respondent cites car parking occupancy rates at Figure 2 of the Occupancy Study, suggesting car parking spaces only become available in Bowral's south, close to Moss Vale Road and Bowral Street, this overlooks the Station Street car park (north), located virtually opposite the site, and which is identified with an occupancy rate of 24% during a peak period. This car park would appear to include 136 spaces, according to Figure 2 of the SECA Parking Survey.
A further 191 spaces are recorded in the Station Street car park (south).
I accept that the Station Street car park (south) appears to be within a reasonable distance of the subject site.
This car park is relatively new and is connected to Station Street via footpaths on both sides of the street. Its purpose, as it is put by the Respondent in a Factsheet (Exhibit J), is to provide "long term parking needs for the Bowral Town Centre".
That said, whether or not the Station Street car park (south) serves the site itself, I accept that car parks such as this also add to the overall car parking options in a Town Centre that is relatively compact.
A driver seeking long term parking, or intending to visit destinations in the vicinity of Boolwey Street, or Bong Bong Street in the vicinity of Banyette Street, for example, may choose the Station Street south car park over their former preference of the Woolworths or Coles car parks, or other public car parks that are located east of Bong Bong Street, and so may serve to free up a space in that car park for other drivers.
I also note the Respondent's Integrated Transport Strategy (the ITS) (Exhibit F, Tab 1) proposes a 'Circulation Plan' for Bowral that diverts through-traffic along Station Street (Figure 20), in preference to Bong Bong Street. In fact, the Circulation Plan will result in "At both ends of Bong Bong Street, entry will be limited to busses and active transport modes."
If realised, the Circulation Plan would bring car parking on Station Street closer to the through traffic, and vice versa, and likely shift preferences in drivers who would otherwise have to use the connector streets shown in Figure 20 to access the car parks located to the east of Bong Bong Street.
While the ITS is not a document formally adopted by Council in its final form, the Council endorsed the ITS for public exhibition for a period of 28 days at a meeting held 15 May 2024 (Exhibit F, Tab 3).
Such a strategy would only serve to bring the Station Street north and south car parks into greater proximity with the town centre, and with the subject site.
Having found that parking credits apply to the site, and that the proposal effectively reduces car parking demand on the site from that which was there before, I also accept the evidence in the SECA Study and the Occupancy Study that there is spare capacity in on-street and off-street parking in the Bowral Town Centre.
I do not share Mr McCarthy's concern at the veracity of high resolution aerial photography as a method for assessing occupancy. Rather, I accept the submission made by the Applicant that such a method results in an artefact that is able to be interrogated in a manner that traditional methods cannot.
I have had regard to the aims of the WLEP at cl 1.2, and find the proposal is not antithetical to any of the aims.
When regard is also had to the objectives of the E1 zone, I consider the reinstatement of one on-street car park because of the removal of a kerb crossing, and the relocation of vehicular access from Wingecarribee Street to Station Street to provide car parking and traffic management facility infrastructure, and to contribute positively to pedestrian access paths, and for facilities for older people and those with disabilities by removing a potential conflict between vehicles and pedestrians.
Such a contribution is consistent with Part A2.2.2 of the Bowral DCP that seeks an Improvement in traffic and parking management within the town, and the avoidance of further inducement of vehicles to enter the town centre could be regarded as a means of minimising vehicular and pedestrian conflicts, where the provision of a safe and accessible network of pedestrian links throughout the town is also an objective. An objective, it must be said, that appears to be one aspect of the Council's own strategic planning when a potential future 'Circulation Plan' is also considered.
The traffic generated by the proposal is not additional to traffic generated by development on the site prior and so does not offend the objectives of the section, at Part B4.2. I do not accept the submission that it is the 1939 consent against which the proposal should be measured, but that for which consent was granted and was in operation until the fire of 2021.
Having considered the above, I am of the view the proposed development is deserving of the grant of consent, subject to conditions of consent filed with the Court on 15 August 2024.
It is also somewhat relevant to note that public submissions received by the Court in advance of these proceedings (Exhibit G), including business owners in close proximity of the subject site, and a petition signed by 61 petitioners, are entirely supportive of the development.

State Environmental Planning Policy (Resilience and Hazards) 2021

I have considered whether the land is contaminated and, on the basis of the Statement of Heritage Impact at [13 ], I conclude it is not, and that it is suitable for the development proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

(1) The appeal is upheld.

(2) Development application No 23/0017 for the demolition of the remaining on-site structures and construction of a 2-storey retail and commercial building at 277 and 279-293 Bong Bong Street, Bowral (Lots 2791 and 2792 in DP 1107202 and Lot 2 in DP 1125539) is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All exhibits are returned except for Exhibits A, E, H and G.

Planning and Assessment Act 1979

Applicant's position on parking credits

The Applicant submits that the previous development was originally the subject of consent in 1939 at a time - as counsel puts it - of 'horse and cart'. Accordingly, car parking spaces were not conceived of at the time.
A succession of approvals then follow the development in 1939, none of which require car parking to be provided on the site, beyond the two spaces provided in the previous development.
The experts agree on the number of car parking spaces that accrued to the previous development, and also agree on the number of car parking spaces required by the proposed development. The result is a reduction in car parking demand.
I consider the above circumstances to be factually distinct from the circumstances set out in Bowral Garage Development Pty Ltd v Wingecarribee Shire Council [2021] NSWLEC 1032 (Bowral Garage) so as to distinguish the matters.
As explained by the Commissioner in Bowral Garage, at [86]: "86 Parking credits are based on the premise that there is a current use for which the parking that is not provided by the development is being catered for on-street, and that it is reasonable that this be continued such that the only parking to be provided is any "new" demand (see FHR Holdings Pty Ltd v Wingecarribee Shire Council at [49] and The Lebanese Moslem Association v Fairfield City Council [2015] NSWLEC 1570 at [37]). The purpose of affording a credit is to acknowledge that there is already an existing reliance on on-street parking to meet an existing parking demand, which will continue with the proposed development."

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