Walker v North Sydney Council

The council submits that the two existing parking spaces on the site should not be considered for the purpose of calculating the parking spaces required for the development, pointing out that the first floor dwelling requires one parking space pursuant to Schedule 1 of the DCP. Further, the remaining parking space would be required for a loading bay since cl 60(1) of the DCP states:- (1) Commercial and industrial development shall include provisions for off-street loading and unloading facilities within the boundaries of the properties.. Sub-clause (2)(a) and sub-clause (2)(b) of cl 60 of the DCP specify the dimensions of the required loading bay. Mr Hallam considered that such provision was essential for loading and unloading of supplies since there may be no on-street demand for parking spaces generated by other businesses. In cross-examination he did however concede that a loading bay could also be used for parking when not required for deliveries of supplies.

The applicant submits that a loading bay is not required since the DCP applies to ' commercial and industrial development '. The applicant relies upon the definition of ' commercial premises' as contained in cl 5 of the LEP and used in Schedule 1 of the DCP. By virtue of cl 4 of the DCP such definition is adopted for the purposes of the DCP. Such definition provides:- "commercial premises" means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place elsewhere specifically defined in this clause; Since refreshment rooms are specifically defined, the applicant submits that the site is not ' commercial premises' as defined and thus not a commercial development. 25. I reject this submission. Schedule 1 to the DCP applies to parking requirements for specifically defined development whereas cl 60 of the DCP applies to parking space provision for loading and unloading generally at commercial and industrial developments. The development of a refreshment room constitutes a commercial development, even though such development may not be defined as ' commercial premises'. Since cl 60(1) of the DCP specifically applies to commercial development, the proposed use is included.

Allowing the applicant the most liberal interpretation of Schedule 1, only two parking spaces exist. Such interpretation makes no parking space allocation for the residential use or for a loading bay. Accordingly there is a shortfall of four car spaces. Parking in Blues Point Road is usually in high demand. I reject the survey made by Mr Le Bas on the evening of 15 September 2000 as being representative of typical demand for parking, since it was made during school holidays and simultaneously during the Olympic Games Opening Ceremony. A traffic survey prepared by Mr John Hewitt for different proceedings was also relied upon by the applicant. I reject such survey as representative as it was undertaken during the school holiday period and is therefore unlikely to represent normal parking availability in the subject area. The Court also determines that there is no basis for the allegation that the DCP requirements for parking have been applied inconsistently. An examination of other refreshment rooms establishes that provision for loading and parking has been made at the rear of such premises, or that existing use rights have applied.

The development application pays no regard to the parking requirements contained in the DCP but rather relies upon street parking to satisfy the traffic concerns of the council. The kerb and footpath in Blues Point Road have been constructed to prevent parking adjacent to the site frontage to Blues Point Road. There is virtually no parking in Lavender Street near the site. The proposal to seat 36 diners will obviously result in the need for some patrons to drive to the site. The streets are already heavily used for parking as was evident on the view and if each of the existing spaces are allocated for the refreshment room, no parking would be provided for the residence and there would be no provision for a loading bay. I therefore reject the submission, as contained in the report of Mr Le Bas that ' there will be no significant change to car parking demand generated by the proposed development when considered relative to other permissible retail uses.'

The Court is invited to ignore the obvious shortfall in parking and in so doing, to ignore the requirements of the DCP. Such provisions are not mandatory requirements, but a consent authority would require sound reasons for departing from them since a DCP represents the carefully formulated planning objectives for an area. In the present application no reason exists to justify a departure from the requirements of the DCP.

Issue 4: Effect of the draft local environmental plan ("the draft LEP")

The applicant submits that the draft LEP should be ignored on the basis that it remains only a draft. The applicant further submits that cl 68 of the draft LEP was not included in the original draft LEP and therefore should be given little or no weight. Clause 68 of the draft LEP prohibits refreshment rooms in 2(d) zone. The applicant also submits that the savings provision contained in cl 5(3) of the draft LEP applies. Such provision states:- (3) Where a development application has been lodged but not determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this Plan had been exhibited but had not commenced.

In accordance with the observations of the Chief Judge in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 and Talbot J in Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181 and Mathers v North Sydney Council [2000] NSWLEC 84, the Court adopts the council's submissions that the prohibition contained in draft cl 68 is to be given consideration as required by s 79 of the Environmental Planning & Assessment Act 1979 ("the EPA Act").

Arising from the judgments of Talbot J and Pearlman J the adoption of the draft LEP is imminent and upon the balance of probabilities the Court is satisfied that cl 68 of the draft LEP will be incorporated in the new planning instrument (see Architects Haywood and Bakker Pty Ltd ). The Minister is entitled to alter the draft LEP pursuant to s 70 of the EPA Act in respect of matters of regional significance. Clause 68 is not such a matter and therefore the Court can conclude that it is likely to be incorporated in the final LEP. Since cl 68 was inserted in the draft LEP as a consequence of public submissions following exhibition of the first draft LEP it is to be given more, rather than less consideration by the Court. When implemented cl 68 of the draft LEP will prohibit refreshment rooms in the 2(d) zone and not merely permit such use with consent. The Court therefore gives due force to such clause and upholds the council's submission that cl 68 of the draft LEP warrants rejection of the development application.

The evidence establishes that the development application is contrary to the planning objectives of the locality and that there is no adequate provision for on site parking. In addition, the draft LEP prohibits the development of refreshment rooms in the 2(d) zone. For these reasons the development application is rejected and the appeal dismissed.

1. The appeal be dismissed.
2. Development application no 706/00 for a refreshment room at 171 Blues Point Road McMahons Point is determined by refusal of consent.
3. The exhibits be returned.

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.

(2) To limit car parking associated with development so as to minimise adverse impacts on the surrounding area.

22. The applicant submits that other refreshment room developments in the vicinity have no provision for parking although they were apparently granted development approval subsequent to the implementation of the DCP. In this respect it is submitted that the council by requiring the applicant to meet the parking limits prescribed by the DCP is acting inconsistently. The applicant also submits that the provision of one car space for the upstairs residence is not required, since cl 54 relates to `development' and not to existing structures.

23. The council submits that the two existing parking spaces on the site should not be considered for the purpose of calculating the parking spaces required for the development, pointing out that the first floor dwelling requires one parking space pursuant to Schedule 1 of the DCP. Further, the remaining parking space would be required for a loading bay since cl 60(1) of the DCP states:-

(1) Commercial and industrial development shall include provisions for off-street loading and unloading facilities within the boundaries of the properties..

Sub-clause (2)(a) and sub-clause (2)(b) of cl 60 of the DCP specify the dimensions of the required loading bay. Mr Hallam considered that such provision was essential for loading and unloading of supplies since there may be no on-street demand for parking spaces generated by other businesses. In cross-examination he did however concede that a loading bay could also be used for parking when not required for deliveries of supplies.

24. The applicant submits that a loading bay is not required since the DCP applies to `commercial and industrial development'. The applicant relies upon the definition of `commercial premises' as contained in cl 5 of the LEP and used in Schedule 1 of the DCP. By virtue of cl 4 of the DCP such definition is adopted for the purposes of the DCP. Such definition provides:-

"commercial premises" means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place elsewhere specifically defined in this clause;

Since refreshment rooms are specifically defined, the applicant submits that the site is not `commercial premises' as defined and thus not a commercial development.

25. I reject this submission. Schedule 1 to the DCP applies to parking requirements for specifically defined development whereas cl 60 of the DCP applies to parking space provision for loading and unloading generally at commercial and industrial developments. The development of a refreshment room constitutes a commercial development, even though such development may not be defined as `commercial premises'. Since cl 60(1) of the DCP specifically applies to commercial development, the proposed use is included.

26. Allowing the applicant the most liberal interpretation of Schedule 1, only two parking spaces exist. Such interpretation makes no parking space allocation for the residential use or for a loading bay. Accordingly there is a shortfall of four car spaces. Parking in Blues Point Road is usually in high demand. I reject the survey made by Mr Le Bas on the evening of 15 September 2000 as being representative of typical demand for parking, since it was made during school holidays and simultaneously during the Olympic Games Opening Ceremony. A traffic survey prepared by Mr John Hewitt for different proceedings was also relied upon by the applicant. I reject such survey as representative as it was undertaken during the school holiday period and is therefore unlikely to represent normal parking availability in the subject area. The Court also determines that there is no basis for the allegation that the DCP requirements for parking have been applied inconsistently. An examination of other refreshment rooms establishes that provision for loading and parking has been made at the rear of such premises, or that existing use rights have applied.

27. The development application pays no regard to the parking requirements contained in the DCP but rather relies upon street parking to satisfy the traffic concerns of the council. The kerb and footpath in Blues Point Road have been constructed to prevent parking adjacent to the site frontage to Blues Point Road. There is virtually no parking in Lavender Street near the site. The proposal to seat 36 diners will obviously result in the need for some patrons to drive to the site. The streets are already heavily used for parking as was evident on the view and if each of the existing spaces are allocated for the refreshment room, no parking would be provided for the residence and there would be no provision for a loading bay. I therefore reject the submission, as contained in the report of Mr Le Bas that `there will be no significant change to car parking demand generated by the proposed development when considered relative to other permissible retail uses.'

28. The Court is invited to ignore the obvious shortfall in parking and in so doing, to ignore the requirements of the DCP. Such provisions are not mandatory requirements, but a consent authority would require sound reasons for departing from them since a DCP represents the carefully formulated planning objectives for an area. In the present application no reason exists to justify a departure from the requirements of the DCP.

Issue 4: Effect of the draft local environmental plan ("the draft LEP")

29. The applicant submits that the draft LEP should be ignored on the basis that it remains only a draft. The applicant further submits that cl 68 of the draft LEP was not included in the original draft LEP and therefore should be given little or no weight. Clause 68 of the draft LEP prohibits refreshment rooms in 2(d) zone. The applicant also submits that the savings provision contained in cl 5(3) of the draft LEP applies. Such provision states:-

(3) Where a development application has been lodged but not determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this Plan had been exhibited but had not commenced.

30. In accordance with the observations of the Chief Judge in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 and Talbot J in Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181 and Mathers v North Sydney Council [2000] NSWLEC 84, the Court adopts the council's submissions that the prohibition contained in draft cl 68 is to be given consideration as required by s 79 of the Environmental Planning & Assessment Act 1979 ("the EPA Act").

31. Arising from the judgments of Talbot J and Pearlman J the adoption of the draft LEP is imminent and upon the balance of probabilities the Court is satisfied that cl 68 of the draft LEP will be incorporated in the new planning instrument (see Architects Haywood and Bakker Pty Ltd). The Minister is entitled to alter the draft LEP pursuant to s 70 of the EPA Act in respect of matters of regional significance. Clause 68 is not such a matter and therefore the Court can conclude that it is likely to be incorporated in the final LEP. Since cl 68 was inserted in the draft LEP as a consequence of public submissions following exhibition of the first draft LEP it is to be given more, rather than less consideration by the Court. When implemented cl 68 of the draft LEP will prohibit refreshment rooms in the 2(d) zone and not merely permit such use with consent. The Court therefore gives due force to such clause and upholds the council's submission that cl 68 of the draft LEP warrants rejection of the development application.

32. The evidence establishes that the development application is contrary to the planning objectives of the locality and that there is no adequate provision for on site parking. In addition, the draft LEP prohibits the development of refreshment rooms in the 2(d) zone. For these reasons the development application is rejected and the appeal dismissed.

2. Development application no 706/00 for a refreshment room at 171 Blues Point Road McMahons Point is determined by refusal of consent.