Findings
55The development consents for DA08/1163 and DEV900349 approved extensions to Westfield Miranda. The increased floor space required an increase in the number of car spaces provided to meet the demand for parking generated by both employees and visitors of the centre.
56Condition 21 of DEV900349 and condition 71 of DA08/1163 required that car parking areas shall be made available at all times on an unrestricted basis. The applications under s 96(1A) are seeking to remove the words 'on an unrestricted basis' from condition 21 and condition 71 to enable the introduction of controlled parking.
57Section 96 of the EPA Act relevantly provides:
(1A) Modifications involving minimal environmental impact.
A consent authority may, on application being made by the applicant or any other per s on entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with:
(i) the r e gulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.
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(3) 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 79C (1) as are of relevance to the development the subject of the application.
58There is no dispute between the parties that the development as modified would be substantially the same development. The car parking approved under the development consents is ancillary to the retail use. The proposal to charge a fee for parking does not change the parking from an ancillary use to a separate land use, such as a commercial car park.
59The matters of relevance to the s96 applications and DA10/0877 under s79(c) of the EPA Act include the DCP (s79C(1)(a)(iii)) and social and economic impacts of the proposal on the locality (S79C(1)(b).
60The objectives for parking in the DCP relevantly include:
a. To ensure all land uses and/or combination of activities provide
sufficient parking on site to satisfy the demand for parking by
different vehicle types generated by the development, including
Traffic Generating Development.
b. To ensure all land uses have a described parking provision.
c. To minimise reliance on street parking.
d. To minimise amenity impacts on neighbouring properties, including streetscape, noise and light spill.
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g. To encourage greater use of more sustainable transport modes
such as public transport, motor bikes, walking and cycling.
61The additional car spaces approved under DA08/1163 comply with the requirements of the DCP. The car spaces approved under DEV900349 were in accordance with a different planning document. The experts agree that the existing and proposed parking is adequate to meet the demand for parking generated by the development.
62The key issues between the parties are whether the number of spaces to be provided for staff and the proposal to charge a fee for visitor and staff parking would result in the displacement of parking into the surrounding streets and have unacceptable social, economic and amenity impacts.
63The parties agree that under s80A of the EPA Act, the Court has the power to impose a fee regime if it will mitigate the likely impacts of a development. However, they disagree on whether it can regulate the amount or details of the fee.
64Mr Robertson SC, for the council, submits that the details and amount of fee must be included in the conditions in order for the Court to be satisfied that the impacts are mitigated. He refers to the decision of the Court of Appeal in Randell v Willoughby City Council [2005] NSWCA 205 to support his submission that if the Court has the power to regulate the circumstances in which charges can be levied, it follows that it has the power to regulate the level of fee. At [38] and [39] the Court of Appeal states:
38 This was not a case in which either the purpose or the effect of the decision was or would be to interfere with market forces. No question arose as to the establishment of a new business which might compete with existing businesses. Rather, the question was whether the Claimant should be entitled to charge for an aspect of its services for which it cannot now charge, because of the existence of a condition which the Claimant assumed to have been validly imposed. In this situation it would not have been surprising if the Claimant had sought to call evidence of the economic impact of the condition on its operations. But its present argument would appear to entail the conclusion that such evidence should not be considered. If a planning authority can impose a condition regulating the circumstances in which charges can be levied, it would be absurd to suggest it cannot consider the economic impact of imposing or varying such a condition.
39 It is therefore implausible to suggest that economic impacts on others must fall outside the statutory concept. This point is illustrated by returning to the concept of direct economic impact, noted above. The imposition of a parking fee must have a direct economic impact on each person who thereafter uses the parking lot for a period of less than two hours, that being the period of free parking under the existing consent conditions. No doubt the impact on one individual would be dismissed as insignificant. However, the direct impact must properly be understood as applying to many individuals over an extended period of time. This impact cannot be so readily dismissed and the Claimant expressly resiled from the proposition that any such impact could be ignored as "de minimis". No doubt that concession was impelled by the consideration that the Claimant's strenuous pursuit of the proposed condition variation demonstrated that the power to charge fees was a matter having significant economic consequences for it. It would then be hard pressed to deny that there was any economic impact on users, on the basis that they were a disparate group of individuals. Indeed, arguably the consent authority would be entitled to identify the economic impact as including both the adverse effect on the car parking community and the equivalent beneficial economic impact on the Claimant. The Claimant has failed to demonstrate legal error in this respect on the part of the Commissioner.
65Mr Robertson also referred to Health Projects International v Baulkham Hill Shire Council [2008] NSWLEC 1477, where Moore SC referred to Randell and regulated fees for parking.
66Mr Galasso SC, for the applicant, submits that the power to regulate extends only as far as is necessary to mitigate likely impacts. The establishment of a fee regime is sufficient to address potential impacts of the proposal and regulating the amount of fee is beyond what is required and is therefore beyond power. He refers to the decision in Westfield Limited v Burwood Council (Appeal N0: 10139 of 2011 dated 1 May 2000) where at [11] Brown C states:
....it is not the role of the Court to determine whether the $3 parking fee for staff is appropriate or not, but what implications this charge will have on the parking provisions within the carpark and in the surrounding streets. To do this however some assessment needs to be made on the appropriateness of the fee.
67To accept Mr Galasso's submission, I must be satisfied that the establishment of a fee regime is adequate to address the potential impacts of the development, principally the impacts if parking is displaced from the centre into the surrounding residential streets.
68I note that the applicant's version of conditions has excluded the fee amounts for visitor parking consistent with Mr Galasso's submission regarding the power to regulate a fee. However, it includes a $4 fee for staff parking which may be increased annually in accordance with the movement with the Sydney Consumer Price Index or the annual percentage increase in Council rates levied by the Council, whichever is greater. It would appear that the inclusion of a monetary amount for staff parking is inconsistent with Mr Galasso's submission.
69Condition 71 states that 'to ensure that the carparking area satisfies the demands of the development it shall be made available on an unrestricted basis at all times for employees' and visitors' vehicles.' The purpose of this condition is to ensure that the parking approved under the development consent meets the objectives for parking under the DCP to provide parking on site that satisfies the demands for parking generated by the development in order to minimise the reliance on street parking and amenity impacts on neighbouring properties. T he purpose of condition 21 would be similar.
70The question before the Court is whether the amendments to the conditions and the approval of DA10.0877, which would enable the introduction of a parking fee regime, would meet the objectives of the DCP for parking. The social and economic impacts of the proposal on the locality should be considered within this framework.
71Mr Galasso referred to the decision of Milne v Minister for Planning (No 2) [2007] NSWLEC 66, where Jagot J said:
22 Under s 79C(1)(b) of the EPA Act the consent authority, in determining a development application, is to take into consideration the likely impacts of the development, including (relevantly) social and economic impacts in the locality. 23 The fact that all people are members of society and engage in some form of economic activity does not mean that each and every impact of development on a person amounts to a social and economic impact. It is for this reason that, when dealing with the social and economic impacts of development, courts have rejected notions of the profitability of individual businesses and focused on the potential for detriment to the "extent and adequacy of facilities available to the local community if the development be proceeded with" (Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675 at 687). This focus reflects that part of the definition of "environment" in s 4(1) of the EPA Act concerned with people in their "social groupings". It also reflects certain objects of the EPA Act (s 5), which are incapable of being understood outside the context of people as community members (including the promotion and co-ordination of the orderly and economic use and development of land, the provision and co-ordination of community services and facilities, ecologically sustainable development and the provision and maintenance of affordable housing). Social and economic impacts thus concern effects on the relations between people in their capacity as members of communities and their environment.
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29 Accordingly, development that contributes to achieving the relevant planning objectives for Chinderah and the region may have social and economic impacts - but they are impacts contemplated as part of the orderly and economic use of land. In weighing up any such impacts, regard should also be given to the observations of courts that unfounded fears of impacts on amenity (however widespread) cannot be material to planning assessment, but that "demonstrable social effects" are relevant, as is evidence of impacts capable of objective assessment (Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, unreported, 17 February 1997. See also, for example, New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at [53] to [64], Jarasius v Forestry Commission of New South Wales and Others [No 1] (1988) 71 LGRA 79 at 92, Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [190] to [208]). For these reasons, as Rivercolt submitted, it is the cogency of residents' concerns, not their number, which may give rise to relevant considerations
72Mr Galasso submits that there is no demonstrable social effects of imposing a fee for staff parking as 'the cost of travel to work is a cost generally borne by persons who work as a legitimate incidence of that employment'. He submits the impacts of a fee for staff parking are not a relevant consideration under s79C(1)(b) with respect to workers. Similarly, the cost of parking for visitors is not a relevant social or economic impact.
73Having considered the planning purpose of the conditions and the objectives of the DCP for parking, the social and economic impacts of the proposal are principally whether the fee would act as a disincentive for staff and visitors to use the parking provided on site and result in displacement of vehicles into surrounding streets. Other social and economic impacts on individuals and businesses are of little relevance to the consideration of whether the planning purpose sought by the conditions and the DCP is achieved.
74Having considered the evidence of the experts I accept that:
- placing a fee on parking can act as a disincentive to the use of the parking spaces. The extent depends upon the amount of fee and when it occurs.
- The provision of parking plays an important role in 'shopper psychology'. This includes not only the number of spaces but also where they are located, particularly their proximity to convenient entry points into the shopping centre.
- The applicant's objectives of preventing staff from parking in the car spaces near entry points and limiting long stay parking can be achieved by charging a fee for visitor parking and providing designated staff parking areas. Such a fee must be triggered within the minimum shift period (3 hours) and must be sufficiently greater than any fee charged for staff parking. A fee on staff parking is not required to meet this objective.
- If a fee is imposed on staff parking, staff will either pay the fee, catch public transport, park in the street or be driven to work. Their choice will depend on their ability to pay the fee and the convenience of other options, including time.
- Imposing a fee on visitor parking will result in a greater turnover of visitor car parking spaces and increased traffic movement.
- The objective of greater use of public transport is unlikely to be achieved by the visitor fee due to the increased turnover of parking and it would not, of itself, justify the introduction of a fee.
- The introduction of staff and visitor fees will result in some cars no longer using the parking provided on site and parking in surrounding streets, however, the extent of displacement is unclear.
- The displacement of cars into surrounding streets adersely impacts on the amenity of residents and does not meet the objective of the DCP for parking.
- 65% of shoppers leave within 2 hours, 90% leave within 3 hours and 97% leave within 4 hours.
- There are no demographic indicators that suggest Sutherland or the workforce of Westfield are disadvantaged.
- 75% of staff at Westfield live within the Sutherland LGA. 68% of workers in the travel zone drive to work.
- The majority of staff at Westfield are part time and casual. 20% of part time staff are under 25 years.
- Retail workers are relatively low paid.
- A fee of $4 per day would have a severe adverse impact on workers who earn less than $40,000 per year, if this is their sole source of income.
75As I accept Mr Galasso's submission that I cannot regulate the amount of the fee I must therefore be satisfied that the fee regime will not result in displacement of cars into surrounding streets and associated amenity impacts. The regime should therefore set a fee free period which will enable the majority of shoppers to park on site and complete their shopping thereby limiting the likelihood that they will choose not to park in the centre or seek to re-enter the centre after the fee free period.
76I am not satisfied that the proposed two hours free parking is an adequate period to mitigate the potential for shoppers to park in surrounding streets or re-enter. Mr Galasso's submits that the level of fee to be charged after this period should not be set by the consent authority and may vary over time and depending upon the objective to be achieved. If the objective is for a turnover every two hours to encourage a greater number of shoppers, then the fee could be large and may result in shoppers parking in surrounding streets rather than paying the fee. Whereas, if the objective is to prevent staff parking in prime locations and limit long stay parking then the fee only needs to apply within the minimum staff shift and be greater than any fee charged to staff. The latter is the stated objective of the applications and this can be achieved by establishing a regime which provides 3 hours free parking for shoppers. This will provide greater certainty that the majority of shoppers (90%) will park within the centre and not seek to park in surrounding streets.
77There is no need to charge staff a parking fee to achieve the objective of relocating staff parking away from prime positions, provided a sufficient fee is introduced for shoppers at a time prior to the minimum staff shift (3 hours plus time to access their place of work). The introduction of a fee for staff parking may encourage some staff to use public transport. Equally, the introduction of a fee may result in some staff parking on streets or paying the fee. The choice will depend on factors such as availability, cost and time. In assessing the economic and social impacts of a fee, no definite conclusions can be drawn from the evidence as to the likely choice that would be made and therefore the likely displacement of cars into surrounding streets.
78However, shift workers are likely to be more sensitive to a daily fee and to the time and cost taken to travel by public transport (given the level of remuneration or travel costs in proportion to the fee and /or the travel time in proportion to the hours worked). The agreed evidence of Mr Storer and Mr Leyshon is that a fee of $4 per day would have a significant adverse impact on workers earning less than $40,000 per year, if this is the sole source of household income. I accept that for a number of workers there will be other sources of income but the imposition of a fee for parking, particularly for shift workers (20% of whom are under 25), would act as a disincentive to using the car park and may result in displacement of parking into surrounding streets.
79To mitigate the potential for staff to park in surrounding streets, it is reasonable that no fee be charged for the period of the minimum shift (plus a reasonable period to walk to and from the parking space to the place of work). I therefore find that staff parking should be freely available for a minimum period of four hours after which time a fee may be charged.
80In reaching these conclusions, I note that inherent in the determination of parking numbers to meet the demand generated by specific uses is the assumption that parking is not provided for every staff or visitor. The parking number required under the DCP would be based on assumptions about the use of other forms of transport and the number of staff and visitors likely to need parking. This parking is to be provided on site rather than rely on the availability of parking in surrounding streets. A number of staff and visitors to Westfield would already use public transport, walk or choose not to use the car park and park in surrounding streets. However, visitor and staff parking required by the DCP should be available for those people who wish to use it and any fee should not act as a deterrent to its use. Therefore to meet the objectives for parking under the DCP any fee regime should ensure reasonable access to the parking required to meet the demands of the development. Any fee regime should also meet the reasonable objectives of Westfield for the improved operation and management of the centre.
81Access to the car park for visitors and staff and the stated objectives of Westfield can be achieved through amendments to condition 21 of development consent DEV900349 and Condition 71 of development consent 08/1163 to delete the words 'on an unrestricted basis' and by including new conditions 21A in DEV900349 and 71A in 08/1163 which state:
No fee may be charged for parking other than for valet or secure parking until such time as the works for the construction of the car park and associated vehicular and pedestrian access-ways approved under DA08/1163 and the works for the construction of the controlled parking system approved under DA 10/ 0887 are completed. Any fee charged shall be in accordance with the conditions of consent in DA10/0887.
82New conditions 21A and 71A will ensure that any fee for visitor and tenant parking will not be charged until the works approved under DA08/1163 and DA10/0887 are completed. The fee will then be charged in accordance with the conditions of consent in DA10/0887.
83With the above amendment to the condition and the additional condition, I am satisfied that the proposal will have a minimal environmental impact and that Appeal No: 10176 of 2011 and Appeal No: 10177 of 2011 may be upheld and the applications under s 96(1A) may be approved.
84The parties raised no issues with the works proposed in DA10/0877. I am satisfied that Appeal No: 10178 of 2011 may be upheld and consent granted subject to conditions that include the following requirements: