This Standard sets out the minimum requirements for the design and layout of off-street parking facilities, including multi-storey car parks for motor cars, light vans and motorcycles.
55 The purpose of the Standard is to prescribe design and layout for construction purposes. There is no evidence that the respondent has carried out structural alterations to the building nor that it has not been constructed according to the approved development and building plans.
56 The complaint of the council that the respondent is not permitting access to the car park on a "two hours free" basis was resolved when interlocutory orders were made by the Chief Judge, by consent and without admission, to the effect that from 20 October 2003 the respondent was required to make available parking in designated car parking spaces for staff and visitors to the retail and leisure centre on the basis that the first two hours of parking is free. There is no evidence to suggest that the respondent is in breach of the order made by the Chief Judge. Accordingly there is now no threat of breach of the requirement of condition 41 that parking spaces are to be managed in accordance with the PMP including a scale of fees incorporating a "first two hours free" basis.
57 The failure on occasions to provide for manual fee collection and ticket checking at the egress boom gate is not of such moment that it would justify a remedial order. The evidence from witnesses is that although there have been times when an attendant has not been available this has generally not caused a problem. The evidence does not support a finding of consistent breach of this requirement.
58 Despite the alleged lack of adequate directional signage those witnesses who gave oral evidence confirmed in cross-examination that they had no practical difficulty in gaining access to the car park or in locating an appropriate space.
59 Raymond Carmont, a traffic surveyor engaged by council, observed a queue of cars seeking entry to the car park on 19 October 2004 and noted there was a "Car Park Full" sign erected for at least 20 minutes. It is not clear to me what issue this evidence addresses but if it is relied upon to show a non-ancillary use by non-designated user groups it is unhelpful in that respect. According to the oral testimony of witnesses, spaces are generally available in the car park to meet the demand.
60 Apart from Mr Carmont's evidence, no witness complains that since the hearing commenced members of the designated user groups have been unable to find a parking space when required. However there were some complaints prior to that. Apart from Mr Carmont's evidence, no witness complains that since the hearing commenced members of the designated user groups have been unable to find a parking space when required. However there were some complaints prior to that.
Discretion
61 The respondent relies on the knowledge of the applicant in respect of the method of operation of the car park from at least the completion of the purchase in July 2003 together with the commercial interest of the applicant in the leisure centre to support an argument that I should exercise my discretion not to make formal orders notwithstanding the established breach of the conditions of consent. I accept that the council would have been aware that Marnwest had granted licences to use and occupy car spaces and that it took no action against Marnwest. It did take action by the issue of the s 121B order to the respondent on 11 August 2003, albeit unsuccessfully. Notwithstanding a perceived financial interest in the effective use of the car park in the manner contemplated by condition 41 the council is still to be seen as a proper guardian of public rights. The public is entitled to expect that conditions of development consent will be enforced ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335).
62 Initially the primary concern of the council was directed to enforcing the requirement for provision of two hours free parking in accordance with condition 45 and the PMP. This issue was resolved by consent orders earlier in the proceedings. The council subsequently, on several occasions, reformulated its case to concentrate on the alleged breach of the LG Act. The redirection of the focus of the council, with ultimate success, does not detract from the overall important objective of enforcing the duty imposed by the EP&A Act to carry out development lawfully.
63 Admittedly the council has experienced ongoing difficulty formulating its pleadings. It was necessary for indulgences to be granted by leave in this respect on a number of occasions. It was not until the hearing was in an advanced stage that Mr Rares was able to provide a draft set of orders for which the council ultimately contended. The application of condition 41 in particular presents practical difficulties. Nonetheless I am satisfied appropriate orders can be formulated notwithstanding the practicalities. The parties will be given an opportunity to address this issue after they have appropriate time to consider these reasons. The difficulty in drafting orders that are capable of performance in a practical sense is not, in itself, a reason why the Court should not in the exercise of its discretion make orders.
64 I am satisfied that there is a relevant public interest in making final orders. The intention of the conditions is to ensure that those members of the public who elect to take advantage of the retail and other facilities and amenities in the Regency are provided with adequate parking in the building. If no orders are made there will be no constraint to prevent the respondent from operating the car park without regard to the identity of the patrons. That would be contrary to the objective and intent of condition 41.