Wilson Parking Australia 1992 Pty Limited v City of Sydney Council [2010] NSWLEC 1204 | Case summary

The proposal 11 The proposal does not physically change the existing site other than to close the entry/ exit on York Street and remove some signage. Essentially, the proposal is to use a portion of the site as a ground level public car park with valet service for up to fifteen vehicles for a period of up to 5 years with all access from the existing Wynyard Street 3.5m wide driveway. 12 There are no new structures proposed by this application. The structures being used by the car park include the existing shed in the northwestern corner. The parties have agreed about the treatment of the walls, the facades to York Street and Wynyard Street, as described in exhibit F. It was accepted by both parties that the site is relatively undeveloped since demolition in the 1930s of the original buildings. A single storey building on the street corner which was used for a Krispy Kreme outlet until 2007 and is currently being used for a convenience store, (DA 2008/550) has development consent without any time limitation. The remainder of the site currently operates as a public car park, for which development consent has not been granted. Council has issued an order, as I understand the facts, to require the applicant to cease the public car park use and remove the signage. However, enforcement of the order is on hold awaiting the determination of this appeal. 13 The history of the development application before council is set out in the facts and contentions and I do not propose to repeat those facts other than to note that I am dealing with a refusal by the Small Permits Panel of the amended application under s 82A on 14 August 2009, which essentially reflects the grounds of refusal set out in the notice of determination issued by council on 22 April 2009. I also note that I am not dealing with any offset for parking of motorcycles as part of this appeal. 14 The relevant planning controls are listed in the revised facts and contentions (exhibit 3) as follows: Sydney Local Environmental Plan 2005(Sydney LEP) Clause 11(c) and (d), 12(i), (n) and 13 (a) -Strategies Clause 36(h) and (l) -Zone objectives Clause 64(a), (b), (c), (e), (f), and (g) - Car parking objectives Clause 66(1), (a), (b), (d), (f) and (g) and Clause 66(2)- Public car parking restrictions Central Sydney Development Control Plan 1996(Central Sydney DCP) Figure 2.27 - Street frontages activities Figure 3.5 - Footpath crossings /Pedestrian priority places Clause 5 - On site-parking Sustainable Sydney 2030 (Sydney 2030) Objective 3.1 and Action 3.1.3 - Enhanced access by public transport Objective 3.3 and Action 3.3.3 - Reduce the impact of transport on public space. 15 The council submits that I am to have regard to the Sydney 2030 strategy as a relevant consideration under the public interest in section 79C of the Act. I note that the application has been notified in accordance with council's policy and council has received no objections. The contentions 16 The contentions in council's revised facts and contentions (exhibit 3) state: "Part B - Contentions 1. Restrictions for all public car parking (1) The applicant's SEPP1 objection of 19 Decembers 2010 to vary the Development Standard within Clause 66(1)(d) of the Sydney LEP should not be supported, as adherence to this clause is not unnecessary or unreasonable in the circumstances of the case. 2. Pedestrian impacts The development will adversely impact on pedestrians Particulars (i) Clause 66(1)(g) of the LEP (ii) Figures 2.27 and 3.5 of the DCP, respectively (iii) Clause 64(f) and Clause 66(1)(a) 3. Restrictions on new public car parks The area is already adequately served by public transport and other existing public car parks, and there is no identifiable land use demand for the development. Particulars (i) Clause 66(2) of the LEP 4. Sustainable transport objectives The development is not consistent with the long-term objectives of the City or Sustainable Sydney 2030 Particulars (i) Clause 11(c), (d) Clause 12(n) of the LEP, and Clause 13(a) (ii) Clause 64(a) of the LEP a, and Clause 66(1)(a) (iii) Clause 64(g) of the LEP, and Clause 66(1)(a) (iv) Objective 3.1 and Action 3.1.3 of Sydney 2030 (v) Objective 3.3 and Action 3.3.3 of Sydney 2030 5 Traffic impacts The traffic generated by the car park has an adverse impact on bus movements associated with the bus interchange. The development encourages commuter car parking and reduces the proportion of public transport users in the city each day. Particulars Clause 64(b) of the LEP, and clause 66(1)(a) Clause 64(c) of the LEP, and Clause 66(1)(a) Clause 64(f) of the LEP, and Clause 66(1)(a) Figures 2.27 and 3.5 of the DCP Clauses 66(1) (b) of the LEP 6. Urban design and character The development does not represent high quality urban design and consistent streetscape (i) Clause 66(1)(f) of the LEP (ii) Clause 64(e) of the LEP and Clause 66(1)(a) (iii) Clause 12(i) of the LEP (iv) Clause 36(h) of the LEP (v) Clause 36(1) of the LEP (vi) Section 5 Paragraph 3 Explanatory Notes and 5.1 Strategy 17 The contentions were refined during the hearing. In the joint report of Mr Staas and Ms Cheng (at p 1 of exhibit 9) the experts were in agreement as follows: (1) The car park is not located underground. (2) The car park is small. (3) Public car parks are not expressly prohibited by Sydney LEP. (4) Refusal of the application would not prevent continuation of the former use for private parking. (5) Ground level parking (above ground) already exists, and there is no new provision of at grade or above ground parking raised by this application. (6) The closure of York Street entry and reduction in signage are urban design improvements. (7) No additional active use is provided by the current application . 18 The joint report of Mr Coady and Ms Cheng at p 1 adds the following points of agreement, namely: (iii) public transport cycling and walking are not practicable nor reasonable transport options for all trips to Sydney CBD; (iv) the application is for interim use of the site as a public car park in the sense that it is a use proposed during the intervening period until activation of an approved DA some time in the future; (v) the subject site has been used for parking over many years, and the proposed use represents continuation of the use of the site for parking. However, the site has not been previously used as a public car park as is now proposed; (vi) the subject site is located adjacent to a public transport node. 19 The applicant, in the course of the hearing, agreed to amend its application to operate the car park between the hours of 9.30 and 6pm to avoid the morning peak. 20 It was accepted by the traffic experts that, as a consequence of that change, the operation of the car park would avoid the morning peak and the pedestrian vehicle traffic conflict discussed in their evidence. Remaining contentions 21 The view of the site and surrounding areas assisted me understand the evidence in its context and the contentions are as follows: Contention 1- Restrictions for all public parking. 22 The applicant's SEPP 1 objection dated 19 January 2010 is located at folios 680 to 688 of exhibit 2. It states that the proposal does not comply with cl 66(1)(d) of the LEP which provides: "66 Public car parking restrictions (1) Restrictions that apply in all cases before granting consent to development for the purpose of any public car parking, the consent authority must be satisfied that the public car parking: (d) will be located underground, and…" 23 It requires public car parking to be located underground and the applicant objects to compliance on the basis that it is unreasonable and unnecessary to comply with that development standard in this case because the underlying objective of the car parking controls is in cl 64 of the LEP specifically (e): "To minimise adverse urban design impacts in particular by discouraging the provision of above ground parking" is achieved despite this non-compliance with cl 66(1)(d). 24 The urban design objectives specified in cl 64(e) to discourage above ground parking, according to Mr Coady's evidence, relates to the adverse urban design impacts caused by multi storey above ground car parks not at grade or ground level car park such as the proposal. In his expert opinion this proposal does not create any adverse urban design impact because it will not be visible behind the existing built form and fence. In his opinion this is not above ground parking and cl 64(e) is not breached in this case. 25 The parties' experts agree that there is no proposed physical change to the built form in the "urban room". Mr Staas, states in his written evidence: "There is no additional impact on any building either on the subject land or adjoining the site arising from the proposed use of the open area for parking. The historical and existing use of the land is for car parking and the council can be reasonably satisfied that continuing this use, which is part of the historical evolution of the area will not have any additional impact on the surrounding urban character or fabric. In granting approval, there is no compromise or change to the long established character of the site. The car parking will be screened by the existing corner building and high walls and the walkway along York Street will be enhanced by the closure of the existing car access." 26 The large, existing signage and logo on the walls of the site, (apart from small signs at the entry which is not visible from the park), will be removed, and, as a result, according to Mr Staas, it will be difficult to tell that the site is being used for a public car park or see its operation at all. The proposed signage, on the applicant's evidence, will be more discreet than the existing signage of other car parks, which I viewed at the site inspection. 27 The experts agree that the proposed car park is small with a limited capacity of up to fifteen vehicles. The site has been used for a car park for more than 70 years. The application involves continuation of the established use for an interim period of up to 5 years. 28 The applicant's evidence is that approval of this application will not prevent the orderly and economic development of the site under the existing commercial retail consent. The applicant has a month to month lease and no substantial expenditure is required to activate the proposed use which is the subject of this application. The applicant's experts both agree that the site currently has limited uses and the proposal offers a transition use that results in the orderly and economic use of the land, which is a relevant objective in s 5 of the Act. 29 The evidence is that the use satisfies an existing demand for clients and customers in nearby buildings who come to the city for short stays with parking needs of between thirty minutes and two hours and building contractors with a vehicle not of normal car size use it. The Court observed at the view the existing loading bays in the area including at the front of site and appreciates that the proposal could accommodate such use. 30 For the above reasons, the applicant's evidence is that the objection is well founded because it is consistent with the underlying objectives of the standard, in particular cl 64(e) and consistent with the aims of the SEPP 1 as prescribed under cl 3 of the policy and it would be unreasonable and unnecessary in the circumstances of this case pursuant to cl 6 of the policy not to permit approval of the application, notwithstanding the non-compliance with cl 66(1)(d). 31 Ms Cheng for the council does not agree. In her expert opinion the objection is not well founded because she believes there is no sound planning reason to vary the standard on the facts of this case. In addressing the questions raised by the decision of Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 she states in her expert report, (at p15 - 25 exhibit 4), that the relevant objectives are set out in cl 64 as follows: "64 Objectives for car parking controls The objectives of the car parking controls of this Part are: ( a ) to acknowledge that public transport is the most important and efficient means of moving people to and within Central Sydney, and ( b ) to encourage commuting by public transport to Central Sydney in order to reduce the number of motor vehicles travelling through and to Central Sydney, and to improve overall environmental quality and pedestrian amenity, and ( c ) to improve the attractiveness and competitiveness of Central Sydney for retail and commercial activities by providing a reasonable level of tenant and short-stay public car parking whilst discouraging commuter car parking, and ( e ) to minimise adverse urban design impacts, in particular by discouraging the provision of above ground parking, and ( g ) to discourage the provision of public car parking, and 32 It is her view objectives (a), (b), (c), (e), and (g) in clause 64 underlie the purpose of cl 66(1)(d) of the LEP (6.1.5 of exhibit 4) 33 In her expert opinion the proximity of the proposed above ground public car park adjacent to a "public transport node", which is a gateway to Central Sydney, competes with existing public transport because its presence provides a visual cue signalling the availability of public car parking and this encourages driving into the city; (para 6.1.10 exhibit 4). 34 Ms Cheng does not consider "…the characteristics of the proposed car park -being on the ground rather than 'above ground', small and 'temporary' and at a so called 'derelict site' that historically has been used as a private car park -to be 'special circumstances worthy of justifying a variation of this development standard (para 6.1.42 of exhibit 4). 35 In her opinion the proposal for public car parking is "highly inappropriate" because " its blatant availability and convenience means that it directly detracts from sustainable and efficient transport nodes"; (para 6.1.11 exhibit 4). Findings 36 Despite council's claim that the development does not support sustainable transportation (para 6.1.38) there is no evidence to support how in real terms a time limited public car park for fifteen vehicles opening after the am peak directly detracts from sustainable and efficient transport nodes when the traffic count shows that at most nine cars per hour between 9.30 and 6pm enter the car park. 37 I accept Ms Cheng's genuine concern for sustainable transport but cannot accept, on the evidence before me that this proposal detracts from that long-term objective in the controls of the 2030 Strategy. 38 She concedes the built form will not change with this development and the existing open car park will sit behind the convenience store on the corner and high walls. Furthermore she agreed that if the large signs are removed, as agreed by the applicant, the only visible signage will be at the entryway at Wynyard Street and this is not visible from inside the park. 39 Ms Cheng also agreed that if the development is not approved the use is likely to revert to the previous tenant parking use. Based on her oral and written evidence I cannot accept that the proposal does not meet the objective in cl 64(a) because it offers extensive short term parking after morning peak and does not compete with or fail to: "to acknowledge that public transport is the most important and efficient means of moving people to and within Central Sydney". 40 With respect to cl 64(b), the amendment to the opening hours to avoid am peak and commuter parking overcomes Ms Cheng's concern in respect of "Acknowledge that public transport is the most important and efficient means of moving people to and within the Central Sydney." I accept the evidence of the applicant that the late am opening encourages commuters to use public transport rather than vehicles and the closure of the York Street access improves environmental and pedestrian amenity. I accept Mr Staas' expert evidence that the public ground level car park will have no new impact on the special area. 41 With respect to cl 64(c) Ms Cheng's evidence is that "the use of the site as proposed is not an efficient use of valuable land in Central Sydney" and it is at odds with the objective to improve: "Attractiveness and competitiveness of Central Sydney for retail and commercial activities by providing a reasonable level of tenant and short stay public car parking whilst discouraging commuter car parking". 42 The applicant does not dispute the fact that the proposal does not provide the best economic and orderly use for the long term but this is the whole issue in this application, it is for an orderly and economic, short term, transition use. 43 I do not accept the council's evidence that the site could reasonably be used for anything other than car parking at the present time. I have viewed the site and the adjoining uses and I cannot accept, on the evidence, as Ms Cheng submits that it might offer an attractive outdoor courtyard area for patrons of the convenient store or a take away bar. 44 Based on the evidence, I do not accept that a reasonable level of short stay public car parking in Central Sydney already exists. The evidence is that there is no other open ground level car parking of the nature proposed. I was taken to the location map in figure 10 of the LEP, which examined the public parking within 200 metres radius, and, as I recall the evidence, the closest car park in Mr Marshall's opinion is the worst car park in Sydney and, according to Mr Coady, requires driving through a dark threatening tunnel to exit the car park. 45 Based on the evidence, the proposal provides accessible valet parking at ground level at competitive rates with other car parks in the area; slightly more expensive than the Wynyard car park according to the evidence that satisfies an existing need. Based on the evidence this proposal offers competitive and attractive car parking for short term stay and, in my view, meets the objectives in cl 64. 46 Ms Cheng, in addressing what the applicant believes is the real underlying objective behind cl 66(1)(d), takes issue with the applicant's view that because it is at ground level it is not above ground. In her opinion the objective to discourage above ground new car parks in cl 64(e) does not support the approval of this application. If council's interpretation of the clause is correct the evidence does not support a finding that the proposal results in an adverse urban design impact when there is no change to the built form and, according to Mr Staas, no impact on the heritage special area or items. 47 I prefer the applicant's evidence on this issue, which is consistent with what I observed at the site that this proposal has no adverse urban design impacts. Clause 5(a)(ii) 48 Ms Cheng's evidence is that, because the use of a public car park is new, as distinct from the historical tenant use, it is unacceptable; and does not encourage the promotion of orderly and economic use of the land. She does not consider 5 years to be a temporary use for this site. 49 Despite this Ms Cheng conceded in her oral evidence that she did recommend approval of a car wash at the Green Square site for 5 years as a temporary use, she qualified that approval by saying that she knew the use would cease to allow the development in accordance with the Green Square DA consent. Her evidence is that she does not believe that this site will be redeveloped at the expiration of the 5 years because it has not been redeveloped to date. She is concerned that, if this approval is issued a further extension will be sought at the expiration of the 5 years, and this will frustrate the orderly and economic development of the site, which sits as a gateway to Central Sydney. 50 I accept council's concern for long-term orderly and economic development of the site. However, approval for a limited period should not be taken to displace any future assessment of an extension of the consent under the relevant controls at that time. Mindful of the 2030 strategy and the vision detailed in that document which was discussed at length at the hearing, it is possible that a further application might be considered under different controls to this application. 51 I accept the applicant's evidence that this proposal does achieve the objective in cl 5(a)(ii) of the Act because it provides a temporary or transitional use of the site, which is acceptable on merit and not very different from the pre-existing tenant car park in terms of impact. Unreasonable and unnecessary 52 Based on the particular facts and evidence of this case, I cannot accept Ms Cheng's evidence that it is reasonable and necessary to comply with clause 66(1)(d) and require public car parking on this site to be under ground. 53 I accept the evidence of the applicant stated above that the underlying objective to cl 66(1)(d) is the objective in cl 64(e): "to minimise adverse urban design impacts, in particular by discouraging the provision of above ground car parking" and this objective is achieved by this development despite the fact that this proposal does not locate the car park under ground. 54 I accept the evidence of Mr Staas and Mr Coady that this proposal does not result in any adverse or poor design impacts because it does not change the built form except to improve it by removing the signage and closing the York Street access and thereby enhancing pedestrian safety and amenity. 55 I accept that this short-term use allows for the orderly and economic use of the site, which might otherwise be derelict or revert to its previous tenant car park use if this application was not approved. Based on the principles in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 commencing at [22] I accept that: " 22 SEPP 1 has the stated aim of providing flexibility in the application of the planning controls operating by virtue of development standards where strict compliance with those standards would, in any particular case, be "unreasonable or unnecessary" or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") (clause 3). SEPP 1 prevails over any inconsistency between it and any other environmental planning instrument, whenever made (clause 5). 23. Clause 6 of SEPP 1 provides that where a development could, but for any development standard be carried out, the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard "is unreasonable or unnecessary in the circumstances of the case and specifying the grounds of that objection". 24. Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of the Policy, as set out in clause 3, it may (with the concurrence of the Director) grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6 (clause 7). …. , it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act ? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? 56 I find on the evidence that the SEPP 1 objection is well founded in the circumstances of this case. 57 The other contentions raised by council include sustainable transport objectives. The council contends that the development is not consistent with the long-term objectives for the city or Sydney 2030. In particular the long-term sustainable transport objectives found in the Sydney LEP, Central Sydney DCP as well as the Sydney 2030. 58 I accept council's evidence that Sydney LEP, by cl 12N, seeks to maximise the use of public transport, walking and cycling for trips to and from and within the City of Sydney, as supported by the general objectives for car park and controls including cl 64(a) which seeks to acknowledge that public transport is the most important and efficient means of moving people to and within Central Sydney and cl 64(g) which seeks to discourage the provision of public car parking. However, the applicant and the council agree that public transport, cycling and walking are not practicable for all trips to Sydney CBD and the Sydney LEP acknowledges this through its permissible car parking rates and other parking provisions. 59 I am satisfied on the evidence of Mr Coady that the short term parking of up to fifteen cars on this site does not undermine the objectives of sustainable transport. The limiting of the availability of car parking at this location after am peak does make public transport relatively more attractive for commuters. The evidence supports a finding that the Wynyard Park, Lang Park special area, which is distinguished as a major transport node; schedule 6 of the DCP, will not be undermined by the approval of this small short term temporary open public car park. 60 I do not accept that the evidence discourages sustainable transport nodes such as public buses or trains. The development will not, according to Mr Coady's evidence, have unacceptable impacts for pedestrians or generate anything other than a minor increase in traffic movements. According to the survey data collected, the movements of cars in and out of the site between 11am and 2pm is, on Mr Coady's calculations, thirty-seven and is balanced against 1,035 pedestrians. 61 I accept the evidence of Mr Coady that the potential for pedestrian and vehicle conflict is reduced by the closure of York Street and that the operation of the public car park will not have any significant impact in terms of conflicts between pedestrians and vehicular traffic; it is not inconsistent with cl 64(f) of the LEP. Mr Marshall agrees that safety of pedestrians is not an issue with this application. 62 I accept the applicant's evidence that the approval of the application will not change the character of the special area as an urban room or public transport node. I accept the evidence of the experts that not all trips to Sydney CBD can be practically made by public transport, although the evidence is that the area is well serviced by multi storey car parks within a 200 metre radius, some 1,309 spaces, according to council's submission. 63 Based on the evidence, it is my assessment that the area is not reasonably or adequately serviced by public transport, either existing or planned, or existing public car parks, for the purposes of the patrons of this type of open car park. The patrons of this site, according to the evidence, require short term parking on ground level with valet parking. 64 Furthermore, the public car park, based on the evidence, will in my assessment service major retail, cultural, recreational and entertainment uses. I am satisfied that it is appropriate to exercise the discretion in cl 66(2) to approve this new public car park. The experts recognise the potential for future comprehensive redevelopment of the site. Based on the evidence, approval of this transitional development, will not compromise that objective to recognise and enhance the character of the special area; cl 36(h) of the Sydney LEP. 65 I accept that this application is temporary and it is unreasonable to require the provision of an active frontage on an existing site with no additional physical development; cl 36(1) of the Sydney LEP. I accept Mr Staas' evidence that the objective would not be met by the refusal of this current application for a temporary public car park because it will revert, more than likely, to the tenant parking use. 66 I accept Mr Staas' expert opinion that the broad strategy objectives for car parking in s 5 para (3), explanatory note in 5.1 strategy of the Central Sydney DCP on site parking in Central Sydney should generally be located below ground so that active uses are maximised at street level, are very general statements which relate particularly to new developments not this type of temporary time limited development. Conclusion 67 Having considered all of the evidence including the relevant matters under s 79C of the Act, I am satisfied that I should exercise the discretion in cl 66(2) to approve this new public car park. It fills a public car parking need, which is not reasonably, or adequately serviced either by existing public car park or public transport existing or planned but satisfies a need for public car parking directly servicing major retail, cultural, recreational or entertainment uses. 68 I am satisfied that the applicant's SEPP 1 objection to compliance with cl 66(1)(d) is well founded and it is unreasonable and unnecessary to require compliance with the development standard because the objectives of the standard are achieved despite the non-compliance with the development standard. Time limit 69 The applicant submits that it is appropriate to issue development consent for a period just short of the 5 years. The issue of a temporary consent it submits will avoid unnecessary cost and provide some certainty for the economic and orderly development of this site in the short term without compromising its development in the long term. 70 The evidence discloses that the council has issued temporary development consents for a period of 5 years for other sites in the city such as Green Square for a car wash as a temporary use. 71 Based on the evidence including the fact that council has, as recently as 2008, issued a consent for the convenience store on the corner of this site without any time restriction, I am of the opinion that a temporary consent for a period just short of the 5 years is appropriate in the particular circumstances of this case because it provides for the orderly and economic use of the land on an interim basis and in the long term. For the above reasons the Court makes the following orders: ( 1) The appeal is upheld. (2) Development application DA2008/1863 for use of a portion of the site for the purpose of a ground level open public car park for a short period up to and including 18 February 2015 is granted subject to conditions. (3) I direct the parties to forward to the court electronically the amended conditions, reflecting the reasons in any judgment. (4) The exhibits are returned on publication of this judgment.

Wilson Parking Australia 1992 Pty Limited v City of Sydney Council

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Decision date

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Judgment (35 paragraphs)

Parties

Cases Cited (1)

Cited By (3)