Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2010] NSWLEC 1029 | Case summary

JUDGMENT Introduction and background 1 On 27 October 2010 the applicant in these proceedings lodged a development application (DA 2008/1863) with the respondent City of Sydney council for the use of land at the rear of 4 - 6 York Street, in Sydney's central business district, (being land on the south-east corner of York and Wynyard Streets) as a carpark with associated signage for a period of up to five years. 2 According to the council's Statement of Environmental Effects (27 October 2008) prepared by John Coady Consulting Pty Ltd the carpark will accommodate up to about 15 cars on a self-park or valet-park basis. Access is off both York and Wynyard Streets. 3 The irregular shaped site has an area of 611 square metres. It is positioned opposite and to the south of Wynyard Park amidst multistorey commercial developments. 4 According to the Statement of Facts and Contentions Part A - Facts, on 15 June 2004 development consent was granted for both 341 George Street and the subject site for a "Stage 1 building envelope comprising adaptive reuse and conservation works to the historic bank building and a new York Street building extension". On 18 February 2008 deferred commencement consent was granted for a mixed-use development. A number of the deferred commencement requirements associated with this consent are outstanding. 5 The site is presently occupied with minor structures accommodating a convenience store with the remainder of the site being occupied as a public car park "for which development approval is required but has not been granted". Consequently, on 13 October 2008 the council issued an order requiring the cessation of the carpark use and the removal of associated signage. Notice of Determination and the appeal 6 By Notice of Determination (issued under s 81(1)(a) of the Environmental Planning and Assessment Act 1979) dated 22 April 2009 the council (under delegated authority) determined the development application the subject of these proceedings by refusal of consent. The reasons for refusal essentially involve: Inconsistencies with the strategic, zone and car parking objectives of the Central Sydney Local Environmental Plan 2005. Impacts on the heritage streetscape and the amenity of the locality. The public interest. 7 On 14 July the applicant sought a review of this refusal under s 82A of the EP&A Act. On 1 December 2009 the council's Small Permits Appeals Panel upheld the original notice of determination to refuse consent to the development application. 8 On 10 December 2009 the applicant, pursuant to s 97(1) of the EP&A Act, filed Class 1 proceedings in this Court against the refusal of the development application. Contentions 9 According to the Statement of Facts and Contentions Part B - Contentions, there are five separate groups of contentions that form the basis of council's case that the appeal should be dismissed: 1. Restrictions for all public car parking: (a) Precondition to the grant of consent not satisfied - underground parking; and (b) Pedestrian impacts and urban design. 2. Restrictions on new public car parks. 3. Sustainable transport objectives. 4. Traffic impacts. 5. Urban design and character. Notice of Motion 10 On 15 January 2010 the council filed a Notice of Motion seeking orders as follows: "That leave be granted to the respondent to have Contention 1(a) of the respondent's 'Statement of Facts and Contentions' filed on 16 January 2009, heard as a preliminary issue. Contention 1(a) reads: 1. Restrictions for all public car parking. (a) Precondition to the grant of consent not satisfied - underground parking . The Sydney LEP requires that a public car park be located underground. (i) Clause 66(1)(d) of the Sydney LEP requires that before granting consent to any public car parking, the consent authority must be satisfied that the public car parking will be located underground. This matter is considered to be a precondition or prohibition to the exercise of power. (ii) As the public car park is not located underground, the consent authority has no power to grant consent for the development." 11 The Acting Registrar granted leave as sought on 21 January 2010. This judgment deals with Contention 1(a) (the preliminary issue) as referred to in the Notice of Motion and concludes that cl 66(1)(d) of the LEP is not a prohibition to the exercise of the power to determine the development application. Central Sydney Local Environmental Plan 2005 12 The site is included in the City Centre zone pursuant to the Central Sydney Local Environmental Plan 2005 and, pursuant to cl 37(2) public car parking (not being exempt development) is permissible but only with development consent. Public car parking is defined as: "Public car parking in Central Sydney means any land or space in a building used for accommodating parked vehicles on payment of a fee, but does not include: (a) a pay parking space (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999), or (b) tenant car parking." 13 It was not in dispute that the proposal comprises public car parking. 14 Part 5 of the LEP deals with car parking and cl 66(1) contains certain restrictions in relation to public car parking as follows: 15 "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: (a) will not prejudice attaining the objectives of this Part, and (b) will not encourage commuter car parking nor reduce the proportion of public transport users traveling to the city each day, and (c) will be used for short-stay public car parking only that is regulated by a restriction in opening hours or fee structure, or both, and (d) will be located underground, and (e) will be included for the purpose of calculating floor space ratio in the floor space area of the building in which it is situated, and (f) will be consistent with, and does not compromise, high quality urban design of buildings on the land and adjacent to the land on which it is situated, and (g) is not likely to cause or increase adverse pedestrian impacts or local or city- wide vehicular traffic impacts, and (h) in the opinion of the consent authority, is not likely to cause or contribute to an unacceptable level of vehicle saturation of intersections in the vicinity, or an unacceptable reduction of environmental capacity of roads in the vicinity, of the public car park." 16 It is the particular restriction in cl 66(1)(d) to the effect that public car parking "will be located underground" that is central to the preliminary issue in the Notice of Motion. 17 Curiously, by comparison with cl 66(1)(d), the objective in cl 64(e) of the LEP that deals with "above ground car parking" makes no reference to ground level parking, and provides that: "(e) to minimise adverse urban design impacts, in particular by discouraging the provision of above ground parking." 18 According to the respondent council because the car park is located at ground level and not underground, cl 66(1)(d) of the LEP means that it has no power to grant consent, this requirement being a "precondition or prohibition to the exercise of power". 19 In response the applicant says that the requirement in cl 66(1)(d) of the LEP is a development standard under the EP&A Act and is, as part of the process of determining the development application, able to be varied by the application of State Environmental Planning Policy No. 1 - Development Standards. 20 It was not in dispute that by itself a requirement that a car park "... be located underground" can be considered for the purposes of SEPP 1 to be a development standard. 21 Clause 33 of the LEP requires that the consent authority must have regard to the objectives of the zone in which the development is to be carried out. The objectives of the city centre zone are to be found in clause 36. Respondent Council's submissions 22 In his submissions on behalf of the respondent council Mr Hawkes stressed that cl 66(1)(d) of the LEP is a precondition that must be satisfied before the application can be considered and that such consideration includes dealing with any applicable development standards. In other words the power to consider the development application pursuant to s 79C of the EP&A Act is not enlivened until the precondition is satisfied. This submission is supported by a number of cases that establish this principle. 23 In Franklins Ltd v Penrith City Council [1999] NSWCA 134, Stein JA considered cl 32(2) of the Penrith City Local Environmental Plan that provides: "Despite any other provision of this order, a person may, with the consent of the council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land. 24 His Honour concluded at [18] that: "The key words in the sub-clause are 'but only if the council is satisfied that'. It is clear that the council had to be so satisfied prior to the granting of consent to Campbells. It had to be satisfied, as a pre-condition to approval, that Campbells' operations from the premises comprise a wholesale component of not less than 60%. Council had to address itself to this criterion in order to form the requisite opinion and before embarking on a consideration of the merits..." 25 Importantly his Honour emphasised at [23] and [35] that: "... the importance of cl 32(2) is that the development is prohibited unless the Council forms the opinion." and "... was a pre-condition to permissibility necessary to be held by council before it could consider the balance of the application and grant consent." 26 In Franklins, his Honour also refers to his decision in Currey v Sutherland Shire Council (1998) 100 LGRA 365 where the circumstances of that case "...bear an extraordinary parallel" and where he also concluded that the provision of the LEP "was a pre-condition to consent". 27 In Horitis v Manly Council (1999) 104 LGRA 43 (at first instance) Sheahan J considered cl 17 of the Manly Local Environmental Plan that provides that: "The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area". 28 At [162] his Honour concluded that "It is clear from reading these two clauses that they both contain pre-conditions that the Council must form an opinion (cl 10) and satisfy itself (cl 17) in order for the development to be permissible (that is, not prohibited). This must occur before consideration of matters under s 90 of the EP&A Act." 29 In Manly Council v Hortis [2001] NSWCA 81 (on appeal) the Court confirmed at [30] that by virtue of cl 17 of the LEP the council: "... could not grant consent to the development even if it met the general objectives of the Residential 2 zone and the requirements of the DCP "unless it [was] satisfied that the development [would] not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area." 30 And that any detrimental effect on the Foreshore Scenic Protection Area: "... was not merely a factor for it to consider when deciding whether or not to grant the applications but an absolute bar to a decision to issue the approval?" 31 In Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74 the Court of Appeal considered cl 9(3) of the Shoalhaven Local Environmental Plan that requires: "Except as otherwise provided by this plan the council shall not grant consent to the carrying out of development on or of land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out." 32 At [7] Ipp AJA commented (by reference to Franklins): "Part of the site of the development was zoned 3(g) under the LEP. Hence, it was a condition precedent to a valid grant of consent that the council form an opinion that the development was consistent with the objectives of the 3(g) zone. A failure to form such an opinion would result in the grant being invalid." 33 Also referred to is the decision of Preston CJ in Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 at [37] and [38]. This decision refers to cl 10(1) of the City of Orange Local Environmental Plan that imposes two preconditions to a consent authority exercising the power to grant consent to development. The first requires the consent authority to make an assessment of the effect of carrying out the development on certain specified matters. The second requires the consent authority to be satisfied that the development will not have an adverse effect on the long-term agricultural use of land. His honour concludes that: "38 The first precondition prescribes a process that must be undertaken: the making of an assessment of the kind specified. The second precondition requires the consent authority to form the requisite opinion of satisfaction. Both preconditions must be satisfied before the weighing of the merit considerations under s 79C(1) of the Act. Making the requisite assessment and forming the requisite opinion of satisfaction enlivens the power to grant consent to the development..." 34 In essence Mr Hawkes submits that these cases support his contention that a consent authority never reaches the stage of considering merits based on s79C considerations, which could include any relevant development standards. In this case the requisite opinion of satisfaction cannot be satisfied and the proposed development is prohibited. Applicant's case 35 In his submissions Mr Clay says that consideration of this question begins with the process of applying for and obtaining development consent as provided for in ss 78A, 79C and 80 of the EP&A Act. These sections relevantly provide as follows: "78A Application "(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development." "79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and…" "80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application." 36 In this context he points out that "public car parking"; being "any land or space in a building used for accommodating parked vehicles on payment of a fee..." is permitted with development consent in the City Centre zone. Being identified or characterised as a public car park a development application seeking consent to carry out that development can be lodged with the consent authority and that application is to be determined by the granting of consent or refusal. As provided for in s79C the process of determining a development application requires the consent authority to take into consideration the provisions of a relevantly applicable environmental planning instrument in this case the Central Sydney Local Environmental Plan 2005. 37 Mr Clay next refers to the definition of a development standard that is (in part) as follows: "Development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development... 38 Mr Hawkes agreed with Mr Clay that the requirement in cl 66(1)(d) of the LEP that the public car parking be "located underground" is, by itself a development standard. He nevertheless disagreed that in context (ie before granting consent) it cannot be varied in a manner that might otherwise have been facilitated by SEPP 1. To the contrary Mr Clay explained that cl 6 of SEPP 1 provides for matters such as this being development (ie a car park) that, but for any development standard (ie located underground) could be carried out under the Act, subject of course to a valid written objection. 39 More generally Mr Clay invited the court to take into account the fact that cl 66(1)(d) is not a control that relates to the zoning of the site and instead "applies in all cases" and is an "aspect of the development not the development as such". Also relevant is the definition of public car parking that does not limit the parking of vehicles to "below ground". In further support of his proposition that cl 66(1)(d) is not a prohibition he refers to a number of relevant cases. He says that this approach is supported by Giles JA in Strathfield Municipal Council v Poynting [2001] NSWCA 270, where his honour relevantly held at [93] and [96] - [99]: "93 ... a process of construction to find regulation on the one hand or prohibition on the other hand will bring finely divided decisions. Care must be taken lest form govern rather than substance. A provision in the form A building may be erected on land in a particular zone if the land has an area greater than a particular area appears prohibitory, but the substance is the same" And, "96… A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. …" "97… Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. …" "99… The list of aspects … of the definition of "development standards" in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. …" 40 Taking into account the definition of development standard and the two-step test in Poynting, the applicant says that the relevant questions to be asked are: (a) Does clause 66(1)(d) prohibit the development under any circumstances; and (b) If not whether clause 66(1)(d) specifies a requirement or fix a standard in relation to an aspect of the development. 41 In answering the first question he again emphasises that "public car parking"; being "any land or space in a building used for accommodating parked vehicles on payment of a fee..." is permitted with development consent in the City Centre zone. Hence because the definition provides for parking on "land" as is here proposed and because the development is unquestionably a car park it must be "public car parking" and thus permissible pursuant to cl 37(2) of the LEP. 42 Plainly cl 66(1)(d) has no restrictive effect on car parking above or below ground (as distinct from at ground level) and the use of the site for car parking in such locations is permissible. Reading this provision as part of the LEP as a whole, and taking into account the definition of the use, this is not a prohibition on the use of the site for the purpose of public car parking "...under any circumstances." 43 He also points out that all of the matters (ie (a) - (h)) in cl 66(1) fall into the same category as the subject subclause (d). These matters require, before the granting of consent, satisfaction in relation to matters such as "attaining the objectives", "not encourage", "calculating floor space ratio", "not compromise" and the like. These are matters to be attended to as part of the determination of the development application rather than a precursor to deciding permissibility. 44 Also, the language of the objective in cl 64(e) of the LEP in seeking to minimise adverse urban design impacts by discouraging but not prohibiting above ground parking is deliberate and logical. Thus cl 66(1)(d) should not be read as a prohibition when the objective of that control is to discourage rather than prohibit. 45 Emphasis was also placed on the objectives in cl 64 of the LEP particularly objective (e) that seeks to minimise urban design impacts "... by discouraging the provision of above ground parking". Plainly here above ground parking is to be discouraged, not prohibited. This also points to cl 66(1)(d) not being a prohibition, instead there is no compelling reason to suggest that it is anything other than a development standard. 46 Mr Clay also submitted that implicit in the council's precondition argument is the notion that a precondition to the grant of consent cannot be a development standard and that this misstates the correct test. Moreover it is inconsistent with the decision in Residents Against Improper Development Inc and Anor v Chase Investments Pty Ltd (2006) 149 LGRA 360 where the Court decided that the provision that "the council shall not consent to the subdivision of land... unless" was a development standard. Court's consideration 47 In my opinion the approach to this matter as advocated by Mr Clay on behalf of the applicant is correct. 48 In matters such as this it is always appropriate to consider the particular circumstances of the case in terms of the relevantly applicable legislative provisions, these being ss 78A, 79C and 80 of the EP&A Act and of course the LEP itself. 49 There has been no suggestion that the subject application is not a valid development application, being an application for a land use that is permissible with consent pursuant to cl 37(2) of the LEP. In this regard I accept that the proposed use of the subject site is characterised as a car park and that any aspects of its three-dimensional configuration do not affect this characterisation. I am thus satisfied that the application is, for the purposes of s 78A, an application "for consent to carry out development" of the subject land for the purpose of a car park. 50 Hence, being a valid development application s 80 requires the consent authority "to determine the application by... granting consent... or refusing consent." 51 The process of determining the application can be understood by reference to s 79C that identifies matters for consideration "in determining a development application". These matters relevantly include "the provisions of... any environmental planning instrument", in this case the Central Sydney Local Environmental Plan 2005. 52 The relevant provisions for car parking are to be found in Part 5 of the LEP, particularly s66. This clause is not a zoning control but requires that "the consent authority must be satisfied" in relation to eight separate matters "before granting consent to the development". These matters include the requirement in cl 66(1)(d) that parking "will be located underground". The process of achieving the necessary "satisfaction" is in my opinion part of the discretionary process of determining the development application. In my opinion cl 66(1)(d) should not be dealt with in isolation. Instead the consent authority needs to attain the requisite "satisfaction" in all eight of these matters before consent could be granted. 53 Plainly, to ascertain satisfaction in relation to these matters, the consent authority must apply its discretion or judgment in various ways by forming an opinion in relation to requirements such as: "(a) will not prejudice"; "(b) will not encourage"; "(f) will be consistent with"; and "(g) is not likely". If the consent authority is not "satisfied" in relation to any one of these matters it cannot determine the application by granting consent and instead must refuse the application. 54 In these circumstances and given the discretions inherent in s66 of the LEP I do not accept that its provisions including (1)(b) amount to a prohibition, instead comprising matters to be satisfied as part of the s 80 development application process of determining the development application. If these matters are not satisfied then of course as I have indicated the application must be refused. If these matters are satisfied as part of the process then a consideration of the merits as required by s79C can proceed. 55 As regards the question of whether the requirement in cl 66(1)(d) of the LEP is a development standard I have no reason to disagree with the parties agreement on this matter. As for the adequacy of any objection under SEPP 1 to the standard, this is a matter for consideration as part of the assessment process. 56 Turning now to the cases referred to above in the respondent council's submissions. These cases all essentially conclude that, what I call the "satisfaction test" in the various planning instruments, is a precondition to approval where the requisite satisfaction needs to be met before embarking on a consideration of the merits of the development application under s 90/79C of the EP&A Act. For the reasons I have given, I do not accept that the approach to this particular matter that I have described is inconsistent with the two-stage approach indicated in these cases. 57 Finally, if it is in fact the council's intention that cl 66(1)(d) of the LEP is intended to be a prohibition I am sure that the LEP could be amended to include an alternative, unambiguous clause to this effect. Findings 58 For the above reasons I find that the application the subject of these proceedings is for a public car park and that cl 66(1)(d) of Central Sydney Local Environmental Plan 2005 is not a prohibition to the exercise of the power to determine the development application pursuant to s80 of the EP&A Act.

Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council

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Judgment (13 paragraphs)

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