Wilson Parking Australia 1992 Pty Ltd v The Council of the City of Sydney

Is cl 66(2) satisfied? 5Mr Clay SC, for the applicant, submits that cl 66(2) has three elements that require consideration in relation to the provision of public car parking. These are:

1. it must directly service major retail, cultural, recreational or , entertainment uses, and
2. these uses are not reasonably or adequately serviced by either public transport (either existing or planned), or
3. these uses are not reasonably or adequately serviced by existing public car parking. 6Mr Clay SC submits that it is necessary to adopt a commonsense approach in addressing the elements of cl 66(2). The survey conducted by the applicant in 2010 confirms that the car park directly services retail, cultural, recreational and entertainment uses in the area. A need generated by these developments must include a component of parking for trade and other people who may be servicing/maintaining uses identified in cl 66(2). Shoppers do not only generate the need for a public car parking area. Mr Clay further submits that major retail, cultural, recreational and entertainment uses in the area are not necessarily or adequately serviced by public transport because a significant level of patronage generated by their use, simply cannot be undertaken by public transport. One example is an electrician with tools and equipment who could not undertake a maintenance call on public transport and another example would be the purchase of a bulky item. It follows that there is a significant component of the car parking generated by major retail, cultural, recreational or entertainment uses which is not reasonably or adequately serviced by public transport or existing public car parking. 7Mr Kirk SC, for the council, disagrees with the conclusions of Mr Clay. He accepts that cl 66(2) raises three independent questions, which were identified by Mr Clay. A negative answer to any one of the questions is fatal to the application on the question of cl 66(2). In his submissions, Mr Kirk addresses each of the relevant questions in cl 66(2). 8On the first question of whether the proposed public car park directly services the four identified uses, Mr Kirk states that the attempt by the applicant to include tradespeople and contractors, as an aspect of the major retail, cultural, recreational or entertainment uses, should be rejected for a number of reasons. First, major retail, cultural, recreational or entertainment uses do not need to be perfectly serviced (see comments of Sheahan J in Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd [2011] NSWLEC 97 at [68]-[85]). Second, cl 66(2) specifically adopts the term "uses", rather than "buildings". It is directed at the use itself rather than the wider needs of the building in which the use is carried out. Third, the construction of the word "uses" is consistent with the fact that cl 66(2) provides for "public" parking to directly service the four identified uses, which can be contrasted with tenant car parking, which specifically provides for parking for employees, occupiers of buildings and as well as visitors. Fourth, council's construction is consistent with the objectives in clauses 64(a),(b) and (g) relating to the objective of discouraging commuting to and from the CBD in private vehicles and encouraging the use of public transport. Fifth, cl 66(2) limits the question of parking to retail, cultural, recreational or entertainment uses, which themselves must be "major" in character to be relevant. The parking needs of tradespeople and contractors arise for essentially all uses in the area, whether major or minor, and whether or not connected to major retail, cultural, recreational or entertainment uses. 9Mr Kirk also adds that the applicant has failed to establish that it directly services the major retail, cultural, recreational or entertainment uses in the area for a number of reasons. First, there are large public car parking spaces (with vacancies) closer to the major retail, cultural, recreational or entertainment uses than the proposed car park on the site. Second, the parking report, including surveys of the use of the site for a car park, prepared by the applicants traffic engineer Mr Coady, does not substantiate the applicant's position that the car park is required for tradespeople and contractors as they "directly service(s)" the major retail, cultural, recreational or entertainment uses in the area. Importantly, the survey does not specifically address whether firstly, the 41 surveyed patrons were conducting business at a major retail, cultural, recreational or entertainment use in the area, secondly, the total number of vehicles in the car park, thirdly, what proportion were the surveyed vehicles of the total number of vehicles in the car park, and fourthly, the survey indicates that the vast majority of the surveyed vehicles were not actually driven by tradespersons or contractors. 10On the second question of whether the four identified uses are reasonably or adequately serviced by existing public transport, Mr Kirk submits that cl 66(2) does not require all trips to the CBD should be capable of being made by public transport (or by use of existing car parks). This approach was accepted by Sheahan J at [71]-[72] and [74])). The traffic engineers, Mr Coady and Mr Marshall, for the council, also agreed that public transport cannot be used for all trips to the CBD although Mr Coady still maintains that the site is not reasonably and adequately serviced by public transport. The position adopted by Mr Coady, according to Mr Kirk, is not sustainable given the proximity of the site to Wynyard Railway Station, regular bus services in York Street, Carrington Street, George Street and general availability of taxis on all these streets. Mr Kirk submits that the evidence of Mr Marshall should be preferred where he describes the area around the site as having "excellent public transport services". 11On the third question site of whether the site is serviced by existing public car parking, Mr Kirk states that there are 8 operating public car parking stations within approximately 200 m of the site. Mr Marshall calculates that there are 1309 parking bays available within these parking stations. Mr Kirk reiterates his previous submissions that the survey undertaken by Mr Coady is irrelevant for the purposes of cl 66(2) as any reliance on contractors and tradesperson is immaterial and does not establish that existing public car parking does not reasonably and adequately service the demand for the major retail, cultural, recreational or entertainment uses in the area. This conclusion is further supported by the evidence of Mr Marshall who states that there are 288.1 m of loading zones within a 100 m radius of the site that can provide for an estimated capacity of 50 vehicles to park at any one time. On this basis, it cannot reasonably be argued that even if parking for taller vehicles was relevant, tradespersons and contractors could not reasonably or adequately be serviced by existing public car parking and within existing loading bays. 12In balancing the competing submissions, I can comfortably conclude that the submissions of Mr Kirk should be preferred on all matters associated with cl 66(2). I accept that:

• the reliance on the use of the proposed car park by contractors and tradespersons to service the major retail, cultural, recreational or entertainment uses in the area is not supportable as the uses do not need to be perfectly serviced,
• the parking report, including surveys of the use of the site for a car park, prepared by the applicants traffic engineer, is inadequate for the purposes of cl 66(2),
• the site is reasonably or adequately serviced by public transport public transport given the proximity of the site to Wynyard Railway Station, regular bus services in York Street, Carrington Street, George Street and general availability of taxis on all these streets, and
• the site is reasonably or adequately serviced by public car parking given the 8 operating public car parking stations within approximately 200 m of the site with 1309 parking bays available within these parking stations. 13Pursuant to cl 66(2), I am not satisfied that consent may be granted to development for the purpose of public car parking on the site as:
• the applicant has not shown that the proposed car park will directly service major retail, cultural, recreational or entertainment uses and
• the applicant has not shown that the site of the proposed car park is not reasonably or adequately serviced by existing public transport, and
• the applicant has not shown that the site of the proposed car park is not reasonably or adequately serviced by existing public car parking. 14The consequence is that I am not satisfied the opportunity for a public car park through cl 66(2) is available to the applicant.

Is cl 66(2) a development standard? 15The starting point in determining whether cl 66(2) is a development standard (and consequently being amenable to a SEPP 1 objection) is the definition in s 4 of the Environmental Planning and Assessment Act 1979. The definition states: 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, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed. 16Mr Clay and Mr Kirk rely largely on the same cases to support their different submissions. The relevant principles in determining whether a provision is a development standard are stated in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [96]-[99] and applied by Tobias JA (Giles JA and McClellan CJ at CL in agreement) in Residents Against Improper Development Inc and Another v Chase Property Investments Pty Ltd (2006) 149 LGERA 360 at [50]; see also Agostino v Penrith City Council (2010) 172 LGERA 380). Mr Kirk also relies on Blue Mountains City Council v Lawrence Browning Pty Limited (2006) 67 NSWLR 672 and North Sydney Municipal Council v P D Mayoh Pty Ltd [No.2] (1990) 71 LGERA 222. 17As set out in Poynting, a two-step approach is advocated at [96] - [99]: 96. The matters in the construction of the definition discussed by Mahoney JA in P D Mayoh Pty Ltd [No.2] mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provisions specifies a requirement or fixes a standard 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. The availability of SEPP No 1 will fail at the first step. 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. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour's reminder of the need to define the development and its aspects before it can be whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. 98. If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard. 99. In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of 'development standards' in s4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances. 18Mr Clay submits that the relevant questions are firstly, does cl 66(2) prohibit the development under any circumstances and, secondly, if not, does cl 66(2) specify a requirement or fix a standard in relation to an aspect of the development. In response, Mr Clay states that firstly, public parking is permitted with development consent in the City Centre zone and cl 66(2) does not prohibit public car parking on a given site, in certain circumstances. Rather, it specifies the demand for which the car park should be designed to satisfy. Secondly, there are any number of aspects of the carrying out development for the provision of public car parking, and the number of car parking spaces and the configuration of the overall design. The requirement in respect of that aspect is that the car parking directly services major retail, cultural, recreational and entertainment uses which are not otherwise reasonably or adequately serviced in the manner required. 19For these reasons, cl 66(2) is a provision of an environmental planning instrument in relation to the carrying out of development (the provision of public car parking) by or under which requirements are specified (what demand the parking is to service) in respect of an aspect of the provision of car parking (how it is designed to meet the required need). It follows that cl 66(2) is a development standard and is amenable to an objection under SEPP 1. 20Mr Kirk comes to a different conclusion to Mr Clay based on the well established and accepted legal principles for determining whether a provision is a development standard. The legal principles are, first, the development that relates to the relevant provision, must be a development that is permitted or permissible. This can only be determined by first referring to the terms of the planning instrument (Mayoh at p 235). Second, the zoning criteria do not have to be exclusively located in the zoning section of an LEP. Mr Kirk submits that the better approach is to ask whether the provision has a zone (or permissible /prohibitive) character (Lawrence Browning at [81] and [91] to [93]). Third, a particular type of development may, in general terms be permissible, but prohibited in certain circumstances (or a conditional rather than absolute prohibition). This might involve an additional step, contained in a provision in an LEP, to determine the ultimate permissibility (Lawrence Browning at [32], Mayoh at p 234 and Poynting at [99]). Fourth, even if the prohibition is conditional, rather than absolute, this is not fatal to determine whether the particular provision can be resolved at the first step (that is, a prohibition) (Agostino at [50] and Lawrence Browning at [49] - [50]). 21Using these principles, Mr Kirk submits that it is necessary to identify the "development" that may be permitted. In this case, it is a public car park. Clause 66(2) does not specify requirements or standards, which are external to the aspects of that development. It specifies whether or not the development is permissible at all, which depends on establishing the need for the public car park. 22Mr Kirk submits that the argument over whether cl 66(2) is a development standard fails with the first step in Poynting, that it is, it is a development that is not permitted or not permissible; having the character of a prohibition. Clause 66(2) does not specify requirements or standards. It specifies whether or not the development is permissible at all, which depends on establishing a need for the public car park. The cl 66(2) issue is "an essential element" of the particular development (Poynting at [36] and Lawrence Browning at [77]), namely the need for and justifiability of the development all, but whether or not a new public car park may be brought into existence. It is an-all-or nothing provision and if the requirement in cl 66(2) is met, then the development may go ahead (subject to a merits review) and if it is not, it is not permissible. 23The development also fails the second step in Poynting according to Mr Kirk. The criteria in cl 66(2) are not "an aspect of that development". They are criteria, which are concerned, with whether there is,(in the opinion of the consent authority) a need for a new public car park. The clause does not specify a requirement or fix a standard in relation to that development. A need is not a development standard and could not be said to be in relation to the carrying out of development itself, rather it is with respect to consideration of larger strategic planning issues. 24The matters in pars (a) to (g) of the definition of development standards provide an indication of the scope of the concept of a development standard. Even accepting that the list is not exhaustive, none of the matters include the kind of criteria contained in cl 66(2). These criteria are of a different genus. The criteria in cl 66(2) are not an aspect of that development that can, for example, be modified, altered, deleted or changed. The criteria in cl 66(2) are directed at determining whether the provision of public car parking is needed in the area rather than an aspect of the proposed development. 25In balancing the competing submissions, I agree with Mr Kirk. The agreed approach is set out in Poynting, where a two stage approach is adopted. On the first stage, I do not accept the submission of Mr Clay that because car parking is a permissible use in the City Centre zone then this satisfies the first stage in Poynting, This was a matter squarely addressed in Lawrence Browning at [32], Mayoh at p 234 and Poynting at [99]. In the words in Lawrence Browning at [32], cl 66(2) "is another element(s) in a particular LEP which should properly be treated as the same way as the zoning table". I agree with Mr Kirk that cl 66(2), in this case, has the effect of a prohibition and as such, the proposed development fails the first step in Poynting. On the second step, I also do not accept Mr Clays submission that the aspect of the development is the demand to which the development is to meet or service. I accept the submission of Mr Kirk that the criteria in cl 66(2) are not "an aspect of that development". They are criteria that are concerned with whether there is a need for a new public car park. The clause does not specify a requirement or fix a standard in relation to that development. A need is not a development standard. It follows that the proposed development fails the second step in Poynting. 26For these reasons, cl 66(2) is not a development standard and as such is not amenable to an objection under SEPP 1.

The SEPP 1 objection 27Based on my previous findings, cl 66(2) is not a development standard and cannot be varied by an objection under SEPP 1 however if I am incorrect, I propose to briefly consider the SEPP 1 objection. 28Preston J in Wehbe v Pittwater Council [2007] 156 LGERA 446 identifies a number of ways of establishing that compliance with a development standard is unreasonable or unnecessary. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1). A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary (Test 2). A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable (Test 3). A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary in unreasonable (Test 41). A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5). 29As stated in Wehbe, the Court must be satisfied of thee matters before it can uphold the SEPP 1 objection and then consider the merits of the application. The three matters are:

1. the Court must be satisfied that "the objection is well founded" (cl 7 of SEPP 1).
2. the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (cl 7 of SEPP 1). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances 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 Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and coordination of the orderly and economic use of developed land."
3. the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: The matters in clause 8(a) and (b) are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 30In this case, the experts adopted Test 1 in Wehbe that seeks to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. Mr Coady relies on the matters in cl 66(1) of LEP 2005 however Mr Clay submits that while these matters may have some relevance, the underlying objectives for cl 66(2) are found in cl 64, which are the objectives for car parking controls in Part 5 Chapter 2 of LEP 2005. The objectives which underlie the objective of cl 66(2) are: (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 . (d) to discourage the provision of public car parking 31In terms of the first objective, Mr Clay states that the proposed development satisfies the objective by way of the late opening time and fee structure. It encourages commuting by public transport because the car park does not open before normal working hours and the fee structure makes it exorbitant for commuting to the city. For the second objective, Mr Clay states that this objective cannot be used, in itself, as an objective to be met notwithstanding compliance with a development standard as it becomes a self-fulfilling prophecy. The objective needs to be balanced with other matters, such as the small size of the car park, the hours of operation and the interim use of the site. The latter could be regarded as the orderly and economic use of the land. For these reasons, the SEPP 1 objection is well founded. 32Mr Kirk adopts the objectives, which are found in cl 64(a), (b) and (g). These state: (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 ( (g) to discourage the provision of public car parking, and 33These objectives do not differ in any material way from those relied upon by Mr Clay, however the question of whether the relevant objectives are achieved must be answered in the negative. The objectives in cl 64 recognises that public transport is the most important and efficient means of travel for the majority of trips into and out of the CBD. Commuting by public transport, in this wider sense, is encouraged to "reduce the number of the motor vehicles travelling through to Central Sydney". Any focus on the reduction in operating times in the morning peak period does not establish consistency with the relevant objectives in cl 64. 34In considering the different positions taken by the parties, I agree with the conclusions of Mr Kirk. The relevant objectives in cl 64 encourage the use of public transport within the Central Sydney (cl 64(a)) and at the same time, discourage the provision of public car parking (cl 64(g)). The intent of these objectives needs to be read in the context of LEP 1995 were public car parking is permissible but only where the specific requirements in 66(2) are satisfied. 35I do not accept that the proposed development achieves the relevant objectives in cl 64 given that the specific demand and location requirements in cl 66(2) are not satisfied. As Mr Kirk stated, it is not a question of whether the approach adopted by the council in LEP 1995 is reasonable or unreasonable, but only when the proposed development satisfies the outcomes objectives anticipated by this planning instrument. In my view, it clearly does not. The matters raised by the applicant over the small size of the car park, its temporary use and the supposed economic and orderly use of the land are not matters that can reasonably be seen to be consistent with the relevant objectives, given the specific strategic direction in LEP 1995. 36For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection is not consistent with the aims of SEPP 1. Also, strict compliance with the development standard, in this case, is not unreasonable and unnecessary, tends to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and there is a significant public benefit in maintaining the planning controls adopted by the environmental planning instrument. Consequently, the SEPP 1 objection is not well founded.

Orders 37The orders of the Court are:

1. The appeal is dismissed.
2. Development Application D/2011/1996 to use an existing vacant site for a temporary public car park at 4-6 York Street, Sydney is refused.
3. The exhibits are returned.

G T Brown Commissioner of the Court 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. Decision last updated: 13 November 2012