Land and Environment Court of New South Wales CITATION : Randall Pty Limited v Willoughby City Council [2005] NSWLEC 51 APPLICANT Randall Pty Limited PARTIES : RESPONDENT Willoughby City Council FILE NUMBER(S) : 10071 of 2004 CORAM: Talbot J Appeal :- question of utility where application refused by Commissioner on ground of merit. Whether Commissioner applied correct test of fact and degree for ancillary development. KEY ISSUES: Development consent :- test for finality. Development :- whether development ancillary to other development. Land and Environment Court Act 1979 s 56A LEGISLATION CITED: Sydney Regional Environmental Plan No. 5 (Chatswood town Centre) Mison v Randwick Municipal Council (1991) 23 NSWLR 734 ; Randall Pty Ltd v Willoughby City Council [2004] NSWLEC 98, unreported; CASES CITED: Randall Pty Limited v Willoughby City Council [2004] NSWLEC 295 unreported; Randall Pty Ltd v Willoughby City Council, [2004] NSWLEC 507, unreported; Scott v Wollongong City Council (1992) 75 LGRA 112 DATES OF HEARING: 14/02/2005 DATE OF JUDGMENT: 02/17/2005 APPLICANT Mr P R Clay (Barrister) SOLICITORS Moloney Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr J A Ayling SC with M/s H P Irish (Barrister) SOLICITORS Mallesons Stephen Jacques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 17 February 2005 10071 of 2004 Randall Pty Limited v Willoughby City Council JUDGMENT Introduction 1 Talbot J: In a judgment published on 11 June 2004 (Randall Pty Limited v Willoughby City Council [2004] NSWLEC 295, unreported, pursuant to s 56A of the Land and Environment Court Act 1979 ("the Court Act") I remitted this matter back to Commissioner Bly to enable him to determine, as a question of fact and degree, whether the proposed lease of 60 car spaces in the Regency development at Chatswood would create a car parking station. The Commissioner delivered a further judgment on 9 September 2004 (Randall Pty Ltd v Willoughby City Council [2004] NSWLEC 507, unreported) whereby he confirmed his earlier decision published 19 March 2004 (Randall Pty Ltd v Willoughby City Council [2004] NSWLEC 98, unreported) to dismiss the applicant's appeal. 2 The full facts and circumstances in respect of the application made by Randall Pty Limited ("the applicant") are fully set out in earlier judgments. 3 The Commissioner decided that to allow a modification of Development Consent No 1996/0643 by amending condition 41 to permit up to 60 spaces in the Regency development car park to be leased would bring about a result that the spaces would become unavailable to so called "user groups", thereby having the effect that they could not be regarded as ancillary to the Regency development and therefore would be a prohibited independent use as a car parking station as that term is defined in Sydney Regional Environmental Plan No. 5 (Chatswood town Centre) ("SREP 5"). The applicant has now appealed against the judgment of Commissioner Bly in September 2004. 4 The definition of car parking station in SREP 5 expressly does not include:- a) land (including a building on that land) which is used for parking, being parking that is ancillary to other development on or adjoining that land. 5 From a reading of the Commissioner's judgments it is apparent that the Council's expert witnesses proceeded on the basis that the proposed leasing of 60 car parking spaces means they would not be generally available and therefore, in their opinion, there would be insufficient spaces to adequately service the businesses on the site. The applicant's traffic expert independently calculated that based upon likely demand from the development there would be a surplus of 60 spaces that could be leased out to achieve an economic return without any adverse parking consequences. The opinion of the Council's witnesses was preferred by the Commissioner. 6 Notwithstanding an assertion on behalf of the applicant that it might be expected the prospective lessees could include members of the "relevant user groups" it has not advanced any undertaking or condition to that effect. It has occurred to me that arguably it is already open for the applicant to lease the 60 spaces without modification of the consent provided the lessees answer the description of the users in condition 41, which is fully set out in the earlier published decisions. 7 The Commissioner provided the following question and answer in his September 2004 judgment at [17]:- [17] If the 60 spaces, as a consequence of being leased, become unavailable to the "user groups" in the Regency Development then they cannot be said to be ancillary to it. The question which thus arises is whether the leasing of these 60 spaces will have this effect and I am satisfied that it will. 8 He went on to explain that as the proposed leasing was unconditional and, in effect, the future users of the car spaces are likely to not comprise the "relevant user groups" the proposed modification "clearly points to a different and independent purpose for these 60 spaces." He summed up his conclusion as follows at [20], [21] and [22]- [20] In these circumstances I can comfortably conclude that the 60 spaces would be independent and not incidental or ancillary to the Regency Development as is required by the definition if they are to be excluded from it. [21] I therefore conclude that to make 60 spaces available for lease as proposed in the lease application, would result in the affected part of the existing Regency Development no longer being subordinate thereto, becoming instead a separate use, in particular a car parking station , which is a prohibited purpose. [22] For these reasons I reaffirm my earlier conclusion that approval of the lease application would result in the 60 car parking spaces becoming a car parking station as defined and as a consequence would be prohibited by SREP 5. I also reaffirm my decision that on its merits the lease application should be refused for the reasons which I gave in my earlier judgment. 9 The appellant, represented by Mr Clay, contends in this further appeal that in his second decision the Commissioner says he approached the task of applying the definition of car parking station as "one of fact and definition, not degree or characterisation" thereby erroneously deciding that the proposed provision of leased car spaces would be a prohibited use. The alleged error is said to arise as a consequence of determining whether the leased spaces would be ancillary by reference to the user groups in condition 41, rather than the whole development. 10 Although the Commissioner also found against the applicant on the merits of the application Mr Clay contends that the determination of merit issues was infected by error of law so that a rehearing should take place before a different Commissioner. Mr Ayling SC, who appears for the Council, submits that, as the Commissioner decided on the facts that more than 250 spaces were required to meet the demand from the Regency development itself, the determination of the legal question is unnecessary. There is some force in Mr Ayling's submission. 11 I determined the legal question raised on the first appeal because it appeared to me that the underpinning reason for refusal by the Commissioner to grant development consent was that the leasing of car spaces would create a prohibited use as a car parking station. In his September 2004 judgment, Commissioner Bly has reaffirmed his decision on the merits namely that the lease application should be refused for the reasons given in his earlier judgment. Following that confirmation there can be no utility in remitting the matter to Commissioner Bly for yet another hearing. 12 Nevertheless I propose to proceed on the basis that there could be some benefit to the parties by resolving the legal question raised by the appellant in this second appeal and because both parties have presented their respective submissions on the basis that I will do so. The applicant's argument 13 The applicant asserts that the Commissioner again failed to turn his mind to any question of fact and degree in the course of deciding whether the proposed lease of 60 car spaces was ancillary and therefore excluded by the definition of car parking station as it appears in (a) of the definition in SREP 5. 14 The applicant's argument relies upon the proposition that the act of leasing is neutral because it does not itself demand any particular type of use. 15 I am not greatly assisted by the exercise in semantics that seeks to challenge the approach adopted by the Commissioner at [11] in his judgment and set out earlier in these reasons at [9]. If that is all the Commissioner had said then some solace for the applicant might be found in it. However, the Commissioner formed the view that placed in context the application clearly points to a different and independent proposal for the 60 spaces. He concluded on the facts before him that the 60 spaces "are able, indeed likely" to be used by persons other than those people who comprise the relevant user groups. Even if, as Mr Clay suggests, that addresses the wrong question, it nevertheless is a judgment based on fact and degree. The "fact" of the likely use and the "degree" of use by persons utilising the facilities in the Regency development. 16 Likewise when considering what Mr Clay says is the right question, namely the prospect of whether the 60 car spaces might create a separate car park, the Commissioner clearly rejected the notion put to him that "a car parking station cannot be constituted by 60 spaces" being less that 25% of the 250 car spaces provided. This again is a judgment based on fact and degree. 17 Because the use of the car spaces was not, in the opinion of the Commissioner, ancillary to the development on or adjoining the Regency development then that concluded the argument in favour of the Council. The text of the definition of a car parking station clearly demands positive proof that the land used for the purpose of accommodating vehicles is ancillary to the other development. That is inconsistent with the concept of neutrality relied upon by the applicant. By failing to show definitively that the parking will be ancillary to the other development the applicant failed, either inadvertently or by deliberate forensic decision, to establish the necessary facts to satisfy the Commissioner that use of the 60 spaces would be ancillary in the required sense. 18 I reject the argument put forward by Mr Clay that until the actual use is established, it cannot be known whether the identity of the parkers will justify a finding that the use is ancillary in the manner required by the exception contained in the definition. The Court is entitled to expect that any proposed use is identified with sufficient precision to avoid uncertainty of purpose (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 and Scott v Wollongong City Council (1992) 75 LGRA 112 at 117). 19 There is nothing so irrational or remarkable about the Commissioner's decision that justifies the Court setting it aside on appeal. 20 The determination that he made was one clearly open to him and should not be disturbed on appeal. The applicant has not identified a failure to consider any relevant matter and in particular to consider whether the proposed use was ancillary as a matter of fact and degree. The appeal will be dismissed. 21 There has been no formal argument in relation to costs but as the respondent Council has been successful in opposing the applicant's appeal it is entitled to a costs order in its favour. Orders 22 I make the following orders:- 1. Appeal dismissed. 2. The applicant/appellant is ordered to pay the respondent's costs of the appeal. 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.