Land and Environment Court of New South Wales CITATION : FHR Holdings Pty Ltd v Wingecarribee Shire Council [2005] NSWLEC 60 APPLICANT FHR Holdings Pty Ltd PARTIES : RESPONDENT Wingecarribee Shire Council FILE NUMBER(S) : 11188 of 2004 CORAM: Nott C Development Application :- Proposed arcade containing shops and offices in the Bowral town centre - replacing smaller existing building - different carparking rates for shops and offices - existing building provides no on-site parking - no previous contribution made for carparking - public carpark immediately adjoining the site operating at full practical capacity although spaces available further from the site - not clear on the evidence that the full extent of the proposed additional floor area would be acceptable - recommendation that Council review its parking policy and also measures to encourage appropriate redevelopment of sites in the town centre - developer agreements to contribute to a parking fund are probably ultra vires current legislation - application of Council's DCP inappropriate KEY ISSUES: LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s97 Auburn Council v Nehme [1999] NSWCA 383; Auspacific Equity Investments Pty Ltd v Pittwater Council [2004] NSWLEC 281; Caringbah Investments Pty Ltd v Sutherland Shire Council (1970) 20 LGRA 377; CASES CITED: Di Jones Real Estate v Woollahra Municipal Council [2004] NSWLEC 10 at [30]; Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107; Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266 at [21]; (2003) 58 NSWLR 159; Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 15 December 2004 and 14 January 2005 DATE OF JUDGMENT: 04/26/2005 APPLICANT Mr D Miller, barrister SOLICITORS Henry Davis York LEGAL REPRESENTATIVES: RESPONDENT Mr B Bilinsky, solicitor SOLICITORS B Bilinsky & Co. JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 26 April 2005 11188 of 2004: FHR Holdings Pty Ltd v Wingecarribee Council JUDGMENT 1. Introduction 1. This is an appeal against the council's deemed refusal of a development application to demolish an existing retail building (formerly including a supermarket) at 310-312 Bong Bong Street, Bowral, and to erect a new two-storey building containing an arcade of retail uses on the ground floor and offices on the first floor. No car parking was provided for the existing building; nor is any car parking proposed for the larger, new building having a gross floor area of 3,658 sq m. 2. Issues and evidence 2. The applicant claimed that even though the floor area of the proposed development is larger than the existing building, the proposal will not generate a need for more car-parking spaces, because the retail floor area will be reduced and a lower parking rate is applied to offices than to a supermarket. 3. Condensing the Statement of Issues, the council's main reasons for opposing the granting of development consent were: (1) No car-parking spaces are proposed for the new development, contrary to council's Development Control Plan No. 12—Off-Street Car Parking, Loading Facilities and Vehicular Access (" DCP 12" ). (2) No provision for car parking has been made for previous uses at the site, and there is no s 94 contributions plan for parking in the Bowral town centre. (3) The proposed use is not in the public interest, as the existing parking facilities in the Bowral town centre are inadequate to satisfy the public demand for parking. 4. The council also claimed that the length of the proposed loading dock was deficient and that no area was designated for garbage storage and collection. At the hearing, the council did not press this issue and I express no view about it. 5. Evidence for the applicant was given by Mr S Richardson, consultant town planner. For the council, written or oral evidence was given by the following council officers: Mr G Hewat, town planner; Mr D Baxter, senior ranger; and Mr J Shelton, s 94 planner. The council also presented evidence from Mr A Springett, who is the manager of Springetts Arcade, which adjoins the subject land, and who is a member of the Bowral Chamber of Commerce. 6. I also received evidence from the court-appointed traffic engineer, Mr T Rogers. In preparing his report and offering his opinions to the Court, Mr Rogers took into account the opinions of transport planner Mr J Coady, who had been retained by the applicant. Mr Rogers also considered the views of traffic engineer Mr C Hallam, who had given advice to the council (T 55). The evidence of Mr Rogers is referred to in more detail later in this judgment. 7. I have reviewed the evidence with the help of a transcript. (Page references to the transcript are prefixed with "T".) Accompanied by the parties on the first hearing day, I observed the parking and traffic conditions throughout the Bowral town centre. For the reasons given below, I am of the opinion that the present appeal should be dismissed. 3. Proposal in more detail 8. The subject site comprises lots 3, 4 and 6 at 310-312 Bong Bong Street, Bowral. The building on the site is presently vacant. Lot 6 contains the former Franklins supermarket, and lots 3 and 4 are small shops. The subject site is approximately rectangular, having a frontage of 28.71 m to Bong Bong Street on the west, an eastern (rear) boundary of 28.48 m to a council car park, and a depth of 85.35 m. 9. Adjoining and nearby shops, such as Springett's Arcade, on the same side of Bong Bong Street as the subject site also have access to the same car park at the rear. This car park adjoins the Oxley Mall car park. The two car parks are not clearly distinguished, and in some of the evidence, the public car park immediately at the rear of the subject land and the car park adjoining it to the east were together called the Oxley Mall car park (T 42). 10. The architectural plans in respect of which the applicant sought development consent are DA01 to DA07 inclusive, issue A, dated 9 November 2004 (ex J). The subject site provides no car parking for the existing building, and no car parking is proposed for the new building. 11. In relation to the demand for car parking, it is relevant to compare the floor area and uses of the existing building with the floor area and intended uses of the proposed building. 12. For the purpose of this appeal, I have proceeded on the assumption that the areas stated in the table below are correct: TABLE—DEVELOPMENT DATA Site area of total strata 2440 sq m Site area of works 2147 sq m EXISTING gross floor area 2313 sq m EXISTING gross leasable floor area 2203 sq m PROPOSED gross floor area —Ground Floor (retail) 1965 sq m —First Floor (office) 1693 sq m —Total 3658 sq m PROPOSED gross leasable floor area —Ground Floor (retail) 1369 sq m —First Floor (office) 1486 sq m —Total 2855 sq m 13. According to the parties, the terms "gross floor area" (which may be abbreviated to "GFA") and "gross leasable floor area" ("GLFA") in the above table have the same meaning as the identical terms defined in appendix 1 of DCP 12 (par 26 below). (I also take notice under s 38(2) of the Land and Environment Court Act 1979 that the same definitions of GFA and GLFA were used by the Traffic Authority's Guidelines for Traffic Generating Developments.) 14. The proposed GFA of the first floor given on plan DA01, issue A, was 2196 sq m; however, by letter dated 22 December 2004 (ex 17) the solicitors for the applicant advised the court-appointed expert Mr Rogers that the figure should be 1693 sq m; no objection to this was taken by Mr B Bilinsky. Accordingly, I have used the figure of 1693 sq m in the table. However, it is not clear whether any council officer checked that figure or the other figures in the table of development data by actually measuring the relevant areas on the plans. On the first hearing day, I had asked Mr Rogers whether he had checked the areas, and he had said that he assumed the original areas stated on DA01 were correct. (It is clearly desirable that a council officer should check floor areas given in a development application, because not infrequently it has been found that the areas are wrong.) 15. The above figures for GFA for the proposed development do not include the areas of the stairwells, although strictly speaking they probably should be included having regard to the definition of GFA in DCP 12. In contrast, stairwells are expressly excluded from GLFA. 16. The total GLFA of 2203 sq m for the existing building the subject land is made up of the former supermarket of 2015.5 sq m and shops of 187.2 sq m. 4. Previous approvals for the subject site 17. There is a record of a building application (221/80) in October 1980 in respect of part of lots 3 /4 PA 40741, section 38, Bong Bong Street, indicating that the purpose for which the building was to be used was retailing, but there is no record of whether that application was approved (ex A, tab 2). 18. On 7 February 1984 development consent was granted to Permewan Wright Consolidated Pty Ltd for "Internal alterations to an existing supermarket building to include provisions for five additional shops, construction of a fire passage, new rear entry facilities and enlargement of an existing liquor department." This consent merely described the land as DP 90741, Bong Bong Street (no lot or street number was given). The parties accepted that this consent related to the subject site. 19. On 14 September 1994, the council granted building approval 94/0741 for a "supermarket fitout" at 310-318 lot 6 DP 41585, Bong Bong Street, Bowral. 20. On 13 May 1997 development consent and building approval were granted to Franklins Ltd for "supermarket modifications/fitout" of Nos 310-318, lot 6 SP 41585. Conditions of consent required Franklins to ensure that the floor of the existing loading dock was kept free of goods and that all deliveries were to be made by vehicles capable of accessing the loading dock. There were no conditions relating to car parking. 21. Mr Richardson further elaborates upon the development history of the subject site in his report (ex C p 3). 22. In none of the above approvals or consents was there any requirement to contribute for car parking or to provide on-site car parking. 5. Current planning controls The LEP 23. The subject site is zoned Business 3(a) under Wingecarribee Local Environmental Plan 1989, and proposed development is permissible with consent. Relevant objectives of this zone are: (a) to recognise and maintain Bowral's predominance as the prime business and retail centre for the Tablelands subregion; … (e) to identify, by means of a development control plan, performance standards for areas in the zone relating to such matters as floor space ratio, building height, car parking provision and the like. 24. The LEP did not contain any standards relating to car parking, but as indicated in the zone objective (e) above, the LEP envisaged that provision for car parking would be dealt with by means of a development control plan. 25. At the time of the hearing there was no relevant draft LEP that had been exhibited. DCP 12: Off-street Car Parking 26. Clauses 1, 9, 10 and 13 and appendix 1 of the council's Development Control Plan No. 12—Off-street Car Parking, Loading Facilities and Vehicular Access Code are relevant: 1. Aims & Objectives To require the provision of on-site facilities and appropriate design standards to: (i) permit the safe and efficient movement of motorised vehicles within the Shire; (ii) to ensure that vehicles generated by a development including, visitor, employee and commercial vehicles, can generally be parked and loaded off the public street; (iii) to ensure that vehicular access points are located to minimise disruption to vehicles and pedestrians on the public street system; (iv) provide communal public car parking in appropriate areas from developers' contributions where the development cannot accommodate adequate on-site parking. 9. Parking Requirements The number of car parking spaces to be provided on the site shall be determined in accordance with the Car Parking Requirements Schedule annexed to this Code (SEE APPENDIX 1). Attention is drawn to the special needs of the disabled when determining allocation of parking spaces. Provision should be made in the case of developments which are to be made available for lease, for future changes of use and/or where the failure to provide the additional car parking spaces required for a new use would result in that use change being refused. … 10. Requirements for Extensions to or Rebuilding of Existing buildings Car parking provision for total development or redevelopment shall comply with the requirements of this Plan. Where extensions to an existing development are proposed, Council will require parking provision in accordance with Appendix 1 for the extensions. Where parking has not been required by Council for an existing use, but where such parking has been provided, Council will require the retention of such parking as is currently provided up to but not exceeding the requirements of Appendix 1. Where informal parking is currently provided and redevelopment is proposed, the existing development is deemed to have provided the parking for that development. This deemed amount of parking is to be retained during any redevelopment. 13. Cash Contribution (Commercial Development only) o S 94 in lieu of on-site parking provision In circumstances where it is not physically possible or where for traffic reasons or otherwise, it is impracticable to provide on site for the total number of parking space [sic] required under this Code in respect of any commercial development, Council may accept an appropriate cash contribution in lieu of on-site parking, such contribution to be paid into Council's Parking Fund Trust Account for the particular area, and to be used exclusively for the purpose of assisting Council in the establishment of Public Parking Areas within reasonable proximity to the development site. The amount of cash contribution considered by Council to be appropriate in the circumstances of any particular case shall be determined in accordance with a rate per space, or part thereof, adopted by resolution of the Council, such rate being subject to variation from time to time. APPENDIX 1 Schedule of Car Parking Requirements as per Clause 9 Definitions Floor means that space within a building which is situated between one floor level and the floor level next above or if there is not floor above, the ceiling or roof above; Gross floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external closing walls as measured at a height of 1400 mm above each floor level excluding: (a) columns, fin walls, sun control devices and any elements, projections or works outside the general line of the outer face of the external wall; (b) lift towers, cooling towers, machinery and plant rooms and ancillary storage space and vertical air-conditioning ducts; (c) car parking needed to meet any requirements of the Council and any internal access thereto; (d) space for the loading and unloading of goods (source – Environmental Planning & Assessment Act Model Provisions 1980); Gross leasable floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the internal faces of the walls excluding stairs, amenities, lifts, corridors and other public areas but including stock storage area. The number of car parking spaces to be provided for each of the following uses shall be assessed in accordance with the requirement shown opposite: Use Car Parking Spaces Office, commercial premises and professional chambers, including banks and agencies (also doctors & dentists) 1 space per 35 m2 of gross floor area (amended 18/9/89) Retail Shop – Bowral 1 space per 35 m2 of gross leasable floor area (amended 18/9/89) Supermarkets 1 space per 20 m2 of gross leasable floor area Note: Where new office space is proposed at ground level which could be used for future retail purposes, parking for such space should be assessed on the basis of a retail use. DCP 46 27. Development Control Plan No. 46: Bowral Sub-Regional Centre—Urban Design and Development Guidelines ("DCP 46") was prepared by the Strategic Planning Branch of the Council and, after adoption by the Council, became effective on 16 December 2002. Under DCP 46, the subject land is in the primary commercial area (town-core precinct). The town core includes most of Bong Bong Street between Merrigang and Bundaroo Streets. It also includes parts of Wingecarribee, Boolwey and Banyette Streets that are adjacent to their intersections with Bong Bong Street. In relation to vehicular access and parking in the town core precinct, clause 6.1.2 of DCP 46 says: …Access from Bong Bong Street is generally discouraged due to its function as a main road. When it is required, vehicular access in this precinct should be from the rear of the property. Properties that have a secondary lane frontage often have vehicular access from the lane and on-site parking at the rear of the property, with access from the lane. The development of a second active frontage to the lane is encouraged with existing on-site parking being replaced with an appropriate monetary contribution made by the developer to the Draft Developer Contributions Plan for public parking in the Bowral town centre. Given the high level of site coverage and development, there are limited opportunities in this precinct for the provision of on-site parking. On-site parking is not encouraged in this precinct. 28. When one looks at map 2 of DCP 46, which shows the location of the precincts, it can be seen that there are indeed limited opportunities for on-site car parking for many of the properties in precinct 1. However, the subject property and some other properties that extend eastward through to council's car park are perhaps not as limited in the opportunities for on-site car parking. Clearly for any shop on a narrow lot, it would not be desirable to break the rear facade of the shop by having a garage entrance. But where there is a larger and wider property, such as the subject property, query whether there could be the opportunity for basement car parking with only a minor part of the facade of the building being affected by a vehicular entrance and exit. 29. Mr Rogers saw no disadvantage in providing six car spaces on the subject site for tenant parking (T 63), and adverse traffic impacts of having to provide access to this tenant parking would probably be negligible (T 64 and 69). 30. (Note that when reviewing the transcript for the first hearing date, the car-parking generation rates that are given for the proposed development have to be amended to take into account that the spaces relating to the office component were originally calculated on GLFA but should have been calculated on GFA, as was subsequently done in exhibit 17.) 31. Although historically the council-owned car park immediately behind the subject property has been available for car parking associated with the subject property and with some adjoining properties having a frontage to Bong Bong Street, DCP 46 places this car park and the adjoining Oxley Mall car park in precinct 1A, which also includes the Mall/Coles buildings. 32. It seems to me that what is said in clause 6.2.1 of DCP 46 concerning precinct 1A is of some relevance to a large property such as the subject land that immediately abuts the car park of precinct 1A: Car parking should be integrated into the development through an internal parking structure and possibly basement spaces. On ground surface parking areas should be discouraged as they utilise valuable street level space and are visually unattractive. Customer vehicular access should be from Bendooley Street with a service access from Boolwey Street. Car parking areas are not to be located at ground level at street frontages. Other planning documents 33. A document entitled Wingecarribee Our Future: Strategic Plan dated October 2002 envisages that zoning changes could be made to increase residential densities in Bowral (p 30). It is apparent that if residential densities are increased, there will be further increased parking demand in respect of the car parks adjoining or in the locality of the subject land, because of the likely increased patronage from the additional population. 34. The Strategic Plan's suggested actions for the business centre of Bowral precinct include (p 32): + prohibit on-site parking in association with new small-scale commercial development in the core area of Bowral sub-regional centre, given potential conflicts with traffic and pedestrians circulation, the need to better control vehicle movements throughout the centre and to maximise the use of commercial zoned land for commercial development. Development would need to make a contribution in lieu thereof, in accordance with a developer contributions plan. (This provision would not apply to bulky goods retailing or supermarket outlets.) + prohibit department/discount department stores on land within the Bowral precinct. 35. By way of comment on the first bullet point in the preceding paragraph, the prohibition against on-site parking applies to "small-scale" commercial development. However, the applicant's proposed development is not small-scale but more in the nature of medium-scale development. Moreover, in respect of all development in the Bowral town centre, no contributions for car parking can presently be required because there is no adopted contributions plan for car parking. 6. Council's consideration of the present application 36. The application was presented to the council's Traffic Committee on 13 August 2004. The Committee did not support the applicant's argument for a parking credit. The Committee's resolution is as follows: 1. THAT the applicant's proposition that the development has a credit of 28 car spaces is not supported. 2. THAT it be noted there is a deficiency of at least 15 car parking spaces AND THAT the applicant be required to enter into negotiations with Council regarding a payment in lieu. 3. THAT the relocation of the existing loading dock to the north-eastern corner of the development is not supported AND THAT the length of any new loading dock be at least 12.5 m to ensure delivery vehicles do not encroach on the footpath. 4. THAT an area be designated for garbage collection. 37. The council officer's assessment report to the Works and Planning Committee meeting of 1 September 2004 included the following: Provision of Car Parking The applicant argues that the development results in a lesser demand for parking and uses the following tables to pursue this argument, that the development is less intense (i.e. a supermarket attracts more customers), therefore there is a credit of parking spaces . TABLE 1 Car Parking Requirements for Existing Development (Applicant's submission) Land Use Gross Leasable Floor Area (GLFA)(m2) Parking Rate under DCP No. 12 Car Parking Required Supermarket 2,015.48 1 space per 20m2 GLFA * 100.77 spaces Retail shops fronting Bong Bong Street 187.2 1 space per 35m2 GLFA 5.4 spaces Total Parking associated with Proposed Development 106.17 spaces *This standard was introduced in 2000. The applicant's assumption that the former Franklins supermarket, which has been vacant for some 18 months – 2 years, had a parking rate of 1 space per 20m2 of GLFA is not supported. The applicant contends that in determining parking requirements, he has sourced the relevant document DCP 12 and used figures as presented. It should be noted that this standard was introduced to Council's DCP 12 in 2000 , and recognised the higher parking generation rates of supermarkets. Prior to 2000, DCP 12 calculated supermarket parking at the same rate as general commercial, i.e. 1/35m2 GLFA. If the pre-2000 DCP 12 standard is applied on the existing floor area, this equates to a credit of 63 car spaces. An alternate viewpoint is that the existing development does not appear to have made any contribution to the provision of car parking. Based on the proposed development, a deficit of 78 spaces may exist with this viewpoint. Research of earlier approvals indicates that a specific parking requirement for the site may not have been required. Therefore it is suggested that an appropriate parking calculation for the re-development is in accordance with Table 2: - TABLE 2 Car Parking Requirements for Proposed Development (Council's submission) Land Use Gross Leasable Floor Area (GLFA)(m2) Parking Rate under DCP No. 12 Car Parking Required Ground Floor Retail 1,384.17 1 space per 35m2 GLFA 39.5 spaces First Floor Retail 1,348.90 1 space per 35m2 GLFA 38.5 spaces Total Parking associated with Proposed Development 78 spaces This makes a reasonable allowance for the existing development, especially as available records cannot establish any provision for parking. Therefore Council would argue a deficiency of 15 car spaces and the applicant should enter into negotiations regarding an agreement to contribute towards a parking fund (non-Section 94) as has recently been done by the operator of the Empire Cinema. 38. It could be noted that the floor areas referred to by the reporting officer in the above table 2 related to an earlier version of the development application plans. The floor areas relied upon by the applicant for the purpose of this hearing are set out in the table of development data at par 12 above. Also, the proposed use of the first floor in the current version of the plans is for offices rather than retail; retail or shop uses are proposed only on the ground floor. 39. The council officer's report dated 1 September 2004 concluded: The application is important to the Bowral town centre in that it will open up new retailing opportunities in modern well presented and serviced buildings. Developments of this nature are important if Bowral is to maintain its position as the "primary business and retail centre for the Tablelands sub-region." However, there are three significant issues affecting the proposal: Front façade Should be re-designed to comply with DCP 46. Relocating the loading dock The relocation of the loading dock has operational merit, and if impacts on the pedestrian crossing/adjoining premises can be adequately dealt with, then it may be satisfactory. Parking shortfall Council has previously negotiated development agreements ( not s 94 contributions) with applicants in Bowral where there has been a shortfall in the provision of car parking. The most recent example has been the Empire Cinema. RECOMMENDATION 1. THAT the applicant be invited to submit further details regarding the front elevation, the loading dock and to enter into a developer agreement for the shortfall in car parking. 2. THAT should issues raised in 1 above not be satisfactorily concluded, the Director of Environment & Planning be authorised to issue a Notice of Refusal. 40. As mentioned in the Statement of Basic Facts by council's town planner Mr G Hewat, "Previous approvals for the site did not provide either for a monetary contribution, or for the physical provision of parking." 7. Previous use may recommence without a new consent 41. The existing building on the subject land has been vacant since Franklins left in February 2002 (T 20). However, this does not mean that a supermarket use could not recommence if the proposed development is not approved. Having regard to s 109B of the Environmental Planning and Assessment Act 1979, the Court of Appeal has held that a valid consent that is in force for a particular use cannot be abandoned during the life of the planning instrument under which it was granted: Auburn Council v Nehme [1999] NSWCA 383. 42. It is therefore relevant to take into account that if the existing building was retained and a supermarket use was to recommence at the subject site, that use would not have to provide for its own car-parking needs. The car parking associated with the recommenced use would have to be absorbed within the public car-parking areas in the locality. 8. Section 94 contributions or developer agreements not possible at present 43. Although it was not tendered, it appears that there is a contributions plan in respect of the item "roads and traffic management". It was agreed that no contributions were required on account of this item (ex H). However, quite different considerations apply to car parking as distinct from traffic management facilities. 44. DCP 12 was originally adopted in September 1989. Assuming that clause 13 of the DCP 12 (quoted at par 26 above) was at that time in the same terms, a contribution for car parking could probably have been imposed prior to 1 July 1983. However, as I indicated during the course of the hearing, that clause (by itself) can no longer be relied upon by the council because of the amendments to s 94 that came into effect on 1 July 1993. Among other things, a contribution may now be levied for car parking only if the council has adopted a contributions plan prepared in accordance with the regulations, and no such contributions plan has been prepared here. 45. The council has sought to bypass the provisions of s 94 by requiring an applicant to enter into a developer's agreement with the council to provide a contribution for car parking. This is was what was recommended in the present case by the council's Traffic Committee (par 36 above) and by the report to the council's Works and Planning Committee (pars 37 and 39 above). As I indicated at the hearing, the requirement to enter into an agreement to contribute to a car-parking fund for the Bowral town centre is probably ultra vires the council's powers (T 5). A further amendment to the Act would be required to authorise such an agreement. The recent Court of Appeal decision of Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107 does not alter my views. The contributions that were imposed in that case after 1 July 1983 related to a proposed subdivision in another locality, and the Court of Appeal held that the contributions had been levied in accordance with a validly amended contributions plan. 46. The fact that the council has obtained monetary contributions for car parking for some other developments approved after 1 July 1993 in the Bowral town centre is no justification for continuing the practice in the absence of authorisation by statute. 47. Theoretically, there are various sources open to the council to obtain funds to provide more parking. One way might be by levying a special rate, but the decided cases show that the council would have to exercise care in levying of such a rate if it is to be valid. Another source of funds might be obtaining a loan to provide additional car parking in advance of new development, and the council could seek to recoup the capital and interest on that loan from s 94 contributions in accordance with a contributions plan that has been specifically made for that purpose (see s 94(3) and (4) of the Environmental Planning and Assessment Act 1979). However, the council would no doubt have to consider whether adequate funds could in fact be obtained from a special rate or from s 94 contributions, if there continues to be limited redevelopment in the Bowral town centre. 9. Should the council's DCP 12 otherwise be applied? 48. A development control plan should be a focal point of consideration when assessing a development application: Zhang v Canterbury City Council [2001] NSWCA 167. However, the Court has to take into account all the evidence, not only the DCP but also the expert traffic engineering evidence. The Court also has to take into account other relevant matters in s 79C(1) of the Environmental Planning and Assessment Act 1979 and, in accordance with s 39(4) of the Land and Environment Court Act 1979, the public interest and circumstances of the case. Having regard to all the evidence, it may be reasonable in a particular case (such as the present one) to depart from a DCP. 49. In Rose Consulting Group v Baulkham Hills Shire Council, No 10001 of 2001 decided on 17 December 2001, I held at [37] that "reasonableness", in relation to s 94 contributions, "includes concepts of fairness, equity, sound judgment, moderation and proportionality". The Court of Appeal upheld my decision ([2003] NSWCA 266 at [21]). In the present appeal, a contribution for car parking under s 94 cannot be levied as there is no contributions plan. Nevertheless, it seems to me that the concepts included within the notion of "reasonableness" could still be applied when considering what actual provision (if any) the proposed development should make for car parking and whether, notwithstanding DCP 12, the number of car parking spaces generated by the previous uses at the site may be used as a "credit" for the car parking needs of the proposed development. 50. As set out in DCP 12 (quoted at par 26 above), the parking rates that now apply after the amendment of the DCP in 2000 are: + retail shops (other than supermarkets)—1 space per 35 sq m GLFA, + supermarkets—1 space per 20 sq m GLFA, and + offices and commercial premises—1 space per 35 sq m GFA. Note that for offices, the parking rate is determined on gross floor area, whereas for supermarkets and retail shops the rates are based on gross leasable floor area. 51. In respect of the proposed development, these rates of DCP 12 would require 39 parking spaces for the retail uses on the ground floor and 49 spaces for the offices on the first floor, a total of 88 spaces (assuming for the moment that it is appropriate to apply the DCP). The applicant in fact is not providing any car parking spaces on the site. 52. Mr B Bilinsky, solicitor for the council, made a submission to the effect that clause 10 of DCP 12 did not recognise that any credit should be given for the parking demand generated by the previous uses, where (as in this case) there was to be a "total development or redevelopment". I think that that submission is probably correct. Initially, Mr Bilinsky reinforced this submission by a further submission that the previous supermarket use had been abandoned because the building had been vacant since February 2002. He later rightly withdrew this further submission, having regard to the legal position referred to in par 41 above. 53. As I mentioned earlier, a requirement for car parking should be reasonable in the circumstances. 54. I am aware of two cases where a court has said considered whether for a substantial addition or redevelopment, a condition of consent could require the proposed number of parking spaces to make up for the deficiencies of the previous use. One case was Caringbah Investments Pty Ltd v Sutherland Shire Council (1970) 20 LGRA 377, involving proposed additions to an existing hotel, where Else-Mitchell J said (at 380): Whilst it may be proper in the exercise of discretion which is conferred by cl. 27 of the County of Cumberland Planning Scheme Ordinance to treat an application which merely seeks approval to alterations to existing commercial premises in a different fashion from that appropriate to an entirely new development, I do not agree that the council's powers are as limited or circumscribed as the appellant submits, and certainly not so when the commercial purpose for which the premises are being used has not the protection of cl. 33 of the County Ordinance.… I should be disposed to the view that the council's power to impose conditions on the grant of development consent to the alteration of buildings erected since the appointed day can be exercised as if the application work for an original and entirely new development. To hold otherwise could well, I think, result in an undue attenuation of the powers which prescribed planning schemes were designed to confer and to widen unnecessarily the protection which is given by provisions such as cl. 33 of the County Ordinance. It is, however, not necessary to determine this question for, in the ultimate, the council has based its claim for the provision of additional parking space on the greater patronage of the hotel which it says must inevitably ensue from the proposed alterations. 55. The second case was Auspacific Equity Investments Pty Ltd v Pittwater Council [2004] NSWLEC 281, where the applicant proposed to demolish a single-storey retail arcade and to erect a new building containing retail uses on the ground floor with two residential levels above. Basement car parking was also proposed but the number of spaces was deficient in terms of the council's DCP. The existing arcade on the site also had an inadequate number of car-parking spaces at the rear, but there was an adjoining council car park. Commissioner Murrell dismissed the appeal on a number of grounds including inadequate side setbacks and poor amenity. In relation to car parking, the Commissioner said: [33] Clearly if one accepted the evidence of the applicant's expert the shortfall in carparking of the current development would be perpetuated in any redevelopment of the subject site and I use the word "redevelopment". The applicant claims that the proposal is a change of use/redevelopment and therefore one should have regard to the existing provision of carparking and the fact that it is currently deficient would justify a perpetuation of that deficiency. I do not accept this but rather I accept the evidence of Mr Hallam in this matter when he says that one should assess the development against the carparking required in council's DCP. [34] Mr Hallam also indicated that this requirement is less than what would be required by the Roads and Traffic Authority's Guidelines and he considers that redevelopment or change of use is not relevant to the current proposal, as the proposed development involves the complete demolition of the existing shops on the site and in that regard it should be assessed in those terms and provision of carparking should accord with current parking provisions and requirements contained in Council's Development Control Plan No. 2. [35] At the end of the day the shortfall was somewhat narrowed. Mr Coady was of the opinion that at the most there is a shortfall of some four spaces and in his assessment this is not fatal to the application. On cross-examination he agreed that there would be no impediment to providing an additional basement level of carparking or additional carparking. On the other hand Mr Hallam considers that at the minimum there would be a shortfall of some six carparking spaces. [36] There are 28 carparking spaces provided for the retail component, the RTA guidelines require a provision of some 50 spaces, the development control plan would require provision of some 41 spaces. As I said, at the end of the day the difference was narrowed but in the Court's assessment there is no reason why the proposed development should not provide for the requisite amount of carparking in terms of Council's DCP. The shortfall, as I stated, should not be perpetuated. 56. However, on the facts of the present case, it seems reasonable to give a "credit" for the parking demand that would be generated if the previous uses were to recommence in the existing building on the subject site—even though such a credit is not recognised by DCP 12. In particular, I have had regard to the zone objective "to recognise and maintain Bowral's predominance as the prime business and retail centre for the Tablelands subregion" (par 23 above). As set out below in this judgment, I have also taken into account what has occurred in respect of other developments in the town centre, the car-parking spaces available elsewhere, and the parking problems experienced in the public parking areas adjoining or near the subject site. 57. On the present evidence, where no on-site car parking at all is provided, it seems to me that any redevelopment should generate a parking demand that is less than the previous uses or at least should generate a parking demand that is clearly not greater than the parking demand of the previous uses. To allow a new development having a greater parking demand than the previous uses would be unacceptable because of the parking problems (referred to below) in the public parking areas close to the subject site. 58. In these circumstances the question then arises: what number of car parking spaces should be attributed to the previous uses of the subject land? 59. There was no survey evidence available of the actual parking demand from the previous particular uses of the subject site. 60. At the time of the granting of the development consent to Franklins (par 20 above) different DCP parking rates applied; for a new development, the council could have required 1 space per 35 sq m of GLFA. The total GLFA of Franklins and of the several small shops is 2203 sq m, which would have generated a demand for 63 parking spaces based on the DCP rates in 1997. (But as I indicated, the council did not impose any requirement for car parking, no doubt having regard to still earlier approved uses for the site.) If instead of applying the 1997 rates, the current provisions of DCP 12 (par 50 above) were applied to the subject site as though the previous uses were in fact new uses, the parking demand for the previous uses would be 100.7 car spaces for the supermarket with a GLFA of 2015.5 sq m and 5.3 spaces for the shops of 187.2 sq m, giving a total parking demand of 106 parking spaces. 61. However, in light of the expert traffic-engineering evidence of Mr Rogers, it seems that the 1997 parking rates in the DCP would now be too low, whereas the current DCP parking rate for supermarkets would be too high. It appears that the rate of 1 space per 20 sq m of GLFA for supermarkets was adopted by the council in 2000 having regard to the number of spaces that Woolworths actually provided for its supermarket. But the evidence suggests that Woolworths provided more than what would ordinarily have been needed, and the limited survey evidence concerning the vacancy rate within the covered car park of Woolworths would tend to confirm this. There was little evidence to support the parking rates given in DCP 12. 62. In respect of the previous uses of the subject site as well as of the proposed uses (other than the offices), Mr Rogers considered that the disaggregated shopping-centre model of the Roads and Traffic Authority's Guide to Traffic Generating Developments provided more accurate estimates of the parking requirements than the rates given by DCP 12 (report of Mr Rogers dated December 2004—ex 12). 63. The RTA Guidelines suggest the use of GFA rather than GLFA when calculating the parking required for offices, and in his supplementary report (fax dated 5 January 2005—ex 17) Mr Rogers corrected the parking calculation for the proposed offices by using the RTA commercial rate of 1 space per 40 sq m of GFA. 64. The RTA disaggregated shopping-centre model also includes another rate for any offices in a shopping centre, which is lower than the commercial rate mentioned in the preceding paragraph. But Mr Rogers was of the opinion that this lower rate applied to ancillary office space in a major shopping centre and should not be applied to the offices of the proposed development. Taking the amended gross floor areas in the table at par 12 above, the offices are 46.3% of the total proposed floor area. In my opinion, the offices are clearly not ancillary. 65. Because of the parking problems near the subject site, I have conservatively adopted the parking rates used by Mr Rogers (ex 17) in preference to any other possible alternative calculations such as those in the report of Mr Richardson (ex C p 19). 66. Accordingly, using the RTA Guidelines as Mr Rogers did, I find that the parking requirements for the proposed development (before allowing a credit for the previous uses) would be 62 spaces for the retail uses and 42 for the offices, a total of 104 spaces. Again, using the RTA Guidelines, the previous uses on the site would require 93 spaces. There is thus a shortfall of 11 spaces. 67. The proposed development contains an arcade that will allow pedestrian activity between the car park at the rear of the site and Bong Bong Street. However, the public benefit of the arcade and other positive outcomes of the proposed development, such as the appearance of a new building, in my opinion do not justify the waiver of the parking shortfall. The car park at the rear is operating at its practical maximum capacity. The public benefit of the arcade would be more apparent if the car park was under-utilised. However, if the car-parking shortfall can be eliminated by a new development application for a suitable development, an arcade in the development would probably be unobjectionable. 10. Some other developments 68. Springetts Arcade, adjoining the subject land, was approved in 1983 and opened in the 1984. The consent for the development was not available to be tendered. However, the present manager of that arcade, Mr A. Springett, said that his father had told him that a contribution had earlier been made for parking (T 18). Before the erection of this arcade, the Springetts had other shops on their site. 69. The Oxley Mall development was built in the early 1980s. It comprised a major supermarket of 3,036 sq m and small shops with an area of 1,672 sq m, giving a total floor area of 4,708 sq m. The Oxley Mall site and car park are between Wingecarribee Street and Boolwey Street, immediately to the east of the rear of the shops (including the subject land) that have a frontage to Bong Bong Street. On behalf of the Oxley Mall developer, Sinclair Knight & Partners Pty Ltd had submitted to the council a report dealing with parking and traffic matters. That report included the following: 3.4 Parking Provision The development is providing a car park of 259 spaces around the supermarket and shop. This car park is required in part to replace an existing car park on the site, which currently provides some 140 spaces. For a centre of this type and size, it would normally be expected that the maximum parking demand [would be] for about 200 to 230 spaces at peak times. On this basis, some 80 to 110 vehicles would have to find parking other than on the development site. There is a car park opposite the site across Boolwey Street with a capacity of about 110 spaces which is currently about half full at peak times and could, therefore, handle about 55 of the extra cars. The remaining 25 to 55 cars would have to park on street or elsewhere in the town centre. It must be pointed out however that this situation will only occur for about 6-8 hours per week, or about less than 10 percent of the time of operations of the centre, and we do not believe this would create major problems in a town such as Bowral. 70. Twenty-four years after the above report of Sinclair Knight, the parking demand at Oxley Mall is now quite different. The evidence indicates that the Mall car park is operating at full capacity at most times between 10 a.m. and 3 p.m. This is the case even though there is no actual parking demand now from the subject site, where the existing building has remained vacant for several years. 71. Major developments in the last 10 years, such as Woolworths (built in about 1997) have provided on-site car parking to fully meet the demand generated by those developments. It is not apparent whether any credit was given for car parking associated with any previous use of those sites. Woolworths in fact provided many more spaces than were required at that time by DCP 12. 72. A more recent development is the Aldi store at the southern end of the town centre in the secondary commercial area, precinct 2 of DCP 46. Aldi provided 96 car parking spaces on a large site next to the store (T 31 and 41). 73. It is obviously important that large supermarket-type developments should provide car-parking spaces to fully meet the normal parking demands of those developments and that the spaces be on the sites of such developments or adjoining them. It is undesirable that shoppers coming from such developments should have to push shopping trolleys or carry heavy shopping bags laden with groceries to cars parked a couple of hundred metres or more away from such developments (T 67). 74. Certain other developments in the Bowral town centre have provided some on-site parking. These include the Grand Arcade, Southern Highlands News, Australia Post, Bowral Hotel, Royal Hotel and a gas company (T 21-23) 75. In the past, there have been small extensions or additions to shops in Bong Bong Street in respect of which no parking has been provided. In the last five years in the core area of the town centre, Mr Richardson said that he was not aware of any extensions over 100 sq m. 76. The proposal is not a small development but may be regarded as at least a medium-size development. 11. Parking problems 77. Mr Rogers arranged for his staff to carry out surveys of two different areas of the Bowral town centre. 78. The first area was relatively large and the survey was carried out on Friday 26 November and Saturday 27 November 2004 of the area bounded by Bundaroo Street, Bendooley Street, Bowral Street and the Southern Railway. The survey found that peak parking demand occurred on Friday at around 11 a.m. At this time some 74% of on-street parking spaces were occupied and 94% of off-street publicly accessible parking spaces were occupied. This is an overall parking demand of 87%. As might be expected for the survey on the Saturday, there were more vacant parking spaces because of a substantial reduction in commuter parking in Station Street adjacent to the railway line and because some offices would be closed (cf. T 72). 79. While this first, large area that was surveyed gives a broad picture of car parking in the Bowral town centre, I am of the opinion that the area surveyed was too large in relation to the location of the proposed development at the subject land. The outer parts of the surveyed area are at a walking distance too far from the subject land. I have scaled the walking distances below from the CBD map (ex 9)— (1) The walking distance northwards from the proposed rear exit at the subject land to the corner of Bundaroo and Bendooley Streets is about 410 m. (2) Going south from the front entry to the proposed building to the intersection of Bong Bong and Bowral Streets, the distance is about 380 m—however, the survey area does not end at this intersection. (3) Proceeding then westward along Bowral Street from Bong Bong Street it is a further 260 m to the intersection at Station Street, giving a total distance of this last intersection from the front of subject site of about 640 m. (4) Or, having walked the distance in (2) above, proceeding eastward along Bowral Street to its intersection with Bendooley Street, the total distance from the front of the proposed building is about 580 m. (5) Alternatively, if the measurement is made along the shortest walking route from the eastern rear entry of the proposed building to the intersection of Bowral and Bendooley Streets, the distance is about 490 m. 80. The second area that was surveyed for Mr Rogers was smaller, being the area cordoned by Merrigang Street, Bendooley Street, Banyette Street and the Southern Railway. Mr Rogers described this area as the inner core area. The survey found that there are some 1320 on-street parking and off-street publicly accessible parking spaces. When the peak parking demand occurred at around 11 a.m. on Friday, there were only 110 vacant spaces scattered throughout the inner core area; that is, 92% of the parking spaces in the whole of the inner core area were occupied. 81. In Di Jones Real Estate v Woollahra Municipal Council [2004] NSWLEC 10 at [30], the Commissioner Tuor adopted a submission on behalf of the applicant that the "key question to be answered is whether the demand for off-street parking as a result of the proposal would detrimentally affect the enjoyment by an occupier of any lands adjoining or adjacent to, or in the neighbourhood." In this appeal, I cannot accept that the criterion should be so limited; the question posed in that case concentrates on whether on-street parking would detrimentally affect adjoining landowners. In the present case, what has to be considered also is the convenience of the general public who attend the business centre of Bowral, who in most cases would not be landowners adjoining the on-street parking spaces. Of particular importance is the adequate provision of parking spaces that are conveniently located to the premises that generate the need for additional spaces. 82. It might be argued (as the applicant did in this case) that there is spare parking available within the Bowral town centre at peak times to absorb any additional parking demand from the proposed development. However, it is not simply a matter of asking the question, "Are there any vacant spaces?" Generally speaking, once the number of conveniently-located and publicly-available parking spaces serving a busy town centre are occupied to the extent of more than 90%, the practical upper limit has been reached. Mr Rogers agreed in oral evidence that "as a general rule of thumb over 90% is practically full" (T 66). His survey found that the inner core area was operating at 92% of its capacity, which in my opinion is its practical maximum capacity. At this level of parking demand, the number of spaces available are harder to find and drivers have to circulate looking for a vacant space, adding to traffic congestion, or some drivers may become exasperated and park illegally; other drivers (including the elderly) may be forced to park at an inconvenient distance from their desired destination point. 83. The evidence indicates that it is particularly difficult to get a parking place within about 150 m of the subject site. On the days that were surveyed by Mr Rogers's staff, the public car park immediately behind the subject site and the Oxley Street car park were literally full between 10 a.m. and 3 p.m.(T 72). 84. The 58 photos in exhibit 10 taken at about 3 p.m. on Friday 10 December 2004 show the extent of parking problems in the public car park immediately behind the subject land and in the Oxley Mall car park and on the immediately adjoining streets. These photos give the impression that there was saturation parking in the vicinity of the subject site. A number of the photos show cars either circulating or standing in the car-park aisles, apparently waiting for a car space to become vacant. In Wingecarribee Street near the subject site, available on-street car parking was all taken up and a car was parked illegally in the turning circle next to the closed-off section of the street. The photos further show that Bong Bong Street (in the vicinity of the front of the subject land) was parked out. The photos also show the council all-day car park off Merrigang Street to be fully utilised. 85. Mr Springett said that from about 1984 parking in the public car park behind his arcade (and at the rear of the subject land) was at a premium (T 22). The Bowral Chamber of Commerce, of which he is a member, has been seeking extra parking from the council for probably 15 to 20 years, Mr Springett said (T 19). 86. The applicant placed significant reliance on the fact that a survey by Mr Hewat found that while the Oxley Mall car park at the rear of the subject site only had four vacancies at 2.45 p.m., the Woolworths building had 121 vacancies at 2:50 p.m. To get to the Woolworths building from the rear central exit of the proposed building, one would have to walk along the open access aisle of the public car park at the rear of the subject site, across Boolwey Street, through another open car park to the covered car parking in the Woolworths building. As scaled from the CBD map (ex 9), the walking distance from the centre of the subject site at the rear (where the eastern pedestrian entry to the proposed building would be located) to the entrance of the covered car parking at Woolworths is approximately 190 m. This survey by Mr Hewat was not at the peak time found by Mr Rogers, and the number of vacant spaces in the multi-level car park of the Woolworths building at other times could well be less. 87. In view of the congested and saturated parking elsewhere in the immediate vicinity of the subject site, I am not satisfied on the evidence that the proposed development should be permitted to impose any additional car parking upon the multi-level car park that has been provided by Woolworths in its own building. By "additional", I mean the need for parking spaces in excess of the car parking generated by the previous uses of the subject site. It is to be recalled that at the time of the above parking surveys, the subject premises were generating no parking demand as Franklins had vacated the building; and as Mr Rogers said, this could lead to a distorted picture of the car parking. If the existing building at the subject site was merely to be reused for its previous uses, those recommenced uses would reduce the surveyed vacant spaces by up to 93 spaces (par 66 above) and would substantially reduce the spare capacity and efficient functioning of the Woolworths car park. Additional car parking from the proposed development would undesirably impact upon any remaining spare capacity of Woolworths' car park. 88. On my inspection with the parties on Wednesday 15 December 2004 at about 10:30 a.m., I observed that the public car park immediately to the rear of the subject site and the rest of the Oxley Mall car park, as well as the car park off Merrigang Street were full. Admittedly, there were probably some additional cars because of Christmas shopping. However, it is to be recalled again that at that time the subject site was not contributing any cars to the accumulation of parked cars. Mr Springett said that the parking and traffic movements observed by the parties and the Court were not far different to most other times of the year (T 12). Other matters relating to car parking 89. Another factor to take into account is that while the car parking provision in the period from the 1960s until 1980 may have been adequate for the population of Bowral during that period, the population has since continued to increase, as is apparent, for example, from the aerial photos (ex F) showing the expansion of the town. The increased population has resulted in greater demand for car parking in the town centre. 90. It seems likely that the population of Bowral will continue to grow. It is an attractive location for people to retire. And the Strategic Plan (par 33 above) suggests that certain areas at Bowral should be rezoned for higher residential development. 91. I note that the General Manager of the council has indicated in a written statement dated 17 December 2004 (ex 15) that the council "will be investigating a funding strategy for a multi-level car-parking structure for the Merrigang Street site which will most likely result in the preparation of a s 94 developer contributions plan for car parking in Bowral within the next 6-9 months." 92. If a s 94 contributions plan is adopted and a decision is made to build a multi-level car park, the cost per parking space according to one estimate given by Mr Shelton would be around $22,000 (T 52). Amended plan 93. At the end of the hearing, the applicant sought to tender an amended development application plan (MFI "A"). The amended plan was intended to substantially reduce (by 240 sq m) the first-floor area of the offices by creating nine fully enclosed areas that would be non-accessible, if no doors were provided to these areas. Each of these enclosed areas was described as "store/void". The council objected to the tender of the amended plan, because council officers had not had the opportunity to consider it and because these substantial enclosed areas could give rise to other issues. I also expressed some preliminary reservations. On one view, the extent of these enclosed areas could hardly be regarded as coming within the exception of "ancillary storage space" in the definition of "gross floor area" in DCP 12, if what was intended by the definition is that the storage space should be ancillary to "lift towers, cooling towers, machinery and plant rooms". In addition, even assuming the non-accessible areas were not part of the gross floor area, I had reservations about whether the floor area had been reduced sufficiently to make the lack of on-site car parking acceptable. The amended plan did not take into account that after the first hearing day, Mr Rogers revised the parking demand for the office component by using GLA (in accordance with the RTA Guidelines) rather than GLFA. Adopting the revised parking rates that were used for the figures given in par 66 above, the amended plan would reduce the parking spaces for the offices to 36, still leaving a shortfall for the whole development of 6 spaces. 94. In view of the council's objection and my preliminary reservations, the tender of the amended plan was not pressed. It would be open to the applicant to make a new development application to the council in the light of the findings in this judgment and having regard to any changed circumstances such as a contributions plan that the council might then have adopted. 12. Generally 95. The proposed development involves the demolition of a medium-size retail building previously used for a Franklins supermarket. No car-parking spaces were provided for any previous uses; nor were any contributions made for car parking. The existing building has been vacant since February 2002 when the supermarket ceased to operate. The subject site is in the core area of the Bowral town centre. Between 10 a.m. and 3 p.m. on weekdays, there is generally saturation parking in the public car park at the rear of the subject site, in the Oxley Mall car park, in the car park off Merrigang Street and on the streets close to the subject site. As regards car parking, the whole of the core area of the town centre at peak times appears to be operating at about its practical maximum capacity. At the time of the hearing, the council had not decided upon any definite plan to increase the parking supply or to adopt a contributions plan—but investigations were going to be made in this regard (par 91). 96. The proposed development is larger than the existing premises and involves a substantial redevelopment. Having regard to the present parking problems in the immediate locality of the subject land and to the fact that no car parking has been provided for previous uses at the site, the proposed development should clearly not make the parking situation any worse than would be the case if the previous uses were to recommence in the existing building (par 57 above). The presently proposed development is unacceptable because it would have a parking demand of 106 spaces, 11 more than the previous uses (par 66). 13. Orders 97. Accordingly, the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits, other than exhibits J, 12 and 17, may be returned. _____________ A J Nott, 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.