Land and Environment Court of New South Wales CITATION : Randall Pty Ltd v Willoughby City Council [2004] NSWLEC 98 revised - 20/05/2004 APPLICANT Randall Pty Ltd PARTIES : RESPONDENT Willoughby City Council FILE NUMBER(S) : 11226 of 2003; 10071 of 2004 CORAM: Bly C KEY ISSUES: Development Consent :- Modification of development consent - carparking associated with mixed use development LEGISLATION CITED: Environmental Planning and Assessment Act s 96 CASES CITED: DATES OF HEARING: 18-19/02/2004 DATE OF JUDGMENT: 03/19/2004 APPLICANT Mr P Clay, barrister SOLICITORS Maloney Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11226 of 2003 and 10071 of 2004 Bly C 19 March 2004 Randall Pty Ltd Applicant v Willoughby City Council Respondent Judgment Introduction 1. These two appeals under s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act) are to modify existing Development Consent No. 1996/0643 ("the consent") for the multi storey mixed use development with associated basement carparking, at 24 Anderson Street, Chatswood. The applications are to amend or supplement existing condition 41 in relation to the use of the carpark. 2. Condition 41 specifies the number of carparking spaces to be provided on the site and how they are to be allocated. It also requires the preparation of a car-parking plan of management which, inter alia, provides for a schedule of fees for the use of the carpark. Such fees are required to be commensurate with other similar carparks in the Chatswood Town Centre. The now approved Plan of Management requires in effect that certain parking spaces are to be operated on a public parking station basis with the scale of fees including the "first two hours free". 3. Appeal No. 11226 of 2003 involves an application ("the fees application") for the variation of condition 41 by the addition of a qualifying condition 41A: 41A Notwithstanding anything to the contrary in the Car Parking Plan of Management referred to in Condition 41, fees may be charged for the first two hours parking. 4 . Appeal No. 10071 of 2004 involves an application ("the lease application") for the variation of condition 41 by replacing the words: All 250 spaces are to be maintained as accessible by all these user groups. with the words: Up to 60 spaces may be made available for lease provided at least 190 spaces are maintained as accessible by all these user groups. 5 . The existing consent has been taken up and there is now a mixed residential, retail, commercial and leisure centre known as the Regency on the site. The building has been strata subdivided in accordance with an existing consent, with the carpark now being contained within a separate strata title lot in the ownership of the applicant. Advertising 6 . The fees application was advertised and six objections were received from property owners within the Regency. Concerns expressed by these objectors include: · The change would result in increased car use by encouraging long term stays and all-day parking · Other carparking stations in the Chatswood retail precinct offer two or three hours free parking · Adverse economic effect, threatening the viability of businesses in the Regency. · Two hours free parking is vital to encourage turnover of shoppers and its removal would result in loss of trade · Businesses were purchased and offered for sale on the basis of two hours free parking · The purchaser of the carpark lot was aware of the free parking requirement at the time. · The present non-compliance with the free parking condition is having a detrimental impact on existing businesses in the Regency. 7 . The lease application was not advertised because the application arose from class 4 proceedings associated with the use of the carpark in the Land and Environment Court and the associated time frame set by the Court. The issues 8 . A statement of issues containing 13 separate issues was provided to the applicant and the Court. In relation to the fees application, the first two issues deal with the permissibility of the proposal and in relation to the lease application, the third issue raises the question of prohibition: 1. Whether the application is capable of approval under section 96 (1A) Environmental Planning and Assessment Act 1979 given that the proposed modification has more than "a minimal environmental impact" within the meaning of that section. 2. Whether the proposed modification can be approved given that it results in a development which is not substantially the same as the development for which consent was originally granted within the meaning of section 96 (1A)(b) of the Act. 3. Whether the proposed modification can be approved given that it is for development which is prohibited in the 3(c1) Business Retail Zone under the Sydney Regional Environmental Plan No. 5 - (Chatswood Town Centre). 9 . The remaining merit issues for both matters essentially relate to the Business Retail Zone objectives, public transport and traffic flow, and economic impacts. Statutory Provisions 10 . The site is located in the 3(c1) Business Retail Zone under Sydney Regional Environmental Plan No. 5 (Chatswood Town Centre) ("SREP 5"). In this zone the approved development continues to be permissible with development consent. However it is to be noted that a carparking station as defined in SREP 5 is prohibited. 11 . The relevant objectives of the Business Retail zone in effect require the consolidation of Chatswood town centre's retail core, the retention of ground level retail frontages and the maintenance of the predominant retail character of the zone. 12 . Also applicable is Council's Development Control Plan No. 2 - Transport Requirements ("DCP 2"). The evidence 13 . On behalf of the respondent Council, expert evidence was given by: * Miss L de Carvalho - town planner * Mr M Hill - land economist and valuer * Mr C Hallam - traffic engineer 14 . On behalf of the applicant, expert evidence was given by: * Mr R Chambers - town planner * Mr M Evesson - town planner * Mr G Pindar - traffic engineer The fees application 15 . In relation to the fees application Miss de Carvalho was of the opinion that the payment for short-term parking in the Regency would have adverse impacts on retail viability and possibly also the leisure centre because the proposed charges would discourage use of the carpark. Prospective and even existing customers may, as a result decide to shop elsewhere such as at Chatswood Chase and Westfield where two or three hours free parking is available. In turn this would adversely impact on the availability of parking spaces in other retail precinct carparks in Chatswood. Also the proposed fee structure would encourage long-stay carparking for workers who might otherwise use public transport. 16 . Mr Hallam explained that if parking charges were imposed the parking spaces would be likely to have a lower level of use by a shopper who would otherwise use the retail, commercial and leisure facilities. This would be inconsistent with the requirements of DCP 2 which requires that relatively unrestrained carparking be provided. If customers decide to park elsewhere to avoid paying for parking they would be using parking spaces provided for other retail developments thus impacting on their accessibility. This would leave under utilised parking on the subject site resulting in an undesirable imbalance in parking in the retail centre. 17 . Mr Hill believed that a fee for parking arrangement would encourage permanent parking resulting in a deficiency of parking for the approved uses within the building. There is no economic justification for the proposed fees which would negatively impact on the economic viability of existing retailers within the centre as they will lose trade to more established centres where short-stay parking is not charged for. 18 . According to Mr Chambers, there are a number of public carparks in the Chatswood CBD where a fee for parking is required. He recognised that two or three hours free parking is available at Chatswood Chase and Westfield however these centres have a vast array of retail premises unlike the Regency. He pointed out that under present arrangements no charge for parking can be levied for the users of the leisure centre. Also, if existing businesses were concerned to ensure that free parking was available to customers, those businesses could pay the levy and provide a voucher system so that the customers themselves do not need to pay. He was of the opinion that in the light of the fees charged in some other carparks the proposed fee to park arrangement would not be excessive or unreasonable. 19 . Mr Evesson noted that the Regency is marginal in scale, is part of the retail fringe of Chatswood and would be unlikely to attract general shoppers. Because of their size, nature and location, businesses in the Regency would be less likely to be economically affected if fee for parking were introduced by comparison with other businesses located in or close to existing major shopping facilities. Alternatively if businesses perceived the prospect of adverse economic impacts they can negotiate a commercial arrangement to subsidise such parking fees. 20 . Mr Pindar pointed out that the carparking spaces will remain available but will simply be subject to a charge that is intended to secure a reasonable economic return for the owner. He was of the opinion that the fact that other retail carparks do not charge a fee was irrelevant in this case and this should not be used as an argument to prevent the applicant from seeking to protect its own financial interests. More generally he did not consider that the provision of free short-term parking was a sound policy position. Instead, the reduction of travel demand within Chatswood would be well served by the imposition of a charge for parking. However even if such a charge were to only discourage parking within the Regency, demand would be unaffected because it can be satisfied elsewhere. 21 . In relation to the fees application I have been persuaded by the evidence provided on behalf of the respondent. More particularly in relation to economic impacts I accept the evidence of the objectors and Mr Hill that the proposed fees would most likely have a negative impact on the economic viability of existing and indeed future businesses within the centre. I do not accept the argument that because of their limited number and size the businesses in the Regency would not be economically affected by the introduction of a fee for parking 22 . I also accept the evidence of Mr Hallam that the affected parking spaces would be likely to have a lower level of use because the proposed fees would encourage customers to park elsewhere. This would be inappropriate given that the car-parking spaces have been provided in accordance with the consent and in response to the demand likely to be generated by the associated land uses within the development. Also, if the proposed fee for parking has the effect of discouraging use of the carpark this may, as suggested by Mr Pindar result in the carpark being utilised for long-term parking purposes unrelated to commercial uses within the Regency. I also accept the evidence that the proposed fee to park arrangement would most likely result in customers and visitors of the Regency making use of the free short-term parking at Chatswood Chase and Westfield. 23 . In relation to the use of council's public carpark in Archer Street I recognise that this requires a payment. However this arrangement is to be distinguished from the proposal because a freestanding carpark is involved which is not an integral part of a particular commercial/retail development. 24 . As for concerns that some of the limited free parking spaces in the Regency could from time to time be taken up by persons who are using shops and businesses which are not located in the Regency, This is no different to what presently happens in Chatswood Chase and Westfield. 25 . Even though the Regency is not a major retail centre like Chatswood Chase or Westfield I do not accept that this is a reason to effectively set aside the original condition of consent and allow a fee for parking. I agree that the tenants of the existing non-residential premises who will be affected by this change should not have to pay for what they are otherwise entitled to on the basis of the consent. The applicant in the first instance has received the benefit of the consent and I heard no persuasive reason as to why the burden of the condition, correctly applied to this applicant, should be lifted. 26 . For these reasons I have decided that, on its merits, the application to amend the consent to allow a fee for parking should not be approved. 27 . In these same circumstances I cannot agree that under s 96 (1A) (a) of the EP&A Act that the impacts, which would result from the approval of the fees application, would be minimal. As a consequence approval cannot be granted. Notwithstanding this conclusion, it seems to me that if fees are charged for some parking, the entire development would be substantially the same as that which was approved, despite the fact that some prospective customers might be discouraged from parking within the building. Hence s 96 (1A) (b) of the EP&A Act would not be infringed. The lease application 28 . In relation to the lease application Mr Hallam agreed with the original Council analysis that the 250 parking spaces to serve the businesses on the site and some of the visitors to the apartments, is an appropriate provision. He confirmed that, based upon DCP 2, the 250 spaces would be 48 spaces short of the calculated requirement but if an allowance is made for dual use of public spaces, it would, as a minimum, be adequate. Therefore, all of the leased carparking spaces are required or will be required when full realization of the tenancies in the centre occurs. 29 . He explained that because the proposed 60 leased carparking spaces would not be generally available there would be insufficient parking spaces within the development and in turn this would encourage persons seeking to attend businesses on the premises to go elsewhere. Similarly, visitors to the residential component of the building may not be able to find a parking space and again would have to park elsewhere. 30 . Mr Hallam agreed that the leased carparking spaces would effectively become a carparking station and in turn would inappropriately encourage long stay parking for workers who might otherwise use public transport. 31 . Mr Pindar, independently of DCP 2 calculated that, based upon likely demand there is in the carpark, a surplus of 60 parking spaces out of the 250 spaces actually provided. These spaces can therefore be leased out to achieve an economic return for the owners without any adverse parking consequences. 32 . Whilst Mr Pindar's separate analysis of carparking requirements may have some merit, I have not been persuaded that the approach taken by Miss de Carvalho and supported by Mr Hallam in applying DCP 2 is incorrect. On this basis I would give determinative weight to the DCP and cannot accept that general access to 60 parking spaces should be denied. 33 . In general, I also accept the evidence of Mr Hill that for reasons similar to those discussed in relation to the fees application that the denial of general access to 60 parking spaces would have an adverse economic impact on the businesses in the Regency. 34 . For these reasons, I have decided that on its merits the application to allow 60 parking spaces within the Regency to be made available for lease should be refused. The prohibition question Car parking station is defined as: Car parking station means any land (including a building on that land) open to the public and used for the purpose of accommodating vehicles, whether upon payment of a fee or not, but 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, (b) a metered zone, or (c) a metered space. 35 . In its present form and taking into account the consent, the existing development on the site contains a number of different land uses with associated carparking. This carparking has been required to be provided on the basis of the demand which would be expected to be generated by the various land uses within the building and is therefore ancillary thereto. If part of that carpark is able to be leased for purposes other than those relating to the land uses within the building then that would not in my opinion result in those leased car spaces continuing to be ancillary to development on or even adjoining the land which effectively comprises the Regency development. 36 . I therefore agree that the provision of a number of leased car spaces would result in those spaces comprising a carparking station as defined and as a consequence would be prohibited by the LEP. 37 . Whilst it was not raised as an issue I also conclude that because this application would introduce a new land use into the building, approval cannot be granted because the resulting development would not be substantially the same as the development for which consent was originally granted as required by s 96 (2) (a) of the EP & A Act. Conclusions 38 . For the above reasons I have concluded that neither of the applications is able to be approved either being prohibited by the LEP or being beyond the scope of s 96 of the Act. The two applications also fail on their merits. Orders 1. The appeals are dismissed. 2. The applications to amend development consent No. 1996/0643 in relation to the carpark in the existing building at 24 Anderson Street, Chatswood, are refused. 3. The exhibits are returned. _____________________ T A Bly Commissioner of the Court rjs 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.