Land and Environment Court of New South Wales CITATION : Tim Shellshear & Associates Architects Pty Ltd v Wollongong City Council [2007] NSWLEC 140 APPLICANT Tim Shellshear & Associates Architects Pty Ltd PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 11035 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Boom gate to private medical centre, car park, management/charge LEGISLATION CITED: Environmental Planning and Assessment Act DATES OF HEARING: 15/03/2007 EX TEMPORE JUDGMENT DATE : 15 March 2007 APPLICANT Ms M Bailey, solicitor Massey Bailey LEGAL REPRESENTATIVES: RESPONDENT Mr M Mantei, solicitor SOLICITORS Kells The Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 15 March 2007 11035 of 2006 Tim Shellshear & Associates Architects Pty Ltd v Wollongong City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application proposing the erection of traffic control gates to the entrance of an existing car park at a medical centre in the Dapto town centre. The proposal included a charge for use of this car park. 2. This 75 space car park was constructed in accordance with the conditions of consent for the approval of the large, comprehensive medical centre (Development Consent No. D 1790/01). Condition 38 relevantly required: 38. The developer must provide for 75 cars in the manner indicated on the approved plans. These parking spaces must be available at all times for the parking of customers and employees vehicles. Those parking spaces must be clearly marked and an adequate sign, indicating that parking is available on site must be erected in a position where it is legible to drivers of vehicles entering the land. 3. The medical centre has been operational for approximately 5 years. During this time, there has been no gate or barrier to the car park and this has apparently attracted a considerable amount of visitors, who are not customers of the medical centre. In order to redress the situation, the medical centre arranged for the installation of the traffic control gate, requiring a $2 entry fee. This caused concern and objections from some members of the public. 4. Consequently, the issues for the appeal can be summarised as: o whether the proposed entry fee to the car park would limit access to the Medical Centre by financially disadvantaged members of the community and cause adverse social impacts, o public interest, in terms of objections lodged against the proposal. 5. These issues were addressed in a joint town planning conference, between Mr D Whitfield (Council planner) and Mr P Brunning (Consulting town planner), resulting in the joint conference report Exhibit 1. The planners agreed that: o the documentation submitted does not adequately demonstrate the need for the proposal; o the imposition of a car parking fee could cause social impacts; o there are various alternatives or options in terms of the fee structure that could be examined in order to achieve an effective outcome in terms of social impact and deterring nonusers of the medical centre 5. At the appeal, submissions were made on the applicant's behalf that a considerable number of non-medical centre customers use the car park for other purposes such as commuters and shoppers. Consequently, this restricts the amount of parking available for medical centre customers. This occurs, despite the availability of other car parking spaces within the council car park near the railway station and other designated parking areas. 6. Accordingly, the applicant wishes to install the traffic boom gate to deter "external" users of the car park and correspondingly increase the level of convenience and service for "internal" customers of the medical centre. The applicant considers the imposition of a separate entry fee for all users of the car park is appropriate, because medical service fees are limited to Medicare charges. Otherwise, the cost of parking could be included in increased medical service fees. 7. Insofar as the parties engaged in some discussions about general parking in the town centre and the applicant's desire to recoup part of its substantial investment in the site, which includes the car park infrastructure, it seems to me that the conditions of consent clearly link the use of the medical centre with the car park. 8 I understand that council is satisfied that the existing 75 car spaces, which have been constructed in accordance with the conditions of consent, are reasonable and necessary to maintain the efficient operation of this comprehensive medical centre. 9. Reference to the conditions of consent plainly states that: "these parking spaces must be available at all times for the parking of customers and employees vehicles …". I note however, that there are no restrictions on charges for this car parking. 10. Accordingly, I accept that there is a management problem in maintaining these spaces for the medical-centre customers. However, I also understand that the rostering system for the various doctors at the medical centre results in some periods when the car park is not fully occupied. Findings 11. Having considered the evidence, submissions and undertaken a view, I consider that reasonable conditions can be imposed on this development application to allow its approval. Such conditions should control the use of the medical centre car park by deterring external parking and maintaining these car parking spaces for medical centre customers, in accordance with the intent of Condition 38. 12. On the basis of the evidence presented, it seems to me that this can be done by the installation/retention of the boom gate, which is regulated in a manner to allow "free parking", i.e. no separate charge for the medical centre customers, but imposes an appropriate "deterrent" charge on non-customers. 13. As one of the medical centres main objectives is to provide a high level of service, presumably the "deterrent" parking charge for external users, would be set at a level which ensures that no customers of the medical centre are discriminated against in respect of access to "free" car parking, in accordance with the original conditions of consent. Court Orders 1 The appeal is upheld. 2 Development consent is granted to DA – 2006/227 for the erection of a boom gate at the Dapto Medical Centre, subject to the conditions in Annexure 'A'. ______________ R Hussey 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. 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