Land and Environment Court of New South Wales CITATION : Multiplex WS Retail Landowner Pty Limited v Sydney City Council [2007] NSWLEC 755 APPLICANT Alison Reid on behalf of Multiplex WS Retail Landowner Pty Limited PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10717 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- change of hours, pricing structure for public carpark. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sydney Development Control Plan 1996 Central Sydney Development Control Plan 1996. Sydney Local Environmental Plan 2005 DATES OF HEARING: 25/10/2007 EX TEMPORE JUDGMENT DATE : 25 October 2007 APPLICANT Mr M. Baird, barrister Instructed by Mr R S Creighton of Australian Town Planning LEGAL REPRESENTATIVES: RESPONDENT Mr S. Kondilios, solicitor Instructed by Ms C. Rose of Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner Hoffman 25 October 2007 10717 of 2007 Alison Reid on behalf of Multiplex WS Retail Landowner Pty Limited v Sydney City Council JUDGMENT 1 This is appeal 10717 of 2007 between Alison Reid on behalf of Multiplex World Square Retail Landowner Pty Limited and Sydney City Council in regard to the deemed refusal of DA 2006/1513 for change of hours and pricing structure for the public car park at World Square being No. 644 George Street, Sydney. The car park is in the basement of World Square with entry and exit ramps to both Goulburn Street and Pitt Street. 2 The development application proposes a change to the approved operating hours and fee structure. At present there are 616 spaces approved for use as a public car park, however, the evidence is that there are only 557 spaces currently available for that purpose. 3 Conditions relating to the operating hours and pricing structure are contained within several approvals for World Square, most recently in DA D2002/375. 4 The proposed changes are as follows: (1) Change of opening time from 9.30am to 7am on weekdays. (2) Change of pricing structure which is currently determined having regard to council's car park policy to result in a greater charge for parking in excess of four hours and additional again after seven hours. (3) The introduction of a surcharge on those vehicles which arrive before 9.30am and park for more than four hours. (4) A four hour time limit on vehicles arriving before 9.30am. 5 The car park in total has 2,355 car spaces serving the retail complex in the podium and 4 high rise towers containing private apartments, a hotel, and commercial tenants of national and international companies. The total population of World Square, I am told is in excess of 10,000 persons. In the car park 557 spaces are reserved for public short stay parking with a restriction that it is not open until 9.30am each weekday morning. This is in compliance with Sydney Development Control Plan 1996 cl 5.2.1 that says "A public car park shall not be consented to unless it is not accessible between 5.30am and 9.30am Monday to Friday". I am told the town planning reason for this is to keep commuter cars off the streets during peak hours and encourage use of public transport. 6 Evidence was given during the hearing by: o Ms S Correia, council's town planner, and o Mr A Martin, consultant town planner 7 The situation in the World Square is that the car park was built long before the towers and the retail above and that placed some constrictions on the design. Of interest in this case is that the Goulburn Street vehicle entry is a single lane ramp that goes to the very large loading bay area, the public car parking area, the commercial tenants car parks, the hotel car park and the permanent residents car park. 8 The users of these different carparks can only be split after they have entered the single ramp. It does not help that the sign up at the street saying "Public car park opens 9.30am" is unreadable unless a driver is next to it at the entry to the ramp. If it applied to a driver who saw it, the driver would have to back-out into the Goulburn Street traffic. If a driver for the public car park does not see that sign and goes down to the boom gates where entry is denied, the driver has to reverse up the ramp, around a blind corner and once again into the Goulburn Street traffic. 9 The applicant has overcome this safety and congestion issue by not adhering to the condition of consent and allowing the public car park use prior to 9.30am. 10 The respondent does not put this as anything other than a fact of the matter. The applicant came voluntarily to council without any prompting in order to seek regularisation of the matter by allowing public access for a short stay, and preventing commuter use by a progressive pay scale after four hours parking, and a penalty amount if the car enters before 9.30am and stays all day. Such a car presumably being a commuter. 11 Uncontested statistics of the current users are that 77 per cent leave in less than four hours, so it is not predominantly commuter car parking at the moment. 12 Of some importance to me in reaching a conclusion in this appeal is the parties agreement to a condition that a trial period be allowed to test the proposal. Notwithstanding this the respondent opposes any grant of consent for the following reasons and I will summarise them, however, I will provide the full text in the produced judgment, (full text follows): CONTENTION 1 - NON-COMPLIANCE WITH THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 The application does not encourage or consider the principles of ecologically sustainable development. The application is contrary to: 1. The object of the Environmental Planning and Assessment Act (the Act) to encourage ecological sustainable development (ESD) (section 5(a)(vii)) as it will encourage commuter car parking, result in increased private vehicle trips and discourage the use of the public transport. 2. Section 79C(1)(b) and (e) of the Act as the proposal will result in environmental impacts as a result of the increase in the availability of commuter car parking, which is not in the public interest. CONTENTION 2 - NON-COMPLIANCE WITH DRAFT STATE ENVIRONMENTAL PLANNING POLICY NO 66 - INTEGRATING LAND USE AND TRANSPORT The application does not achieve the objectives of the draft SEPP which include reducing dependence on cars for travel purposes and supporting the efficient and viable operation of public transport services. The application is contrary to: 1. Part 1, Clause 2 (b), (c) and (d) as the proposal will increase the demand and dependence on car travel and does not support the efficient and viable operation of public transport services, by which the site is well serviced by. 2. Part 2, Clause 9(e)(ii) as the proposal will encourage car use in an area with excellent pubic transport access. The existing World Square development, and the conditions of consent attached to it, include requirements which discourage car use and in turn encourage the use of public transport. The proposal will jeopardise the attainment of these objectives. 3. Part 2, Clause 12(1)(a) as the traffic report, prepared by Masson Wilson Twiney, submitted with the application does not consider the implications of the development as it does not consider the accessibility of the site by a range of transport modes, particularly public transport. CONTENTION 3 - NON-COMPLIANCE WITH SYDNEY REGIONAL ENVIRONMENTAL PLAN - (SYDNEY HARBOUR CATCHMENT) 2005 The application should be refused as it is inconsistent with the aims of the SREP and contrary to: 1. Part 1, Clause 2(1)(c) as the increased availability of commuter car parking and reduced dependence on public transport will deviate from the attainment of a high quality sustainable urban environment. 2. Part 2, Clause 13(c) as the cumulative environmental impact of the proposal has not been appropriately considered and (if such consideration is given) the proposal is neither "neutral" nor beneficial. CONTENTION 4 - NON-COMPLIANCE WITH SYDNEY LOCAL ENVIRONMENTAL PLAN (2005) The application should be refused as the increased availability of public car parking is inconsistent with the ESD objectives of the Sydney LEP and will not preserve the environmental amenity of Central Sydney. The proposal is contrary to Council's policy to discourage commuter car parking. The increased availability of commuter car parking in Central Sydney may also result in impacts such as increased traffic congestion during peak periods and a reduction in street amenity for pedestrians. The application is contrary to: 1. Clauses 64(a) as the proposal does not acknowledge that public transport is the most important and efficient means of moving people to and within Central Sydney. 2. Clause 64(b), (c) and (g) as the proposal will encourage the provision of public car parking and discourage public transport use which, in turn, will encourage more vehicles to travel through, and to, Central Sydney reducing the overall environmental quality and pedestrian amenity. 3. Clause 66(a) and (b) as approval encourages commuter car parking and will prejudice the attainment of the Council's objectives in relation to car parking. 4. Clause 66(c) as the existing car park will no longer be a short-stay car park, which was the only circumstance under which Council approved the provision of public car parking at the site. The earlier opening hours would change the nature of the car park from a short-stay car park to a commuter car park. The proposed fee structure will be less effective in discouraging commuters than the restriction on opening hours. This is because the restriction on opening hours prevents public parking before 9.30am and the fee structure merely discourages it. CONTENTION 5 - NON-COMPLIANCE WITH CENTRAL SYDNEY DEVELOPMENT CONTROL PLAN (1996) The application should be refused as it does not comply with the controls of the DCP in relation to short-stay public parking and fee structures. The proposed non-compliances are as follows: 1. Section 5.2 requires that Council, prior to granting consent for a public car park, must be satisfied that the car park will be used for short-stay parking only. The change to the opening hours would result in the operation of the car park for long­stay/commuter parking. 2. Section 5.2.1(a) requires that a public car park is not to be accessible to vehicles between 5.30am and 9.30am Monday to Friday. The proposal is for a 7.00am opening time which does not comply with the control and results in a different car park to that approved, that is, a short-stay car park only. 3. The proposed three (3) hour time limit for vehicles entering before 9.30am to discourage long-term/commuter car parking is not enforceable. Even if strict enforcement procedures were implemented, the proposed time limit is negated (and contradicted) by the proposed surcharge (dollar value unspecified) for vehicles staying longer than three (3) hours. 4. Section 5.2.1(b) requires that a minimum fee structure be implemented, in addition to the curfew outlined above, to discourage long-stay parking. The proposal includes the adoption of what would result in a more expensive fee structure in an attempt to discourage long-stay parking. Reliance on the proposed fee structure to discourage commuter car parking is not supported for the following reasons: (a) The most effective means of discouraging long-stay and commuter car parking is by restricting the opening hours of public car parks; (b) The implementation of a fee structure, albeit more expensive than that required, on its own is not an acceptable or effective means of discouraging commuter car parking; and (c) The revised fee structure would be difficult to enforce and ineffective in ensuring the car park is for short-stay parking only. CONTENTION 6 - PRECEDENT The application should be refused as approval of the proposal would prejudice the future implementation and achievement of Council's policy to discourage private vehicle trips and commuter car parking and encourage the use of public transport. To approve the application would be to erode the long established Council policy directed towards restricting commuter parking. Approval of the application would have the following consequences: 1. It would set a precedent for applications for new public parking proposing to challenge the permissible opening hours prescribed by the DCP. 2 It would set a precedent for existing car parks which have been approved subject to a curfew and set fee structure, to vary the prescribed opening hours and rely on a pricing structure to discourage commuter car parking. 3. It would make it difficult for Council to enforce public car parking controls in the future. 4. It would prejudice the attainment of Council's goal to encourage the principles of ecologically sustainable development by encouraging the use of public transport. CONTENTION 7 - ALTERNATIVE AND MORE EFFECTIVE MEANS OF ADDRESSING EXISTING OPERATIONAL AND SAFETY ISSUES The application should be refused as the reasons for justifying the earlier opening hours based on safety are unfounded. 1. Safety issues associated with vehicles attempting to enter the car park before 9.30am may be readily addressed by the provision of appropriate signage. At present existing signage relating to operating hours is hardly visible and the purported problems would be overcome by a sign that simply said `closed'. 2. To the extent that entry and egress into the car park are "unsafe", and cannot be addressed by improved signage or marking, then the unsafe use should be discouraged by a reduction in the hours or capacity of the car park. The proposed change involves increasing the perceived safety issues to the hours usually associated with "morning peak". This does not represent an improvement. CONTENTION 8 - DEMAND MAY BE MET ELSEWHERE The application must be refused as the reasons for justifying the earlier opening hours based on the lack of parking for early morning visitors are wrong and unsubstantiated. 1. The applicant has failed to demonstrate there is a demand for early morning weekday shopping that cannot be met either by car parking available elsewhere or the use of the other forms of transport in close proximity to World Square (including the use of public transport modes). 2. The existing demand for public car parking between 7.00am and 9.30am can be met by on-street car parking and existing public car parks. 3. The claim that there is a lack of early morning parking for shoppers is misleading as the majority of shops within the World Square site, with the exception of Coles (which opens at 6.00am), open at 10.00am. 4. To the extent that hours of retail may increase (if the car parking hours increase) this increase must negatively impact on the surrounding road network during morning peak, and should not be encouraged. CONTENTION 9 - EXISTING PUBLIC CAR PARKS ARE NOT RELEVANT The application must be refused as the reasons for justifying the earlier opening hours on the basis of there being a lack of curfew limits on other public car parks in the CBD are irrelevant. 1. Public car parks which were approved and have been in operation prior to the adoption of Council's current controls were not required to have a curfew and set pricing structure. Council cannot retrospectively impose conditions on existing and lawful car parks. 2. Council has consistently imposed conditions of consent restricting opening hours and imposing a price structure since the adoption of the relevant controls for application which proposed new public car parking. To the extent that Council is able to do so, new car parks (and relocated car parks) are being required to comply with the controls. CONTENTION 10 - EXISTING NON-COMPLIANCE WITH CONSENT The application must be refused as the existing operation of the car park is in breach of the conditions of consent of D2002/375. The breaches demonstrate that the applicant is unlikely and unable to impose any more stringent pricing structures or enforce the proposal to impose a maximum stay for vehicles that enter before 9.30am. The existing non-compliances include: 1. The existing hourly car park rates are not in accordance with conditions of consent. 2. It appears that access to the public car park may currently be possible as a. surcharge is payable for vehicles which enter before 9.30am. 13 Whilst there are quite valid concerns of the council involved in these issues, I have the opinion that they are perceived through a conceptual lens as if the proposal is a new single use public car park and not an intrinsic part of a 10,000 person complex. Also there are no new car parks proposed, it is an existing car park of many years standing. 14 In my opinion World Square can be compared to a whole township on its own for which its only vehicular access is restricted entry via single lane entry ramps to its basement car park. Such a town has many reasons that persons other than commuters may need to access it between 7am and 9.30am for short stay reasons. 15 The applicant's evidence has convinced me that the Sydney Local Environmental Plan 2005 cl 66(1)(c) enables the use of a fee structure only to deter commuter use of the car park, even though the development control plan wants to use both fee structure and opening hours in concert. 16 The respondent put that even if commuters are prevented from using the public car park, it still means other traffic coming to World Square is on the road contrary to cl 12(n) and cl 11(c) and (e) of the Local Environmental Plan. Also the respondent put that adequate signage of the entry ramp would solve most of the problem of public car park drivers reversing up the ramp between 7am and 9.30am, and for the few that still enter before 9.30am the electronic gates can easily be configured to allow entry with a clearly sign-posted penalty on exit if a driver stays in the car park instead of driving out again immediately through the usual exit. 17 A problem with the council's solution is that the other persons, who are not commuters that I have referred to, are excluded from accessing the complex for short stay early morning reasons. If they have come by vehicle of necessity they will use the other car parking stations nearby, some run by the council, that are open 24 hours a day. But it seems to me those cars would still be in the streets contributing to on-street congestion contrary to the council's submissions. It is probably better to get them off the streets at their destination instead of driving around to find another parking station. 18 I am satisfied that proper signage about the additional fees to discourage use of the car park by commuters as required by the council statute and controls, is worthy of a one year trial. 19 I am confident that World Square has such complex service and facility requirements for 10,000 persons that it can be distinguished from other car parks that may seek a similar trial. 20 In regard to the draft conditions in Exhibit 4, I adopt the agreed changes and the applicant's recommended other changes as I have annotated thereon except I set the penalty for cars entering before 9.30am and staying longer than four hours in condition 4(a) at a rate of "4N". 21 Therefore the Orders of the Court are: (1) The appeal is upheld. (2) That the hours of opening of the 557 public car spaces at World Square, No. 644 George Street, Sydney and the pricing structure are amended for a trial period of 12 months only as set out and subject to the conditions in Annexure A hereto. (3) The exhibits are returned to the parties except Exhibit B and Exhibit 4. ___________________ K G Hoffman Commissioner of the Court Cc/ljr 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.