Wilson Parking Australia 1992 Pty Limited v City of Sydney Council [2010] NSWLEC 1204

Land and Environment Court of New South Wales

CITATION : Wilson Parking Australia 1992 Pty Limited v City of Sydney Council [2010] NSWLEC 1204 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Wilson Parking Australia 1992 Pty Limited PARTIES : RESPONDENT City of Sydney Council

FILE NUMBER(S) : 10949 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- Public car park

Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 LEGISLATION CITED: Sydney Local Environmental Plan 2005 Central Sydney Development Control Plan 1996 Sustainable Sydney 2030

CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

DATES OF HEARING: 17 and 18 June 2010

EX TEMPORE JUDGMENT DATE : 21 June 2010

APPLICANT Mr Clay (barrister) SOLICITOR Allens Arthur Robinson LEGAL REPRESENTATIVES:

RESPONDENT Mr Fozzard SOLICITOR City of Sydney Council

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Dixon C

21 June 2010

10949 of 2009 Wilson Parking Australia 1992 Pty Limited v City of Sydney Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act, 1979 ("the Act") against Sydney City Council's refusal of development application DA/2008/1863 for the use of land at the rear of 4-6 York Street, Sydney as a public car park for fifteen vehicles for a period of 5 years. 2 The central issues, according to council, are the matters raised in cl 66(2) of the Sydney Local Environmental Plan 2005, ("the LEP") in respect of new car parks. It states: "New public car parks Consent may be granted to development for the purpose of public car parking on land where no public car parking already exists, but only where the consent authority is satisfied that the public car parking directly services major retail, cultural, recreational or entertainment uses, which, in the opinion of the consent authority, are not reasonably or adequately serviced by either: (a) public transport, (either existing or planned); or (b) existing public car parking." 3 Based on the evidence, and submissions of the parties and after consideration of the relevant matters in s 79C of the Act, I am satisfied that the car parking provided by this new public car park directly services major retail, cultural, recreational or entertainment uses. 4 Furthermore, based on the evidence, I am of the opinion that those uses are not reasonably or adequately serviced either by (a) public transport, either existing or planned, or (b) existing public car parking. Therefore, in my assessment the SEPP 1 objection in respect to compliance with cl 66(1)(d) is well founded, and I have decided to approve this application and grant a conditional development consent which will expire on 18 February 2015 for the reasons set out below. Background 5 I have read the revised statement of facts and contentions dated 23 April 2010, filed in the proceedings by council and the respondent's reply dated 18 March 2010, which was further amended during the hearing. 6 At the outset, I note Commissioner Bly held on 19 February 2010 that cl 66(1)(d) of the LEP is a development standard. The parties have not agitated that issue before me. I am asked to determine the applicant's SEPP 1 objection to compliance with cl 66(1)(d) of the LEP that requires public car parking below ground. I will deal with that matter later. Expert evidence 7 The council relies on the expert evidence from council's planner for urban design, Ms Cheng, and Lyle Marshall in respect of traffic. The applicant relies on urban design evidence from Mr Staas and Mr Coady in respect of traffic and planning. I have read and considered the reports prepared by the experts tendered together with council's bundle of documents and the other exhibits. The site 8 The site is in the shape of an irregular rectangle with a splay corner at York and Wynyard Streets and has an area of 611m2. The northern boundary, Wynyard Street, is 28m long and has a 3.5m wide driveway access. The western boundary, York Street, is 25m in length and has a 6m wide driveway access. The site is located within the central business district. To the north is Wynyard Station and Wynyard Park and bus interchange. To the south is a thirteen storey commercial building, called the United Airlines Building. 9 The site has a right of carriageway over Barrack Lane, burdening the United Airlines building. To the west is York Street, with various uses, predominantly commercial with retail at ground level. It is located in the vicinity of a number of heritage items including Wynyard Park, which is a landscape item, and within the Wynyard Park Lang Park Special Area. The character statement identifies the Special Area as an important space in Central Sydney and a major transport node. 10 The northern side of Wynyard Street is identified as a major pedestrian street under the Central Sydney Development Control Plan 1996 ("the DCP") and Wynyard Street is also identified as a pedestrian priority place. Therefore, new vehicle access is not preferred.