ABD Holdings Pty Limited v City of Sydney Council [2013] NSWLEC 1097

Land and Environment Court New South Wales

Medium Neutral Citation: ABD Holdings Pty Limited v City of Sydney Council [2013] NSWLEC 1097 Hearing dates: 16 May 2013 Decision date: 16 May 2013 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is upheld. 2. Consent is granted to the modification of the development consent D/2012/254 granted by the Court on 14 August 2012 in proceedings ABD Holdings Pty Ltd v City of Sydney Council [2012] NSW LEC 1261 in accordance with the plans and conditions in Annexure A. 3. The exhibits are returned. Catchwords: APPEAL - application to modify a development consent granted by the Court under s 96(8) of the EPA Act 1979 - deletion of 3 car spaces - accessibility to public transport Legislation Cited: Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2012 Sydney Development Control Plan 2012 Cases Cited: ABD Holdings Pty Ltd v City of Sydney Council [2012] NSW LEC 1261 Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589 Category: Principal judgment Parties: ABD Holdings Pty Limited (Applicant)

City of Sydney Council (Respondent) Representation: Mr N Eastman with Mr M Sonter (Applicant)

Mr P Clay with Ms K Morrin (Respondent) Gadens Lawyers (Applicant)

City of Sydney Council (Respondent) File Number(s): 11016 of 2012

EX TEMPORE Judgment 1The applicant, ABD Holdings Pty limited, applies under s 96(8) of the Environmental Planning and Assessment Act 1979 (EP & A Act) for the modification of a development consent granted by the Court on 14 August 2012 (ABD Holdings Pty Ltd v City of Sydney Council [2012] NSW LEC 1261). There, the Court approved the refurbishment of a heritage-listed building at 55-61 Riley Street, Woolloomooloo, for use as a 190-seat restaurant and commercial offices. Relevantly, the consent was subject to a requirement for the provision of a loading bay and three (3) onsite car spaces within the ground floor of the development. 2The current owners seek approval to relocate the loading bay and delete the three (3) onsite car spaces to allow an increase in the area of the commercial office space. The Council concedes that the development to which the consent relates is substantially the same development. However; it opposes the deletion of the approved three (3) onsite car spaces. This is the only issue in this appeal. The other modifications are not opposed. 3The facts and history of the application are detailed in the parties' respective statements of facts and contentions (exhibits A and 2) and the earlier judgement. Expert traffic evidence was received from Mr Rogers and Mr Hallam (exhibit 6) and town-planning evidence was received from Mr Darroch and the Council's Mr Zabell (exhibit 5). 4The site is located less than 1km from the CBD and is bounded by Riley Street (east) McCarthy Place (south) and Bushby Lane (west). It falls to the rear so it has vehicular access from Riley Street to both levels and at grade access to the lower level from Busby Lane. It is surrounded by high-rise development with onsite parking on three sides and adjoins a two storey commercial and residential property to the north. The Sydney Local Environmental Plan 2012 (LEP) and The Sydney Development Control Plan 2012 (DCP) apply to the site. Under the LEP the land is within the B4-Mixed Use zone and a restaurant and commercial office use is permissible with consent. 5One of the objectives of the B4 zone is, "To integrate suitable business, office, residential retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling". The applicant's planner, Mr Darroch, maintains that the modified development is consistent with this zone objective. His evidence is that the site is an accessible location so as to maximise public transport patronage and encourage walking and cycling. He believes the use will not generate a large number of vehicular movements because the patrons and employees of the restaurant and the occupants of the commercial space will use public transport or travel on foot or bike to the site. He also believes that the removal of the onsite car spaces reinforces the zone objective to use public transport because it actively discourages the use of private vehicles to the site. 6Mr Darroch's evidence is supported by the Council's decision to categorise this site as a category E classification under the Public Transport Accessibility Map - sheet TAL - 015 of the DCP (p 138 exhibit 1. Having regard to that classification and Mr Darroch's assessment I accept that the site is an accessible location and that the use proposed will maximise public transport patronage. 7In accepting that fact I do not believe that it is necessary to provide any car-parking onsite for the patrons and employees of this development. The Council's traffic expert, Mr Hallam, agrees with this proposition in part. His evidence is that the site does not need to provide parking for the patrons of the restaurant because they can use public transport or the public and private car parking stations located near the site as discussed in exhibit 6. Mr Hallam's justification for the retention of the 3 car spaces is to accommodate staff of the development that could not afford the cost of the carparks or make use of the time limited street parking. 8I do not agree with Mr Hallam's rationale for keeping the three car spaces in this development. In my assessment of the evidence his opinion is at odds with the zone objective discussed above. It does not maximise public transport patronage to the site. I agree with Mr Darroch that the unavailability of onsite parking for staff and patrons of the restaurant and commercial tenancy will encourage the use of public transport. This outcome is consistent with the stated aim in the Council's DCP in cl 1.1(2)(g) of the Cathedral Street Locality Statement: To ensure that the pattern of land use and density in the City of Sydney reflects the existing and future capacity of the transport network and facilities walking, cycling and the use of public transport. 9This application does not generate a need for a transport impact study under ss 3 and 7 of the DCP or the need to consider the RTA guide to traffic generating development (which provides a summary of rates for both daily and peak hour vehicle trips). The traffic impact if any relates to the removal of 3 onsite car spaces. Although the original consent includes 3 car spaces the planners agree that the LEP 2102 does not mandate a minimum-parking requirement for this site. Rather, cl 7.1 of the LEP provides for a maximum car parking requirement and not a minimum. While the upper parking limit for this site is nine (9) spaces (exhibit 1 tab 1 p 74) there is no minimum. 10Having regard to the above I accept the applicant's evidence that the deletion of the approved three spaces will. "Encourage walking, cycling, public transport and car sharing" cl 3.11 of the DCP. In my assessment the Council's setting of a maximum parking control for this site supports the deletion of the 3 car spaces in this case. No doubt there will be other cases where a high level of access to public transport and services may still require the provision of onsite parking. But the facts in this case do not justify that conclusion on the evidence before me. While I understand Mr Hallam's evidence that three spaces and a loading bay on this site are reasonable based on the RTA guidelines and; as a matter of public policy, a parking demand should not be externalised where parking is already tight, the removal of the 3 car spaces in this case will on balance have a negligible impact on that existing parking issue. 11I appreciate the frustration and concern expressed in the written and oral objections from Ms Harris and Mr McLeay (both residents of the units at Park Lane Towers and on behalf of the executive of the body corporate) about the existing shortfall of parking in the area. However, based on the traffic assessment of Mr Rogers, the loss of the three spaces on this site will do little to escalate their existing parking problems. I accept Mr Rogers' assessment that the retention of the three car spaces will make an insignificant contribution to the employee parking needs for the site. And that there deletion from the development has no real traffic consequence. 12The applicant submits that the orderly and economic development of the site is better achieved by the deletion of the car spaces to allow an increase in the commercial area of the development. In short the approval of this application will ensure the financial viability of the development and the adaptive re-use of this heritage item. While an economic justification for a development is not a relevant consideration under s 79C(1), I accept that the objectives in s 5 of the Act embrace such an outcome (although I do not rely on this submission to support approval of this application). 13In my assessment of the evidence, the deletion of the onsite car spaces actively discourages driving to the site and this outcome is consistent with the expressed intent of the Council's controls. The demand for parking generated by this use will of necessity be redistributed across the other modes of public transport proximate to the site. I have considered the Council's draft conditions and subject to an additional condition requiring the loading bay to be available at night for use as a disabled parking space for patrons or staff of the restaurant I find them to be acceptable. 14After a careful and focussed consideration of the LEP and the DCP provisions: Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589, I am satisfied that the proposed modifications are acceptable on their merits under s 79C(1) of the Act and that the application should be approved and the appeal upheld. I direct the parties to forward to the Court within 7 days of the date of this judgment draft conditions that reflect my reasons for judgment. 15The agreed conditions have now been received by the Court and are acceptable. Accordingly, the Court orders: 1. The appeal is upheld. 2. Consent is granted to the modification of the development consent D/2012/254 granted by the Court on 14 August 2012 in proceedings ABD Holdings Pty Ltd v City of Sydney Council [2012] NSW LEC 1261 in accordance with the plans and conditions in Annexure A. 3. The exhibits are returned. Susan Dixon 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. Decision last updated: 05 June 2013