Land and Environment Court New South Wales

• Medium Neutral Citation: Wilson Parking Australia 1992 Pty Limited v Council of the City of Sydney [2011] NSWLEC 1298
• Hearing dates: 17 August 2011
• Decision date: 18 October 2011
• Jurisdiction: Class 1
• Before: Dixon C

Decision

(1)Development application D/2008/1863 is refused consent.

(2)The appeal is dismissed.

(3)The exhibits are returned.

• Catchwords: Development appeal - new above ground public car park, assessment as to whether the four identified public uses in cl 66(2) City of Sydney Local Environmental Plan 2005 are relevant and, if so, whether the proposed uses are otherwise reasonably and adequately serviced by public transport or existing car parking services
• Legislation Cited: Land Environment Court Act 1979; Environmental Planning & Assessment Act 1979; Central Sydney Development Control 1996; City of Sydney Local Environmental Plan 2005
• Cases Cited: Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd [2010] NSWLEC 1204; Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd [2011] NSWLEC 97; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at [117]
• Category: Principal judgment
• Parties: Wilson Parking Australia 1992 Pty Limited (Applicant); Council of the City of Sydney (Respondent)
• Representation: Counsel; Mr P Clay SC (Applicant); Mr J Kirk SC (Respondent); Solicitors; Allens Arthur Robinson (Applicant); City of Sydney (Respondent)
• File Number(s): 10949 of 2009

Judgment

1 This matter has been remitted to me for a fresh determination following a successful appeal under s 56A of the Land Environment Court Act 1979 (the Act), as to the proper construction and application of cl 66(2) of the City of Sydney Local Environmental Plan 2005 (the LEP).

2 While the whole case has been remitted, the parties have invited me to leave undisturbed findings already made and determine only the outstanding issues. I accept that approach, because it will achieve a just result: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at [117].

3 Therefore, what remains to be determined is an assessment as to whether the four identified public uses in cl 66(2) are relevant and, if so, whether the proposed uses are otherwise reasonably and adequately serviced by public transport or existing car parking services at [73] per Sheahan J in Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd [2011] NSWLEC 97.

4 The parties agree that unless the applicant can establish that the criteria in cl 66(2) are made out, then it is not possible to grant consent to this development. This is because the discretion to approve the application is only available if the Court is satisfied that the public car parking directly services one or more of the four relevant uses and theses are not, in the opinion of the consent authority (the Court), reasonably and adequately serviced by one or other of the two alternative means.

5 I have carefully considered the judgment determining the s 56A appeal and the comprehensive written submissions filed by the parties. However, before I give my reasons on the substantive matter I must deal with the applicant's application made at the conclusion of the hearing, that I deliver findings only and refrain from making a final judgment.

6 This course was suggested in order to preserve the applicant's opportunity to make application to file additional evidence. It was based on a submission that it had not anticipated the council's case as presented before me. Apparently, it is said to differ from that argued before the Court at the s 56A appeal hearing.

7 Not surprisingly, the council opposed this course. It argued that the applicant had been given a fair opportunity to put on additional evidence (after the s 56A decision) at the callover on 17 June 2011. Notwithstanding that opportunity, it had agreed to proceed on the existing evidence and an agreed bundle of documents. Further delay, it was argued, is not in the interests of justice.

8 With respect to the claim of surprise at the council's arguments on the day I was reminded that the parties had exchanged written submissions before the commencement of the hearing and the council case as presented before me was consistent with its written submissions. In those circumstances it was submitted there could be no surprise. Nor was any application made, during the hearing, for an adjournment on the basis that the applicant had not anticipated the council's arguments.

9 In my opinion the application to delay final judgment must be refused because it made too late and there is no justifiable reason to further delay the final judgment of this matter. The Court file records the Class 1 application was filed on 10 December 2009 and heard by me on 17 June 2010. I delivered judgment on 18 June 2010. A 56A appeal was lodged by the council and heard by Sheahan J on 19 November 2010. The appeal judgment delivered on 8 June 2011. There has already been a substantial delay in the final determination of this application. Any further delay in the final disposal of this matter would not be fair to the council or in the interests of justice. The applicant has had ample opportunity to understand the appeal decision and anticipate the council's arguments. Those arguments were reduced to writing and provided to the applicant prior to the commencement of the hearing. The applicant did not ask for an adjournment or raise any issue about surprise until after the completion of evidence. On any view of the facts there can be no argument that the applicant has been taken by surprise.

10 The Court is obliged to finally determine matters expeditiously and fairly and deliver final judgment rather than interim findings unless warranted in the circumstances of the case. No such circumstances exist on the facts of this case. Therefore I decline to delay my final judgment of the application.

11 The facts and history of this matter are not controversial. What I must consider are those facts and evidence in light of the Court's s56A judgment: " If the existing parking facilities adequately or reasonably, even if not perfectly, service the needs of the uses, the test is not satisfied, regardless of the merits of the proposal " at [83]. I have also been directed by the judgment to construe 66 (2) in the context of the instrument as a whole, including provisions such as cll 66(1)(c) and (d), " which provide that 'in all cases' car parking proposals must be underground and provide for short stay parking " at [82] despite the Court's upholding of the applicants' SEPP1 objection to compliance with that standard in the circumstances of this case.

12 The applicant argued at first instance and again at the remitter hearing that there is an identifiable demand for the proposed public car park because it is currently used. This was submitted despite the evidence that the area is already served by public transport and exiting public car parks. The applicant's case is that the identifiable demand from the operating experience satisfies the criteria in cl 66(2).

13 However, evidence of demand and continued use of the subject site by paying patrons does not address the question of whether existing public car parking is reasonably or adequately servicing the identified four public uses: at [82]. Similarly, the particular characteristics of the proposal are irrelevant in the determination of the issue: at [83].

14 To enliven the discretion in cl 66(2) the applicant needs to establish that criteria in cl 66(2) are identified and addressed namely as Sheahan J states at [81]:

• Whether the proposed public car parking directly services major retail, cultural, recreational or entertainment uses;
• Whether public transport (existing or planned) or existing public car parking service those uses; and
• If so, whether that public transport/car parking reasonably or adequately services those uses.

15 I accept the evidence of Mr Coady that the development services some of the identified uses in cl 66(2) namely, major retail, cultural, recreational or entertainment uses. Whether it is the shopper for an Apple computer or someone attending the theatre or a business appointment.

16 The location of the site on the corner of Wynyard and York Streets is in close proximity to Wynyard Station, bus services on York Street, bus services on Carrington Street, bus services on George Street and generally the availability of taxis on all those streets. The LEP describes the Wynyard Park/Lang Park as a " major public transport node ". The Court accepts the experts 'evidence that the site is well serviced by public transport services and existing car public parks for the reasons stated at paras 47 and 48 of CWS.

17 Unfortunately for the applicant, there is no evidence before the Court to support a finding that the identified uses in cl 66(2) could not reasonably and adequately be serviced by existing car parking facilities or public transport. In light of the appeal judgment and in the absence of such evidence, I must accept the council's submission that " the mere fact of demand for use of car spaces in this car park does not establish that the demand would otherwise be unfulfilled - let alone would not reasonably or adequately service - if this car park did not exist " (CWS para 40).

18 Furthermore, I accept that the fact that all trips are not suitable for public transport does not establish that the identified uses are not reasonably or adequately serviced by existing public car parks. Absent the evidence to establish that an identified use is not reasonably or adequately serviced by public transport or existing public car parks, the discretion in s 66(2) is not enlivened. There is no evidence before me that the Apple computer purchaser, if he cannot use public transport, cannot use one of the existing public car parks identified by the evidence. Even if it is the car park described in the evidence as "... the worst in Sydney " the appeal judgment makes clear the fact that only a " reasonable or adequate level of service is required, nothing more ."

19 While the proposal, which has operated without consent for some time, services some identified uses, there is no evidence before me to establish, as cl 66(2) requires, that those identified uses are not also reasonably or adequately serviced by either public car parking or public transport. Accordingly I have no choice, despite the merits of the proposal, other than to refuse this application.

20 Accordingly, the Court orders:

(1) Development application D/2008/1863 is refused consent.

(2) The appeal is dismissed.

(3) The exhibits are returned.

Susan Dixon

Commissioner of the Court

Amendments

13 June 2014 - Year and date changed as initial request to change date by parties indicated incorrect year
Amended paragraphs: coversheet

Decision last updated: 16 June 2014