Barich v Parramatta City Council

Case •

[2014] NSWLEC 1259

•

16 December 2014

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Barich v Parramatta City Council [2014] NSWLEC 1259
Hearing dates:12 and 13 November 2014
Decision date: 16 December 2014
Jurisdiction:Class 3
Before: Moore SC
Decision:

Subject to consideration of an operative date, the application to categorise 83 Marion Street, Harris Park as being within the Business General rating subcategory of Parramatta City Council's business rating category is granted.

Catchwords: RATING: Sub-categorisation; centres of activity; characteristics of site sets it apart from Central Business District
Legislation Cited: Local Government Act 1993
Parramatta Local Environmental Plan 2011
Parramatta Local Environment Plan 2007
Sydney Regional Environmental Plan No 28 (Parramatta)
Cases Cited: Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077
Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 177
Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Category:Principal judgment
Parties:

Dr A Barich (Applicant)

Parramatta City Council (Respondent)
Representation:

Mr A Pickles, Barrister (Applicant)
Mr J Hutton, Barrister (Respondent)

Barrak Lawyers (Applicant)
Sparke Helmore (Respondent)
File Number(s):30155 of 2014

Judgment

Introduction

  1. SENIOR COMMISSIONER: Revenue that councils raise by rates comes from land within the local government area classified as either residential, farming, mining or business through the processes set out in ss 514 to 518 of the Local Government Act 1993 (the Act). The council determines which of these four categories is to be attached to a parcel of land - with the default category of business if a parcel of land is not able to be categorised as residential, farmland or mining. The Act also permits a council to divide land within any category into such subcategories of the principal category as the council considers appropriate.

  1. An owner of land who considers that the categorisation of a property is inappropriate is given the right under the Act, pursuant to s 525, to seek to have the categorisation of the land changed to a new category nominated in the application for change of category.

  1. In dealing with any such application, the Council must consider the application for re-categorisation through the lens provided by s 525(3) of the Act. This provision is in the following terms:

(3) The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category.

  1. Where a council has established a number of subcategories within any of the principal categories, a similar process applies whereby an owner can seek to have a property moved to a different subcategory. The provisions of s 525(3) apply to such application to change subcategory in the same fashion that they apply to an application to shift between the four principal categories.

  1. It is within this framework that the applicant in these proceedings seeks to have his property at 83 Marion Street, Harris Park shifted between subcategories within the business category of the rating structure of Parramatta City Council (the Council).

  1. Having been unsuccessful in his application to the Council for recategorisation, the applicant has exercised his right of appeal to the Court pursuant to s 526 of the Act and the Court stands in the shoes of the Council to make a determination as required by s 525(3) of the Act. The terms of s 526 are:

526 Appeal against declaration of category
(1) A rateable person who is dissatisfied with:
(a) the date on which a declaration is specified, under section 521, to take effect, or
(b) a declaration of a council under section 525,
may appeal to the Land and Environment Court.
(2) An appeal must be made within 30 days after the declaration is made.
(3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.

  1. There is no contest between the applicant and the Council that 83 Marion Street, Harris Park properly falls within the broad business category in the Council's rating framework.

  1. However, there is now a contest as to whether or not it should remain appropriately with the Business - CBD subcategory or whether it should shift, as is proposed by the s 525 application made to the Council, to the subcategory of Business - General.

  1. An application made concerning another property in Harris Park (116 Wigram Street) seeking the same change in the subcategorisation within the business category was dealt with by Pearson C in Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077 (Barrak [1]). Pearson C determined, in those proceedings, that no change in subcategorisation was appropriate and this had the effect of confirming the Business - CBD subcategorisation of this property. The property that was the subject of the proceedings before Pearson C is at a distance of some 430 m from 83 Marion Street.

  1. Although Pearson C's decision was the subject of an appeal (an appeal heard by Biscoe J), these proceedings remain to be determined on the facts and circumstances that apply to 83 Marion Street within the consideration of the relevant historical and contemporary factual framework applicable to this site and the context of what is the common zoning and planning context shared by 83 Harris Street and the property in the proceedings before Pearson C.

  1. I am significantly indebted to Pearson C for the careful and comprehensive analysis of the common framework history of the site with which she was dealing and that which is the subject of these proceedings.

  1. At the commencement of the site inspection in these proceedings, I enquired of the advocates (Mr Pickles, barrister for the applicant, and Mr Hutton, barrister for the Council) whether they accepted that the non site-specific elements of Pearson C's analysis up to and including (58) of her decision applied equally in these proceedings. They both agreed that this was the position.

  1. As a consequence, I gratefully adopt those paragraphs, mutatis mutandis, and do not repeat the general analysis contained in those paragraphs of her decision.

Centres of activity

  1. For the creation of a subcategory within the business category, a council must be able to identify a centre of activity with which the properties in the proposed subcategory are able to be identified. In Barrak [1], Pearson C analysed the relevant past decisions on this point and set out a list of six propositions identified by the Council that she considered were apt to be derived and applied for the purposes of identifying a centre of activity. She set those propositions out in the following terms:

(1) The words "centre of activity" should be given their ordinary meaning (Marrickville Metro (Pain J) at [46]; Marrickville Metro (CA) at [79]; and they should not be read down by reference to departmental policies or other extrinsic materials: Ranglen;
(2) The note in s 529(1), which states "[i]n relation to the category 'business', a centre of activity might comprise a business centre, an industrial estate or some other concentration of like activities") is a relevant aid to construction: Marrickville Metro (Pain J) at [47]; however, it should not be read as restricting or overriding the ordinary meaning of the expression "centre of activity": Ranglen;
(3) A centre of activity need not be a centre of "like activities" - it may be comprised of "a number of enterprises involving different activities": Ranglen (in that case including both retail and industrial activities); and Marrickville Metro (Pain J) at [43], that the council may determine a sub-category in respect of a "single site on which several activities are located";
(4) A centre of activity will normally involve "a concentration of activities" within a particular area or around a particular site: Marrickville Metro (Pain J) at [46]; Marrickville Metro (CA) at [79]). While the word "centre" requires some kind of geographical connection between activities carried out on the parcels of rateable land within the sub-category, the connection need not be of any particular kind (it can be large or small, depending on how the council defines it);
(5) A centre of activity may be tightly compressed and homogeneous (for instance, the 100 tenancies in Marrickville Metro, all of which were retail premises and on one lot), or more diverse, for example the more loosely described centre of activity in Ranglen which encompassed a variety of land uses and different geographical areas on each side of The Horsley Drive; and
(6) The label affixed to the category (in this case "Central Business District" or "CBD") is not important - what matters is the characteristics of the area to which the category applies: Marrickville Metro (Pain J at [43]-[44]; Marrickville Metro (CA) at [81]-[84]).

  1. In those proceedings, the parties agreed that the first five propositions were applicable but the applicant in those proceedings did not accept that the final proposition was appropriate to be applied. Despite this opposition, Pearson C applied the contested proposition in those proceedings.

  1. For the purposes of these proceedings, I have considered all six propositions (to the extent relevant) for consideration of the characteristics of the Parramatta Central Business District subcategory in my assessment of whether there are reasonable grounds to conclude that 83 Marion Street should be within that subcategory rather than in the default subcategory of Business - General.

The appeal decision

  1. The applicant in Barrak [1] appealed against Pearson C's decision pursuant to s 56A of the Land and Environment Court Act 1979. On 18 November, Biscoe J dismissed the appeal (Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 177)(Barrak [2]).

  1. I have carefully read his Honour's decision in Barrak [2] and, as a consequence, I am satisfied that, although my analysis for 83 Marion Street differs from the result of the analysis by Pearson C concerning 116 Wigram Street, the analytical processes that each of us has followed, is, save with one minor respect dealt with later, entirely mutually consistent.

  1. As a consequence of my reading of his Honour's judgment, I considered it desirable to invite the parties in these proceedings to make further submissions in light of the decision in Barrak [2] but neither party sought to do so.

Marion Street and the decision in Barrak [1]

  1. Although the decision by Pearson C was confined to the s 525(3) considerations concerning 116 Wigram Street, the Commissioner did make one observation concerning properties in Marion Street. This arose as a consequence of submissions by the applicant in those proceedings that the application of the Business - General subcategory to a number of properties in the Marion Street strip (on its northern side) was anomalous and that this anomaly was one which ought weigh in favour of the application concerning 116 Wigram Street.

  1. In her decision, Pearson C dealt with this and rejected the applicant's proposition. She did so, at (88), in the following terms:

Rather than it being the inclusion of land zoned B1 Neighbourhood Centre in the Business CBD sub-category together with land zoned B3 or B4, if there is an anomaly it would seem to be with the eight lots on the northern side of Marion Street (to the south of the subject property) between Wigram Street and Harris Street that were zoned Residential Conservation 2(g) under the 1989 LEP, re-zoned Business in 2001 under the Parramatta REP, and now B1 Neighbourhood Centre under the 2011 LEP. Those lots are not included in the Business CBD sub-category on the Centre of Activity Map, and for rating purposes, are either Residential or Business General on the Ordinary Rates Map. However, whether or not those properties could be regarded as being in the relevant centre of activity is not a matter that needs to be considered in this appeal.

  1. In the appeal proceedings decision, his Honour dealt with submissions concerning this aspect of the Commissioner's decision by saying, at (78):

The Commissioner compared the Property with some lots on the northern side of Marion Street zoned B1 Neighbourhood Centre (like the Property) but rated Business General, concluded that they might be anomalous, but observed that whether or not they could be regarded as being in the relevant rating centre of activity was not the issue: at [88] and penultimate sentence of [105]. Barrak submits that except for the Commissioner's alleged wrong "focus", she would have seen that these Marion Street lots were not anomalous at all. I do not accept the submission. It was open to the Commissioner on the facts to say what she did about these lots. In any event, it does not disclose any error of law. Barrak submits orally that the Commissioner was obliged, first, to assume that the rating of these Marion Street lots was sub-categorised correctly; and, secondly, to explain why the Property should not be sub-categorised in the same way. When taxed with the fact that other properties used for similar purposes as the Property in the Commissioner's fringe area were also within the Business CBD rating sub-category, Barrak submitted that the Commissioner did not have to assume that they were also rated correctly. Those submissions appear inconsistent and, in any case, are unpersuasive.

  1. It is clear from the Commissioner's decision and from his Honour's treatment of this aspect of her decision that the comments concerning the anomalous position in the Marion Street strip were ones open to her but, as both the Commissioner and his Honour impliedly acknowledged, in my view, her conclusion was unnecessary for and not critical to the final position that the Commissioner reached with respect to the property at 116 Wigram Street.

  1. The Commissioner was not asked (and was not obliged and did not need, for the purposes of determining those proceedings) to undertake a detailed analysis of the appropriateness or otherwise of subclassification applied to 83 Marion Street or other properties in the Marion Street strip. To that extent, the Commissioner's comments should be regarded as obiter dicta and not an essential element central to or necessary for the chain of reasoning that led to the conclusion she reached in answering the s 525(3) question concerning 116 Wigram Street.

  1. As I have, in these proceedings, been obliged to undertake an exhaustive analysis of subclassification issues concerning the Marion Street strip as the property with which I am dealing is located within that strip, I have reached a different conclusion concerning the properties in the Marion Street strip that have not been included in the Business - CBD rating subcategory.

  1. As should be obvious from my conclusion that the Marion Street strip cannot properly be regarded as falling within the fringe of the Parramatta Central Business District, I have concluded that, contrary to Pearson C, the relevant anomaly arises by the continuing subcategorisation of properties within the Marion Street strip as being within the Business - CBD subcategory rather than the anomaly being the exclusion of the un-included properties.

  1. I have reached this decision as a consequence of the various specific factors requiring analysis in these proceedings (and the necessity to look at any of those factors that were in common with Pearson C's analysis) through the conceptual lens of 83 Marion Street, this being a separate and different analysis from the examination of such factors through the conceptual lens of 116 Wigram Street.

  1. I deal, later, with the application made by Mr Pickles toward the end of these proceedings to amend the application to seek re-subcategorisation, if so determined to be applicable, to apply from 2001.

  1. Lest there be any doubt about this element of my analysis concerning this anomalous position, there are two observations I should make concerning it. They are:

  • First, the determination that I have made is one that, at the present time, should be seen as being confined to a period no earlier than the date of the application that triggered the process leading to this decision; and
  • Although my conclusion that the nature of the anomaly is at variance with the conclusion reached by Pearson C on this point, my conclusion is one of comparatively minor significance in the overall framework of the reasons for concluding that this appeal should be upheld.

  1. In this context, it is also appropriate to note that I am not required to consider whether or not the Harris Park shopping strip along the Marion Street might or might not constitute an identifiable centre of activity, as such consideration could only potentially become relevant if, as in the earlier proceedings analysed by Pearson C, there was an appeal against the creation of a subcategory rather than the appropriateness of designating a particular property to be within that subcategory.

  1. Here (as with 116 Wigram Street), it is agreed that if there are not reasonable grounds to conclude that it is appropriate to include 83 Marion Street in the CBD subcategory, the only other potential business rating subcategory from the suite of subcategories adopted by the Council is that of Business - General.

Historical context

  1. Although the relevant comprehensive analysis is contained in Pearson C's decision, it is appropriate to provide a brief, skeletal summary in these proceedings to understand the principal historical elements. These are as follows:

  • In 1995, the Council resolved to establish a range of subcategories within its business categorised properties. One of those subcategories was Business - CBD. This subcategorisation was applied to all properties used for a business purpose which were within the area zoned within the then local environmental plan as forming part of the Parramatta Central Business District.
  • At that time, 83 Marion Street, Harris Park was so zoned as were a number of other properties on both sides of Marion Street.
  • Similarly so zoned were a number of properties in Station Street, Harris Park to the east of the railway line and to the north of Marion Street extending to Parkes Street. At the northern end of this group of properties fronting Station Street, there was a cluster of other properties so zoned, with this cluster including the property dealt with by Pearson C.
  • The applicant in these proceedings concedes that the 1995 subcategorisation was appropriate at that time in light of the Central Business District zoning and the planning aspirations evinced for future development of the relevant portion of Harris Park.
  • In 2001, Sydney Regional Environmental Plan No 28 (Parramatta) came into effect. This plan created a number of precincts, one of which was the Central Business District, but 83 Marion Street (and the property in Barrak [1]) were not included in this precinct.
  • The Council currently has a Draft Local Environmental Plan proposal that will consolidate the 2007 Local Environmental Plan and the 2011 Local Environmental Plan into a single plan. It is common ground in these proceedings that this proposed consolidation will not affect any change of substance and certainly no change material to the issues that require to be considered in those proceedings. This consolidated plan remains to be promulgated.
  • The application of the Business - CBD rating subcategory to 83 Marion Street has been applied by the Council for rating purposes continuously from 1995 up to and including the 2013/14 rating period.
  • For the 2014/15 rating period, the Council has, itself, determined to resubcategorise a number of properties in Harris Park, including 83 Marion Street, from Business - CBD to Business - General with, in lieu of the forgone difference in rates as a consequence of the recategorisation, the application of a 15% infrastructure levy on 83 Marion Street and other properties with that infrastructure levy being described as being quarantined to ensure that it is applied to provision of infrastructure within the Harris Park locality.

Conceptual framework

  1. Before commencing my factual analysis to reach a conclusion concerning 83 Marion Street, there are two further points to be noted that relate to the context within which this initial element of the decision-making process for 83 Marion Street is undertaken.

  1. The first is that, although the framework for consideration of 83 Marion Street embodies the same analytical framework that was adopted by Pearson C in Barrak, that framework must be applied to the specific facts and circumstances of 83 Marion Street and the drawing of a different conclusion about 83 Marion Street (as I have done for the reasons set out) does not constitute and should not be assumed to be any actual or implied criticism of the conclusion reached by Pearson C. I am certainly not to be taken to be reviewing (and reinterpreting to a different end), facts considered by Pearson C - a position I hope is clear from the following material.

  1. Second, this decision merely deals with the subcategorisation of 83 Marion Street. It does not consider what should be determined by me to be the appropriate operative date for the re-subcategorisation. This position arises because, in the orders actually sought in the Application Class 3 lodged with the Court, the clear implication was that the change was sought to apply for the 2013/14 rating year.

The application for retrospectivity

  1. The final paragraph of Mr Pickles' written opening submissions made it clear that Mr Pickles apprehended that the application sought for the change to take effect from 2001. Such a determination is permitted by s 526(3) of the Act.

  1. This point was clarified (to confirm that Mr Pickles was, in fact, seeking to have the change effected from 2001 and wished leave to amend the application to reflect this) only toward the finalisation of the proceedings on their second hearing day.

  1. As Mr Hutton indicated that, if I were minded to grant such leave, he would be seeking an adjournment to prepare what he regarded as being likely to be a much more extensive historical case and would be seeking some appropriate compensatory undertaking as to costs, I proposed to the parties that I determine the foundational proposition and, if (and only if) that was favourable to the applicant (as has been the case) would it be necessary to make a determination concerning the application for leave to amend.

The site inspection

  1. At the commencement of the first morning of the proceedings, I met the representatives of the parties at 83 Marion Street. We then proceeded:

  • to inspect the nature of the development in the immediate vicinity of the Tintersection at the eastern end of Marion Street; and
  • walk along Marion Street on its southern side to Station Street and then return to the intersection of Marion Street and Wigram Street.

  1. We then walked up Wigram Street to its intersection with Parkes Street (passing, at almost the northern end of this traverse, the site dealt with by Pearson C) before turning to the west along Parkes Street to the intersection of that street with Cowper Street.

  1. At that intersection, we turned to the south along Cowper Street to its intersection with Marion Street West at which point we turned toward the railway line (a distance of only 30 m or so) before turning along the railway line to the Harris Park Station pedestrian overbridge.

  1. During the crossing of the pedestrian overbridge at the station, Mr Pickles requested that I stop and look toward the skyline of the multistorey buildings in the Parramatta Central Business District in order to obtain an appreciation of the nature of those buildings and of the scale of the buildings between our point of observation and Parkes Street. Parkes Street is, relevantly, the zone interface between the Central Business District and the precinct to the east of the railway line within which both the property dealt with by Pearson C in Barrak [1] and 83 Marion Street are located.

  1. It is appropriate to make a number of observations about aspects of what was seen during the course of the site inspection. These are:

  • The element of Marion Street that includes the site that is the subject of these proceedings comprises, essentially, a strip neighbourhood shopping centre with an eclectic variety of small-scale retail premises (some of which incorporate a level of shop top housing above them). Interspersed among these premises (primarily on the southern side where 83 Marion Street is located) are a number of commercial premises (including 83 Marion Street). These commercial premises have a number of differing uses with 83 Marion Street being occupied by a vocational education provider. A number of the premises within this cluster on the southern side of Marion Street are heritage listed. However, this does not include 83 Marion Street (as erected upon it is a two level commercial building that would, from its appearance, be likely to have been erected within the last 30 or so years).
  • The Harris Park shopping strip appeared to wrap no more than one or two premises up any of the cross streets to Marion Street to the north along the length of the shopping strip.
  • The Council has erected, on the corner of Marion Street and Wigram Street, a short pillar depicting a map of the Harris Street immediate locale.
  • During the course of our walk, there were a number of council erected signs providing distances from the location of the relevant sign to a nominated location with, at various points, these locations including the Parramatta Central Business District and the Harris Park shopping strip.
  • The Harris Park railway station, accessible by the pedestrian overbridge earlier noted, is approximately 50 m to the south of Marion Street.
  • To the north of Marion Street, premises with frontages to Wigram Street, Albion Street and the southern side of Harris Street are within a conservation area (although no individual building is listed as a heritage item). Although the conservation area is zoned residential, non-residential uses are permitted to provide an incentive for the conservation of these premises. As a consequence, as was observed during the course of the walk along Wigram Street, there is extensive use of these premises for commercial purposes, particularly as Indian restaurants. The conservation area appeared, from the walk along Wigram Street, to be universally (or near universally) single-storey, cottage-style premises.

  1. It is clear from the walk along Parkes Street under the railway bridge and, thence, down Cowper Street, that the relevant area to the south of Parkes Street and the vast majority of both sides of Cowper Street (with the exception of a residential flat building at the south-western end of Cowper Street - a building that appeared to be some 15 or more years old) have undergone or are continuing to undergo a significant transition to multistorey, mostly mixed-use development. In Cowper Street, this has, from the observations able to be made from ground level, comprised retail/cafe style transactional opportunities at street level, coupled with multiple levels of residential or office accommodation above.

  1. At the T-intersection of Cowper Street with Marion Street West, I was invited by Mr Hutton to observe the generally single-storey, cottage-style development on the southern side of Marion Street West. These premises included a number that were obviously used for commercial premises, whilst there were others with no visible outward appearance element capable of inferring what use might be made of the premises. These premises are within an area immediately to the south of Marion Street West which is a conservation zone.

  1. Mr Pickles invited me to observe, in addition to the matters to the south of Marion Street to which Mr Hutton referred me, to a multi-story development currently under construction somewhat further to the south and west.

The fairness argument

  1. Implicit in what has been put on behalf of the applicant (for example by the tender of Exhibit F, an A1 map of the Council's rating that shows that the B1 zoned precinct in Harris Park including 83 Marion Street and the Barrak property) is that, as this was the only B1 or B2 zoned precinct within the whole of the Local Government Area that was not subcategorised within the Business - General subcategory, this demonstrated that the treatment of the Marion Street strip was unfair.

  1. A similar flavour, it seems to me, was also implicit in the tendering of the material (Exhibit E) that related to the determination by the Council for the future change of sub-categorisation of affected Marion Street properties into Business - General with the imposition of a loading for Harris Park infrastructure with the resultant rates for these properties, allowing for the infrastructure loading, receiving a resultant substantial discount from the rate that would have applied had they remained within the CBD subcategory.

  1. In Barrak [1], Pearson C expressly rejected the proposition that fairness could provide any sufficient basis for consideration of the reasonable grounds test requiring to be addressed pursuant to s 525 (3).

  1. I am satisfied that it is not necessary to revisit her approach or to differ from it in order to reach my conclusion in these proceedings.

The relevant zone objectives

  1. Although the parties agree that zoning, in and of itself, is not determinative, it is appropriate to consider, in my view, the objectives of the zone within which 83 Marion Street is located and the extent to which the context of these premises is consistent with the characteristics arising from those zone objectives. The zone objective of the B1 zone, contained in the Parramatta Local Environmental Plan 2011, is:

Zone B1 Neighbourhood Centre
1 Objectives of zone
· To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

  1. It is also appropriate, before undertaking any contextual analysis of the Marion Street strip, to set out the zone objectives of the three zones that make up the Central Business District contained in Parramatta City Centre Local Environmental Plan 2007. These zones are the B3, B4 and B5 zones. Their objectives are in the following terms:

Zone B3 Commercial Core
1 Objectives of zone
· To provide a wide range of retail, business, office, entertainment, community and other suitable land uses which serve the needs of the local and wider community, including:
· commercial and retail development,
· cultural and entertainment facilities that cater for a range of arts and cultural activity, including events, festivals, markets and outdoor dining,
· tourism, leisure and recreation facilities,
· social, education and health services.
· To encourage appropriate employment opportunities in accessible locations.
· To maximise public transport patronage and encourage walking and cycling.
· To strengthen the role of the Parramatta city centre as the regional business, retail and cultural centre, and as a primary retail centre in the Greater Metropolitan Region.
· To create opportunities to improve the public domain and pedestrian links throughout the Parramatta city centre.
· To provide for the retention and creation of view corridors.
· To protect and enhance the unique qualities and character of special areas and heritage values within the Parramatta city centre.
· To protect and encourage accessible city blocks by providing active frontages to streets, and a network of pedestrian-friendly streets, lanes and arcades.
Zone B4 Mixed Use
1 Objectives of zone
· To provide a mixture of compatible land uses.
· 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.
· To create opportunities to improve the public domain and pedestrian links within the Mixed Use Zone.
· To support the higher order Commercial Core Zone while providing for the daily commercial needs of the locality, including:
· commercial and retail development,
· cultural and entertainment facilities that cater for a range of arts and cultural activity, including events, festivals, markets and outdoor dining,
· tourism, leisure and recreation facilities,
· social, education and health services,
· high density residential development.
· To protect and enhance the unique qualities and character of special areas within the Parramatta city centre.
Zone B5 Business Development
1 Objectives of zone
· To enable a mix of office, retail and warehouse uses in locations which are close to, and which support the viability of, centres.
· To maintain the economic strength of centres by limiting the retailing of food and clothing.
· To provide for automotive businesses, trades and services to reinforce the existing functions of land within the zone,
· To ensure that development is arranged and carried out in a way that does not intrude on the amenity of adjoining residential areas or detract from the function of commercial development in the commercial core.

  1. Whilst, as earlier noted, the zones are derived from two different Local Environmental Plans, the Council proposes to consolidate those plans into a single, new Local Environmental Plan with no relevant changes expected to arise through this consolidation process.

The factual decision in these proceedings

  1. Before continuing to set out what I consider to be the relevant factors leading to the conclusion that I have reached, it is important to note that this conclusion has been reached on the confined facts and circumstances that define the context of 83 Marion Street as at the date of my site inspection. Nothing is to be inferred from this determination that I have reached any tentative conclusion (let alone some firm position) that would infer that any substantial degree of retrospectivity was appropriate to be applied to my determination that the re-subcategorisation sought by the applicant should prevail.

  1. Whilst I think it is appropriate to presume that my conclusion could be said to apply at least for the 2013/14 rating period, if there were to be (as is presently the subject of an undetermined application for leave to amend in these proceedings) any suggestion of significant retrospectivity, this would need to be the subject of support by relevant and appropriate evidence that gave me both an appropriate foundation for such an earlier operative conclusion together with evidence that would establish that such a position had continued, unbroken, to the date of the present conclusion I have reached.

  1. In this regard, I note that I observed to Mr Pickles and Mr Hutton during the course of the proceedings that, if an earlier operative date was to be sought, a range of discretionary factors might come into play with those factors including (but not necessarily confined to) the date from which the applicant became the sole owner of the premises and relevant changes to the planning environment applicable to the locale within which 83 Marion Street is located.

The relevant contemporary maps

  1. There are two map extracts which are relevant, in my view, to the present determination. They are the current zoning map showing the locale and relevant areas beyond, on the basis of the present zoning pursuant to the 2007 LEP and the 2011 LEP (a composite map of which was Exhibit 2) and an extract from a rating map of the same general area that shows what the actual present rating basis is for premises in the locale (shown below from an extract from Exhibit A folio 138).

Comparison between the maps

  1. The relevant portion of the zoning map extract shows the B1 business zoned premises within the Harris Park area. This is a contiguous area, marked in light blue (but scans as white in the image below). This area is shaped, generally, like an L and is entirely to the east of the railway line and to the south of Parkes Street. The area to the west of the railway line is differentially zoned as is obvious from the map colours.

  1. The areas to the west of the railway line fall within the boundaries of the Parramatta City Centre Local Environmental Plan 2007 Central Business District whilst those in the B1 zone in Harris Park are within the broader Parramatta Local Environmental Plan 2011.

  1. The rating map extract from Exhibit F, however, shows an actual use context that is in stark distinction to that which might be expected to be the position from a superficial examination of the zoning map. The actual use rating map shows that there is a distinct separation between the immediate locality of the premises dealt with by Pearson C and the premises in the Marion Street shopping strip. The properties zoned B1 and rated Business CBD within the B1 area are marked in blue. Those zoned B1 but not so rated within this area are coloured yellow.

  1. Not only are the Marion Street premises separated by the residential properties in the conservation area (only able to be used for commercial purposes by virtue of the conservation bonus, a matter that cannot, in my assessment, influence how they are to be considered for the present purposes) but also there are, on my count, some sixteen (16) business zoned properties that are rated as residential along Station Street between the Marion Street shopping strip and the business zoned and rated premises that encompass the site of Pearson C's decision. Although there are two (2) business rated premises punctuating this residential strip, nonetheless, this separation effectively creates the Marion Street strip as an island, business rated precinct. This separation effect is one that, in my opinion, warrants significant weight in these proceedings.

A comparison of the composition of activities

  1. As both Mr Pickles and Mr Hutton observed, it is appropriate for me to have regard to my knowledge of the range of activities undertaken in the Parramatta CBD and in the Marion Street shopping strip from past, unrelated proceedings over which I have presided. This broad knowledge of the nature of the range of activities across these areas is, obviously, supplemented by the additional specific inspection undertaken during the course of these proceedings.

The CBD centre of activity

  1. For the purpose of this discussion, it is, in my view, appropriate to commence with consideration of the Parramatta Central Business District as it is within this centre of activity that the Council submits I have reasonable grounds to conclude would be the appropriate subcategory to fit 83 Marion Street.

  1. First, in a broad geometric sense, the CBD centre of activity has been described as having a core, middle and fringe, a description I adopt to the extent relevant in the proceedings.

  1. The view of the skyline of the CBD observed from the Harris Park station pedestrian overbridge makes it clear that, although this geometric description is broadly appropriate, it is certainly not appropriate to draw any inference that there is any hierarchical homogeneity of tapering from the core towards the fringe. Whilst there is a general landscape perception of tapering, closer consideration of the CBD reveals an interspersing amongst the high-rise buildings (in what might be regarded as the core) of single or two level premises used for an eclectic range of commercial and retail purposes.

  1. There is also, as a consequence of Parramatta being established early in the process of European colonisation, an additional element of heritage buildings also interspersing the Central Business District. As Mr Hutton submitted to me, there was nothing specific in the range of retail, commercial or residential uses in the Marion Street strip that might not be found in equivalent scale being replicated (perhaps many times over) within the CBD. A similar position applies, in Mr Hutton's submission, to the sprinkling of lower level of housing options such as shop top housing as these uses in Marion Street are, too, replicated in the CBD core or middle.

  1. For these reasons, I do not accept that a simplistic analysis of the activities in the Marion Street strip at the scale that there occurs can be taken as a reason for concluding that those activities are not capable of being accommodated in the CBD. This approach is entirely consistent with the reasoning of Pearson C. Thus the lack of homogeneity of uses in the CBD centre of activity does not stand as a barrier to incorporation of the Marion Street strip premises in the CBD centre of activity.

  1. However, although homogeneity is not a prerequisite for a centre of activity, I do consider that the existence of thematic homogeneity of scale and broad likely client catchment for Marion Street (as I am satisfied can be generally inferred to exist with the specific exception of which I am aware, the Wayback Centre which operates in a subregional, if not regional, public interest social capacity) is a matter to be taken into account in addressing the reasonable grounds test.

  1. There were, to my observation, three types of premises (put in simplistic terms) when considering the uses within the Marion Street strip.

  1. The first category comprised small-scale retail premises (of which a number of were food or food supply premises). All of these appeared to be of the scale anticipated by a B1 zoning as being designed to service the needs of the neighbourhood within which they are located. For these premises, there were certainly zero indicators that they provided any particular attraction to bring clientele from outside the neighbourhood, nor is there any indication, from the nature of the services provided and the location of the Marion Street strip, that there is any significant function performed by these premises as being designed to service a transient potential client population.

  1. The second category of premises appeared to be those of a small-scale professional nature, such as an accountancy practice or a medical centre. These uses, too, did not evince any external indicators that they were anything other than designed to meet the need of residents or businesses in the immediate neighbourhood.

  1. The final category (within which the present use of 83 Marion Street as a vocational training provider would appear to fall) may or may not operate on a basis broader than an immediate neighbourhood demand servicing operation. There were certainly no external indicators on the building from which any conclusion could be drawn from my comparatively brief observation of its externalities. Neither advocate made any particular submissions about any inference to be drawn with respect to the use of the building in this context.

  1. I observe that, in the past, the building has had at least one other use as a branch office for a charitable organisation but, again, I have no information about the scope of the activity. It is, therefore, in my view necessary to consider the use and potential uses of this building in the context in which it is located. The Marion Street strip from Station Street to the eastern end of the Marion Street at the roundabout is characterised by one or two storey buildings. The commercial and retail uses, on the southern side to the east of Wigram Street are punctuated by a smattering of single storey dwelling style buildings, at least several of which remain used for residential purposes as can be inferred from the earlier reproduced rating application map.

  1. There is, for this strip, a broad uniformity of scale of the streetscape and, I am satisfied, it is reasonable to infer a broad uniformity of purpose of the various uses undertaken. That uniformity of purpose of these uses is the servicing of the needs of those in the immediate neighbourhood, a uniformity of purpose entirely consistent with the zone objective of the B1 zone and sufficiently broadly inconsistent with the purposes for which the various uses in the Central Business District are engaged even when the use might, itself, be replicated in the Central Business District.

  1. This analysis of the purposes of the uses within the Marion Street strip, it seems to me, results in a significantly different flavour to what I draw from Pearson C's decision in Barrak [1] to enable a significant and fundamental distinction, on the facts, to be drawn between the two locations on this analytic element. The topic of purposes for uses is also discussed further later.

Connectivity - transport

  1. The main western railway line is located at the western end of the Marion Street strip. As earlier described, Harris Park station is accessed by a pedestrian walkway some 100 m long that runs parallel to the railway line at the point where Marion Street turns right at the railway line and becomes Station Street. The distance from 83 Marion Street to Harris Park station is approximately 300 m walking along the southern side of Marion Street and thence along the pedestrian walkway.

  1. The path from 83 Marion Street to Parramatta station involves walking along Marion Street to the railway line, turning right and following the railway line to Parramatta station. The distance to be traversed to access Parramatta station is approximately 900 m.

  1. These distances contrast, significantly, with the distances from 116 Wigram Street to each of the stations. The distances in the Wigram Street context are approximately 500 m (Harris Park station) and 600 m (Parramatta station).

  1. I acknowledge that Parramatta station is more of a regional transport hub and certainly has not only access to bus services and the like through an interchange but also benefits from a significantly greater frequency of train services stopping at that station.

  1. Whilst, to some extent, these additional attributes of Parramatta station partially outweigh the convenience of access from the Marion Street strip to Harris Park station, I am unable to conclude that these benefits completely neutralise the positive benefit of proximity of the Harris Park station. For those less mobile or unprepared to walk the additional distance (well beyond the 400 m conventionally adopted in planning terms for walkability), the additional benefits available at Parramatta station are able to be accessed by making a transfer stop at Parramatta and treating it as a transit point.

  1. As a consequence, I am satisfied that, unlike 116 Wigram Street where the two stations could be regarded, on one view, as genuine alternatives, that is not the position with respect to 83 Marion Street.

  1. As a further consequence, transport accessibility does serve as an indicator of the inappropriateness of subclassifying the Marion Street strip (and, hence, 83 Marion Street) as being part of Parramatta's Central Business District centre of activity.

Connectivity - Cowper Street precinct

  1. To the west of the railway line, from Parkes Street through to Marion Street West, is the precinct that incorporates, amongst other elements, Cowper Street and its redevelopment. Cowper Street and its redevelopment is the most proximate element of the area within the Central Business District Local Environmental Plan 2007 to the area east of the railway line that is zoned B1 and is within the area covered by the 2011 Local Environmental Plan.

  1. Pedestrians in the Marion Street strip can easily access the Cowper Street precinct and other areas within the 2007 mapped area beyond by walking up the pedestrian access ramp to the station, crossing the station overbridge and walking down Tottenham Street along the railway line to the right angle intersection of that street and Marion Street West. The Cowper Street redevelopments commence a matter of 20 or so metres further on from that intersection.

  1. However, for a person leaving 83 Marion Street by vehicle, to access this area to the west of the railway line, it is necessary to drive along Marion Street; turn up Station Street along the railway line; and then utilise the Parkes Street underpass under the main western railway line before turning into the southern end of Cowper Street (some 20 m beyond).

  1. The vehicle transit, on the other hand, from 116 Wigram Street utilising the underpass to access Cowper Street and the areas beyond (treating access to each end of Cowper Street as being an equivalent degree of access for the purposes of this discussion) shows that there is a not insignificant distinction for access purposes between the two locations - with this distinction being created by the vehicle impenetrable length of the main western railway line between Harris Park station and the Parkes Street underpass.

  1. Whilst the pedestrian distance from 116 Wigram Street has a modest distance advantage over that from 83 Marion Street, I do not consider that this can entirely outweigh the lesser degree of vehicle connectivity earlier described. As a consequence, this provides a further factor in support of my conclusion that I should distinguish between 83 Marion Street and 116 Wigram Street, drawing a different conclusion with respect to the former than that which was drawn by Pearson C with respect to the latter.

Parking

  1. Much was made by the applicant in the initial proceedings before Pearson C of changes that had been made by the Council to paid parking arrangements as they related to the property at 116 Wigram Street. It was submitted, in those proceedings, that the changes that had been made by the Council were made for reasons that should be understood as constituting an acceptance by the Council that those premises were distinctly different from the Parramatta Central Business District.

  1. It was submitted that this provided a significant (and, indeed, perhaps sufficient) reason to answer the s 525(3) question in favour of the applicant in those proceedings. Pearson C rejected that proposition and, as I read her decision, concluded that the decision taken by the Council on parking matters did not provide assistance to that applicant in seeking a re-subcategorisation.

  1. The position adopted by Pearson C on that point formed one of the bases upon which the s 56A appeal was argued before Biscoe J. His Honour detected no error of law in the approach taken by Pearson C and it therefore follows that her conclusion, with respect to her site, remains undisturbed as one available to be made by her on a reasonable evaluation of this issue as it related to her site.

  1. With respect to 83 Marion Street, the sole difference in the treatment in the Council's relevant parking report is a short extract that draws a distinction between Marion Street (relevantly to these proceedings) and Wigram Street (relevantly to the Barrak [1] proceedings) as to their characterisation in the eyes of the officer who prepared the report. In this context, it should be noted that 116 Wigram Street is on the corner of Wigram and Kendall Streets. The relevant extract (Exhibit A Folio 328 at para 17) is in the following terms:

For all streets other than the main commercial streets, which are Marion Street, Wigram Street (between Parkes and Marion Street) and Kendall Street (due to its close proximity to the CBD), it is proposed to allow all day ticket parking on one side of the street with the other side being free but time restricted (1 or 2 hours maximum).

  1. Whilst, superficially, some comfort might be drawn in these proceedings as a consequence of that differing flavour, I do not accept that it is appropriate to do

  1. I have reached this conclusion for a single, simple reason.

  1. It is clear that the report from which the extract has been taken was one that was addressed to issues relating to parking management and the best and appropriate method for managing parking availability in an efficient fashion at (relevantly for the two sets of proceedings) Marion and Wigram Streets. It is also a document that dealt with somewhat broader issues and did so in a fashion that made it clear that the officer preparing the document was considering all of the matters covered by it through a conceptual lens focused on parking management issues.

  1. There is no suggestion in any element of the document, on my reading of it, that the officer concerned had, in any fashion, brought consideration to the question requiring to be addressed as posed by s 525(3). Viewed in this fashion, the earlier extracted comment, to the extent that it reflects an opinion said to be advanced on behalf of the Council (taking the applicant's position in both proceedings at its highest), this opinion is not expressed in a fashion relevant to the question in these proceedings.

  1. As a consequence, I give no weight in the applicant's favour to the issues raised concerning parking.

The question to be addressed

  1. The question that requires to be addressed in these proceedings is as set out in s 525(3). For the purposes of what follows, it is appropriate to set out the question to be addressed in the following terms:

Are there reasonable grounds for believing that 83 Marion Street, Harris Park is within the Business - CBD subcategory of the business category?

  1. One of the matters that was pressed on behalf of the appellant in Barrak [2] was that Pearson C had incorrectly answered this question by, in effect, answering the alternative proposition (that is - Were there reasonable grounds to conclude that those premises were appropriately subcategorised as Business - General?) rather than addressing the question of whether or not there were reasonable grounds to consider that the premises should be categorised as being Business - CBD.

  1. His Honour held that, in circumstances such as those applying in those proceedings where there were only two possible subcategories into which 116 Wigram Street could be allocated, it did not matter whether the question was framed in the fashion posed by Pearson C or whether the alternative formulation pressed by the appellant was adopted. He so concluded because the relevant consideration of all the facts and circumstances concerning 116 Wigram Street meant that, however the question was framed, if there were not reasonable grounds to include that site in one of the two subcategories in contention, it was necessary that it be included in the other as there was no alternative conclusion available to be drawn.

  1. A similar position applies in these proceedings.

Conclusion

  1. I have earlier quoted, from the judgement of Pearson C, the six descriptor elements of a centre of activity. These attributes were used by her, as earlier described, to determine that it was appropriate to allocate 116 Wigram Street to the Business CBD subcategory.

  1. However, taking the same approach, I am satisfied that a different conclusion is warranted for 83 Marion Street. The conclusion that I have drawn is, of course, not conceptually confined to 83 Marion Street but is one drawn broadly for those elements comprising the Marion Street strip as earlier described. However, as only 83 Marion Street arises to be dealt with in these proceedings, the outcome I propose is specific to those premises.

  1. In reaching this conclusion, I note that the applicant in these proceedings has conceded that, for the period that 83 Marion Street was within the CBD zone, it was appropriate to be given the currently applicable subcategorisation. I do not understand that there is any dispute in these proceedings that that broad principle continues to apply with respect to areas within the 2011 LEP and, thus, there is no issue as to the appropriate subcategorisation of the properties to the west of the railway line in the Cowper Street precinct.

  1. However, I am satisfied that, unlike 116 Wigram Street, there are distinct reasons to conclude that the Marion Street strip (and thus 83 Marion Street) should not be so sub categorised.

  1. Although the uses that are carried out in the Marion Street strip are consistent with and replicated in the Parramatta Central Business District, the purpose to which those uses are applied are different. In the Marion Street strip instance, the purposes are entirely consistent with the single objective for the B1 zone - that is serving the needs of the neighbourhood within which the strip is located (see Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400). The nature of the activity within the Central Business District, including its role as a major commercial centre to which many workers commute, means that the purposes for which the uses in the Parramatta central business district that replicate uses in the Marion Street strip are put are purposes entirely consistent with the broader objectives in the relevant zones (of catering for the needs of a much more transient and casual population - the first of the B3; the fourth of the B4 and the first and second of the B5 zone objectives being those relevant in my opinion - taking the objectives of those zones at their widest).

  1. In addition to this quite stark distinction between the Marion Street strip and the Parramatta Central Business District (one, on Pearson C's findings, not applicable to 116 Wigram Street), the separation by the residential rated elements in the B1 zone to the north of the Marion Street strip coupled with the aspects of lack of connectivity with relevant parts of the Central Business District fringe also demonstrate the inappropriateness of concluding that the Marion Street strip should be subcategorised as Business CBD.

  1. Although this conclusion is expressed in general terms, it would clearly be absurd (and I do not consider I would have any evidentiary basis to do so even if it were not absurd) to conclude that this particular property (83 Marion Street) should be so subcategorised when the remainder of the strip should not. To do so be to adopt, in my view an entirely inappropriately anomalous approach.

  1. I have, earlier, set out what I consider to be the appropriate and material factual matters requiring to be analysed in answering the question arising from s 525(3). Although one of the matters relied on, significantly, by the applicant in these proceedings as an indicator of a lack of reasonable grounds for concluding that 83 Marion Street should be incorporated in the Central Business District subcategory (the issue of parking) has been rejected by me in its entirety, there remain the range of other matters that I have earlier set out.

  1. I have considered all of those matters within the broad hierarchical framework that involves:

  • acceptance that there is a centre of activity comprising the Parramatta Central Business District;
  • adopting the analytic framework discussed by Pearson C of there being a core, middle and fringe for the Central Business District but that the CBD is not and cannot be homogenous;
  • noting that the scale of built form in Marion Street finds many equivalents in the CBD;
  • analysing issues of separation and connectivity;
  • noting that centre of activity encompasses a range of uses that include (or can include) the uses in the Marion Street strip;
  • consideration of the purposes to which uses in the Marion Street strip and those in the CBD are put; and
  • then considering the position of 83 Marion Street within this framework.

  1. On the various indicators that I consider are relevant, each of them has fallen in favour of a conclusion that there are not reasonable grounds to conclude that 83 Marion Street should be included in the Central Business District rating subcategory adopted by Parramatta City Council. Having concluded that the indicators necessitate such an outcome, it therefore follows that, given the absence of any alternative subclassification, the positive finding follows that it is appropriate to include 83 Marion Street Harris Park in the Business - General rating subcategory.

Further conduct of the proceedings

  1. As I have reached the conclusion that, however the s 525(3) question is to be formulated, 83 Marion Street Harris Park should be subcategorised as Business - General, it remains for me to consider, further, the application by Mr Pickles for leave to amend the orders sought in the Class 3 appeal from that seeking the operative date set out in the appeal papers to seeking an operative date in 2001.

  1. If I accede to the request to grant leave to amend, further preparation for and a subsequent hearing on this issue will be necessary.

  1. If I do not grant such leave, I propose to issue an order to give effect to this decision with an operative date being the commencement of the 2013/14 rating year.

Tim Moore

Senior Commissioner of the Court

Amendments

22 February 2018 - At "Decision" on the coversheet, the address of the premises was amended from "Harris" to "Harris Park".

Decision last updated: 22 February 2018

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Cases Cited

3

Statutory Material Cited

4

Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077
Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 177
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114