Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd

[2011] NSWLEC 97

Land and Environment Court

New South Wales

Medium Neutral Citation:	Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd [2011] NSWLEC 97
Hearing dates:	19 November 2010
Decision date:	08 June 2011
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	The Council's appeal is upheld, and the Orders pronounced in Class 1 appeal No.10949 of 2099 on 21 June 2010 ([2010] NSWLEC 1204) are set aside. The substantive matter is remitted, to a Commissioner to be nominated by the Chief Judge, to be determined afresh according to law, in the light of these reasons. The respondent is ordered to pay the Council's costs of this appeal on a party-party basis, as agreed or assessed, unless a Notice of Motion is filed to different effect within seven days. The agreed bundle should be returned to the Council.
Catchwords:	APPEAL - s 56A appeal from decision of commissioner - SEPP 1 objections - priniciples to apply - whether Commissioner correctly identified underlying objective - whether Commissioner misdirected herself on construction and application of provisions in LEP - purposive construction - remittal for re-hearing - costs
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2005 State Environment Planning Policy No 1
Cases Cited:	Avon Downs v Commissioner of Taxation (Cth) (1949) 78 CLR 353 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Stenhouse v Coleman (1944) 69 CLR 457 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; (2001) 130 LGERA 79 Wilson Parking Australia 1992 Pty Limited v Council of the City of Sydney [2010] NSWLEC 1204
Category:	Principal judgment
Parties:	Council of the City of Sydney (Appellant) Wilson Parking Australia 1992 Pty Ltd (Respondent)
Representation:	Mr J K Kirk (Appellant) Mr P R Clay (Respondent) Council of the City of Sydney (Appellant) Allens Arthur Robertson (Respondent)
File Number(s):	10563 of 2010
Decision under appeal	Jurisdiction: 9107 Citation: [2010] NSWLEC 1204 Date of Decision: 2010-06-21 00:00:00 Before: Dixon C File Number(s): 10949 of 2009

Judgment

Introduction

1. This is an appeal under s 56A of the Land and Environment Court Act 1979 against a decision by a Commissioner of the court to overturn Council's refusal of a five-year development consent for the " interim " (rather than " temporary ") use of the subject land as a ground-level, open-air, valet parking area for only 15 cars (matter No.10949 of 2009).

1. The present appeal asserts various errors of law, and the appellant Council seeks remittal of the matter for redetermination if the appeal succeeds on any one or more of them. It was conducted on the basis of an " Agreed Bundle " of documents, comprising three binders containing a total of 1050 folios.

The Site And The Council

1. The subject site is located behind the building known as 4-6 York Street, Sydney. It appears to have been vacant for about 70 years, and it has had an interesting history leading to its being used, without consent since approximately 2008, as a public car park (i.e. used now for commercial, or paid, parking, as distinct from historical " private " or " tenant " parking). Wynyard railway station and major bus services in York and George Streets are close by.

1. On 15 June 2004 Council granted an approval for both 341 George Street and the subject site to be developed by way of adaptive reuse and conservation works on the historic bank building at No.341, and incorporation of a new York Street extension. On 18 February 2008 deferred commencement approval ('DCC' D/2007/1412, at fol 692ff) was granted for the demolition of the existing structures on the combined site, and construction of a $41M mixed use development comprising commercial tenancies and offices (14 storeys). One of the deferred commencement conditions was deleted by a modification granted on 23 May 2008, and it would appear that the balance of those DCC conditions were still outstanding when this appeal was heard.

1. Council issued an order on 13 October 2008 for the present car parking use to cease, and for the associated signage to be removed. Enforcement of the order was deferred, pending the lodgement and consideration of the relevant development application ('DA'), seeking Council's consent to the car park being operated on a commercial basis.

1. The relevant DA (D/2008/1863) was lodged on 27 October 2008 (fols 509ff). The accompanying Statement of Environmental Effects ('SEE') was prepared by John Coady Consulting Pty Ltd (Town Planning and Traffic Consultants) and includes photographs of the subject site (fols 557-8).

1. After a negative assessment by Council officers (see fols 673ff) the DA was refused on 22 April 2009 (fol 559). A s 82A Review Application was lodged on 14 July 2009 (fols 561ff), and went before the Small Permits Appeals Panel on 14 August 2009 (fols 663ff). It was deferred, with the proponent's consent, for consideration alongside a possible planning agreement for motorbike parking at Citi Carpark in Kent Street (fol 665), under which fifteen car spaces would be lost in order to provide 60 bike spaces. On 1 December 2009 , the panel declined to interfere with the refusal of the DA and confirmed it (fols 671ff).

The Class 1 Appeal

1. The class 1 appeal to this court was filed 10 December 2009 (matter 10949 of 2009) and heard on 17-18 June 2010 (see exhibits and transcript in Vol 3, tab 2, fols 741ff).

1. Approval by the Commissioner required the granting of a dispensation under State Environment Planning Policy 1 ('SEPP 1') of a development standard in a particular clause of the Sydney Local Environmental Plan 2005 ('the LEP' at Vol 1, tab 1, and the SEPP 1 objection is at Vol 2, tab 13, fols 680-3).

1. The present s 56A appeal was filed on 19 July 2010 (matter No.10563 of 2010), and the grounds were amended on 6 October 2010.

The Grounds Of Appeal

1. The grounds of this s 56A appeal are set out in the amended summons filed in the Registrar's court on 6 October 2010, in the following terms (with emphasis added):

" 1. In deciding not to apply cl.66(1)(d) of the City of Sydney Local Environmental Plan 2005 ("the LEP"), pursuant to State Environmental Planning Policy No.1 ("SEPP 1"), the Commissioner misconstrued the LEP (and thus erred in law) by holding that the underlying objective of cl.66(1)(d) was the objective in cl.64(e) alone, rather than a combination of the objectives in cl.64 (a), (b), (c), (e) and (g).

1A. In deciding not to apply cl.66(1)(d) of the LEP, pursuant to SEPP 1, the Commissioner failed to take due account of relevant considerations , being the matters set out in cl.64(a), (b), (c) and (g) of the LEP.

2.The Commissioner misdirected herself and asked herself the wrong question in construing and applying the provisions of cl.66(2) of the LEP by:

(i) finding that the requirement in cl.66(2)(a) was satisfied because not all trips are suitable for public transport , where:

(a) the relevant question is whether the proposed 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 public transport, and

(b) this question does not require that all trips be suitable for public transport;

(ii) finding that the requirement in cl.66(2)(b) was satisfied because the area was not adequately serviced by this type of public car park , where:

(a) the relevant question is whether the proposed 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 existing public car parking, and

(b) this question does not involve consideration of characteristics of the proposed public car parking such as that it was open air, short stay and had 'valet parking', and

(c) the evidence was that there was ample existing public car parking servicing the relevant needs ".

1. A foreshadowed attempt by the Council to further amend the summons to add another ground of appeal was not pursued at the hearing.

The Planning Framework

1. The provisions of the LEP emphasise maximising the use of public transport, while providing a reasonable amount of short-stay public car parking.

1. The clauses which provide some context for this present matter include the following (with emphasis added):

" 11 Aims of this plan

...

(c) to foster environmental, economic, social and physical well -being so that the City of Sydney continues to develop as an integrated, balanced, sustainable and prosperous living city of world standing ...

12 Strategies for achieving aims of this plan

...

(n) maximisation of use of public transport , walking and cycling for trips to, from and within the City of Sydney ....

...

64 Objectives for car parking controls

The objectives of the car parking controls of this Part are:

(a) to acknowledge that public transport is the most important and efficient means of moving people to and within Central Sydney , and

(b) to encourage commuting by public transport to Central Sydney in order to reduce the number of motor vehicles travelling through and to Central Sydney, and to improve overall environmental quality and pedestrian amenity, and

(c) to improve the attractiveness and competitiveness of Central Sydney for retail and commercial activities by providing a reasonable level of tenant and short-stay public car parking whilst discouraging commuter car parking, and

...

(e) to minimise adverse urban design impacts, in particular by discouraging the provision of above ground parking , and

...

(g) to discourage the provision of public car parking ...

...

66 Public car parking restrictions

(1) Restrictions that apply in all cases

Before granting consent to development for the purpose of any public car parking, the consent authority must be satisfied that the public car parking:

...

(c) will be used for short-stay public car parking only that is regulated by a restriction in opening hours or fee structure, or both, and

(d) will be located underground , and

...

(f) will be consistent with, and does not compromise, high quality urban design of buildings on the land and adjacent to the land on which it is situated...

(2) 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 ."

1. An earlier decision by the then Commissioner Bly of this court had held that cl 66(1)(d) of the LEP constitutes a development standard, and that issue was not further agitated before the Commissioner who dealt with the present matter.

The Hearing At First Instance

1. At the hearing before the Commissioner (Transcript is at tab 2 of vol 3, fols 747-851), Mr Clay of counsel appeared for the applicant company, Wilson Parking, as he did for it as respondent to the present appeal, while the Council was represented by in-house solicitor, Mr M Fozzard.

1. The learned Commissioner commenced the hearing on site, so there were no opening statements on resumption in the courtroom, where she received the Council's exhibits, including joint expert reports of planners and traffic engineers, and those of the applicant, including its own experts' principal reports. She dealt with some objections, clarifications etc, and then Mr Fozzard outlined the various documents, including the relevant instruments, with commentary by Mr Clay.

1. Mr Fozzard, in his opening, stated that the issue dealing with cl 66(2) (quoted in [14] above) was his primary contention. He was asked by the Commissioner how the restriction in cl 66(2) should be interpreted (T17.6.10, pp16-17):

" COMMISSIONER: No. Sorry, I'm just jumping back, I'm still thinking. In relation to what you just said to me in about car parking the effect of cl 66(2), I think that's the correct clause?

FOZZARD: Yes, commissioner. Yes.

COMMISSIONER: It's the need for the parking because if I'm satisfied there's a need, having regard to what that clause tells me is the requisite need, then I can satisfy that condition, is that right?

FOZZARD: No, commissioner. That's where I think that's the applicant's position. I say that's the wrong application of that clause. You don't look at if there is a need, you look to see what's being serviced by the public transport first. So your starting point is, what's the public transport and what is the existing public car park.

As I understand the applicant's evidence is that the car park is being used and therefore demonstrates a demand and I don't say that that's the correct reading of the passage/

COMMISSIONER: The correct reading of the passage according to you is, if there's not reasonable or adequate service by public transport or existing car parking, you can approve the new?

FOZZARD: Yes, commissioner, I agree, that's what I'm trying to emphasise to the Court."

1. Experts Stass, Cheng, Coady and Marshall, then gave concurrent evidence for some time (see T17.6.10, pp30-67 and T18.6.10, pp7-23, fols 776-836 - Mr Staas withdrew (at Tp43, L40), before Ms Cheng (at Tp52, L19)).

1. Before the Commissioner, and during the hearing of this s 56A appeal, Mr Clay drew attention to the needs of commuters who purchase larger items (retail being one of the uses being met under cl 66(2) - T17.6.10, pp62-63):

" CLAY: And they could carry their new G3 Apple computer home in the bus can they, is that what they should be doing?

WITNESS MARSHALL: Well I've seen plenty of people carrying them on the train. I don't travel by bus very often but--

CLAY: Mr Marshall, you accept that there are very good reasons why people need to drive to the city from time to time, correct?

WITNESS MARSHALL: There are, yes.

CLAY: You accept, don't you, that public transport whatever its virtues isn't the right mode of transport for everyone on every occasion, correct?

WITNESS MARSHALL: Yes, I accept that.

CLAY: And if for example you need to go to the city to go to the Apple store let's say and then go somewhere else afterwards, Canterbury, wherever, public transport's not going to be the go, is it--

WITNESS MARSHALL: I accept that. If you've got multiple trip ins then a car is the best mode of transport.

CLAY: And it's multiple trips, it's not reasonable to require that to be done by public transport, correct?

WITNESS MARSHALL: No, I'm not - I've never suggested that all of the trips should be made by public transport. What I've said is that there's adequate car parking in the City of Sydney for those people who want to use a car for whatever reason.

CLAY: The circumstances of that car parking may well mean that it is unreasonable for the purpose of that person coming to whatever retail or other opportunity they're coming to in the city, correct? But they've got to use it even if it's unreasonable.

WITNESS MARSHALL: Well there is a certain level of inconvenience I suppose with any car parking. You won't find it next door to where you want to go.

CLAY: Yes. I'm sorry, that is my I-Pad giving me an alarm about the meeting with the Chief Judge. I haven't learnt yet how to deal with the alarm system."

1. The Commissioner then heard closing submissions (Tp24-38, fols 837-851). In the present appeal, Mr Clay referred to the manner in which the SEPP 1 issue was presented below by the Council. He particularly identified the closing submissions of Mr Fozzard, where he stated (T18.06.10, p31, LL19-23):

" FOZZARD: Commissioner, if I can take the shortest matters first. In regard to the SEPP 1 objection, I've never pressed it as being the largest most determinative issue of the proceedings, but I think that that's well articulated in the statement of evidence of Ms Cheng. The Court has those, I'm not going to take you to it again. I appreciate the Court knows the Winton (sic) test ...".

1. The Commissioner again asked Mr Fozzard, later in his submissions, how the restriction under cl 66(2) should be interpreted (at T18.6.10, pp33-34):

" FOZZARD: Yes Commissioner, but it's about the servicing to the enumerated uses. The train system and the bus system, you need evidence that they're inadequate and there's no evidence.

COMMISSIONER: But I have that evidence, that there will be people who will not find adequate the existing public transport.

FOZZARD: That doesn't make the buses and the trains inadequate, it just means that people use it otherwise. There will always be otherwise.

COMMISSIONER: But it is inadequate for that particular person who is not serviced by that existing need.

FOZZARD: There will always be someone such as a disabled who won't use public transport.

COMMISSIONER: Yes.

FOZZARD: That doesn't mean that the service doesn't adequately service the enumerated uses. That is to say that the transport system is inadequate always because it doesn't service everybody, and that's just not the case on the evidence is that - there is no contradictory evidence to say that the Wynyard Station and the buses are working adequately."

1. Mr Fozzard also submitted to the Commissioner that cl 66(2) contains prerequisites that must be met before the consent authority can approve new car parks (T18.06.10, p37):

" FOZZARD: ... My thrust of my submission again is that it's accepted that there are existing public spaces available within close proximity of the site. So we place a heavy emphasis on 66(2) Commissioner and we say that what that clause is asking you to do is to look at public transport, look at the existing public spaces in the area, if they service the enumerated uses then you must refuse the consent of this.

COMMISSIONER: No, that's where I really disagree, it says consent may be granted, there's no "must" there, is there Mr Fozzard?

FOZZARD: Unless - the "may" operates that only when you form the requisite standard that they're not reasonably and adequately served ."

1. The Commissioner delivered her judgment orally on the next working day, 21 June 2010, and it was subsequently published - [2010] NSWLEC 1204 (the published version of the Commissioner's judgment is before the court at tab 1 of Vol 3, fols 732-746).

The Commissioner's Judgment

1. In the introduction to her judgment, the Commissioner, not surprisingly, identified the central issue being raised before her as cl 66(2) of the LEP, and then stated (at [3]), that she was " satisfied that the car parking provided by this new public car park directly services major retail, cultural, recreational or entertainment uses ". She continued (at [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 ."

1. The Commissioner dealt with the background, the site and locality, and the proposal (at [5] to [15]), then (at [16]), with the contentions raised by the Council in its Statement of Facts and Contentions.

1. Points of agreement among the expert witnesses were identified at [17]-[18] and [20]. In particular, the Commissioner noted that witnesses Coady and Cheng agreed that " public transport cycling and walking are not practicable nor reasonable transport options for all trips to Sydney CBD ".

1. The remaining contentions were then discussed (at [21]ff), and (at [24]) the Commissioner noted the evidence of Mr Coady that the objective under cl 64(e) relates to " adverse urban design impacts caused by multi storey above ground car parks not at grade or ground level car park such as the proposal ", and that the " proposal does not create any adverse urban design impact because it will not be visible behind the existing built form and fence ". Also noted was Mr Coady's opinion that the proposal is not " above ground " parking, and that cl 64(e) was not breached.

1. The Commissioner noted that there existed a demand for the proposed car park, stating (at [29]):

" The evidence is that the use satisfies an existing demand for clients and customers in nearby buildings who come to the city for short stays with parking needs of between thirty minutes and two hours and building contractors with a vehicle not of normal car size use it. The Court observed at the view the existing loading bays in the area including at the front of site and appreciates that the proposal could accommodate such use."

1. The applicant's evidence in support of the SEPP 1 objection is summarised by the Commissioner (at [30]):

"For the above reasons, the applicant's evidence is that the objection is well founded because it is consistent with the underlying objectives of the standard, in particular cl 64(e) and consistent with the aims of the SEPP 1 as prescribed under cl 3 of the policy and it would be unreasonable and unnecessary in the circumstances of this case pursuant to cl 6 of the policy not to permit approval of the application, notwithstanding the non-compliance with cl 66(1)(d)."

1. The Commissioner then recorded the Council's expert evidence against the SEPP 1 objection (at [31]-[35]), and analysed it (at [36]-[51]), addressing issues concerning economic and orderly development under s 5(a)(ii) of the Environmental Planning and Assessment Act 1979 (' EPA Act' ) (at [42]-[43] & [48]-[51]). The Commissioner found (at [43]) that the site cannot " reasonably be used for anything other than car parking at the present time ", and she rejected the suggestion that the site can be used for " an attractive outdoor courtyard area for patrons of the convenient (sic) store or a take away bar ".

1. The Commissioner went on to find (at [44]) that there does not exist " a reasonable level of short stay public car parking in Central Sydney ". She cited the evidence of the traffic experts that the closest public parking is " the worst car park in Sydney and... requires driving through a dark threatening tunnel to exit the car park ".

1. The Commissioner stated (at [45]) that:

" Based on the evidence, the proposal provides accessible valet parking at ground level at competitive rates with other car parks in the area; slightly more expensive than the Wynyard car park according to the evidence that satisfies an existing need. Based on the evidence this proposal offers competitive and attractive car parking for short term stay and, in my view, meets the objectives in cl 64 ."

1. Issues under s 5(a)(ii) were further addressed (at [48]ff), and the Commissioner concluded (at [51]) that the " proposal does achieve the objective in cl (sic) 5(a)(ii) of the Act because it provides a temporary or transitional use of the site, which is acceptable on merit and not very different from the pre-existing tenant car park in terms of impact ."

1. Under the heading " Unreasonable and Unnecessary " the issue of the SEPP 1 objection was raised again by the Commissioner (in [52]ff), and she said (at [52]): " b ased on the particular facts and evidence of this case, I cannot accept Ms Cheng's evidence that it is reasonable and necessary to comply with clause 66(1)(d) and require public car parking on this site to be under ground ".

1. At [53] she found that the " underlying objective " for cl 66(1)(d), is cl 64(e). Implicit in that finding is her rejection of the Council's assertion that other objectives in cl 64 are relevant to the standard under cl 66(1)(d). (The relevant provisions are quoted in [14] above). She had already addressed those other objectives of cl 64 (at [36]ff), finding them either met, or not offended, by the proposal.

1. The Commissioner accepted (at [54]) " the evidence of Mr Staas and Mr Coady that this proposal does not result in any adverse or poor design impacts because it does not change the built form except to improve it ...", and (at [55]) that " this short-term use allows for the orderly and economic use of the site ". She then repeated the oft-quoted passages of Lloyd J's judgment in Winten Property Group Ltd v North Sydney Council ("Winten") [2001] NSWLEC 46, 130 LGERA 79, at [22]-[24], to which I will return, and found (at [56]) that " the SEPP 1 objection is well founded in the circumstances of this case ".

1. She then moved on to deal (at [57]ff) with " the other contentions raised by council ", noting (at [58]) that:

" the applicant and the council agree that public transport, cycling and walking are not practicable for all trips to Sydney CBD and the Sydney LEP acknowledges this through its permissible car parking rates and other parking provisions ".

1. The Commissioner again noted (at [62]) " that not all trips to Sydney CBD can be practically made by public transport ", and that " the area is well serviced by multi storey car parks within a 200 metre radius, some 1309 spaces, according to council's submissions ", and found (at [63]) that " the area is not reasonably or adequately serviced by public transport, either existing or planned, or existing public car parks, for the purposes of this type of open car park ", and that there is a requirement by the patrons of this site for " short term parking on ground level with valet parking ".

1. The Commissioner found (at [64]) that the proposed car park will service the uses identified under cl 66(2), and was satisfied (at [64] and [67]) that she should " exercise the discretion in cl 66(2) to approve this new public car park ". As a " transitional development " it will not compromise the objective in cl 36(h) of the LEP for the City Centre zone requiring that the " character of special area " be recognised and enhanced.

1. The learned Commissioner concluded her judgment (at [68]-[71]) by upholding the SEPP 1 objection to compliance with cl 66(1)(d), and agreeing to the time-limitation of the consent to 18 February 2015.

1. During the argument of this appeal much attention was paid by both counsel to pars [44] and [62]-[64] of the judgment, so I set them out now in full:

"44 Based on the evidence, I do not accept that a reasonable level of short stay public car parking in Central Sydney already exists. The evidence is that there is no other open ground level car parking of the nature proposed. I was taken to the location map in figure 10 of the LEP, which examined the public parking within 200 metres radius, and, as I recall the evidence, the closest car park in Mr Marshall's opinion is the worst car park in Sydney and, according to Mr Coady, requires driving through a dark threatening tunnel to exit the car park.

...

62 I accept the applicant's evidence that the approval of the application will not change the character of the special area as an urban room or public transport node. I accept the evidence of the experts that not all trips to Sydney CBD can be practically made by public transport, although the evidence is that the area is well serviced by multi storey car parks within a 200 metre radius, some 1,309 spaces, according to council's submission.

63 Based on the evidence, it is my assessment that the area is not reasonably or adequately serviced by public transport, either existing or planned, or existing public car parks, for the purposes of the patrons of this type of open car park. The patrons of this site, according to the evidence, require short term parking on ground level with valet parking.

64 Furthermore, the public car park, based on the evidence, will in my assessment service major retail, cultural, recreational and entertainment uses. I am satisfied that it is appropriate to exercise the discretion in cl 66(2) to approve this new public car park. The experts recognise the potential for future comprehensive redevelopment of the site. Based on the evidence, approval of this transitional development, will not compromise that objective to recognise and enhance the character of the special area; cl 36(h) of the Sydney LEP."

The Law Concerning SEPP 1 Objections

1. SEPP 1 provides (cl 3) "... flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act ."

1. Section 5(a) of the EPA Act provides:

"The objects of this Act are:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land".

1. In his judgment in Winten (to which the Commissioner referred), Lloyd J quoted (at [25]) the classic statement of the approach to SEPP 1 made by Cripps J in Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 , upon which Talbot J had also relied, in Memel Holdings Pty Ltd v Pittwater Council ("Memel") (2000) 110 LGERA 217 at 220. Lloyd J then said:

"26 In applying the abovementioned judgment, it seems to me that SEPP No 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the policy, and in particular, does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EP&A Act ? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.) Fifth, is the objection well-founded?

27 Memel Holdings Pty Ltd v Pittwater Council , to which I have referred, was an appeal against a decision of the senior commissioner. Talbot J said (at 221):

"The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision.''

1. His Honour found error in the Commissioner's statement that " the development is seen as entirely acceptable as amended and should be supported by the relief available under State Environmental Planning Policy No 1'' .

1. His Honour held (at [28]) that the Commissioner had misdirected himself and so made an error of law ( Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, per Glass JA ):

"His reference to 'the development' instead of to the non-compliance and to it being seen as entirely "acceptable'' without reference to the object or purpose of the standard or to the objects of the Act suggests that he has undertaken a merit assessment rather than assessment under SEPP No 1".

1. His Honour then dealt with (at [29]) the Commissioner's further statement that " the application of height control as contained in the LEP in this instance would be both unreasonable and unnecessary ", holding that the "... commissioner's statement that it 'would be both unreasonable and unnecessary' is a conclusion ", for which no reasons were stated, and that such compliance issues are " not the test for determining an objection under SEPP No 1 " ( Memel ).

1. In Wehbe v Pittwater Council ("Wehbe") [2007] NSWLEC 827; (2007) 156 LGERA 446, Preston ChJ reviewed the relevant authorities. For present purposes his most relevant decisions in that case are those recorded in the headnote (at 448) as Nos. 10 to 12:

"(10) Although the most commonly invoked way to establish that an objection under SEPP 1 was well founded and consistent with the aims set out in cl 3 of SEPP 1 was to establish that compliance with the development standard was unreasonable or unnecessary because the objectives of the development standard were achieved notwithstanding non-compliance with the standard, it was not the only way to establish that compliance with a development standard was unreasonable or unnecessary. ....

(11) Although the power under SEPP 1 was wide, it needed to be exercised on the grounds in SEPP 1 relating to the development standard and the circumstances of the case. It did not allow a consent authority to dispense with compliance with a development standard merely in order to bring about conformity with some other planning control.

(12) SEPP 1 did not permit the consent authority to rank in order of importance planning controls applicable to the land and the proposed development, and give precedence to other planning controls over the development standard."

1. His Honour actually said in the judgment itself :

" 36 ... Upholding the SEPP 1 objection is a precondition which must be satisfied before the proposed development of subdivision can be approved on a consideration of the merits: Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at [19], [29], [44]-[45].

...

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard ...

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

1. As pointed out in by Lloyd J in Winten, there are many matters that need to be taken into account in considering an application under SEPP 1 , but a key primary step is to identify and consider the underlying object or purpose of the development standard in question.

Appeal Grounds 1 and 1A - SEPP 1 objection - clause 66(1)(d)

1. These two grounds of appeal were dealt with together. They are pleaded thus in the amended summons (emphasis in [11] above repeated):

" 1. In deciding not to apply cl.66(1)(d) of the City of Sydney Local Environmental Plan 2005 ("the LEP"), pursuant to State Environmental Planning Policy No.1 ("SEPP 1"), the Commissioner misconstrued the LEP (and thus erred in law) by holding that the underlying objective of cl.66(1)(d) was the objective in cl.64(e) alone, rather than a combination of the objectives in cl.64 (a), (b), (c), (e) and (g).

1A. In deciding not to apply cl.66(1)(d) of the LEP, pursuant to SEPP 1, the Commissioner failed to take due account of relevant considerations , being the matters set out in cl.64(a), (b), (c) and (g) of the LEP."

1. At first glance the Commissioner seemed (in her judgment at [4]) to be at some risk of confusing the test for a SEPP 1 objection. Mr Kirk rightly submits (at par 16) that, in considering a SEPP 1 objection, there is a distinction to be observed between " considering whether or not the application for development consent should be accepted on the merits , and considering whether or not compliance with a particular development standard was 'unreasonable or necessary' (sic)...".

1. The Winten test involves consideration of the " underlying object " of the standard concerned, rather than the satisfaction of any necessary preconditions such as are raised in cl 66(2), which deals with public transport and existing public parking. In reviewing the decision made, the court must consider the reasoning of the Commissioner without applying " a fine tooth comb ", in the way Mr Clay submits Council has done in the present appeal. See e.g. Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1.

1. Mr Clay also submits that the Council's contention in relation to the SEPP 1 objection was not fairly put in the appeal below, and that, therefore, this ground of appeal should not be entertained. Mr Clay relies on the closing submissions of Mr Fozzard (identified at [21]-[23] above), and submits that the Council failed to address the issue adequately.

1. Mr Kirk, on the other hand, submits that it was not unusual or inappropriate for the Council solicitor to rely on how the issues were addressed by the Council's expert witness, in much the same way as an advocate does not usually take time to repeat orally his/her filed written submissions, where the contention or issue has already been identified and is understood between the parties.

1. I do not accept Mr Clay's submissions in this regard. I consider that the Commissioner was alive to the contention that Council raised in relation to the SEPP 1 objection. She dealt, at length, with the Winten principles, the SEPP 1 objection, and identifying the underlying objective to be addressed, namely, in her view, cl 64(e).

1. However, the Council contends in this appeal, as it did below, that also relevant to the Commissioner's SEPP 1 task are paragraphs (a), (b), (c) and (g) of cl 64. Mr Kirk referred to the High Court's decision in Project Blue Sky Inc v Australian Broadcasting Authority ('Project Blue Sky') [1998] HCA 28; (1998) 194 CLR 355, to urge this court to adopt a purposive construction of the clauses of the LEP. McHugh, Gummow, Kirby and Hayne JJ said (at [69] and [91]):

"69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.. .

...

91. ...The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition ."

1. Mr Kirk also referred the court to Stenhouse v Coleman (1944) 69 CLR 457, where Dixon J stated (at 471):

" ... the purpose must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth ."

1. Mr Kirk submits that any specific relevance of cl 64(3) to the development standard in cl 66(1)(d) does not imply that the other objects in cl 64 are not relevant to be considered. He is critical of the Commissioner's alleged lack of close attention to the others, even though he concedes that she paid some attention to them.

1. Mr Kirk highlighted (in par 12 of his submissions) the relevance of the objective in cl 64(g), and referred to the written evidence of the Council's planner in the proceedings below, who had said:

" One of the underlying objectives of locating public car parking underground is to discourage the provision of public car parking. This requirement creates a burden on the developer in terms of excavation and construction costs. The requirement acts as a disincentive to the provision of public car parking."

1. Mr Kirk submitted (at par 13) that:

"... the imposition of such a burden and disincentive acts to discourage the provision of public car parking, and has a correlative effect of promoting use of public transport, whilst also discouraging commuter car parking. Clause 66(1)(d) thus acts to assist to achieve the objectives in paragraphs (a), (b), (c) and (g) of clause 64 ."

1. Mr Clay submitted in reply (at par 10) that:

"( a) the Commissioner correctly identified the objective of the standard;

(b) in any event the Commissioner considered the additional matters which the Council asserted were objectives of the standard;

(c) to the extent that the Commissioner failed to mention specifically an asserted objective of the standard, that does not vitiate the decision;..."

1. Mr Clay also submitted (at par 14) that:

" It is not the correct approach of construction to simply consider whether any of the objectives identified in Clause 64 could apply to the control in clause 66(1)(d) that the parking be located underground. Rather, clause 66(1)(d) contains a specific control, and it is the task to determine the objective(s) of that control. "

1. I agree with Mr Clay, especially par 10(b) of his submissions. Clause 64(e) was, and is, the underlying objective with respect to the development standard in cl 66(1)(d). Although the other objectives identified by the Council are also " relevant considerations ", their relevance is more subsidiary or peripheral, and, in any event, the Commissioner did " take due account of " them and of most of the objectives identified by Council's expert (see [39]-[41] and [46] of her judgment). I note, as she did, that the Council's expert seemed to be also convinced of the primacy of cl 64(e). She has not " misconstrued the LEP ".

1. In summary, the Commissioner dealt with the proposal before her in terms of the objectives in the instrument, and dealt, in terms, with the views on them as expressed by the Council witness. She found (see [53]-[54]) that the objective was achieved, despite the car park not being underground, as it did not result in any adverse or poor design impacts. Hence, compliance with the standard was appropriately found to be " unreasonable or unnecessary ".

1. Accordingly, appeal grounds 1 and 1A are not made out.

Appeal Ground 2 (i) - Public transport - clause 66(2)(a)

1. The first limb of Ground 2 is pleaded thus (again emphasis in [11] above repeated):

"2. The Commissioner misdirected herself and asked herself the wrong question in construing and applying the provisions of cl.66(2) of the LEP by:

(i) finding that the requirement in cl.66(2)(a) was satisfied because not all trips are suitable for public transport , where:

(a) the relevant question is whether the proposed 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 public transport, and

(b) this question does not require that all trips be suitable for public transport;..."

1. The Commissioner found (at [63]) " that the area is not reasonably or adequately serviced by public transport ", but qualified that finding in the preceding paragraph ([62]), where she noted that " not all trips to Sydney CBD can be practically made by public transport ".

1. I do not accept Mr Clay's submission that this ground of appeal seeks merely to disturb a finding of fact made by the Commissioner. It actually challenges her construction and application of the relevant clause to the facts as found. Mr Kirk relies upon the decision of Dixon J in Avon Downs v Commissioner of Taxation (Cth) (1949) 78 CLR 353, at p360:

" Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law ." (emphasis added)

1. The Council submits that the test applied by the Commissioner in the construction of cl 66(2)(a) (see [62]-[64], quoted above at [42]) was incorrect, and led her into an error of law. It submits that a proper construction of the clause does not require a consideration of all trips to the uses identified in cl 66(2), but a consideration of the public transport services (either existing or planned) and whether they do or could reasonably or adequately service those uses. Finding that " not all trips " can be reasonably or adequately taken by public transport is not enough.

1. Mr Kirk submits that it is inevitable that there will always be some trips that are inappropriate for public transport, and that the purpose of cl 66(2)(a) will be undone if the Commissioner's construction of the provision prevails. If all trips can never be reasonably or adequately serviced by public transport, it can never be said that there is or can be reasonable or adequate public transport. In that event, the restriction on new public car parks in cl 66(2) would be otiose or nugatory, having no work to do. Authorities collected in Project Blue Sky (e.g. at [71]) would indicate that all components of provisions should be construed so that " they may all be made useful and pertinent ".

1. Mr Kirk also submits that the Commissioner failed to identify which of the named public uses are not reasonably or adequately serviced by public transport. (See the Commissioner's par [29], quoted above at [29]). Each use generates different needs at different times. As Mr Kirk observes (par 34), " the mere fact that there is some demand for use of spaces in this car park does not establish that the demand would otherwise be unfulfilled - let alone would not be reasonably or adequately serviced - if this car park did not exist ".

1. I accept Mr Kirk's submissions on this ground. Construing the provisions as a whole and purposively, needs can be reasonably and adequately serviced without all having to be completely satisfied. I have, therefore, respectfully concluded that the learned Commissioner failed to address correctly the question raised by cl 66(2)(a), prior to granting this consent.

1. Accordingly, the Council must succeed on this ground of appeal.

Appeal Ground 2 (ii) - Existing public car parking - clause 66(2)(b)

1. The second limb of Ground 2 is framed as follows (again emphasis in [11] repeated):

2. The Commissioner misdirected herself and asked herself the wrong question in construing and applying the provisions of cl.66(2) of the LEP by:

...

(ii) finding that the requirement in cl.66(2)(b) was satisfied because the area was not adequately serviced by this type of public car park , where:

(a) the relevant question is whether the proposed 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 existing public car parking, and

(b) this question does not involve consideration of characteristics of the proposed public car parking such as that it was open air, short stay and had 'valet parking', and

(c) the evidence was that there was ample existing public car parking servicing the relevant needs ".

1. Mr Clay submits that this ground of appeal, again, seeks to agitate a finding of fact by the Commissioner, and that the Commissioner correctly found that the area lacks at-grade, open-air, valet parking, and, therefore, that the uses in cl 66(2) were not reasonably or adequately serviced by existing car parking.

1. The Council, under this second limb of ground 2, as with the first, submits that the Commissioner applied the wrong test in respect of the control in cl 66(2)(b), which does not require the consideration of whether specific types of car parking (ground-level, open-air, valet, etc) are servicing the uses identified in the provision.

1. The Commissioner found that, while the relevant area of Central Sydney is well served by multi-storey covered car parking within a reasonable radius, the city needs "short term parking on ground level with valet parking ", and there is not " a reasonable level of short stay public car parking in Central Sydney " (see the Commissioner's judgment at [44] and [63]). Simply because there was a demand for a car park with this one's specific features, the restriction under cl 66(2)(b) was satisfied.

1. She relied for this on the evidence of the continued use of the subject site by paying patrons, but there was no evidence or finding that existing non-ground-level public parking was not reasonably or adequately servicing the public uses. Nor is there any evidence that patrons of the various uses - each of which generates different needs at different times - actually required parking with this car park's characteristics.

1. Mr Kirk submitted that the process to be undertaken requires the identification of (1) the public uses to be serviced, (2) whether public car parking already exists in the area, and (3) whether that existing car parking reasonably or adequately services the nominated uses. The special features of the subject car park do not address the question of whether the public uses are adequately or reasonably serviced by existing parking in terms of cl 66(2).

1. The principles in Project Blue Sky (at [69]) require that cl 66(2) must be construed in the context of the instrument as a whole, especially those most closely associated with it, such as cl 66(1)(c) and (d) which provide that " in all cases " car parking proposals must be underground and provide for short stay public parking. The fact that the subject car park provides a valet service appears to have no relevance to the application of the test in any event, but there is evidence of some existing valet parking nearby.

1. The findings that the " proposal offers competitive and attractive parking ", and " satisfies an existing demand ", are largely irrelevant to the task at hand under cl 66(2)(b). 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.

1. Mr Clay submitted (par 36) that without the type of parking provided by the subject car park - ground-level, open-air and valet - the area's parking regime cannot and does not reasonably or adequately service the public uses, and that in so finding the Commissioner made a factual finding beyond the reach of this appeal. However, in applying the wrong test to reach that finding, the Commissioner made an error of law.

1. Accordingly this ground of appeal must also succeed.

Conclusion

1. The Council appealed on four grounds, any one of which could result in the overturning of the Commissioner's decision. Two of the four have succeeded. Apart from SEPP1 issues, and regardless of the "merits" of the proposal, the planning instruments must be strictly applied.

1. The court will, therefore, uphold the appeal and remit the matter for re-hearing.

Costs

1. As the Council has succeeded in this appeal it would normally be entitled to the usual order as to its costs. However, at the very commencement of the hearing its counsel elected not to proceed with a foreshadowed attempt to amend its grounds of appeal, and that event may have some costs implications. I note also that an earlier amendment of the grounds was allowed on 6 October 2010, with an order made that the costs of the relevant Notice of Motion be " costs in the proceedings ".

1. In those circumstances, I will make the usual order, but allow some scope for the issue to be quickly revisited if either party so wishes.

Orders

1. The orders of the court are, therefore:

1.The Council's appeal is upheld, and the Orders pronounced in Class 1 appeal No.10949 of 2099 on 21 June 2010 ([2010] NSWLEC 1204) are set aside.

2.The substantive matter is remitted, to a Commissioner to be nominated by the Chief Judge, to be determined afresh according to law, in the light of these reasons.

3.The respondent is ordered to pay the Council's costs of this appeal on a party-party basis, as agreed or assessed, unless a Notice of Motion is filed to different effect within seven days.

4.The agreed bundle should be returned to the Council.

Decision last updated: 15 June 2011