Harburg Investments Pty Ltd v Council of the City of Gold Coast
[2002] QPEC 61
•19 September 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Harburg Investments Pty Ltd v Council of the City of Gold Coast [2002] QPEC 061 PARTIES: HARBURG INVESTMENTS PTY LTD
Appellant
COUNCIL OF THE CITY OF GOLD COAST
Respondent
FILE NO: 2566 / 2001 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court, Southport
DELIVERED ON: 19 September 2002 DELIVERED AT: Southport HEARING DATES: 13, 14 & 15 February 2002, and 5 March 2002 JUDGE: Newton DCJ ORDER: Appeal dismissed CATCHWORDS: Local Government – town planning – statutes – interpretation - Integrated Planning Act 1997 – section 3.5.30(2) – whether condition requiring cash contribution in lieu of providing on-site car parking spaces is relevant and reasonable
Building Control and Town Planning – interpretation of Local Planning Policy No. 3 in “Car parking within Comprehensive Development Zones not included in a Development Control Plan” – appropriate manner in which a Local Planning Policy should be applied
Cases considered:
Doma Pty Ltd v City of Hobart (1983) 52 LGRA 339
Janlz Constructions Pty Ltd v Randwick Municipal Council (1976) 32 LGRA 403
Jones v Dunkel (1959) 101 CLR 298
Percival Hotels Pty Ltd & Ors v Noosa Shire Council [1983] QPLR 41
Tsunami Corporation Pty Ltd v Brisbane City Council [1997] QPELR 238
Vadale Pty Ltd v Landsborough Shire Council [1985] QPLR 338COUNSEL: Mr C L Hughes SC – appellant
Mr J Gallagher QC, with him Mr R N Traves – respondentSOLICITORS: Connor O’Meara – appellant
McDonald Ballanda & Associates – respondent
This is an appeal pursuant to section 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) in respect of a condition imposed by the respondent Council upon its approval of an application for a development permit for a material change of use for hotel and indoor recreation (gaming machine lounge) on land situated at 3206 Gold Coast Highway, Surfers Paradise. The development is proposed to be operated under the brand name of “Cheers Tavern”, one of a chain of such taverns which have been established in Brisbane.
The disputed condition is contained in Condition 4 of the Negotiated Decision Notice which provides as follows:
“In lieu of the provision of 22 on-site car parking spaces a cash contribution shall be provided at half the rate stipulated by Council’s Register of General Charges (currently $13,250.00 per space at half the rate of $26,500.00). Payment shall occur prior to the issue of a development permit for carrying out building work or if an application for carrying out building work is not required prior to the commencement of the use the subject of this approval. The contributions shall be made into Account No. 74648, Item CPSPDSDE.”
The effect of the disputed condition is to require the payment of money in lieu of the provision of car parking spaces, the amount sought being $291,500.00 based on cash in lieu of 22 car parking spaces at $13,250.00 each.
The issue is whether Condition 4 is relevant and reasonable within the meaning of section 3.5.30(2) of IPA. The determination of that issue requires a consideration of the Council’s planning scheme and policy relating to car parking. The respondent submits that the requirement imposed under the disputed condition was generous in its leniency and does not seek to support the interpretation of the respondent Council’s policy by Council officers. The respondent seeks the imposition of a more onerous car parking contribution than that contemplated by Condition 4.
The Site is located on the western side of the Gold Coast Highway and is approximately mid-block between Elkhorn Avenue and Cavill Avenue. It is developed with a two-storey brick, concrete and glass building which was formerly used as a bank premises. Extensive street treatment works have been carried out along this part of the Gold Coast Highway and a service/loading bay has been provided within the road reserve in front of the Site. The Site is located within the commercial heart of Surfers Paradise.
The subject proposal is to establish a hotel and indoor recreation (gaming machine lounge) within an existing two-storey building. Front and rear extensions to the building are proposed amounting to an additional 44.3m2 gross floor area. Council officers during their assessment of the application calculated the proposed total use area of the hotel component at 1101.5m2 (excluding keg, freezer, cold and storage rooms). The proposed total use area of the indoor recreation component was calculated at 84m2. The ground floor is proposed to include: front entry, bottle shop, beer storage tanks, bar, booth seating, dining facilities, gaming lounge, kitchen, male and female amenities, cold rooms, keg room and storage area. The first floor is proposed to include: beer storage tanks, lounge bar, bar, storerooms, male and female amenities and offices. The proposed hours of operation are from 10a.m. to 3a.m. Monday to Saturday and from 10a.m. to 10p.m. Sunday.
In a letter dated 11 April 2001 the appellant made representations to the respondent Council regarding Condition 4 of the Council’s Decision Notice of 26 March 2001 as follows:
“The following constitutes our representations regarding Condition No. 4 of Council’s Decision Notice of 26 March 2001.
It would appear from the report enclosed therein that the Council in 1979 has assessed the ‘total use’ area for the Commonwealth Bank as 1150sqm. We agree that this would be the case after deducting the areas of the toilet, strong room, plant room, voucher store and stairwells from the gross floor area.
Using the Council’s figure of 1150sq metres total use area, the parking allocations for that building with its present use would be 29 cars.
It would seem reasonable that we should also be able to deduct similar non-public areas from the gross area of our proposed development to calculate the parking allocation requirement.
Thus to calculate the ‘total use’ area we have taken the new total area of the building of the 1426.3sqm (778.8 down and 657.5 up) and deducted the areas of the toilets, plant rooms and stairwells 220.5sqm 84.8 down and 35.7 up) and cold room, freezers, keg room and food stores 109sqm (62.5 down and 47.1 up).
This leaves a ‘total use’ area for the calculation of car parking requirements of 1106.2sqm.
Of this 1106.2sqm we calculate the car parking requirements as follows:
Hotel area 1022.6sqm @ 1 car per 40sqm = 25.5 cars = 26 cars
Gaming area 83.6sqm@ 1 car per 5sqm = 16.7 cars = 17 carsTotal car parking requirement 43 cars.
If the parking requirement for the building as it exists (29 cars) were deducted, this would leave a requirement of 14 cars.
The Gold Coast City Council Local Planning Policy No. 3.0 seems to deal with this under section 3.4 for Changes of Use.
Section 3.4.2 says that where there is a change of use ‘The car parking requirement for the existing use shall be a credit towards the proposed use requirements, even though it may not have been provided on site for the existing use.’
Under Table A of the policy the car parking requirement of the existing Commercial Services of a Bank use would be at ‘one space per 40sqm of the total use area.’
Using the Example Calculation in 3.4.3 the increased car parking requirement would be calculated as:
Commercial Services 1150sqm @ 1 space per 40sqm = 28.75 spaces
Hotel 1022.6sqm @ 1 space per 40sqm = 25.56 spaces
Gaming Venue 83.6sqm @ 1 space per 5sqm = 16.72 spaces
Total requirement is 42.28 less 28.75 = 13.53 spaces or 14
We believe that section 3.4 of Local Planning Policy 3.0 is the correct section in this instance because whilst there is no increase in the ‘use area’ there are Changes of Use resulting in increased car parking requirements.”
In reaching its decision in relation to Condition 4 requiring a cash contribution in lieu of car parking provision on site Council had reference to Local Planning Policy No. 3 “Car Parking Within Comprehensive Development Zones not included in a Development Control Plan”. Reference was also made to the approval of the commercial premises on 2 November 1979 under the then 1973 Gold Coast City Planning Scheme. Under that scheme car parking for a commercial premises was required at the rate of one car parking space per 50m2 of Total Use Area. As there was no means of providing car parking on site, Council subjected the approval for the commercial premises to a condition requiring a cash contribution of $103,500.00 in lieu of 23 off-street car parking spaces. That number of car parking spaces was said to be calculated on the basis of a total use area of 1150m2 at the rate of one car parking space per 50m2 of total use area.
Condition 4 of the Negotiated Decision Notice requires payment in lieu of the provision of 22 car parking spaces at half the rate of $26,500.00 per space. This discounted rate was applied because the site is identified as access restricted in the Central Area Plan and in these circumstances Local Planning Policy No. 3 allows for a 50 per cent reduction in the contribution rate.
[10] The City of Gold Coast Planning Scheme (1994) identifies Surfers Paradise as a Regional Centre. Part 1-14 of the Scheme states that the preferred dominant land use for such centres is high order comparison shopping as well as major administrative and commercial business functions. It is envisaged that the Regional Centres will remain readily accessible to their trade catchments by progressive improvements to road networks and car parking facilities (part 1-12). The city character is partly defined by the primary tourist centres such as Surfers Paradise which is identified (along with Broadbeach and Coolangatta) as a prominent tourist node. The central areas of these centres are said in part 1-33 of the Strategic Plan to demonstrate a vibrant holiday atmosphere and to be colourful, congenial, focal points for tourist activities such as shopping, entertainment and recreation. They are also said to have a distinctive evening character with nightclubs, restaurants, neon signs and high levels of vehicle and pedestrian traffic. In particular Surfers Paradise and Broadbeach are said to demonstrate these characteristics.
[11] The subject land is included in the Comprehensive Development Zone. This zone is intended to accommodate a wide range of retail, business, entertainment and residential development. The zone will be developed in a comprehensive and coordinated manner through the detailed development guidelines provided within the Development Control Plans (part 6-1). Surfers Paradise is one of the few locations in the city that is included in the Comprehensive Development Zone, but which is not subject to a Development Control Plan.
[12] Section 13.5 of the Planning Scheme purports to provide adequate car parking and loading facilities on the site to meet the needs of development. In respect of hotel development the provisions of section 12.7.12.2 are incorporated which require one car parking space to be provided for each guest room or suite, plus one car parking space per 5m2 of total use area used for poker machines or other gaming machines, plus one car parking space for every 15m2 of remaining total use area, plus queuing for 12 vehicles associated with any drive-in bottle shop. The section further provides that the Council may modify this provision having regard to the anticipated number of guests likely to arrive by car and the anticipated use of non-residential areas by persons other than guests. In respect of indoor recreation development relating to areas used exclusively for poker machines or other gaming machines, the requirement is for one space per 5m2 of total use area. In respect of nightclub development the minimum car parking provision is for one space per 15m2 of total use area.
[13] These requirements may be relaxed by Council if it considers such relaxation justified having regard to any one or more of the following:
(i)the location of the site with respect to other available car parking and the levels of pedestrian accessibility; or
(ii)the particular circumstances of the proposed development including hours of operation, anticipated intensity of use and the desirability of providing car parking in association with the development and thereby encouraging the generation of vehicular traffic to that development; or
(iii)the existing development on the site; or
(iv)the size, levels or dimensions of the site; or
(v)the safety and convenience of vehicle access; or
(vi)the proposed layout and size of car parking bays; or
(vii)other relevant provisions of the Planning Scheme.
[14] The Council has, pursuant to the provisions of section 17.20.1 of the Planning Scheme, adopted the Local Planning Policy – Car Parking Within Comprehensive Development Zones Not Included In a Development Control Plan. The introduction to this policy known as Local Planning Policy 3.0 notes that the Comprehensive Development Zone encourages the establishment of a variety of development types and as such provides many opportunities for a relaxation of normal car parking requirements. Frequently, different hours of operation exist for various uses either on the same site or in the area generally. Often, visits to a Comprehensive Development Zone combine a number of destinations and in most instances these zones provide high levels of pedestrian accessibility and conveniently located public car parking stations. As there is no Development Control Plan in place in respect of Surfers Paradise, the provisions of Local Planning Policy 3.0 are to apply to the subject proposal.
[15] The appropriate manner in which a local planning policy, such as that under consideration here, should be applied was described by Quirk DCJ in Vadale Pty Ltd v Landsborough Shire Council [1985] QPLR 338 at 341:
“This Court has, on countless occasions, pointed out that a local authority’s town planning policy should not be seen in the same light as a statute which, in a mandatory way, prescribes standards which must, on every occasion, be strictly adhered to. A policy should not be regarded as an inflexible formula to be applied rigidly to each case irrespective of any peculiar circumstances that might arise. The consideration of a policy requires, primarily, an identification of the planning objectives at which it is directed. Its application should be with a view to ensuring that such policy objectives are best achieved. Strict compliance with the policy requirement may not, in every case, call for the rejection of an application. The importance of any non-compliance, however, should be judged against the background of the planning objectives at which the policy is aimed.”
[16] Those remarks of Quirk DCJ reflect the views expressed by Row DCJ in Percival Hotels Pty Ltd & Ors v Noosa Shire Council [1983] QPLR 41 at 44:
“A policy decision of a local authority if based on sound and legitimate town planning considerations is a relevant matter to be considered by the local authority when dealing with a development application to which the policy is relevant. Although a policy decision is frequently couched in terms of absolute prohibition it amounts to no more than a considered formulation for general guidance in the determination of individual applications, not dispensing with the necessity of considering each application on its individual merits, not binding upon the Council or other persons, and remaining capable of revocation or modification as circumstances might seem to require. Crusade Constructions Company Pty Ltd v Sutherland Shire Council 6 LGRA 372 at 377. Refusal of an application simply because it conflicts with policy and failure to consider other town planning considerations would not be a proper exercise of discretion by the local planning authority. Greek Australian Finance Corporation Pty Ltd v Sydney City Council 29 LGRA 130 at 143. Inconsistency in application of a policy may adversely affect the weight that ought otherwise be given to a lawful policy of a planning authority. Sullivan v Brisbane City Council 21 LGRA 70.”
[17] In Tsunami Corporation Pty Ltd v Brisbane City Council [1997] QPELR 238 at 240 Quirk DCJ reiterated that:
“ As to town planning policy, it is now well understood that it is seen as a guide to the manner in which a planning authority would prefer to exercise its planning discretion in an area covered by the policy. A policy will, however, give way to special circumstances that exist in a particular case provided a good town planning basis is demonstrated for this.”
The evidence in this case, which I will review shortly, does not support a departure from Local Planning Policy 3.0.
[18] The matters referred to in the introduction to Local Planning Policy 3.0 are broadly consistent with the criteria for parking relaxation under section 13.5.1.4 of the Planning Scheme, which include the availability of public car parking stations, a high level of pedestrian accessibility and hours of operation.
[19] Section 3.1.2 of the Local Planning Policy 3.0 provides that a new development shall provide car parking at the rates indicated in Table A:
TABLE A (a) Child Care Centre,
Commercial Premises,
Commercial Services, Fast Food Premises, Medical Centre, Medical Complex, Nightclub, Restaurant, Retail Showroom, Shop, Takeaway Food Premises, Tourist Facility, Tourist Shop(b) All Other Uses
One (1) space per 40m2 of total use area or part thereof
In accordance with Scheme provisions
[20] A new development is defined to include the erection of any building or other structure on a vacant site or a site made vacant by the removal of existing buildings (section 3.1.1).
[21] In the case of a renovation of an existing building car parking is required to be provided at the rates stipulated in Table B (section 3.2.2):
TABLE B (a) Any existing car parking shall be provided PLUS
(b) Car parking provision for any increase in total use area
at the rates stipulated in Table A
[22] A renovation is defined as the renovation of an existing building where the basic building structure is maintained and the building envelope remains unaltered and where no change of use occurs (section 3.2.1).
[23] In the case of extensions to existing buildings car parking is required to be provided at the rates stipulated in Table B (section 3.3.2). Extensions to existing buildings are defined as any alterations to an existing building which result in an increase in gross floor area or alteration to the existing building envelope (section 3.3.1).
[24] In the case of a change of use car parking is required to be provided at the rates stipulated in Table A where the change in use increases the car parking requirement over the existing use. The car parking requirement for the existing use shall be a credit towards the proposed use car parking requirement, even though it may not have been provided on site for the existing use (section 3.4.2). A change of use is defined as any change in the use of any site or existing building where there is no resultant increase in total use areas on the site (section 3.4.1).
[25] Mr Reynolds, a town planning consultant who gave evidence on behalf of the respondent, identified the reasons that justify the provision of car parking as a relevant consideration in the assessment of a development within a centre such as Surfers Paradise. In his view major urban centres present important characteristics that are influenced by levels of car parking provision. For example, centres provide an environment where mixed use development occurs and where synergies between those uses are facilitated. Furthermore, centres play an important role in the economy of the city and are the subject of high levels of public investment. They enable multi-function trips to occur and provide an important community focus.
[26] Mr Reynolds observes that planning for centres commonly requires complex issues to be balanced which takes into account the fact that private sector investment may be critical to their success. In his view an appropriate planning balance has been struck by the respondent Council in approving the subject development and imposing Condition 4, as that balance seeks to promote the development (by allowing relaxations from full parking requirements) but nevertheless to require some contribution to the provision of shared parking for the centre. For those reasons Mr Reynolds accepts that the amount of parking contribution required by Condition 4 is reasonable.
[27] To fully understand the reasons behind Mr Reynolds’ conclusions it is necessary to examine in a little more detail the reasoning he adopted. Firstly, he points out that it is not reasonable nor equitable for the proposed use (which is not able to provide vehicular parking on site) to rely on others to provide car parking at their cost in order that pedestrians proceeding from such car parking are able to patronise their development as well as that proposed by this applicant. Mr Reynolds notes that Local Planning Policy 3.0 recognises the advantage of a central location in enabling the economic cost of car parking to be shared across users if it is provided in a centralised position and if appropriate parking rates take into account such shared use. Accordingly, it is appropriate that parking stations in Surfers Paradise are provided in a timely manner, ahead of demand and in positions convenient to visitors. It may be noted that parking capacity does, in fact, exist in one of the central car parking stations conveniently located contiguous to the subject site.
[28] Mr Reynolds notes that there exists a relationship between car usage and catchment size. This relationship is affected by the distance people are prepared to walk and the availability and convenience of public transport. Generally, the larger the catchment, the more likely patrons will visit by car. In this regard I note that the report of Mr Kleinenberg which supported the application for town planning approval acknowledged that the catchment for the development was expected to attract patrons from a much wider area than that of central Surfers Paradise and would include the whole of the Gold Coast.
[29] There can be little doubt that the amount of parking contribution required by Condition 4 has been calculated by the respondent Council by adopting a generous approach so far as relaxations of the Planning Scheme provisions are concerned. Thus, to calculate the contribution by relaxing the total use area of the proposed development to discount floor area which will not be used by patrons may be regarded as generous, as this size of ancillary facilities can be relevant to the scale and intensity of use. Moreover, there remains potentially no further planning control over future internal floor space or management alterations which can result in an increase in areas used by patrons and thus an increase in parking requirement.
[30] The amount of parking contribution required by Condition 4 was also calculated by relaxing the parking rate for an hotel to that of a nightclub. It will be recalled that a nightclub benefits from the reduced car parking rate identified in Local Planning Policy 3.0 for certain development within Comprehensive Development Zones. This again may be considered a generous approach as the proposed development provides facilities that differ markedly from those of a nightclub and which may be used in isolation of one another, being bistro dining, gaming machines and comprehensive takeaway liquor facilities.
[31] The standard cost of car parking contribution was relaxed by half in accordance with Local Planning Policy 3.0 in calculating the amount of parking contribution required by Condition 4 on the basis that vehicular access is restricted under a Central Area Plan. This, in Mr Reynolds’ view, may again be seen as a generous approach which represents a significant financial incentive from Council to the private sector because the access restrictions applying to the subject site may well have applied without the Central Area Plan. The reason for this is that the Gold Coast Highway is a State-controlled road which would enable the State to restrict access to the site in any event.
[32] The Council also calculated the amount of parking contribution required by Condition 4 by discounting the amount of parking contribution previously paid in 1982, arising from an approval in 1979 under the 1973 Gold Coast Planning Scheme. Mr Reynolds observes that where parking exists on site it is appropriate planning practice to require only the additional (if any) car parking necessarily associated with any change of use. This principle is incorporated in Local Planning Policy 3.0. Thus, as parking was required in 1979 by monetary contribution for off-site provision, it is equally appropriate planning practice to account for that contribution as the equivalent number of car spaces that were paid for by the contribution in 1979.
[33] Having regard to the manner in which the level of contribution was calculated in this case by Council, and also having regard to the Planning Scheme and appropriate planning principles, Mr Reynolds is unable to discern any reason that would support a further reduction in the level of parking contribution proposed. Notwithstanding the generous nature of the four relaxations that have substantially reduced the cost of the contribution sought by Condition 4, Mr Reynolds sees the resultant requirement for parking contribution as not only relevant but as resulting in an overall fair and reasonable requirement.
[34] In my view, Mr Reynolds’ conclusions are likely to be soundly based if one applies the provisions of section 3.4.2 of the Local Planning Policy 3.0 and if one adopts the objective rates set out in Table A, or otherwise under the Planning Scheme. Although various estimates of the total use area have been suggested in the evidence, it is appropriate to adopt a figure for the overall development of 1120.15m2 as representing the total use area, of which 96.9m2 is attributable to the gaming lounge. These figures are in accordance with the evidence of Mr Reynolds and are also in line with those figures referred to in a facsimile from Ms Kling from the respondent Council dated 11 February 2002.
[35] Table A refers back to the parking provisions of section 3.5 of the Planning Scheme. By applying the total use figures just referred to one is left with a car parking requirement for the development of 87.59 spaces. The relaxation under Table A applies “where the change in use increases the car parking requirement over the existing use”. I accept that the former use of the subject premises as a bank did generate a lower requirement for car parking than a hotel would generate under the Planning Scheme.
[36] Section 3.4.2 of the Local Planning Policy 3.0 continues to provide that the “car parking requirement for the existing use shall be a credit towards the proposed use car parking requirement, even though it may not have been provided on-site for the existing use”. Accordingly, the policy requires car parking of 59 spaces, taking into account the credit for the existing car parking requirement (88 – 29 = 59).
[37] This requirement may be varied in accordance with section 3.8.1 of the policy which permits a relaxation of the requirements for a change of use where it can be shown, for a particular proposal, that such requirement would be unreasonable due to the insignificant nature of such change of use.
[38] It seems clear that the policy attempts to calculate car parking requirement by assessing the impact of change of use. In this case I am unable to accept that the tavern will not generate more traffic than the bank.
[39] Mr Brameld, a consultant traffic engineer who testified on behalf of the appellant, adopted a somewhat different approach than that of Mr Reynolds. In his initial court report Mr Brameld notes that the Council has previously been paid a contribution in lieu of providing 23 on-site car parking spaces when the site was used as a bank. Based on a first principles approach Mr Brameld calculates that the maximum likely car parking demand for the proposal (including the first floor) would be 16 cars during the daytime and 19 during the evening for staff and patrons. In the event that all on-site uses are 100 per cent utilised at any time, Mr Brameld calculates that car parking demand would amount to 23 cars for staff and patrons. He concludes that as the proposed use would not be likely to demand any more car parking spaces than have been previously paid for, a condition requiring payment for additional off-site parking could not be justified.
[40] In order to understand Mr Brameld’s first principles approach it is necessary to descend into a little more detail with regard to his calculations. Mr Brameld has counted the maximum capacity of the ground floor of the proposed tavern at 309 persons. Of this number 267 persons may occupy the bar/dining area and 42 persons the gaming machines area. By observation at the site Mr Brameld has allocated the usage of the bar/dining area at 178 persons for the bar area and 89 persons for the dining area. So far as the first floor area is concerned Mr Brameld has calculated the total useable lounge bar area at 261.5m2. In addition, he notes that the first floor area includes about 300m2 of public space which could seat up to about 267 persons, giving a rate of less than one person per square metre. He assumes that the lounge bar would seat patrons at a lower rate than the bar, so a rate of about 0.5 persons per square metre would be reasonable in the lounge bar area. Mr Brameld accordingly assumes that the maximum capacity of first floor uses would be 130 patrons. From discussions with the operators, Mr Brameld has ascertained that the maximum number of staff likely on site at any time would be 26 during the evening for the combined ground floor and first floor when both are in operation.
[41] Mr Brameld considered it highly likely that the majority of patrons would walk to/from the proposed development. Based on figures obtained by Mr Kleinenberg it is expected that 85 per cent of patrons would come from the central area of Surfers Paradise, 10 per cent of patrons from the remainder of Surfers Paradise and five per cent of patrons from the remainder of the Gold Coast. If 40 per cent of patrons from the secondary catchment (that is, from the remainder of Surfers Paradise) walk to the tavern, it follows that 89 per cent of all patrons to the tavern would walk. Mr Brameld thinks it likely that approximately 50 per cent of staff would either walk or cycle to/from work.
[42] In order to calculate peak parking demand, Mr Brameld has used the following criteria:
1.Of those who travel by vehicle, 20 per cent would travel by either taxi or bus and 80 per cent would travel by private car;
2.Car occupancy for patrons would be the standard 2.5 persons per car for entertainment; and
3.Car occupancy for staff would be the standard 1.5 persons per car for entertainment.
[43] The on-site peak patronage of the proposed tavern (including the first floor) would be on Saturday evening during a peak holiday period. Mr Brameld expects that 325 patrons and 26 staff would be present at such time. He calculates that 19 cars would satisfy the parking demand for these numbers, being 12 car parking spaces for patrons and seven for staff members. As this calculated peak parking demand falls well below the contribution for 23 car parking spaces already paid for, Mr Brameld concludes that additional parking, either as on-site parking spaces or as a parking contribution, cannot be justified. Even if all areas of the tavern were to be 100 per cent utilised, Mr Brameld’s calculation is that the maximum car parking demand would be just 22.38 spaces. He notes that the existing Council car park at Beach Street approximately 300 metres from the subject site is not well utilised and could be conveniently used by patrons of the tavern.
[44] Mr Brameld’s calculations set out in his initial court report were reviewed following receipt of surveys conducted by A C Nielsen whose interviewers observed occupancy and travel patterns at the tavern on the following dates:
¨ Saturday 19 January 2002
¨ Friday 25 January 2002
¨ Saturday 26 January 2002
¨ Friday 2 February 2002
¨ Saturday 3 February 2002
[45] On each Saturday shifts were completed for morning (10 a.m. to 12 noon), afternoon (1 p.m. to 3 p.m.), evening (5 p.m. to 7 p.m.) and night (8 p.m. to 10 p.m.). On the Fridays, evening and night shifts only were completed. On each hour and half-hour of each shift interviewers recorded the number of patrons in the dining, bar and gaming areas of the tavern at that time. Between half-hour points, interviewers intercepted each group of patrons as they entered the tavern and asked a short questionnaire identifying the method of travel for each individual in each group and from where they travelled to the tavern. In total 371 groups of patrons were interviewed across the five days – the majority of groups entering during interview shifts. The number of staff and their method of transport to the tavern were recorded half-hourly by the tavern’s shift manager and results collected by A C Nielsen interviewers upon completion of each shift.
[46] The occupancy figures resulting from the surveys showed the peak occupancy by patrons occurred on Saturday 19 January during the night shift when 132 patrons were present. At this time 15 staff were also present. On Friday 25 January during the night shift there were 122 patrons present and 13 staff members. The evening shift on Friday 25 January showed 80 patrons and 13 staff members present and the evening shift on Saturday 19 January showed 57 patrons present together with 15 staff members.
[47] The results of the interviews also revealed the transport methods adopted by patrons and staff of the tavern. Thus on Friday night 23 per cent of patrons travelled to the tavern by motor vehicle which was parked nearby while 62 per cent of patrons walked to the tavern. On the Saturday night 25 per cent of patrons travelled to the tavern by car which was parked nearby while 64 per cent walked. It is of interest to note that for the Saturday afternoon shift 32 per cent of patrons travelled by car which was parked nearby while 60 per cent walked. So far as the staff was concerned, on Friday night 72 per cent travelled by car which was parked nearby and only 16 per cent walked to the tavern. On Saturday afternoon 66 per cent of staff members travelled by car which was parked nearby and 22 per cent walked, and for both Saturday evening and Saturday night 61 per cent of staff members travelled by car which was parked nearby and 18 per cent walked. Of those interviewed 57 per cent of patron groups were visitors to the Gold Coast while 43 per cent were residents. Fifty-seven per cent of patron groups were living or staying in Surfers Paradise, four per cent in each of Southport and Brisbane, three per cent in each of Broadbeach, Main Beach and Chevron Island, two per cent in each of Nerang, Labrador and Burleigh, and one per cent in each of Budds Beach, Benowa, Sorrento, Robina, Mermaid Beach, Carrara, Paradise Waters, Mudgeeraba, Isle of Capri, Ashmore, Runaway Bay, Palm Beach, Currumbin, Bundall and Arundel. Eight per cent had an area of origin outside those mentioned.
[48] Mr Eppell, a consultant traffic engineer who testified on behalf of the respondent, has estimated that the properly calculated requirement for car parking spaces is 59 spaces. This obviously contrasts markedly with the estimation by Mr Brameld.
[49] Mr Eppell notes that the uses of bank and hotel/gaming lounge involve quite different car parking needs. For example, a bank will typically operate during the normal working day although some use of ATM facilities may be expected beyond those hours. By contrast, the proposed use will extend to night-time and weekend use including public holidays and will coincide with the time of operation of other uses in the area such as retail and recreational attractions. Furthermore, a bank would have been expected to show a more regular usage without the same degree of seasonal peaking associated with the proposed use. Mr Eppell also suggests that the bank’s catchment would have been more constrained than that of the proposed facility and that the extent of usage at any one time of the proposed use would be expected to be significantly greater than that of a bank. Finally, Mr Eppell considers that a bank would generate short-stay parking requirements of approximately half an hour with high turnover between the hours of 9 a.m. and 5 p.m. By contrast, the proposed use will generate longer patron stays ranging between half an hour and three hours with peaks probably around lunch time and in the evening. Staff parking would also display longer-stay characteristics than that expected for a bank.
[50] Because these factors indicate that the parking quantum and usage patterns for the proposed use would differ substantially from those associated with the use of the premises for banking purposes, it is reasonable to anticipate a changed parking requirement.
[51] Mr Eppell adopts the parking requirements for the proposed use and the bank use assessed in accordance with relevant Council policy from the supplementary report of Mr Reynolds. Thus the resulting requirement for the proposed use is 88 spaces based on total use area of 1120.15m2 and for bank use 29 spaces based on total use area of 1134m2. Mr Eppell accepts that in accordance with paragraph 3.8 of Local Planning Policy 3.0, Council may give consideration to other issues in its determination of car parking requirements leading to a relaxation of full parking requirements as provided by the Planning Scheme.
[52] Eppell, Olsen & Partners, of whom Mr Eppell is a principal, conducted personal interviews with patrons using the tavern at Surfers Paradise during the following time periods:
¨ Friday 25 January 2002 12 p.m. to 2 p.m.
¨ Friday 25 January 2002 5.30 p.m. to 9.30 p.m.
¨ Saturday 26 January 2002 12 p.m. to 2 p.m.
¨ Saturday 26 January 2002 5.30 p.m. to 9.30 p.m.
¨ Sunday 27 January 2002 12 p.m. to 2 p.m.
¨ Sunday 27 January 2002 5.30 p.m. to 9.30 p.m.
[53] From the responses to these interviews it was estimated that of all trips, 73 per cent originated within Surfers Paradise (postcode 4217) but this ranged from 46 per cent at Saturday lunchtime to 79 per cent at Sunday lunchtime. On average car drivers represented 15 per cent of those patrons interviewed. It was found that 63 per cent of patrons walked to the tavern from other uses nearby. This is lower than the 89 per cent assumed by Mr Brameld. Of the total respondents 38 per cent had come for a drink only and 55 per cent for a meal and drink.
[54] Using the results of the surveys conducted by Eppell, Olsen & Partners and by A C Nielsen, Mr Eppell calculated the actual parking demand for the period surveyed. Based on the responses obtained during the Friday lunch survey period Mr Eppell identified the total patron parking demand attributable to the tavern to be 31 per cent of all patrons. This figure comprises 20 per cent for those respondents whose travel incorporated being a car driver at one end of the journey (whose parking needs are considered to be the shared responsibility between the tavern use and the other use identified by the respondent); seven per cent of respondents where the journey involved car driver and walk to shop trips; and four per cent for those respondents whose journey involved a car driver trip and a walk to/from work. If it is assumed that for the Friday lunch period patronage is approximately 312 persons, as is reported by Mr Brameld, then the patron parking demand is 31 per cent x 312 persons = 98 car parking spaces. To this should be added staff parking demand for the Friday lunch period which, using the staff numbers provided by Mr Brameld and by A C Nielsen, comes to 18 staff x 67 per cent (car driver component) = 12 car parking spaces. Thus the total parking demand at Friday lunch amounts to 110 spaces (98 patron spaces + 12 staff spaces).
[55] Using the same methodology Mr Eppell has calculated the total parking demand for Friday evening at 57 spaces, for Saturday lunch at 89 spaces, for Saturday evening at 49 spaces, for Sunday lunch at 46 spaces and for Sunday evening at 48 spaces. Because response rates were low during some time periods, weighted averages were calculated by Mr Eppell for the lunch and evening time periods as follows:
Lunch peak – [(98 x 15) + (77 x 26) + (34 x 23)] / 64 + 12 staff = 78 spaces
Evening peak – [(40 x 83) + (32 x 98) + (31 x 85)] / 266 + 17 staff = 51 spaces
[56] Mr Eppell concludes that, in accordance with Council’s policy, the car parking assessment procedure results in 88 spaces being required by the proposed use. If, as he finds, the surveys of current use indicate a 78 space requirement when fully operational, it is reasonable to utilise Council’s assessment procedure for increased demand. Mr Eppell’s opinion is that, on this basis, it is not unreasonable for Council to require a contribution for 22 car spaces. Indeed, Mr Eppell notes that Council’s requirement is generous as the appropriate requirement (strictly calculated) is 59 spaces.
[57] I accept the submission of Senior Counsel for the respondent that the approach adopted by Mr Eppell (and by implication the Council) in assessing the car parking need created by the proposed use is broadly consistent with that of Cosgrove J in Doma Pty Ltd v City of Hobart (1983) 52 LGRA 339 at 355:
“The application of this decision to the present case may well rest in the second and third of Lord Justice Willmer’s propositions. Did this condition fairly and reasonably relate to the permitted development? Was it so unreasonable as to be beyond the contemplation of a reasonable Parliament?
These questions cannot be answered without some general consideration of the problems which city councils face in controlling development. It is obvious that a city cannot live without car parking. It is equally obvious that, as a general rule, development increases the demand for car parking space. If that increased space is not provided, the commercial and professional attractiveness of the city will suffer and its capacity to serve the public, which it needs as well as serves, will dwindle. But not every development is reasonably capable of providing space equivalent to that which it generates.
The council, as the governing body of the city, must provide general public car space to serve the city as a whole, thereby doing what it can to make up the individual deficiencies of supply in each city building. Some of these deficiencies will be created by the use of old buildings continuing to generate increases in demand. Some deficiencies will arise in new developments like this one. The provision of the general public spaces will cost money. There is no easy, and certainly no uniquely right, way of proportioning the cost.
The council sought to recoup some of the cost from developers in some sort of relation to the need which they created. The method which it employed was obviously not perfect nor was it equitable in any more than a rough, almost token sense. The contributions of developers are added to the profit from parking meters to provide, at a loss, general off-street public parking. But the whole operation was accounted for as one, and the public made aware of it. With all its defects, it seems, generally speaking, to be a not unreasonable method of dealing with the problem.”
[58] In his supplementary court report dated 5 February 2002, Mr Brameld states that the initial results of the surveys undertaken on Saturday 19 January, Friday 25 January and Saturday 26 January, 2002 were subsequently processed by A C Nielsen to show that peak patronage occurred on Saturday 19 January when there were 132 patrons, 15 staff and a total of 17 parked cars for both staff and patrons, whilst the Friday night peak (25 January) attracted a maximum of 122 patrons, 13 staff and a total of 21 parked cars. Mr Brameld’s estimate of car parking based on these surveys was that there would be a maximum of 150 patrons on site allowing for future increase in popularity, together with 15 staff. To that number he has added a further 70 patrons and five staff for the upstairs lounge based on an assumption that the lounge would attract about half the maximum density of patronage of downstairs, and that there were no street attractions or similar inducements. He concludes then that the total likely maximum number of patrons on site in the future would be 220 together with 20 staff. By applying the A C Nielsen survey results for Saturday night eight per cent of patrons and 61 per cent of staff members could be expected to park their cars. Accordingly, Mr Brameld estimates that the future maximum number of cars parked in Surfers Paradise on Saturday night by tavern patrons would be 220 x 8% = 17.6 cars and for staff, 20 x 61% = 12.2 cars, giving a total of 29.8 cars (or 30 by rounding that figure up).
[59] It should be noted that the A C Nielsen survey, which formed the basis for Mr Brameld’s final estimate, was conducted at a time when the first floor was not operational. Furthermore, that survey did not cover lunch periods at the tavern and the form of questions asked of patrons has been criticised by Mr Eppell and, indirectly by Mr Brameld himself who was obliged to have the form varied. Although A C Nielsen and Mr Brameld apparently claim that surveys of 800-900 people were conducted, that is misleading because not all individuals in each group were interviewed. One person only was interviewed on behalf of each group. Thus, there were interviews conducted of approximately 300 people but those interviews were in respect not only of the 300 but of others in their group. Mr Eppell, correctly in my view, considers that this makes the results of the surveys conducted by A C Nielsen inherently unreliable. My confidence in accepting Mr Brameld’s estimate is weakened by the fact that there is such a wide variance between the three estimates he has carried out in relation to car parking requirements resulting from the proposed use. Mr Brameld himself has conceded that his first two estimates may be inaccurate because the percentage walk-in figure of 89 per cent adopted by him is not sustainable.
[60] Senior Counsel for the respondent was critical of the failure of the appellant to call evidence from Mr Harburg in relation to likely patron numbers at the tavern. Mr Gallagher submitted that at the time of the application and preparation for trial the appellant’s estimates of patronage figures were estimates with which the appellant was evidently content and which Mr Brameld was prepared to contend for, he being experienced as a consultant for Cheers Taverns. Mr Harburg, a well-informed litigant who took a keen interest in the case, raised no objection to the figures put forward by Mr Brameld. Mr Gallagher submitted that following the A C Nielsen survey the appellant’s case altered by now contending that the maximum number of likely patrons at the tavern is 220, and that no evidence was called by the appellant to explain the discrepancy. Mr Gallagher cited the rule in Jones v Dunkel (1959) 101 CLR 298 in seeking to have an inference drawn by the Court that the untendered evidence (from Mr Harburg) would not have helped the appellant and that the Court should take this into account in deciding whether to accept the evidence of Mr Brameld as to the number of patrons likely to attend the tavern.
[61] In light of the conclusions that I have drawn in respect of the evidence of Mr Brameld, it is not necessary to decide whether it is appropriate in this case to apply the rule in Jones v Dunkel with respect to the failure by the appellant to call evidence from Mr Harburg. It is doubtful whether Mr Harburg would have been able to remedy the difficulties associated with Mr Brameld’s estimates of tavern patronage and his reliance on the A C Nielsen surveys which were, in the respects earlier identified, deficient.
[62] Mr Eppell, correctly in my view, criticises the approach adopted by Mr Brameld in assessing the reasonableness of Condition 4 as relying too heavily upon the provision of car parking already having been made by others and the proposed development carrying no responsibility. I accept that the approach adopted on behalf of the appellant does not appear to be soundly based or fair and equitable to all users whereas the approach of the respondent Council appears to seek to achieve fairness and equity. Mr Brameld appears to base his calculations, at least partly, on the assumption that any vehicles which are associated with tavern users are already “in the system”. As Mr Eppell points out, this approach does not properly relate to the concept of “cross-usage” as it relates to car parking provision and would unfairly treat existing users/contributors. Furthermore, I am unable to accept Mr Brameld’s assumption that spare spaces in the Council car park at Beach Street, some 300 metres away from the tavern, could conveniently be used by patrons. It is, as Mr Eppell observes, questionable whether, in an environment such as that surrounding the tavern, patrons would find it acceptable to walk that distance. Ultimately, the evidence of Mr Brameld in relation to his first principles approach to estimating car parking requirements of the proposed use fails to convince me of the correctness of the appellant’s assertion that a requirement of only one space is appropriate. I think it likely that the true car parking demand has been underestimated by Mr Brameld.
[63] It does not seem to be in issue that the cost of provision of car parking spaces within Surfers Paradise as at March 1996 was $24,250.00. Council’s fee schedule for 2001/2002 currently identifies the rate for Surfers Paradise as $27,295.00. As at the time of the application the rate was $26,500.00. This no doubt explains the figure of $13,250.00 which was the rate adopted by Council in the latitude identified by Condition 4. That figure appears to reflect the real costs of provision of a car parking space in accordance with Council’s relevant policy as modified under the policy.
[64] Although the methodology adopted by the Council may be queried, its conclusion that a cash contribution for 22 car parking spaces should be sought from the appellant finds support from a number of the respondent’s witnesses including Mr Eppell and Mr Reynolds. The result may well be viewed as generous, and perhaps as over-generous, but I am not prepared to find on the evidence before me that the result has been arrived at in an impermissible way. Of course, the discretion of the Court is not limited to an assessment of fewer than the 22 car spaces as required by officers of the respondent. This Court has wide powers on a hearing de novo from an appeal in respect of conditions (see Janlz Constructions Pty Ltd v Randwick Municipal Council (1976) 32 LGRA 403 at 405-6). However, an assessment of 59 spaces (or the equivalent monetary contribution) as urged by Senior Counsel for the respondent, is not necessarily the sole correct assessment that must inevitably follow from a construction of the policy.
[65] In the result, I am satisfied that Condition 4 of the Negotiated Decision Notice is both a relevant and reasonable condition and that the appeal should be dismissed.
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