Illawarra Catholic Club Limited v Hurstville City Council

[2012] NSWLEC 1182

Land and Environment Court

New South Wales

Medium Neutral Citation:	Illawarra Catholic Club Limited v Hurstville City Council [2012] NSWLEC 1182
Hearing dates:	29 May 2012
Decision date:	09 July 2012
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	Appeal allowed
Catchwords:	DEVELOPMENT APPEAL - parking provisions for a health club in the city centre
Legislation Cited:	Hurstville Local Environmental Plan 1994 Hurstville Development Control Plan No2
Category:	Principal judgment
Parties:	Illawarra Catholic Club Limited (Applicant) Hurstville City Council (Respondent)
Representation:	Mr G Newport (Applicant) Solicitors Mr P Rigg (Respondent) Norton Rose Australia
File Number(s):	10231 of 2012

Judgment

1. This appeal was lodged against conditions of consent requiring the provision 61 car parking spaces imposed on a development application for the change in use and fit-out of an existing building for a health club/gymnasium located at 8 Crofts Avenue, Hurstville.

1. The proposed health club use is to occupy four levels of the existing building comprising Levels 1, 2, 3 and 5. A shared pedestrian entry and lift access is provided from the ground floor to all levels including the roof (Level 5).

1. The proposal is described as comprising a fit-out for the following:

• Ground Floor: Pedestrian entry, disabled ramp, lift access and stair access. Vehicle entry and parking for 12 cars.
• Level 1: Separate male and female change room, locker facilities, toilets and showers. Three offices, reception area, disabled toilet locker area and shower, 3 storerooms, plant room, seating area and 58.125 sq m space assigned for 24 cardio machines.
• Level 2: A staff room, male and female toilets, a 157.65 sq m cardio area and 202.59 sq m group exercise area.
• Level 3: A storeroom, male and female toilets, a health assessment area, a 81.54 sq m cycle training room and a 496.86 sq m weight training area.
• Level 5: A 32.92 sq m weights area and an external 112.29 sq m roof terrace.

1. The gymnasium usage is to employ 10 full time staff and several part time and casual staff. Staff members are to include both full time and part time reception staff, full time personal trainers, casual group exercise teachers and full time membership consultants.

1. The hours of operation are proposed to be:

Monday                5.30am to 10.00pm

Tuesday               5.30am to 10.00pm

Wednesday         5.30am to 10.00pm

Thursday              5.30am to 9.00pm

Friday                   5.30am to 8.00pm

Saturday              8.00am to 6.00pm

Sunday                 9.00am to 6.00pm

1. Currently Levels 1, 2, 3 and 5 of the existing building are utilised predominately for office usage.

The Site

1. The site is an "L"shaped site with an area of approximately 945 sq and a 48.5 m frontage to Crofts Avenue and 14.4 m frontage to Woodville Street. It is located on the northeastern side of the street and contains the existing mixed-use five storey heritage listed building. There is a car stacker at ground level, which has capacity for 21 vehicles.

1. The allotment provides 8 existing retail shops on the ground floor fronting Crofts Avenue and the pedestrian foyer and lift area and vehicular access point is also provided from the Crofts Avenue frontage.

1. Adjoining the site to the southeast is the Catholic Club building. The area is generally commercial in character.

The contentions

1. Insofar as a number of contentions were raised, the main one for determination by the Court concerns whether Conditions 1, 8 and 50 imposed on the Development Consent granted by Council on 19 December 2011 are reasonable, These conditions effectively require the provision of 61 car spaces, including 2 disabled parking spaces.

Planning Controls

1. The proposal is subject to the provisions of the Hurstville Local Environmental Plan 1994 (LEP), under which the site is within the zone 3(d) (City Centre Commercial Core Zone). The proposal is permissible and the relevant zone objectives is in Cl 8, which states:

(a) to provide for a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community,

(b) to encourage appropriate employment opportunities in accessible locations,

(c) to maximise public transport patronage and encourage walking and cycling,

(d) to strengthen the role of Hurstville City Centre as a major retail and commercial centre,...

1. In addition to the LEP controls, other detailed controls are contained in the Hurstville Development Control Plan (DCP) No2 and particularly Part 6.1 - Car Parking and Part 8.1 - Extended Trading Hours. Reference was also made to s 94 Contributions Plan No1 - Traffic management and Car Parking.

1. The provisions of Part 6.1 aim to:

(a)   To provide detailed parking requirements for individual land use categories;

(b)   To provide measures to protect the natural environment; and

(c)   To ensure parking areas relate to site conditions.

1. Section 6.1.1.2 the states:

If you are occupying a building in which Council has already approved an activity/use/business etc the same as your proposal, the parking requirements witl not change.

If you are changing the use of a building then the parking requirements may change. Check the parking requirements from Section 6.1.2 to see whether they have changed.

1. The parking requirement for office premises is 1 space per 50 sq m of GLFA. However the DCP also provides:

6.1.2.1 (1) Table of Parking Requirements

(a) In determining the prescriptive parking requirements for each type of land use, Council has adopted guidelines from the Roads and Traffic Authority Guide to Traffic Generating Developments, October 2002. It must be emphasised, however that Council uses this guide on a discretionary basis only, and may be flexible in establishing parking conditions according to expert reports on the existing parking and traffic conditions in the vicinity of the subject site.

(b) In calculating the number of car spaces required, Council takes into consideration:

The type of development (or land use) proposed;

The size and scale of the development;

The intensity of the development; and

Street hierarchy and existing traffic situation.

The evidence

1. The parking issue was assessed in a joint traffic report by:

• Mr M Logan: Council's traffic consultant
• Mr C McLaren: Applicant's traffic consultant.

1. The consultants initially assessed the subject proposal on the basis that the existing uses (excluding part 13 on Level 4 of the strata plan) involve:

Level 1: 512.5m2 Club use @ 1 space per 18.5m2 = 27.7 spaces (no allocated parking spaces)

Level 2: 396m2 Office use @ 1 space per 40m2 = 9.9 spaces (4 allocated parking spaces)

Level 3: 531.5m2 Office use @ 1 space per 40m2 = 13.3 spaces (6 allocated parking spaces)

Level 5: 49m2 Office use @ 1 space per 40m2 = 1.2 spaces (3 allocated parking spaces)

1. Consequently, this results in a total parking requirement of 52.1 spaces, and taking into account the existing parking provision of 13.0 spaces, then there is a current parking credit of 39.1 spaces.

1. From this, the consultants agree that:

• The Level 5 floor area should not include the 95 m2 outdoor terrace as it cannot be considered as "floor space". Furthermore, it is understood that the terrace will only be utilised by the gymnasium when weather permits and only by classes that would otherwise be held indoors anyway. The terrace with not generate "additional" patronage.
• Based on the abovementioned floor areas and approved uses, the existing site development generates around 52 parked vehicles with 39 of those vehicles parking on the local road network or in public car parking spaces. The remaining 13 vehicles park on-site, including the use of the existing 21 space car stacker on the site.
• Of those 39 vehicles that park off-site, it is assumed that:

1. The 27 vehicles generated by the existing Club will predominantly be short to medium term parkers that park on-street or in public car parking spaces.

2. The remaining 12 vehicles generated by the office uses are long-stay and park on-street in close proximity to Hurstville where time restrictions are not evident.

1. Consequently, they estimate the car parking demands as follows:

Proposed Fitness Club/Gymnasium.

All levels; 1500.5m2 gymnasium @ 3 spaces per 100m2 =45 spaces

Proposed parking provision = 13.0 spaces (staff parking)

Proposed Parking Shortfall = 32.0 spaces (patron parking)

1. The traffic experts conclude that the proposed fitness club will generate 32 short-term parked vehicles on the local road network or in public parking spaces. While this may be an increase of 5 short-term spaces, there will be a reduction of 12 long-stay vehicles that currently park in the residential areas surrounding the Hurstville CBD. Therefore the proposal will generate a surplus of parking and the applicant should no be required to make a s 94 contribution and Consent Conditions 1, 8 and 50 are unreasonable and should be deleted.

Conclusion

1. For my determination of this appeal, I have considered the evidence, the submissions and undertaken a view. Part of the evidence includes the council officer's initial assessment report, which included relevant supporting information from the applicant.

1. The main thrust of council's submissions is that gymnasium use is new and that appropriate car parking arrangements should be made. Therefore based on the current DCP a minimum of 61 spaces should be provided.

1. Against this, the applicant submits that the existing building has a current approval for office/club use and that due allowance should be made for offset credits in respect of the this use. Insofar as the current DCP prescribes 1 space/60 sq m GFLA in the CBD Core or 1 space/50 sq m GLFA in the CBD Fringe, the traffic experts agree that parking requirement should be based on the parking controls at the time of the original office consents, which was 1 space/40 sq m of GFLA. On this basis, there would be a credit of 39 spaces as previously mentioned.

1. However Mr Rigg submits that the DCP makes no provision to revert to the original parking controls and that as the club space is not currently occupied, then no credit should be allowed, notwithstanding that the original consent did not provide a full complement of parking spaces.

1. Accordingly, I have considered the provisions of the DCP, which provides for a rate between 4.5 (min) - 7.5 (ideal) spaces per 100 sq m GLA for gymnasiums. But, cl 6.1.2.1(a) of the DCP relies on the RTA Guidelines on the basis of a flexible approach depending on "expert reports on the existing parking and traffic conditions in the vicinity of the site".

1. Consequently, the traffic expert assessment involved consideration of the context of the proposed gym and they agree that an appropriate rate is 3 spaces per 100 sq m of GFA, which I understand is accepted by council. The application of this figure requires 45 spaces, which is considerably lower than council's 61 space requirement.

1. In response to council's issues, the traffic experts assessed a number of parking scenarios based on the previous use of the building, initially as office space and then the change in use of part of Level 1 for a business club.

1. However the application of this figure results in variable outcomes depending on subsequent changes to the use of the building, particularly by the Businessmen's Club. This assessment now allows for 13 spaces on-site to be utilised for staff parking. The difference requirements for club use and office use are summarised in the following table:

1st Floor Use	Total parking requirement	Existing parking provision	Existing parking credit	Current credit - gym (32 spaces)
Club	52.1	13.0	39.1	7.1 spaces surplus
Office	37.2	13.0	24.2	7.8 spaces shortfall

1. Mr Logan says that prior to the Businessmen's Club approval, the floor space on Level 1 was used as office space and generated 12.8 parking spaces. As there is no parking allocation for Level 1, it can be assumed that all 12.8 parking spaces were located on-street or in public parking areas. Once the Businessmen's Club was approved, this club generated 27.7 parking spaces, of which all spaces were located on-street or in public car parks. To that end, the Businessmen's Club generated an additional 14.9 spaces.

1. In comparison, the proposed gymnasium use on that level has the potential of generating 15.4 spaces based on the requirement of 3 spaces per 100 sq m GFA. Mr Logan therefore concludes that the proposed gymnasium would generate an additional 0.5 of a parking space.

1. As previously noted, the DCP allows exercise of discretion depending on the particular circumstances. In this regard, I have considered the detailed investigations and assessments by the traffic experts, which dealt with the availability of external parking in the adjacent city centre environs, together with the projected parking demands of the gym users. The findings include:

The subject site is located within close proximity to Hurstville Railway Station to the south and the bus network of up to 14 bus services provide by Sydney Buses and Punchbowl Bus Company.

In more recent times, gymnasiums have been approved to operate within town centres that have a high level of public transport accessibility with little or no on-site car parking. This is due to the fact that gymnasiums in town centres tend to be predominantly used by office workers, shoppers and local residents that either use non-private car modes of travel to the gym or have already parked in the town centre for other trip purposes when visiting the gym as part of a 'linked' or 'multi-purpose' trip to the town centre. The gymnasium patrons that utilise gyms before or after core business hours from 9am to 5pm on weekdays tend to utilise spare public parking near the gym or park at their place of employment or shopping centre car parking areas again as part of a 'linked' or 'multi-purpose' trip to the town centre.

It is clear that the gymnasiums surveyed have peak periods that occur during the 9am-5pm period and after 5pm. This is due to the location of these gymnasiums being easily accessible from public transport with patrons utilising the gym during and after business hours.

The proposed gymnasium will generate peak patronage of 17, 68 and 113 persons during the morning, midday and evening periods respectively. The generated vehicles during these periods are 13, 55 and 90 respectively The generated vehicles however are not a true representation of vehicles parking in the vicinity due to the locality of the proposed gymnasium. It is assumed that 50% of the patrons will be from surrounding office, commercial and retail blocks that are already within the vicinity and will utilise the gymnasiums services for the periods before 9am and after 5pm with 100% linked trip purposes during the middle of the day (i.e. during business hours). This in effect will only introduce 7, 4 and 45 vehicles during the morning, midday and evening periods respectively The staff parking demand is likely to be low in the order of 4 or less.

Kerbside parking has a maximum of 79 vehicles and reduces to 76 due to kerbside restrictions. The total parking capacity is in the order of 1,326 car spaces (includes only part of the Hurstville Westfield parking area).

Focussing on the kerbside parking only, the peak occupancy coincides with the minimum capacity. During the period before 9am, there is spare parking capacity for 41 to 68 vehicles while during the period of 9am to 5pm there is spare parking capacity for 13 to 26 vehicles and beyond 5pm there is capacity of 4 to 22 vehicles.

3.3.4 Considering the total parking capacity within the vicinity of the site there are 1,326 car spaces with significantly increased available (spare) parking capacity beyond the nearby kerbside limits. There is sufficient capacity to absorb vehicles during the morning, midday and evening peak periods.

1. In summary then, I am satisfied to rely on the traffic expert's agreement that a parking credit in the order of 39 spaces is reasonable in the circumstances. Considering then the context of the proposed gym in the city centre, I do not consider council's requirement for 61 spaces is reasonable taking into account the likely parking demand by users. In the ultimate, I think that the proposed gym use should be able to operate satisfactorily without the need to provide additional parking or s 94 contributions and this is consistent with the zone objective to:

(c) to maximise public transport patronage and encourage walking and cycling.

Court orders

1. The Court orders that:

(1)   The appeal is allowed.

(2)   Conditions 8 and 50 of the Development Consent for 11/DA - 340 for the change of use and fit -out of the premises at 8 Crofts Avenue, Hurstville for a health club are deleted.

(3)   The exhibits may be returned except 3, A,C, D and E.

R Hussey

Commissioner of the Court

Decision last updated: 09 July 2012