MGW Hotels Pty Ltd v Gold Coast City Council
[2006] QPEC 96
•6 September 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
MGW Hotels Pty Ltd v Gold Coast City Council [2006] QPEC 096
PARTIES:
MGW HOTELS PTY LTD
ACN 098 214 129Appellant
V
GOLD COAST CITY COUNCIL
Respondent
FILE NO/S:
No BD 199 of 2006
DIVISION:
Appellate
PROCEEDING:
Developer’s Conditions Appeal
ORIGINATING COURT:
Planning and Environment Court, Southport
DELIVERED ON:
6 September 2006
DELIVERED AT:
Brisbane
HEARING DATE:
22, 23 August 2006
JUDGE:
Robin DCJ
ORDER:
Appeal allowed
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.30(1) - successful conditions appeal by developer - proposal was to expand by something over 50m2 a long established tavern - accepted evidence suggested increase of 8 patrons (requiring 3 car parking spaces) at peak periods - condition for financial contribution in lieu of 5 spaces changed - developer not entitled to credit by reference to historical calculated carparking requirements when spaces or actual contributions in lieu of spaces were not provided – condition for dedication of a corner truncation long used as part of the public footpath held unlawful in relation to the modest new development – a development condition imposed in 1987 that the area be kept clear was working well in practice.
COUNSEL:
J Haydon for appellant
E Morzone for respondent
SOLICITORS:
Mullins Lawyers for the appellant
McDonald Balanda & Associates for the respondent
This is a “conditions appeal” brought under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) in which it is for the appellant to establish that the appeal should be upheld: s 4.1.50(1). Since about 25 June 2002, when a licence under the Gaming Machine Act 1991 (s 68(2)) was issued to it, the appellant has been lessee and operator of the Cecil Hotel, a prominent Southport landmark constructed at the corner of Nerang Street and Scarborough Street. The evidence did not reveal how long the building has been there. Mr Venn, the Council’s expert planning witness, surmised on the basis of its Art Deco style, origins in the 1930s. I can confirm that it has been there for more than half a century.
The appellant lodged its Form 1 Development Application IDAS, with the consent of the land owner (Coralheath Pty Ltd) endorsed, on 27 June 2005. The land is identified by real property description, street address and its area of 1889 m2, but it is clear that the application is for a proposed use of hotel, against an existing use of “hotel & shop” affecting “Lease C & D” at ground level. Lease C accommodates the established hotel use; it has generous frontages to both streets at the corner; it includes a separate small area accessible only through the rear car park, to which the public would not have access. Lease D relates to a presently vacant shop, the area of which has been given as 76 m2 (depending on where measurements are taken in relation to walls). Its frontage is separated from that of the hotel (now “tavern” apparently), by stairs leading from Nerang Street to first floor level, which, following a history of other uses including nightclub and (one would infer) accommodation, is now used for office purposes. West of it are Leases E and F, with Nerang Street frontages. Leases A and B have Scarborough Street frontages, but are set back behind an open courtyard area which is used in the conduct of restaurant businesses operating from the leases.
The point of the application is to relocate to the vacant shop a TAB agency presently operating in that part of the tavern area on the other side of the stairs. This will have the advantages of separating the occasionally boisterous TAB-related activities from the more sedate ones of the dining area which occupies most of the tavern space and, as the manager, Mr Scanlan said, will allow him to accept bookings for meals from larger groups. I infer that there will be some encroachment of dining activities into the bar area where TAB facilities are located for the moment. The tavern and former shop areas will be opened up to each other, and the bar extended into the latter, doubtless in the expectation that TAB patrons will congregate around the new section. A bar cold-room presently located behind (and maybe partly under) the stairs will be relocated, making available an area of some 3.3 m2 available as passage to and from the new TAB area or for patrons disporting themselves at the extended bar. This area merits mention because the Council contends it must be taken into account in certain calculations of car parking requirements, whereas the appellant’s case has been that it should be ignored.
By decision notice dated 16 December 2005 (or 14 December 2005), the Council advised approval of the issue of a Development Permit for Material Change of Use for a Tavern extension, subject to conditions. Following representations by the appellant’s planner and Mr Quinn, its transport engineer, a Negotiated Decision Notice issued advising the Council’s response, favourable only in that it provided:
“BThe applicant be notified as required under the provisions of the Integrated Planning Act 1997 that under Delegated Authority, the Manager of Implementation & Assessment Branch, agrees with the representation made by the applicant to issue a Negotiated Decision Notice incorporating the following:
· Condition 3 which currently reads:
3The applicant shall ensure that a minimum of fifteen (15) off street parking spaces are provided in accordance with the endorsed plan referred to in Condition 1 hereof, such area shall be constructed to AS2890, drained, sealed, marked and maintained to the reasonable satisfaction of the Chief Executive officer.
shall be deleted and remaining conditions of approval renumbered accordingly.”
The remaining conditions with which the appeal is concerned are, as renumbered:
“in lieu of the provision of 5 on site car parking spaces a cash contribution shall be provided (currently $27,000 per space).
5. 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 calculated in accordance with the rates in force at the time of payment.
17.The applicant shall dedicate at no cost to Council and to the satisfaction of the Chief Executive Officer the area of the site truncated by the three-chord truncation on the corner of Nerang and Scarborough Streets.”
The basis for deletion of proposed condition 3 was that it might be seen as a doubling of a requirement imposed by condition 2 of the Decision Notice whereby development was required to comply with “the Conditions of Town Planning Permit No. 3/796 issued 25 August 1987 as they relate to the Tavern components of the development, unless otherwise modified … herein”.
The 1987 permit approved an application “to extend and renovate an existing hotel”. Relevant conditions included:
“(1)Submission to and approval by Council of satisfactory building plans and specifications to generally accord with the plan approved in this Town Planning Permit. The building is to be constructed in accordance with the approved building plans prior to the commencement of the use approved.
(8)Provision of at least fifteen (15) off-street car parking spaces and access thereto to be constructed in accordance with paragraphs 17 to 20, Division II, Part VIII of the Town Planning Scheme and Council’s Car Parking Policy and to the reasonable satisfaction of the Planning and Development Manager. Should the development be designed in such a manner as to reduce the amount of required car parking, the required amount of car parking may upon application to the Planning and Development Manger, be amended accordingly.
(9)Provision of a loading bay to the reasonable satisfaction of the Planning and Development Manager.
(10)Payment to Council of $285,120-00 in lieu of forty-eight (48) off-street car parking spaces, such amount to be paid to Council prior to occupation of the building.
(19)The proposed vehicular access is to be widened to at least 5.5 metres in accordance with Council’s Car Parking Policy.
(20)The public toilets adjacent to Scarborough Street are to be clearly signposted, to the satisfaction of the Planning and Development Manager.”
On the eve of the hearing of the appeal came supplementary disclosure by provision of copies of certain documentation relating to events in 1987. In practical terms, this made it difficult for the parties’ expert witnesses to comply with the expectation that their opinions be recorded well in advance of trial, which would ordinarily be expected: see SEQ Bond Stores Pty Ltd v Gold Coast City Council [2006] QPEC 066 at [33], to which Mr Haydon, for the appellant, referred. The new material was tendered by Mr Haydon as exhibit 2. It includes a copy of a consent order made in the Local Government Court on 20 October 1987 in Jennings Construction Ltd v Council of the City of Gold Coast, No 173 of 1987. The consent order dismissed the appeal in relation to conditions 8 and 19. It allowed the appeal in respect of condition 10 by substituting $160,380 for the amount originally proposed. Four days earlier, it appears, there was a Council resolution making the same substitution, and substituting twenty-seven (27) for the original reference to forty-eight (48) spaces. It is abundantly clear that that appeal was resolved by a compromise reached by the parties to it.
Exhibit 2 contains a letter of 25 September 1987 from the town clerk to Jennings’ solicitor:
“To satisfy myself regarding the calculation of the parking requirements for the Cecil Hotel extension/refurbishment I directed Andrew Hall to present to me a before and after calculation of the parking needs of the hotel to show the increased car parking requirements of the proposal now before Council. His calculations are as per the attached schedule.
You may wish to dispute the figures and that opportunity is now available to you.
I am prepared to confront reality in any further negotiations that we enter into, however, the without prejudice discussions offer now appears to be thin.”
The enclosure was:
“Rate = $5,940
Existing Hotel
Use AreaBar1.2m21.5m2Total
Public Bar 65m2 14.2 7.25 10.1 17.35
Private Bar 32m2 9.4 4.7 4.5 9.2
Cocktail 61m2 9.2 4.6 10.3 14.9
Dining 92m2 - - 18.4 18.4
Beer Garden 70m2 - - 14.0 14.0
Lounge 63m2 3.0 1.5 12.0 13.5
Bottle Shop 80m2 - - 2.0
Res. Suites 10 x 0.5 5.0
Caretaker 1 1.0
______ ____
463m2 95 spaces
______ ____
Current Proposal
Use AreaBar1.2m21.5m2Total
Public Bar 40m2 8m 4 6.4 10.4
Terrace 292m2 - 58.4 58.4
Garden Lounge 165m2 33 33
Bottle Shop 98m2 2.4
_____ _____
595m2 104 spaces
______ _____
Disco 327m2 @ 1 per 20m2 16.35
Caretakeer 1 space 1
_______ ______
327m2 17 spaces
______ ______
TOTAL = 922m2 = 121 spaces
Comparison
Old New Difference
Ground Floor 89 spaces 104 spaces 15
Upper Floor 6 spaces 17 spaces 11
____
26 spaces
____
Lost car parking (extension over existing) 10 spaces
Difference (as above) 26 spaces
___
36 spaces
___
Less 9 spaces – 27 i.e. $160,380”
It represents a re-working of a similar calculation which Jennings had presented to the town clerk in a letter of 3 September 1987. It began with “calculated spaces for Existing Hotel equals 98” which differs from the 95 because rounding was effected prior to an adding up of the separate components. Jennings asserted that the Council could require “additional car parking only as required for the extension” which was of a garden lounge area of almost 120 square metres, indicating 6 spaces. The notional requirement was seen as 31, being those 6 on top of the existing 25. 10 of the existing spaces were to be lost, reducing provision of actual spaces to 15 which, enhanced by an “allowance for Public Toilets, etc” of 9 produced an aggregate of 24 and a deficiency of 7, for which a cash contribution at the then established rate of $5,940 per space was proposed. The Council considered relevant issues, as established by minutes tendered by Mr Haydon as part of exhibit 2. They include the following useful information:
“With regard to car parking, the applicant proposes to provide fourteen (14) spaces on the allotment to the south-west of the existing hotel, with one covered space and a single loading bay on the hotel lot. The Development Control Plan seeks to discourage vehicular access from either Nerang Street or Scarborough Street. The existing vehicular access from Scarborough Street is proposed to be re-provided. This driveway should be widened to 5.5 metres to accommodate two-way vehicular traffic in accordance with Council’s requirements.
The total car parking requirement for the site is therefore 72 spaces. It is noted that the applicant intends to provide public toilets which have been designed so as to facilitate ease of access by members of the general public not associated with the hotel. It is considered appropriate that the dispensation of nine (9) car parking spaces sought by the applicant be granted. This would comprise the equivalent car parking requirement for the same use area assessed at the hotel lounge/dining rate. The car parking requirement for the site would therefore be 63 spaces of which 15 are proposed to be provided on site. A cash payment of $285,120-00 would therefore be required in lieu of 48 spaces.
In view of the nature of the proposal, Council may see fit to have further discussions with the applicant regarding car parking provision. In this respect, it is considered significant that the area of public bar floor has been significantly reduced. It should also be noted that the applicant has submitted that the extended ground floor area should be assessed at the rate of one (1) space per 20 square metres, being a compromise between requirements for restaurants and those for hotel lounges.”
In the year 2000 the Council processed an application for a Material Change of Use for commercial premises, restaurants and shops on the site. The garden lounge had apparently outlived its usefulness. Material before the Council meeting on 28 January 2000 includes the following:
“The proposal involves a total renovation of the development and expansion involving the retention of the majority of the existing building and the addition of two restaurants on the Scarborough Street frontage. The proposal results in a decrease in the site coverage of the development of 8% and a substantial reduction in the use area of the site.
The proposal also includes a loading bay at the rear of the building and additional car parking in this area.
The applicant has recently received Building Approval to demolish a portion of the development involving the Garden Lounge and Children’s Play Area at the rear of the site. Approval has also been granted to construct an extension to the building along the Scarborough Street frontage of the property for use and restaurants. The building work is currently in progress.
Car Parking
The proposed development results in a reduction in the total use area of the development with the proposed uses requiring a reduced number of car parking to the previous use of the premises. The car parking of the proposal complies with the requirements of the Planning Scheme.
Landscaping
Minimal landscaping is proposed for the site due to the location of the existing and proposed buildings. It is also considered that any landscaping that is possible to be provided on the site will have minimal public benefit.
Inspection of the site has determined that the streetscaping works along the Scarborough Street frontage of the site is complete with the works along the Nerang Street frontage currently in the design phase. After discussions with a number of Council Officers it was considered reasonable that a contribution be paid towards the streetscaping works of fifty percent (50%) of the anticipated cost of the work along Nerang Street. This calculates to a cash contribution of approximately $15 000.”
There was issued a Decision Notice dated 31 January 2000 advising:
“Approval for a:
(i)Material Change of Use (Code Assessment) for Commercial Premises, Restaurants and Shops; and
(ii)Modification of Provision 18.3.5(b) of the City of Gold Coast Planning Scheme to waive the requirement for ten (10) percent of the site to be landscaped at ground level, subject to the following conditions:
1.The development shall generally accord with the endorsed plans.
2.The applicant shall comply with the Conditions of Town Planning Permit No. 3/796 issued 25 August 1987 as they relate to the Tavern components of the development, unless otherwise modified by the conditions of approval herein.
3.The applicant shall provide a cash contribution towards streetscaping works based on $110.00 per square metre from the property boundary to kerb for the full Nerang Street frontage.
8.The applicant shall ensure that a minimum of fifteen (15) off street parking spaces are provided in accordance with the endorsed plan referred to in Condition 1.”
There seemed to be no fear held in 2000 that anything in excess of 15 on site car parking spaces might be insisted upon.
On 18 August 2003 the Council’s IPA-compliant planning scheme came into effect. By the time of the appellant’s development application the revisions in version 1.1 had taken effect (on 21 February 2005). On the face of it, car parking requirements associated with the development of land in the local government area are regulated by the Constraint Code – Car Parking, access and transport integration performance criteria and acceptable solutions for provision of car parking spaces are dealt with in the Code as follows:
“PERFORMANCE CRITERIA
“PC16
Sufficient car parking spaces must be provided to meet the car parking needs of the development. The number of car parking spaces provided must be consistent with the practical opportunities available for shared car parking provision and the operation of alternative transport modes to private motor vehicles.
AS16.1
Car parking is provided in accordance with the number of spaces required for the special use listed in the Table to Acceptable Solution AS16.1.
AS16.2
If an additional building is constructed, or an existing building is extended, the car space requirements determined from Table to Acceptable Solution AS16.1 accrue only for the additional building or extension, provided that the use of the land remains the same and any existing area for car parking is not reduced or, if disturbed, any existing car spaces are replaced in the new development.
Table to Acceptable Solution AS16.1
Column 1 Column 2
This table sets out the minimum number of car parking spaces required according to the use of the land.
For each Material Change of Use, listed in Column 1, the minimum number of car parking spaces to be provided is listed in Column 2.
Where the number of car spaces calculated, using Column 2, is not a whole number, the number of car parking spaces required must be the next higher whole number.
Tavern(a) 10 spaces per 100m2 of GFA lounge, bar and beer garden area, (excluding ‘staff only’ areas).
(b)plus 10 spaces per 100m2 of GFA retail floor area for liquor barns or bulk liquor sales.
(c)plus a reservoir space of 12 cars for a drive in bottle shop.
(d)Additional parking for gaming machines, at the rate of 1 space… per 3 gaming machines.
(AS 16.2 does not apply, as there is no new or extended building.)
CASH IN LIEU OF CAR PARK SPACES REQUIRED
PC23
Car parking must be provided to meet the car parking needs of the development. If it cannot be provided on site, alternative arrangements may be proposed.
AS23.1.1
The car parking spaces required by Table to Acceptable Solution AS13.1 are provided on the subject site.
OR
AS23.1.2
A monetary contribution for all or part of the required car parking may be made towards one or more of the following:
(a)provision of off-street car parking in the vicinity of the development;
(b)provision of improved on street car parking and streetscape improvement works, in the vicinity of the development; and/or
(c)provision of improved public transport facilities and services in the vicinity of the development.”
The appellant concedes that it was not offering compliance with the acceptable solutions. For that reason, the development application became code assessable. The Code by s 2.4 provides that where any Local Area Plan Place Code contains car parking requirements that differ from the code, the LAP requirements take precedence. In s 5.0, the Code contemplates reduction of the minimum number of car parking spaces to be provided:
“The minimum number of car spaces to be provided may be reduced where the applicant can satisfy Council, or its delegate, that less provision is justified, having regard to any one or more the following:
(a)the extent to which the development is serviced by public transport;
(b)the proposed development is located within a Public Transport Precinct, as shown on Planning Strategy Map PS-8;
(c)the car spaces that are available on nearby land and suitable roads;
(d)any new car spaces that can be provided by the applicant on nearby land;
(e)the existing development on the site;
(f)the overall pedestrian accessibility of the site;
(g)the intensity of the use of the land;
(h)the proposed hours of operation of the development or use;
(i)any Council traffic management or parking scheme for the area;
(j)the effect of any additional traffic generated by the lack of parking spaces;
(k)the mix of land uses on the site or nearby (for example, whether the site is included within an identified Activity Centre);
(l)the car parking area is directly connected to the parking area of an adjoining development;
(m)the parking spaces are to be individually allocated to tenancies or consolidated into a common area available to all tenants and to visitors; and
(n)the provision of cyclist facilities, including showers and lockers and additional secure bicycle parking.”
The appellant contends it presents a sympathetic case for “relaxation”, by reference to: (a), (c), (e), (f), (g), (h) and (k). It also contended, in reliance on the evidence of Mr Quinn, that the less demanding car parking provisions found in the Southport Local Area Plan should be applied in respect of the appellant’s development application.
The LAP identifies the Southport as a Key Regional Centre patterned on “the traditional “high street” commercial centre on Nerang Street … a vibrant, safe, pedestrian-friendly place which has a strong community focus”. It is asserted that for the “relatively compact” core of Southport there are “recently recorded very high proportions of “journeys to work” by walking”; tens of thousands of jobs are located there, as are “significant re-development opportunities … and a large number of vacant or under-utilised sites.” The site is in Precinct 1 Retail, whose preferred character “offers the highest level of amenity for pedestrians … continuous shade and shelter over footpaths … safe pedestrian links; local workers … as well as … visitors … are all encouraged to use and enjoy the Centre. Increasingly, it is to be a mixed use precinct … vibrancy at street level beyond retailing hours … encouraged in this precinct”. More pertinently, 5.3.1 provides:
“5.1.3 Precinct 1: Access, Pedestrian Linkages and Infrastructure Provision
Provisions for vehicle parking and pedestrian access are paramount in this precinct. A high level of pedestrian amenity is to be achieved. There will be improved pedestrian links between Scarborough Street and the Medical Precinct, especially with the Gold Coast City Hospital. Suter and Young Streets are to provide a pedestrian link between the hospital and the retail core.
If high quality pedestrian linkages occur and integrated access to car parking for retail, medical and transit interchange purposes is achieved, the need for off-street parking on individual sites may be reduced…”
The development requirements which may override the Constraint Code in respect of parking include:
“CAR PARKING PROVISION
PC60
Adequate on-site car parking facilities must be provided for new developments, to ensure that residents and customers are adequately catered for.
AS60.1
Car parking is provided at the car parking rates specified within Constraint Code 4 – Car Parking, Access and Transport Integration, except for the uses described in AS60.2.
AS60.2
Car parking is provided at the following rates:
a) one space per 30m2 of GFA or part thereof, for the following uses
● café
● child care centre;
● commercial services;
● convenience shop;
● fast food premises;
● Laundromat;
● medical centre;
● nightclub;
● office;
● reception room;
● restaurant;
● service industry;
● shop;
● shopping centre;
● showroom;
● take-away food premises;
● tourist facility;
● tourist shop;
(b) all other development has car parking provided in accordance with A516.1 of Constraint Code 4 – Car Parking, Access and Transport Integration.
AS60.3
Car parking required for commercial activities is open to the public without hindrance, during the operation of commercial activities.”
For the most part, the listed uses are favoured by a concessional (that is, less demanding) parking requirement, doubtless in deference to acknowledged features of the parking situation in the LAP area. There are exceptions: for some uses, the Constraint Code is less demanding than the LAP. I do not accept Mr Quinn’s argument that some analogy with favoured uses such as nightclub, restaurant, even shop, entitles or permits a tavern use to enjoy a corresponding indulgence. I think it inconceivable that “tavern” has been omitted inadvertently. It appears at least half a dozen times in other tables in the LAP, typically to locate a material change of use in the “impact assessable” column. As Mr Venn said, the adoption of version 1.1 provided an opportunity to remedy any such omission. I do not propose to repeat in detail the criticisms made of the “analogy” argument. By way of example, in Southport, nightclubs will generate their peak parking demand late at night when the LAP area will otherwise be quiet, whereas the peak trading period for taverns in the area, the subject in particular, is in the middle of the day and early afternoon, coinciding with the LAP area’s busiest time.
I do not accept arguments that the LAP indicates some lack of enthusiasm or determination about parking issues; this notion seems to have been taken from the emphasis placed on encouraging pedestrians. On the contrary, in the precinct, provisions for vehicle parking are described as “paramount”, to be favoured along with those for pedestrian access. The expression “paramount” is well understood in the legal (and I would say the general) community, from its use in the context of the paramountcy accorded to the interests of children in many contexts; it means “supreme”. It follows that a request for relaxation should not lightly be acceded to. I accept that the evidence of Mr Scanlan as to the high proportion of his customers who live or work “locally” and would walk to the Cecil Hotel (or who, if they had driven to Southport would have had some additional purposes(s) for doing so) places the appellant in a more favourable position than its counterpart in Harburg Investments Pty Ltd v Council of the City of Gold Coast [2002] QPEC 61, which presented no evidence of a similar nature: see [60] – [61].
In this regard, reliance was placed for the appellant on a view expressed by the Council’s Manager Transport Planning on 11 August 2005:
“The subject application is for internal works to the Cecil Hotel to convert 74.5m2 approved for use as a Shop to extension of the Tavern. Under the Southport DCP 1994 the use of Shop is assessed for car parking at the rate of 1 space per 30m2, whilst a Tavern, not included in the schedule of uses in the LAP, is assessed at the Constraint Code 4 rate of 1 space per 10m2. Changing the use in this way would result in a net increase of 5 parking spaces for the 74 m2, based on a credit of the existing use. A 5 parking space shortfall where there is no opportunity for providing additional parking on the site, translates to a cash in lieu payment (PC23) of 5* $27,500 = $137,500.00.
Given the location of the facility we may be prepared to accept that the proposed use would be no more of a traffic generator than a nightclub, which is assessable at 1 space per 30m2 in the LAP.”
and on an internal Council report in relation to the conversion of a bank to “Brannigan’s Tavern” under the previous planning scheme:
“Reference is made to provision 12.7.12.2 “Vehicle Carparking” contained within the Planning Schemes provisions for Hotel land uses. This provision requires 1 carparking space per 15m2 of total use area. Further review of the provisions for Hotel land uses revealed that such provisions were designed for “stand alone” developments thus necessitating the need to provide the prescribed amount of carparking, landscaping, adequate road standards etc.
The proposal is contained within an existing building situated within the Broadbeach Mall and as such, is not considered to be a “stand alone” development. Further, the sites location (Precinct 1 of the Broadbeach Development Control Plan) envisages that multiple visits will be made to various land uses within this area. Since the adoption of the Planning Scheme in 1994, the attitude of consumer behaviour towards driving under the influence has changed. Consumers are now encouraged to seek alternate forms of transport (i.e. taxis). As such, the prescribed carparking for Hotels at the rate of 1 space per 15m2 may not always be required.
As such, it is considered reasonable to allow a carparking rate of 1 space per 30m2 of Total Use Area, for the Hotel land use (excluding the gaming machine area) as prescribed in Table 1 of Provision 22.3.6 – “Traffic Parking and Access”. With the exception of the gaming machine area, the Hotel land use is considered as a change in land use tenancy and does not require any additional carparking.
Notwithstanding the above, the proposal includes gaming machines which generate a carparking rate of 1 space per 5m2 of total use area. It is considered that the Planning Scheme sets a high carparking rate due to the intense nature of gaming machine land use and should not be considered at the same rate as the above discussed Hotel land use and therefore be required to comply with the rate stipulated in the Planning Scheme.”
In this application, the Council had more advice than that of the transport planner; there is no reason why it should be committed to something he “may” be prepared to accept. I think it is drawing too long a bow to assimilate circumstances (however superficially similar) of a different development at Broadbeach to the present. It is only necessary to note that the rather different sections of the Gold Coast have their own planning instruments, and that the Broadbeach DCP would now have been supplanted by an LAP.
Historically, the parking requirements to be imposed as part of development permits or approvals for the hotel have been assessed by reference to the additional demand, if any, likely to be generated by the change under consideration. The various tables adopted over time indicating rates for parking provision are the product of much accumulated experience and consultation among experts in the field. They change over time, as fashions change, and as developments in communities, such as improved public transport services, modest levels of permissible blood alcohol concentrations for drivers and random breath testing are introduced. There are situations in recent times where caps are placed on provision of parking, with a view to limiting the amount of traffic some developments may attract. The presently relevant tables all impose minimum provisions expected. They ought to be taken seriously. That said, it has not been considered practical or fair to require of the operator of some long-established use which may have got underway when planning controls were mild or non-existent, to satisfy fully supervening standards which might be quite onerous, as the price of new development. There may be some continuing benefit flowing from having got underway in times of lighter regulation.
In my opinion, it is not possible to gainsay the proposition that if new development generates a demonstrated likely need for additional parking provision, a condition requiring it, other things being equal, would satisfy the well known requirement of s 3.5.30(1) of the IPA that:
“A condition must –
(a)be relevant to, but not an unreasonable imposition on, the development; or
(b)be reasonably required in respect of the development”
the case might be different if there was already provided car parking in excess of that required under the tables for the existing uses. That is the case the appellant seeks to make in reliance on the Council’s calculation of 1987. The argument is that the Cecil Hotel is in the position of being entitled to credit for 121 car spaces.
Mr Venn and the appellant’s planning expert, Mr Panaretos are quite close together in assessing the requirement for parking, should the current uses have to be applied for anew, at about 70 spaces. Mr Venn contemplated requiring a further dozen under item (d) of the Table to Acceptable Solutions AS 16.1 for Tavern, set out above, on the basis of 35 gaming machines which can be seen operating in the Tavern and are licensed according to the document Mr Scanlan annexes to his statement. I think Mr Venn is correct that the (d) requirement is cumulative upon (a). He and the Council, in the end, preferred not to insist on (d), given that no record can be found of any planning approval for the gaming use. The court was given to understand there exists a “grey area” as to whether a material change of use is required. There is no practical utility in determining at present whether the requirement is around 70 or something in excess of 80.
I reject the argument that the theoretical numbers in the 1987 calculation have consequences for the parking issue in this appeal. The starting point of 95 or 98 (as presented by Jennings) was always something “calculated”, never anything real. The calculation was made as part of a proper and sensible exercise of determining the relevant effect for parking purposes of the new development intended. Even so far as “real” parking provision is concerned, there is a certain amount of artificiality – which I am not persuaded the court should add to. On the site, by way of compliance with conditions requiring a minimum of 15 parking spaces, one can find 18 marked spaces. A plan in evidence showing 19 is wrong. The court did not see any of the plans alluded to in documents in evidence or foreshadowed identifying 15 car parking spaces in a configuration approved by Council officers. It heard that the 18 marked spaces may not allow a sufficient turning circle for vehicles effecting deliveries. The onsite parking is available only to staff associated with the various “leases”, and is not available to the public. It may well be that the self-interest of and co-operation among those privileged to use the parking area lead to consensual overcrowding, including “parking in” of some who will not wish to leave until a clear path out is available. Given that the appellant bears the onus of proof, the court cannot proceed on the basis that actual on site spaces are any greater in number than the 15 required. It has not been shown that extra spaces (both of which at one stage were said to be in the loading area) meet appropriate standards.
For reasons indicated elsewhere, the financial contribution which Jennings presumably made can be identified as the equivalent of 27 spaces. It was not suggested that it might be any more.
The dispensation of 9 was conditional upon provision of public toilets (presumably in relief of the Council’s obligation to provide adequate facilities of that kind). On the available evidence, the public are locked out of the toilet building provided. There is no signage in Scarborough Street directing interested passers-by to the toilets. For the present, it would appear that no-one connected with the Cecil Hotel has any intention of complying with the condition upon which that dispensation was granted. My view is that the dispensation should continue only so long as the condition is complied with. The Council, by Mr Morzone, did not wish to pursue any argument along those lines, preferring to regard this as a potential “enforcement matter”. Thus, actual parking provision for which the Cecil Hotel can be credited is 51 places, being the aggregate of 15, 27 and 9. This falls far short of what must be provided, if the Cecil Hotel is to come up to the standards represented in rates in the current planning scheme.
I think there is no doubt that a condition requiring 20 or so spaces to be provided would offend s 3.5.30. It would far outstrip any increased parking demand attributable to the expansion of the tavern into the vacant shop area. The highest number contended for at any stage has been 5, in the first condition under appeal. Hammercall Pty Ltd v The Gold Coast City Council [2005] QCA 29 is a good example of a condition failing which was out of all proportion to the extent of new development covered by the approval to which it attached. On no view was the condition (for dedication of a large area of land) reasonably required by the “development” which expression in this context must be understood as applying to incremental development on the site, rather than the aggregate of the increment and what preceded it. At first instance, I had found the condition “not an unreasonable imposition” for purposes of s 3.5.30(1)(a) on the basis of its having been agreed to by the developer in an agreement which could be “called in” at any time. Except for Pacific Exchange Corporation v Gold Coast City Council [1997] QPELR 129, approved in Hammercall at [65], I had occasion to consider Mr Haydon’s authorities at some length at first instance, namely Cardwell Shire Council v King Range Australia Pty Ltd (1984) 54 LGRA 110, Maroochy Shire Council v Wise (1998) 100 LGERA 311, Wise v Maroochy Shire Council [1998] QPELR 416, Wise v Maroochy Shire Council [1999] QPELR 353, Lloyd v Robertson (1962) 107 CLR 142 and Wootton v Woongarra Shire Council (1995) 56 LGRA 301, also Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 211 ALR 472 and Proctor v Brisbane City Council (1993) 81 LGERA 398.
Mr Panaretos and Mr Venn were in agreement as to the methodology to be adopted in replicating now for the current development application the 1987 exercise of identifying the increased parking demand involved in the application. They recognise that tavern use of the vacated shop will generate more demand for parking than the shop use. There was no argument presented that “precedents” in which changes of use of particular areas within mixed developments were permitted without review of parking implications indicated the proper approach here.
Before he became somewhat more robust after the opportunity to consider exhibit 2, Mr Panaretos identified the tavern extension’s parking requirement as “49 m2 @ 10 spaces per 100 m2 = 4.9 spaces rounded up to 5”. He identified the appropriate credit for floor space of the vacated shop as “76 m2 @ 1 space per 30m2 GFA = 2.53 spaces rounded up to 3.” The maximum number of parking spaces generated, in his view, was 2, being 5 spaces less 3 spaces. The basis of the reduction from 76 square metres to 49 square metres is that the larger area will be reduced by excision of an office area, identified as a “staff only” area for purposes of the exclusion in (a) for Tavern in the AS 16.1 table. In this regard, although the Council were not disposed to accept it, the court has only the evidence of Mr Scanlan that he will not admit non-staff people, such as suppliers’ representatives, to the office. Mr Venn admitted a reduction only to 62 m2 by reference to the office. Also, he wished to add in the 3.3 m2 referred to above in [3]. He found an “accountable GFA of 65.3 m2”, resulting in a carparking requirement of 6.53 spaces, which, allowing the credit of 2.53 spaces, reduced to 4.
I am not persuaded that there ought to be “rounding up” of the credit. I am satisfied that the 3.3 m2 area should be included. Accepting Mr Panaretos’ 49m2, that produces an increase to 52.3, and a requirement of 5.23 spaces. Subtracting the credit of 2.53 leaves 2.7 spaces required, which should be rounded up to 3. There cannot be a part car space. The Constraint Code approach of rounding up is clearly set out.
As it happens, this calculated outcome coincides with that proposed by Mr Beard, a traffic engineer called in the Council’s case who was the only expert to essay the exercise of estimating the likely increase in patronage of the enlarged tavern, based on an actual survey of it and application of his experience to predict increases in business (he ran – but disclaimed reliance on - a check on the first day of the hearing during in the peak lunch period, prior to giving his evidence, which confirmed his view) and the likely number of vehicles associated with the increased patronage requiring parking. His view was 8 persons, bringing 3 vehicles. I accept Mr Beard’s evidence, comforted in doing so by the planning experts’ effective concurrence. I do not accept Mr Quinn’s view that there would be no increase in parking demand generated by the proposed development, which he based on surveys of patronage of “stand alone” taverns in quite different locations, whose trading patterns would exhibit different features, such as peak demand on Friday evenings.
A difficulty about placing reliance on theoretical exercises to work out a figure for parking places notionally (but not actually) provided was pointed to by Mr Morzone. Such an exercise could be done at any date, presumably, whether or not in the context of a development application being processed. A greater notional or deemed provision might be calculated by reference to the historical planning scheme containing the most onerous requirements. (At one time there was a very onerous requirement per square metre of bar area.) There would never have been any risk of any owner or occupant of the relevant site having to satisfy those requirements, but a “credit” could be built up which might confer exemption for a later development which in the ordinary way would require provision of additional parking. It would not make any difference in principle that the notional assessment accompanied development which contained some real parking provision (as happened in relation to the Cecil Hotel in 1987, but not in 2000) – unless that provision happened to result in actual provision of everything required if all development on the site, historical as well as current, were assessed under the current planning regime.
It can be accepted that credits are available, not only for reductions in calculated demand for parking by reason of use that is discontinued (as for the closed Shop here), but also by way of credit for long-established operations to spare them from having to meet current parking requirements in full as the price of some modest new development. No better way of achieving this has emerged than the method followed by the planners and Mr Beard.
There is some potential, in theory, for increments in parking provision required on this approach to produce an outcome in which the aggregate of parking requirements imposed piecemeal by a series of conditions would lead to an aggregate actual provision in excess of what the planning scheme required at that point in time. A condition having that effect would not appear to satisfy s 3.5.30. Alternatively, the circumstances would present a strong case for relaxation.
Relaxation is not indicated here. Considerations include the following:
● The relaxation sought relates to a money payment rather than any physical aspect of the site or the development proposed (in the context of what is there).
● Actual parking provision (including historical contributions in lieu) falls far short of meeting current standards.
● By the LAP, provision of adequate parking on or near to development sites is “paramount”.
● In relation to the site, the condition relied upon for a dispensation of 9 spaces (included in the 51 treated as “actually” supplied) is not being complied with.
● The evidence is persuasive that there will be a demand for the increased parking contribution proposed.
The appeal should be allowed in respect of condition 5, which the Council did not seek to support in light of its own experts’ views, but only to the extent of changing the requirement of a contribution in money in lieu of 5 onsite car parking spaces to one in lieu of 3.
The Council did not seek to retain condition 17 as proposed, but argued for a watered down version. The intersection of Scarborough Street with Nerang Street is not a right angle. The boundaries of the site run parallel to the streets so that the corner is an acute angle which might well have made construction of a building right to the boundaries difficult. In any event, the rounded corner of the Cecil Hotel as constructed is integral to the architectural style employed and contributes to the building’s being noticeable and memorable, too. In 1987, if not before, the value to the community of the de facto corner truncation effected by the construction was acknowledged. It improves sight lines on a corner where substantial movements of pedestrians converging on the corner from opposite directions are to be expected. Preserving the sight lines in the interests of safety is a significant consideration. More important is the contribution which that truncation makes to provision of a suitable collecting area where pedestrians waiting for the traffic lights to change (which may be a considerable amount of time in that location) may safely wait.
Mr Venn and Mr Panaretos met as directed by the Court and produced a joint report which offered the following conclusion:
“4. Condition 17
1.Council requires the dedication of a ‘triangle’ of land external to the building located at the corner of Nerang and Scarborough Streets.
2. The ‘triangle’ is approximately 10 to 15m2 in area.
3.Any technical basis for the imposition of the condition is a matter for traffic engineering experts;
4.It is agreed that, from a planning point of view, this condition is not reasonably required by the additional development proposed by the application.
5.JV is of the opinion, however, that, as the whole of the tavern development is the subject of the application, the Condition is relevant to the development as a whole; and
6.JV is of the further opinion that, given the discussion of item 4.5 above, the condition is relevant to, and not an unreasonable imposition on, the development the subject of the application.
John Panaretos (JP) – for Appellant
John Venn (JV) – for Respondent
Date: 2 August 2006”
Mr Quinn and Mr Beard, in their corresponding document of 10 August 2006 recorded, relevantly:
“1.The applicant currently makes no use of the area of truncation required by Condition 17, being outside the building, where by appearance and function it is part of the footpath. It is desirable that this area be dedicated road, and the truncation would be reasonably required pursuant to a substantial redevelopment of the site. It is understood that the planners have concluded that the required truncation would be relevant to the application. However, it is agreed that the truncation would not be reasonably required by the subject development.”
(Apropos this report, I disagree with the criticism levelled at Mr Beard for signing a document which was expanded after the original draft to include a lengthy statement of and, more importantly, justification for views of Mr Quinn with which Mr Beard disagreed. I do not think there was any implication that Mr Beard did agree with such material, reading the document as a whole, nor do I think there is any room for confusion on that score. I agree with Mr Beard that there was no harm in allowing the joint report to be changed to incorporate views held by Mr Quinn alone, which were clearly identified as such. Some might be more concerned that, following the preparation and filing of joint reports of experts, all four of them prepared conventional individual reports. As it happened, I found them helpful. They informed the court more fully than filed joint reports. As noted above, they required updating, or were thought to, given the emergence of exhibit 2.)
The traffic engineers may have overstated the extent of agreement between the planners. Mr Venn and Mr Beard did not exhibit their usual enthusiasm in defending condition 17. By the end of the hearing, nor did the Council. In my opinion this is a Hammercall scenario in which the Council, understandably enough, is taking advantage of its role in assessing a development application for a modest proposal to expand marginally a well-established tavern (and remove a shop) to attach a condition which it sees, properly, as very much in the public interest. For purposes of s 3.5.30(1) I find it impossible to regard condition 17 as reasonably required in respect of the development, or as relevant to it. While tavern patronage will increase, the associated addition to the volume of pedestrian traffic at the corner will be negligible. The entrance to the TAB will be relocated only a few metres. It will be further away from the intersection. Regarding “the development” as confined to the change which will happen, as the court must, I think the condition requiring dedication is an unreasonable imposition on it.
The land proposed to be taken as the price of this modest development going ahead is valuable land, given its location. In the LAP, it appears to be in the RD 8 area with a 40 storey limit on development. Potentially, up to 40 bedrooms or equivalent space might be lost to a developer. As Mr Panaretos observed, whether or not the truncation area is used, it is useful in being brought into calculations of plot ratios for future development and the like. It is difficult to see any justification for depriving the owner of advantages of that kind. The point should be made, although what may happen in the future is pure speculation. It does not seem that the planning scheme contains anything to protect the existing Cecil Hotel building. Even if it is preserved, the site is large enough to accommodate substantial new development; it may be amalgamated with adjoining sites. In any redevelopment, use of the truncation area for a basement would be valuable. The strong likelihood is that on any large scale redevelopment of the site the truncation would be sought, and perhaps insisted upon, but that would not necessarily be the case. As things have appeared on the evidence in this appeal, the public’s interest is in having the corner kept open, in the way that has been happening all along (or more open). That does not require public control of anything under the ground or, indeed, except for the first few metres, above the ground. What is required might well be provided by way of a volumetric sub-division, or easement. Any large scale development on the site in the future may well be found to require a condition of conventional dedication of the freehold for truncation. In this appeal, the only serious question is whether something less is required. In the end, I do not think so.
There is no suggestion that the 1987 condition (no. 16) is not working effectively. True, it might be better expressed. The parties should have the opportunity to consider that and invite the court to impose some improved condition. In the absence of that happening, in respect of condition 17, the appeal should be allowed.
Mr Morzone’s arguments for something better depended on fears that, on the contrary to experience to date, there could be problems. The hotel could, it is said, construct a platform on the corner, creating a trip hazard. It was suggested that there exists potential legal uncertainty as to whether the Council or the owner/occupier would be liable if an accident occurred. As Mr Morzone says, the awning extending the full length of the hotel’s street frontages intrudes into public space, as does a slender fenced off balcony at first floor level giving office workers there the opportunity to use public space above ground level to that extent. It may be that such matters should be regularised, if they are a real cause of concern in any quarter. That does not mean that condition 17 or any watered down equivalent should be imposed by the court in this proceeding. One might note that the LAP appears to favour awnings, regarding them as advantages for the general public, rather than for those who choose or are compelled to provide them. Another allegation was that the Council has borne the expense of maintaining the truncation area, which is handsomely paved as an indistinguishable part of the footpath, i.e. the hotel is in some way a sponger on the Council. If the Council did pay, the source of the funds may well have been under condition 3 of the 2000 conditions, even though the calculation of the contribution was based on the footpath area outside the property boundary. No doubt the owner of the site for the time being has paid property rates assessed on the full site area. (It is convenient to note my rejection of Mr Haydon’s argument that payment of rates over the decades can be relevantly relied on as a contribution towards parking provision in the heart of Southport near to the site.)
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