Nudler v Canterbury City Council

[2007] NSWLEC 85

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Nudler v Canterbury City Council [2007]  NSWLEC 85

PARTIES:
APPLICANT
Victor Nudler

RESPONDENT
Canterbury City Council

FILE NUMBER(S):     10948  of       2006

CATCHWORDS:       Development Application :- use an existing free car park associated an existing Woolworths supermarket and specialty shops as a time-limited public car park with associated ticket machines and signage - public interest

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CASES CITED:

CORAM:        Brown C

DATES OF HEARING:          20/02/07

EX TEMPORE DATE:           20 February 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr S Klinger, solicitor

RESPONDENT
Mr A Simpson, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

20 February 2007

10948 of 2006    Victor Nudler v Canterbury City Council

JUDGMENT

1. COMMISSIONER: This is an appeal against the refusal of a Development Application No 510/2006 by Canterbury City Council (the council) to use an existing free car park associated an existing Woolworths supermarket and specialty shops as a time-limited public car park with associated ticket machines and signage at 68-74 Evaline Street and 1-7 Claremont Street, Campsie (the site).

1. The proceedings were heard as an On Site Hearing and the judgement reflects the Statement of Basic Facts and the findings given on-site.

1. The application provides for the use of the existing free car park as a time limited public car park with associated ticket machines and signage. The car park will provide the following:

   twenty information and direction signs throughout the car park of various sizes.
   upgrading of lighting in undercover car park.
   additional three disability accessible car spaces adjacent to the southern wall of the existing building.
   linemarking of the entire car park including all car bays, disability accessible bays and surface directional arrows.

1. The “Park ‘n’ Display” system will operate in the following way:

   the car park will offer two hours free car parking for all customers then a fee of $2.00 per hour applies to a maximum of $6.00 per day.
   customer drives into the car park and park vehicles in the linemarked parking bay.
   signage through the car park directs customers to parking ticket machines. There are three ticket machines located throughout the car park.
   on parking their vehicle the customer will proceed to one of the ticketing machines, push an appropriate button to obtain a ticket for the free parking period, or deposit coins into the machine for their anticipated additional length of stay. The validation ticket is then displayed on the dashboard of the vehicle.
   on returning to their vehicle, customers will leave the car park.
   numerous security patrons are undertaken during the day (minimum 6), seven days per week. These patrols monitor car park activity, check ticket machine for satisfactory operation and ensure parked vehicles adhere to parking conditions. Where a customer fails to display a valid ticket, they will be issued with a payment notice after a ten minute grace period is allowed. The payment notice provides for a "breach of contract" penalty of $66.
   should the ticket machine be non operational, no payment notices will be issued until the ticket machine is operational.
   there are appeal procedures relating to the issues of payment notices.
   reserved car spaces for staff are to be provided.

2. The council filed a Statement of Issues that contained 3 issues.  The council did not press the issues relating to the potential adverse amenity impacts on surrounding residential areas (Issue 1) and the precedent effect (Issue 2).  The public interest issue (Issue 3) was raised in the context of whether the proposed “Park ‘n’ Display” system is the most appropriate system.

1. The parties agreed to the appointment of Mr John Coady as the Court appointed traffic expert.  He expressed concern over the “Park ‘n’ Display” system as it relies on the Court system to collect parking fees in circumstances where there has been a breach of the parking requirements.  He advocates the “Park ‘n’ Pay” system as an alternate system where boom gates are installed at the car park entry and exit.  The gates are activated by the motorist entering the car park and accepting a pay ticket from the boom gate mechanism.  Prior to departing the car park the motorist must use a central collection facility to validate the parking ticket if the stay is less than 2 hours or pay a fee for any stay exceeding 2 hours.  Under this system the car park operator collects all parking fees on-site and there is no need to rely on the Court system to collect any outstanding parking fees.  Mr Coady states that if a suitable car park layout with a “Park ‘n’ Pay” system can be devised (even if some spaces are lost and there is some non compliance with relevant design standards) then it would be contrary to the public interest to approve the proposed “Park ‘n’ Display” system.  Mr Coady also provides details of an amended access arrangement from Claremont Street to accommodate the “Park ‘n’ Pay” system that may be accommodated in council roadworks in the immediate area. 

2. While Mr Coady expressed a preference for the “Park ‘n’ Pay” system, he states that if a suitable carpark layout with a “Park ‘n’ Pay” system cannot be devised, the benefit provided by the “Park ‘n’ Display” system would outweigh the public interest issues he expressed over the Court payment system and approval could be given to the “Park ‘n’ Display” system.

1. I agree with Mr Coady and the council that there is a significant public benefit in providing controlled parking on the site as it allows for a greater turnover of spaces for the supermarket and specialty shops and discourages long-stay parking.  The method to control the parking on-site, in my view, is largely the responsibility of the owner of the site providing the particular system is not overly onerous for patrons or creates any impacts on the surrounding area, such as queuing onto streets.  In this case, I am satisfied that the differences between the “Park ‘n’ Display” system and the “Park ‘n’ Pay” system are not so great (in terms of the public interest) as to warrant any additional roadworks, the potential loss of existing spaces and the non compliance with relevant design standards.  In my understanding, there is little, if any practical difference between the two systems if a patron stays less than 2 hours.  In fact, the “Park ‘n’ Display” system allows vehicles to enter the site without the need to stop and obtain a ticket thereby removing the potential for queuing onto Claremont Street.  While the council pointed out a number of administrative difficulties in enforcing the proposed payment notice, this was not seen as an issue by the applicant who is ultimately responsible for following up any breaches of the parking requirements.

2. Overall, I am satisfied that the proposed “Park ‘n’ Display” system is acceptable.

1. The orders of the Court are:

   1) The appeal is upheld.

   2) Development Application No 510/2006 to use an existing free car park associated an existing Woolworths supermarket and specialty shops as a time-limited public car park with associated ticket machines and signage at 68-74 Evaline Street and 1-7 Claremont Street, Campsie is approved subject to the conditions in Annexure A.

   _____________
   G T Brown
   Commissioner of the Court