Secure Parking Pty Ltd (ACN 108 043 689) v Commissioner of State Revenue
[2017] VSCA 68
•30 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0098
S APCI 2016 0099
S APCI 2016 0100
S APCI 2016 0101
| SECURE PARKING PTY LTD (ACN 108 043 689) | Applicant |
| V | |
| COMMISSIONER OF STATE REVENUE | Respondent |
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| JUDGES: | MAXWELL P, TATE and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2017 |
| DATE OF JUDGMENT: | 30 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 68 |
| JUDGMENT APPEALED FROM: | [2016] VSC 344 (Ginnane J) |
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TAXATION – Congestion levy – Levy imposed on each ‘leviable parking space’ – Whether blocked off parking spaces attract levy – Whether parking spaces ‘set aside’ for parking – Distinction between ‘set aside’ and ‘use’ – Space may be ‘set aside’ for parking whether or not it is in use – Purpose of person undertaking action – Intention that spaces remain available for use if required – Appeals dismissed – Congestion Levy Act 2005 ss 3, 8.
WORDS AND PHRASES – ‘Set aside’, ‘use’, ‘is used’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A J Myers QC with Ms C van Proctor | Arnold Bloch Leibler |
| For the Respondent | Mr C M Caleo QC with Mr C J Horan QC | Solicitor for the Commissioner of State Revenue |
MAXWELL P:
I have had the advantage of reading in draft the reasons of Whelan JA. I would make the orders which his Honour proposes, for the reasons which he gives.
TATE JA:
I have had the advantage of reading, in draft form, the judgment of Whelan JA. I agree, for the reasons his Honour gives, that leave to appeal should be granted with respect to proposed grounds 1 and 2 but the appeals should be dismissed. I also agree that leave to appeal should be refused on proposed ground 3.
WHELAN JA:
The Congestion Levy Act 2005 (‘the Act’) imposes a levy on parking spaces in the central business district and inner suburbs of Melbourne.
The applicant (‘Secure Parking’) is the operator of four car parks in the area affected by the levy. In 2013 Secure Parking blocked off certain areas in these car parks. The objective was to avoid the imposition of the levy on parking spaces which did not earn sufficient revenue to justify the incurring of that liability.
The Commissioner of State Revenue (‘the Commissioner’) considered that the measures taken were not effective to avoid imposition of the levy and assessed Secure Parking accordingly. Secure Parking objected and the Commissioner determined to disallow the objections. Secure Parking was dissatisfied with the Commissioner’s determination and four matters, one in relation to each car park, were referred to the Court as appeals pursuant to s 106 of the Taxation Administration Act 1997. The four appeals were heard together. The trial judge dismissed each of the appeals.[1] Secure Parking now seeks leave to appeal on each matter. The
applications for leave were argued on the basis that if leave were granted the appeals should be determined forthwith.
[1][2016] VSC 344 (‘Reasons’).
It is unnecessary to differentiate between the four separate matters, and the parties did not do so in their submissions. They addressed the four applications as if they were one, and I will do likewise.[2]
[2]There are specific issues raised about two of the car parks, one relates to holiday periods and the other relates to tandem car parks These issues are dealt with discretely.
Before turning to the facts of the case, the trial judge’s reasons, and the submissions in relation to the application for leave to appeal, it is necessary to address the relevant provisions of the Act.
Relevant provisions of the Act
The Act has the express purpose of imposing a levy ‘to reduce traffic congestion’. A levy on parking spaces might reduce traffic congestion by increasing the cost of parking thereby discouraging commuters from bringing cars into the designated area.
Under s 8 of the Act a levy is imposed each year on each ‘leviable parking space’. Section 9 provides for who is liable to pay the levy and s 10 sets out the amount of the levy. Both owners and operators of public car parks are potentially liable for the levy.
The levy is assessed under Part 3 of the Act. Section 13 provides that owners and operators (as applicable) are to be assessed on 1 January of each year in relation to each space ‘that existed as a leviable parking space at any time in the previous year’.
The key concept in relation to the imposition of the levy is the concept of a ‘leviable parking space’.
Section 3 of the Act defines ‘parking space’ as:
(a)a space set aside for the parking of a motor vehicle, whether or not the space is used for the parking of a motor vehicle and whether or not the space is permanently delineated as such; or
(b)a space used for the parking of a motor vehicle, whether or not the space is permanently delineated as such —
but does not include a space that is part of the carriageway of any street, road or lane open to or used by the public.
The same section defines a ‘leviable parking space’ as a parking space that is not an ‘exempt’ parking space. Part 4 of the Act provides for exemptions and concessions.
Certain parking spaces are exempt if ‘used exclusively’ for one of a number of designated purposes. These designated purposes are residential parking (s 16), visitor parking and loading bays (s 17), parking for particular events (s 20), parking for employees of businesses which operate 24 hours a day (s 22), parking for fleet vehicles and bus layovers (s 23), and parking for cars on display for sale or being serviced or repaired (s 24). Certain exemptions are also provided for in relation to parking spaces ‘owned’ by particular entities. These entities are municipal councils, charities and like institutions (s 18) and consulates and consular officials (s 18A). Exemptions are also provided for in relation to certain purposes where those parking spaces are either ‘set aside’ or ‘used exclusively’ for those purposes. The purposes to which these alternative characteristics apply are emergency vehicles (s 19) and disabled parking (s 21).
A ‘public car park’ is defined by s 3 as a car park where the predominant number of spaces are ‘set aside for, or used by, the general public’.
Sections 25 and 26 provide for proportionate concessions in relation to parking spaces in private car parks (s 25) and in public car parks (s 26). In relation to any period or periods during a year in which a particular parking space in a public car park is either exempt or ‘does not exist as a parking space’ there is a proportionate reduction in the levy in the following year.
Section 5(3) of the Act provides that a sign or temporary barrier indicating that a space is not a parking space ‘is not, of itself, evidence that the space is not a parking space’.
Finally, it is relevant to note that provision is made in s 34 of the Act for a person who ‘uses’ a parking space in a private car park under an agreement with the owner to indemnify the owner in relation to the levy, with provision for a proportionate reduction based upon the extent to which the space is ‘used’.
The relevant issues
In each of the four car parks, areas with delineated parking spaces were blocked off during the entire 2013 calendar year and were not in fact used as parking spaces by motor vehicles in that year. The principal issue in the proceedings was whether those blocked off spaces were nevertheless ‘leviable parking spaces’ for the purposes of assessment on 1 January 2014.
The proceedings also concerned two additional issues.
In one car park (Bank Street) certain spaces were blocked off during two school holiday periods. The issue in relation to those spaces was whether a proportionate reduction under s 26 of the Act was required.
In another car park (Flinders Lane) there were 98 spaces in a tandem configuration. The front spaces were blocked off for the entire year. The issue was whether those front spaces were nevertheless still ‘leviable parking spaces’.
The relevant facts — overview
Secure Parking operates a number of public car parks in the Melbourne central business district and in the inner suburbs. Of the four car parks that are the subject of these proceedings, two are in South Melbourne and two are in the central business district. They are purpose-built commercial public car parks with delineated car parking spaces.
At the relevant time Secure Parking’s management team met on a weekly basis. At meetings prior to 1 January 2013 it was decided that measures would be implemented to block off indefinitely access to certain of the car parking spaces in the four car parks. During 2013 it was decided that in one car park certain spaces were to be blocked off during designated autumn and spring school holiday periods.
The means by which the spaces were to be blocked off was left to the discretion of the commercial area managers. The means adopted included a combination of one or more of the following:
(a) heavily weighted bollards,
(b) metal chains across access points,
(c) signage stating ‘no access permitted’, or words to that effect,
(d) brightly coloured flag bunting, or
(e) staff patrolling the spaces to ensure that no motor vehicle parked in them.
Vehicles did not in fact park in the spaces indefinitely blocked during the 2013 calendar year, and vehicles did not park in the spaces blocked during the designated holiday periods in the car park where that occurred.
The reason why the spaces were blocked was because projected demand was assessed as being insufficient to justify incurring the levy.
The relevant facts — Secure Parking’s decisions and intentions
Secure Parking’s regional general manager, Mr Scott Rush, gave evidence before the trial judge, as did three commercial area managers. Based upon their evidence the trial judge reached conclusions as to Secure Parking’s intentions. The trial judge found:
The evidence establishes that the relevant parking spaces were shut off or blocked off because there was a lack of sufficient demand for them at the time to justify the incurring of the congestion levy. However, I also find that the evidence establishes that they could have been made available for use as parking spaces at any time in 2013 if demand for parking spaces increased. The means used to block the spaces could easily have been reversed.[3]
[3]Reasons [36].
The trial judge said:
The evidence supports the conclusion that the spaces were set aside for the parking of motor vehicles, but only to be made available for that use when demand made that an appropriate business decision for Secure Parking. As the barriers blocking access to the spaces could easily have been removed, Secure Parking could readily have made the spaces available for motorists to park their motor vehicles.[4]
[4]Ibid [65].
The trial judge also said:
[T]he evidence suggests that the relevant spaces were set aside as parking spaces and would be made available for parking motor vehicles when demand made that an appropriate business decision for Secure Parking.[5]
[5]Ibid [75].
In order to remove any ambiguity which might arise from the trial judge’s use of the term ‘could’ in two of the passages, and ‘would’ in the third, it is necessary to refer to Mr Rush’s evidence on this issue.
In his affidavit sworn 23 November 2015, which was read into evidence, Mr Rush explained that weekly meetings were held by management at which, amongst other things, performance forecasts for each car park were considered. One of the matters addressed, by reference to a spreadsheet prepared by the staff, was the ‘occupancy of the car parks, and whether any measures should be taken to close off spaces if they are consistently not being occupied by customers’ vehicles’.
In his affidavit sworn 18 December 2015, also read into evidence, Mr Rush deposed that he could not recall precisely when the decision was made to indefinitely block off spaces but he believed that the relevant decision would have been made at a weekly meeting in 2012.
In relation to the car parking spaces blocked off in one car park for the school holiday periods, Mr Rush was able to be more specific. He deposed that at one of the weekly meetings in early 2013 Secure Parking decided to block off certain spaces for 15 days from 1 April 2013 to 15 April 2013 because that was the Victorian autumn school holidays and ‘this was typically a particularly quiet period’ at that car park. He deposed that at one of the weekly meetings in about mid-2013 a decision was made to block certain spaces in that car park for 12 days from 23 September 2013 to 4 October 2013 for the same reason in relation to the spring school holidays.
Mr Rush deposed that ‘a decision of Secure Parking to block off spaces in a car park is subject to ongoing review’.
In Mr Rush’s cross-examination the following interchange occurred.
You refer in paragraph of this affidavit, it’s at paragraph 13(c), you refer to one of the matters discussed as being whether any measures should be taken to close off spaces if they are consistently not being occupied by customers' vehicles?---Yes.
You’d agree wouldn’t you that any decision of that nature would always be subject to review at a subsequent management meeting?---Yes.
I think you say - I won’t take you to it, but you say in your second affidavit at paragraph 9(d) that these decisions are subject to ongoing review?---That’s correct.
So depending on the updates provided by the spreadsheets in each month you could[n’t][6] at any time make a decision to open up a new area of a car park, that might be one of the measures you could take?---Yes, that’s correct.
If you have closed off an area at any time, in light of your view, you could re-open an area that had been closed off; would you agree with that?---Yes, that’s correct.
So if, for example, you've taken a decision to close off an area, some bays or a level of a car park and a month later your review showed that the car park was full to capacity - - -?---Yes.
You wouldn’t maintain that decision in light of that information would you?---No, we wouldn’t.
You would make a decision to re-open the area and attract customers - - -?---And hopefully generate - - -
And generate further income?---That’s correct.[7]
[6]The transcript records the word ‘couldn’t’. It seems to me, given what follows and what was deposed to, that this is a typographical error and that the word transcribed as ‘couldn’t’ should be ‘could’ or ‘could’ve’.
[7]Transcript of Proceedings (18 February 2016) 34.4–34.30.
A little later in the cross-examination the decisions concerning the school holidays were referred to and the following interchange occurred.
[Y]ou foresaw there would be suppressed demand for CBD parking?---Yes.
During autumn and spring school holidays and you took short term measures to block off particular areas to reflect that?---Yes.
But the converse could happen?---So we do respond to market fluctuations.
If the converse happened and there was a two week circumstances which lead to a two week sustained and predictable increase in demand you could respond to that increase also by opening up areas in your car park?---Yes.[8]
[8]Ibid 47.7–47.17.
Secure Parking’s evidence before the trial judge was that if the participants in the weekly meetings had concluded that there would be reliable demand for the blocked off spaces, whether for those spaces blocked off indefinitely or for those blocked off for the specific school holiday periods, the blockages which had been put in place (or which were proposed) could and would have been removed and the spaces could and would have been used to meet that demand.
Reasons of the trial judge
The trial judge set out the relevant facts and the submissions which had been made. He dealt in particular with a decision of the New South Wales Administrative Decisions Tribunal, Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue (‘Monsgrove’),[9] concluding that that was a decision which had turned on its own facts. He then turned to an analysis of the application of the Act to the case before him.
[9][2010] NSWADT 303.
The trial judge recorded the fact that Secure Parking bore the onus of proof.[10] He referred to the Macquarie Dictionary definition of ‘set aside’.[11] He accepted Secure Parking’s submission that the term means ‘separated out or set apart for a particular purpose’.[12] He observed that the idea of putting something aside for use in the future falls readily within the meaning of the expression ‘set aside’.[13]
[10]Reasons [64].
[11]Ibid [66]
[12]Ibid [67].
[13]Ibid [68].
The trial judge said:
In my opinion and speaking generally, things do not lose their essence or appropriate description because a decision is made and implemented not to use them for the purpose inherent in their essence and to render them incapable of being so used for particular periods of time. This point is accentuated by asking the question: if these spaces were not set aside as parking spaces, what were they set aside for? It would be too narrow a focus to say that they were not set aside for anything and were awaiting a new designation or purpose. There is no evidence to support that conclusion. They remained spaces in purpose-built commercial car parks awaiting use when demand made that a sensible business course for Secure Parking to adopt.[14]
[14]Ibid [69].
The trial judge reviewed the provisions of the Act and concluded that a clear distinction was drawn between spaces used as car parking spaces and those set aside for the parking of motor vehicles. The trial judge said:
I consider that a key consideration to determining the issues in these appeals is that the Act does not just impose the congestion levy on spaces used as car parking spaces, but also imposes the levy on spaces that are set aside for the parking of motor vehicles.[15]
[15]Ibid [73].
The trial judge concluded that the fact that Secure Parking had blocked off spaces, and that they were never unblocked during the 2013 calendar year, did not decide the issue because the Act did not impose the levy only on spaces used. The judge concluded the relevant spaces were still ‘set aside as parking spaces and would be made available for parking motor vehicles when demand made that an appropriate business decision for Secure Parking’.[16]
[16]Ibid [75].
The trial judge did not gain assistance from the Second Reading Speech or the Explanatory Memorandum.[17]
[17]Ibid [76].
The trial judge addressed the ‘tandem’ parking spaces. He observed that if the area of each tandem parking space had been increased so as to provide for only one car then the assessment would be altered, but whilst they were demarcated as providing for two cars there were two spaces.[18]
[18]Ibid [77].
As to the parking spaces blocked off during the two school holiday periods, the trial judge concluded that they remained ‘set aside’ as parking spaces for the purposes of the Act for the same reasons as he had decided that the areas blocked off indefinitely had remained parking spaces ‘set aside’ within the meaning of the Act.[19]
[19]Ibid [78].
Proposed grounds of appeal
The proposed grounds of appeal (combining the four applications) are as follows:
(1)The learned primary judge erred in finding that spaces that had been blocked off and were unavailable for parking during the whole of 2013 ‘existed’ as ‘leviable parking spaces’.
(2)The learned primary judge erred in finding that the applicant was not entitled to a part year exemption under s 26 of the Act in respect of 48 parking spaces in the Bank Street car park blocked off during school holidays in 2013.
(3)The learned primary judge erred in finding that the front part of the 49 ‘tandem’ spaces in the Flinders Lane car park were ‘parking spaces’.
Secure Parking’s submissions
Secure Parking in its written case emphasised that the levy is calculated each year by reference to the number of ‘leviable parking spaces’ that existed during the previous calendar year. Thus, the assessment is retrospective having regard to the existence or otherwise of spaces during the previous year. Similarly, many of the concessions and exemptions provided for in the Act require an examination of the use in fact made of those spaces during the prior year. Thus, the scheme of the Act is to impose a levy each year by reference to the facts which existed during the previous year.
Secure Parking accepted that the expression ‘set aside’ meant separated out or set apart for a particular purpose. Secure Parking submitted that in order for something to be ‘set aside’ for a particular purpose, the person who controls the use must intend for it to be used for that purpose. In that regard Secure Parking cited a passage in Monsgrove.[20] The passage cited reads as follows:
Though it is strictly unnecessary to decide whether spaces were ‘set aside’ for parking, it is appropriate to do so. The expression, ‘set aside for the parking of motor vehicles’, implies a purpose. That, in turn, requires a subjective intent on the part of the person setting aside the space, or the person on whose behalf the space is set aside. That intent may be established by the evidence of the person in question, or it may be ascertained objectively from surrounding circumstances.
[20]Monsgrove [2010] NSWADT 303 [46].
Secure Parking submitted that in order for a space to be set aside for parking the operator of a public car park must intend that the space be used for that purpose. If that intention did not exist at any time during 2013 then, Secure Parking submitted, it could not sensibly be said that that space had been ‘set aside’ for the purpose of parking at that time.
It was submitted that the trial judge’s primary reason for rejecting Secure Parking’s position was the fact that the barriers could have been removed if demand had made that a sensible business decision. Secure Parking submitted that having regard to the fact that the spaces were blocked off and not used for the whole of 2013, and having regard to the retrospective scheme of the Act, the relevant question was whether the spaces in fact existed as leviable parking spaces during 2013, not whether they ‘could have existed’ if Secure Parking had chosen to remove the barriers. Secure Parking submitted that there was nothing in the Act to suggest that the ‘mere potential’ for a purpose to come and go in any relevant way ‘informs the analysis’.
In oral submissions senior counsel emphasised that ‘setting aside’ is the action of a person with an intention to achieve a purpose, usually manifested by some external act. Reference was made to authorities under liquor licensing statutes concerning areas in licensed premises ‘set apart’ for a particular activity,[21] and it was emphasised that different areas may be ‘set apart’ for a particular activity at different times and that this may be signified only by the use of a sign.
[21]Healey v Hambrook [1958] VR 232, 233–4, 239; McPherson v Westwood [1956] VLR 135, 147.
It was submitted that here the intention was that the blocked off spaces would not be available for use. Counsel accepted that, if demand had changed, the spaces could have been used but emphasised that that had not happened.
Senior counsel submitted that the trial judge’s reliance upon what he characterised as a thing’s ‘essence’ had been erroneous. There is no relevant ‘essence’. What needs to be determined is what was the relevant intention of the operator, looking back from the date of assessment (1 January) to the prior year (2013). The decision had been made by the operator to block the spaces. That could have changed but in fact it did not. The spaces remained blocked for the entire period, or periods. They were not used. They were not ‘set aside’ for the parking of motor vehicles in that period, or periods.
Secure Parking submitted in its written case that the trial judge’s conclusion had the effect of distorting the statutory purpose of the legislation. It was submitted that the effect of the judgment was that where a car park operator closed off spaces, the spaces would nevertheless remain leviable, and that would impose a distorted financial burden on motorists who did park in the spaces not closed off.
In oral submissions senior counsel for Secure Parking said the outcome contended for by the Commissioner would have the effect of punishing operators who closed off spaces in response to a decline in demand, that decline being the Act’s objective.
Secure Parking’s submissions concerning the spaces blocked off during the school holidays relied upon the same process of reasoning as applied in relation to the indefinitely blocked spaces.
In relation to the tandem spaces the subject of proposed ground 3, Secure Parking made two submissions. First, it relied upon what was said to be the judge’s conclusion that if the tandem spaces had been reconfigured so as to be delineated as a space for only one car then there would be only one relevant leviable parking space. It was submitted that what Secure Parking described as the ‘painting over of lines’ could not provide ‘any coherent discrimen’ when compared with the placement of barriers preventing parking in the front space. The second submission made was that a ‘parking space’ under the Act must be a space a motorist can leave as well as enter.
Commissioner’s submissions
The Commissioner submitted that Secure Parking in its submissions sought to emphasise two particular matters, being the retrospective manner in which the levy is assessed and the use to which the spaces had in fact been put in the 2013 calendar year. The Commissioner submitted that Secure Parking essentially contended that it was permissible to use hindsight and ask whether motorists were in fact prevented from using the spaces during the previous year. The Commissioner suggested that this was not the correct inquiry. The issue was whether the spaces were ‘set aside’, not whether they were actually used.
As the trial judge had done, the Commissioner emphasised that the Act draws a clear distinction between a space ‘set aside’ and a space ‘used’. The Commissioner submitted that, on the findings of fact made by the judge, the blocked off spaces were still ‘available’ if demand warranted their use, and that Secure Parking could and would have made those spaces available if that had been the appropriate business decision. The Commissioner submitted that the trial judge’s analysis in this respect was correct. The Commissioner also relied on s 5(3) of the Act.
The Commissioner submitted proposed grounds 1 and 2 should be rejected.
In relation to proposed ground 3, the Commissioner submitted that Secure Parking’s submission concerning expansion of the parking spaces was irrelevant given that that had not occurred. As to the submission that the Act envisaged that a parking space was a space a motorist could both leave and enter, the Commissioner submitted that that argument should not be entertained as it is not one that was made below. It was submitted that evidence could have been led to address that issue had that contention been raised. The Commissioner submitted that, in any event, tandem car parking spaces were still separate car parking spaces.
Analysis — proposed grounds 1 and 2
In my opinion the judge’s decision was correct, substantially for the reasons which he gave.
The Act could not be clearer in distinguishing between the concept of ‘setting aside’ and the concept of ‘use’. In the definition of a ‘parking space’ the existence and significance of that distinction is expressly stated. A space may be ‘set aside’ whether or not it is used. The distinction between the two concepts also clearly emerges in the different requirements provided for in relation to exemptions, some of which are based on exclusive use and some of which are based on either setting aside or exclusive use. The definition of ‘public car park’ also separates the concepts of setting aside and use. Other provisions of the Act, such as the provision concerning indemnity by licensees and lessees, are expressly based on use.
The relevant issue is whether the blocked off parking spaces were spaces ‘set aside’ for the parking of motor vehicles, whether or not they were used for the parking of motor vehicles. It was accepted by all parties that the judge had adopted a correct definition of the term ‘set aside’ when he accepted Secure Parking’s submission that the term meant ‘separated out or set apart for a particular purpose’. Thus, it is necessary to inquire into the purpose of the person undertaking the action or actions said to constitute a ‘setting aside’. In addressing this issue, it is necessary to take into account all of the relevant circumstances.
The first relevant circumstance is the fact that these car parks are purpose- built commercial car parks with delineated parking spaces. They have no purpose other than the provision of facilities for the parking of motor vehicles in the conduct of commercial business. In my view, this was the circumstance that the judge articulated when he referred to the existence of a ‘purpose inherent in’ a thing’s ‘essence’ and then referred to the fact that the spaces in question were not set aside for anything other than parking and that they ‘remained spaces in purpose-built commercial car parks awaiting use when demand made that a sensible business course’. I do not consider that the judge made any relevant error in addressing that as a relevant circumstance.
The second circumstance relied upon by the judge, correctly in my view, was the fact that Secure Parking had a continuing intention to use the blocked off spaces if demand warranted it. This was true in relation to both the spaces blocked off indefinitely and the spaces blocked off for the specified holiday periods. The decision to block the spaces was a decision not to use spaces for which there was inadequate projected demand. If greater demand had eventuated, they would have been used.
Given the nature of the facilities and the nature of the decisions made, Secure Parking’s purpose in relation to the blocked spaces was or, more accurately, continued to be that those spaces which were blocked were there for the parking of motor vehicles. The judge’s conclusion that the blocked spaces were still ‘set aside’ for the parking of motor vehicles, notwithstanding that they would not be used for that purpose unless and until demand warranted their use, was correct in my opinion.
I do not accept either of the submissions put on behalf of Secure Parking to the effect that this outcome is in some way contrary to the policy of the Act.
The contention put in the written case was that the outcome imposes a distorted impost on those who park in the spaces which are not blocked off. I do not accept that the impost imposed is in any relevant sense distorted. The written case did not explain what the ‘distortion’ was contended to be and in oral submissions a different contention was advanced in relation to the policy of the Act.
In oral submissions it was submitted that the outcome had the effect of punishing operators who closed spaces in response to reduced demand, that being the very objective of the legislation.
The objective of the legislation is expressed to be to reduce traffic congestion. It may be assumed that the Act is designed to achieve that objective by increasing the cost of parking, thereby reducing the number of cars. It might be expected that a reduction in the number of cars would reduce the demand for car parking spaces. The supply of spaces might then contract. There will then be fewer spaces to draw vehicles into the designated area. This would be an outcome consistent with the policy of the Act. But if an operator reduces supply by merely blocking off spaces temporarily until demand warrants their use, whatever potential those blocked spaces have to draw vehicles into the designated area remains unaffected. If the spaces remain available, in the sense that if there is demand they will be used to meet it, the blockages do nothing to reduce the capacity of the spaces to draw vehicles into the area. This is not to say that there might not be a temporary effect on availability before a response to increased demand is made, but, in my view, there is no inconsistency between the outcome here and the policy of the Act.
The judge’s conclusion was correct. The blocked off spaces, both those blocked off indefinitely and those blocked off for the specified periods in the school holidays, were still ‘set aside’ as parking spaces, albeit that it was not intended that they be used as such unless or until demand warranted it.
The matters were arguable, and in my view leave to appeal should be granted on proposed grounds 1 and 2 but the appeals should be dismissed.
Analysis — proposed ground 3
Secure Parking should not be permitted to raise the contention on this application that a ‘parking space’ must be a space a motorist can both enter and leave. The contention would only be relevant if it were assumed that the front spaces in the ’tandem’ spaces were configured so as to prevent a motorist from leaving. That assumption is not self-evident and the issue could have been the subject of evidence.[22]
[22]Coulton v Holcombe (1986) 162 CLR 1, 7–8.
Secure Parking’s submission based on the trial judge’s suggestion as to reconfiguration of the tandem spaces does not result in any relevant conclusion. The spaces were not reconfigured. They continued to exist as two spaces.
In my view leave to appeal ought to be refused on proposed ground 3.
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