Stein v Ku-ring-gai Council

[2015] NSWLEC 1270

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stein v Ku-ring-gai Council [2015] NSWLEC 1270
Hearing dates:	15 May 2015
Date of orders:	22 July 2015
Decision date:	22 July 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is dismissed. 2. Development application DA0436/14 for the use of an existing commercial premise as a 24 hour access gymnasium, minor fit-out works, and the reconfiguration of excess floor space to create new offices, at 12-18 Tryon Road Lindfield is refused. 3. The exhibits are returned except for exhibits A, V, 1 and 6.
Catchwords:	DEVELOPMENT APPLICATION – Gymnasium – Car parking requirements – Access for people with a disability
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Disability Discrimination Act 1992 (Cth) Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2012
Cases Cited:	Zhang v Canterbury Council (2000) 115 LGERA 373
Category:	Principal judgment
Parties:	Gary Stein (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: Mr M Jaku, Jaku Legal (Applicant) Mr A Hudson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10992 of 2014
Publication restriction:	No

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of development application DA0436/14 for the use of an existing commercial premise as a 24 hour access gymnasium, minor fit-out works, and the reconfiguration of excess floor space to create new offices, at 12-18 Tryon Road Lindfield (the site).

2. The site is on the northern side of Tryon Road, approximately 150m from Lindfield railway station. On the site is a strata titled commercial premises part two and part three storeys, with a basement car park containing 95 car parking spaces.

3. The development application relates to Lots 31, 32 and 33 of Strata Plan 88423, which are on the first floor of the commercial building on the western end. Units 31 and 32 are accessed by pedestrians from an internal stairwell from the ground floor foyer of the building fronting Tryon Road. Unit 33 is accessed from an external stairway on the western side of the building. The building does not contain a lift. There is internal stair access from the basement car-park and the internal foyer.

4. Adjoining the site to the west is a Council car park with 80 spaces, generally governed by a two hour time limit. Adjoining to the north of the site and the car parking area is a roadway and at-grade Council car parking area containing 58 spaces, generally governed by a two hour time limit. To the north of the site across from the car parking area and roadway is a five storey residential flat building. Indirectly opposite the site to the north west is a two storey commercial building at 2 Koochia Lane. On the opposite side of Tryon Road is a five storey residential flat building.

5. Units 31, 32 and 33 have a combined area of 674sqm which is proposed to be divided between the gymnasium and three residual office areas. The development application proposed 415sqm for the gymnasium and 259sqm for the residual offices; that was subsequently revised to 399sqm and 196sqm respectively.

6. The proposed fit-out involves:

• Partial demolition of existing internal tenancy partition walls;

• Construction of new internal partition walls to define use areas; and

• Installation of new floor surfaces, fixtures and fittings.

7. The gymnasium will include:

• Entry and reception area off the western walkway;

• Office adjacent to the entry and reception area;

• Toilet and shower suitable for people with a disability;

• Small consultation area defined by low partitions;

• Fitness/instruction room to be used for yoga classes with up to 10 students;

• Cardio room at part of the northern end of the tenancy with treadmill, rowing, cycle and cardio-training fitness equipment;

• Resistance training room within part of the northern end of the tenancy;

• Staff amenities room; and

• Existing air-conditioning room.

8. The proposed gymnasium is to be accessible 24 hours daily by electronic code access for gym members, and to be staffed between 7.00am-6.00pm. Access by the public to the gym is proposed from the external stairs on the western side of the building. The entry from the internal foyer will be for delivery of equipment.

9. All of the basement car parking spaces are allocated to specific strata units, including 18 allocated to the three units the subject of the development application. The applicant proposes that 15 of those spaces be allocated to staff and users of the gym, with a plan of management.

Planning controls

10. The site is zoned B2 Local Centre under Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (the LEP). Development for the purpose of “recreation facility (indoor)”, which is defined to include a gymnasium, is permissible with development consent. The objectives of the B2 zone are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To provide for residential housing close to public transport, services and employment opportunities.

• To encourage mixed use buildings that effectively integrate suitable business, office, residential, retail and other development.

11. The Ku-ring-gai Local Centres Development Control Plan (the DCP) applies to the site. Relevant provisions of the DCP include Vol A Part 9B.2 Car Parking Provision, Part 2 Access and Parking, and Part 1E Lindfield Local Centre.

12. At p 9-13 the DCP states that for office, business and retail premises, where the development is within 400m of a train station and within a commercial centre, the parking rate is for office and business premises, 1 space per 33sqm GFA to 1 space per 45sqm GFA, with a suggested division of 90% employee, 10% visitor. A minimum of 1 space or 1-2% (whichever is the greater) is to be provided for accessible car parking for people with a disability.

13. Part 2 Access and Parking includes provisions for equitable access. At p 2-3 it states that applications for development other than single dwellings “are to demonstrate how access to and within developments meets the requirements of the Disability Discrimination Act 1992 (DDA)”; defines “access” to include “an ability to travel from one point to another in a continuous and independent manner, following a reasonable route”; and states that designing for access for all people “is encouraged for all development types”. At section 2.3 Basement Car Parking it states that unimpeded access to visitor parking and waste and recycling rooms located within a secure basement parking must be maintained. At least one visitor parking space is to be accessible, designed in accordance with AS2890.6.

14. Volume C section 2R.2 Car Parking Rates states:

“On-site parking is to be provided at the minimum rates set out in the schedule below.

Where non-residential development is within 400m of a railway station and within a commercial centre, refer to specific parking requirements under building types in volume A of this DCP”.

15. Overall requirement figures are to be rounded up to the nearest integer. The schedule in section 2R.2 provides for recreational and tourist facilities, including gymnasiums, and states that 1 space per 17sqm gross floor area is to be provided for a gymnasium.

16. The site is in the Lindfield Local Centre, identified in part 1E as Precinct L4: Tryon Road and Lindfield Avenue Retail Area. At p 1-80 the DCP states:

This precinct is the retail core for the eastern side of Lindfield local centre. The area contains a council car park on Tryon Road as well as a distinctive heritage building fronting Lindfield Avenue. Lindfield Avenue forms the “main street” shopping precinct for the eastern side of Lindfield.

vii) In the future the precinct will provide an improved retail centre with a larger supermarket and speciality retail, offices, as well as shop top housing.

viii) This area will have a strong community focus with a new town square and public library. The new library will be located adjacent to the new town square with direct ground level access. Public parking will be provided in a basement under the town square and will accommodate both existing and future parking requirements.

…

17. Section 1E.2 Local Key Centre Community Infrastructure includes at p 1-83 proposed community infrastructure, which includes:

Creation of new town square on Council car park precinct incorporating public basement car parking.

The appeal

18. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) was held on site on 16 March 2015. Submissions were made on site by the owner of Lot 20, which shares a wall with the proposed gymnasium, and is used as professional offices, and the tenant of Lot 31A, used as a travel agency, which also adjoins the proposed gymnasium.

19. The parties did not reach agreement and the conciliation conference was terminated. The parties consented to my hearing and determining the appeal and for the evidence on the view forming part of the evidence in the proceedings.

Evidence

20. Expert evidence was provided on traffic issues by Mr Benny Chen on behalf of the applicant, and Mr Ross Guerrera and Mr Joseph Piccoli on behalf of the Council. Mr Chen is a traffic engineer; Mr Guerrera is the Council’s Senior Development Engineer; and Mr Piccoli is the Council’s Strategic Transport Engineer. Expert evidence was provided on planning issues by Mr Matthew Benson on behalf of the applicant and Mr Luke Marquet on behalf of the Council. Mr Benson is a consultant planner; and Mr Marquet is the Council’s Major Projects Planner.

21. Copies of submissions made to the Council in response to the notification of the development application are at tab 3 in the Council’s bundle of documents (ex 4). The objections raised relate to increase in traffic and noise, inconsistency with the existing business mix of the building and the Council’s proposed town centre, and inconsistency of a 24 hour facility with the demographics of the suburb. Copies of statements from which the two objectors who made submissions on site read are in evidence (ex 5). Those objections raise concerns as to noise transmission, with recommendations as to conditions that might mitigate that; security for the proposed access on the stairs and walkway on the western side of the building; and a request that any signage be discreet.

22. Copies of assessment documents for development applications DA1269/07 3/368-370 Pacific Highway Lindfield (consent granted 15 February 2008); DA0310/14 386-390 Pacific Highway Lindfield (consent granted 31 October 2014); and DA0779/07 107 Grandview Street Pymble (consent granted 9 November 2007) are in evidence (exhibits R, S, T).

23. The evidence includes documents relating to the proposed redevelopment of the Lindfield town centre (ex Q). The Lindfield Village Green Transport, Parking and Access Assessment dated 23 July 2014 undertaken for the Council notes (p 1) that the Council’s development proposal for two of its at-grade car parking sites in the Lindfield Town Centre, one being the “Village Green” site east of Lindfield Avenue, and the other being west of the Pacific Highway, is for the redevelopment of the Village Green site for a park with a café and amenities at ground level and an underground car park. The report states (p 11) that there are currently a total of 138 car parking spaces in the at-grade Council car park, and in the order of 100 short-term at-grade parking spaces would be lost to create the Lindfield Village Green; based on a total capacity of 181 car parking spaces over the two basement levels, 100 would be allocated as short-term with the remainder potentially becoming commuter car parking spaces during the week. The report to the Council’s ordinary meeting of 9 September 2014 with a preliminary project budget, project program and scope of works notes (at GB.5/722) that Council’s strategic traffic planner had undertaken an analysis of future parking demand for the precinct based on the Town Centres Parking Management Plan 2010 and found that in future the Council would be required to provide a minimum of 100 public short stay spaces, which is a reduction of 38 on the current provision; and that once proposed new developments had occurred on Lindfield Avenue there would be an oversupply of spaces on Thursday evenings and Saturday mornings, suggesting that there is a potential to reduce the number of spaces on Council’s land. That section of the report concluded that Council would be required to provide up to 80 spaces in a basement car park and an additional 20 spaces on-grade, noting that an additional 100 spaces that might be provided by Transport for NSW as a second basement level of parking would be in part available on Thursday evenings and weekends.

Issues

24. In its Statement of Facts and Contentions filed before the conciliation conference (ex 1) the Council contended that insufficient documentation and plans had been provided for an informed assessment of the application; and that insufficient fees had been paid. In relation to the first contention the Council identified that the application did not provide the documentation specified in Sch 1 to the Environmental Planning and Assessment Regulation 2000 (the Regulation); the traffic report provided did not adequately address all aspects of the development and adjoining development; the application did not address the provisions of the Disability Discrimination Act 1992 (Cth) (the DD Act) and requirements of the Building Code of Australia (BCA) for compliant access to the premises; the application had not addressed the access and parking provisions of the DCP; no fire safety schedule for the proposed change of use had been submitted; and safer-by-design principles needed to be addressed and documented.

25. At the hearing the Council’s position was that there are two issues in the appeal: first, in relation to the parking proposed, and secondly, whether there should be a lift or other disabled access. The Council flagged as a third issue the issue of fees identified in the contentions; that matter was resolved between the parties after the hearing.

26. A floor plan tendered at the hearing (ex V) shows the proposed training areas and fitness instruction areas, the entry and reception and change and toilet facilities, and the residual office areas, and provides sufficient detail to enable the planners to calculate the gross floor area (GFA) for the gym and the residual office spaces. Mr Jaku on behalf of the applicant explained that the equipment layout on that plan is indicative, as the equipment is mobile. The evidence includes a site plan (ex W) showing the layout of the basement parking area. Exhibit O includes marked up copies of the strata plans identifying where the 18 parking spaces are in the basement, and the allocation to the three units the subject of this application.

Consideration

Parking

27. In its Statement of Facts and Contentions the Council identified deficiencies in the traffic report submitted with the development application dated October 2014 (ex E), noting a discrepancy between that report and the Statement of Environmental Effects (SEE) (ex B) with regards to the available off-street car parking spaces, the shortfall on the DCP parking requirements and intended staff parking allocation and exact number of staff present at any one time, and requested clarification, and verification whether there are 15 or 18 off-street car parking spaces allocated to the subject units.

28. In their joint report (ex 3) Mr Chen, Mr Guerrera and Mr Piccoli stated agreement that the DCP parking requirement was 25 gym car spaces, 6 spaces for the residual office spaces, totalling 31 spaces, and that the proposed parking allocation was 15 for the gym, 3 for the residual office spaces, totalling 18. They agreed that the gym spaces should be allocated as 13 spaces for gym members and 2 spaces for gym staff, and they recommended that there be a plan of management to regulate access to the basement car parking, including identification of the number of staff present at any one time, and during peak and off-peak periods.

29. In oral evidence the traffic engineers stated that at the time they prepared the joint report they did not have a plan that showed where the spaces were in the basement car park (T 15/5/15). Exhibit O includes copies of two marked up strata plans indicating where the 18 parking spaces are in the basement. Exhibit 8 is a table, revised by the traffic engineers as a consequence of the tender of the amended plan (ex V). The experts addressed these documents in their oral evidence.

30. Mr Piccoli’s evidence was that based on the floor area of the gym at 399sqm, at a rate of one space per 17sqm of GFA the DCP would require 24 spaces. The residual office spaces, at 196sqm of GFA, at a parking rate of one space per 45sqm GFA, would require 5 spaces, totalling 29 spaces (T 15/5/15, pp 34-5). The parking proposed by the applicant, being 15 for the gym and three for the residual offices, is 18 spaces, resulting in a shortfall of 11 spaces. Based on the strata plan, four of the spaces allocated to the three units are stacked; Mr Piccoli’s evidence was that those spaces are inappropriate for short term gym users, and that there is actually a total allocation of 11 spaces because effectively four of the available spaces are quarantined in that they are stacked (T 15/5/15, p 36). On his evidence, spaces 14 and 15 (stacked) could be used for gym staff; 6 and 7 (stacked) could be allocated for office; leaving 11 spaces for the gym. Mr Chen agreed (T 15/5/15, pp 38-39).

31. The traffic engineers addressed in their oral evidence the issue of whether the shortfall from the DCP requirements was appropriate for the gym. Mr Piccoli considered that potentially there could be impacts to surrounding areas if gym users were required to park on the street, and he expressed doubt as to the reliability of the traffic surveys undertaken on behalf of the applicant because of the timing. He considered that in school holiday periods there would tend to be more parking available than there normally would be, as people start to take leave and go away. Mr Chen disagreed, stating that in school holidays there would be more people in a town centre because parents who have taken leave will take their children for social and recreational purposes, and that in his experience town centres have a higher parking demand in the short two week school holiday period. When asked on what basis those opinions were provided, Mr Piccoli stated that Council would avoid doing any form of data collection during those periods, in order to achieve a representative situation on a typical week day, and secondly to avoid criticism from the community that it was seeking to downplay figures or choose a time that might not be representative of the daily business and activity in an area (T 15/5/15, p 44). There could be more activity during the standard school term. When asked to quantify the change, Mr Piccoli stated that as an indication it is generally accepted that during school holidays general traffic levels on roads drops by about 5% or so; that may not necessarily reflect parking activity (T 15/5/15, p 50). Mr Piccoli accepted that if the surveys were reliable then the numbers in the traffic survey indicate that the additional 13 spaces could be accommodated (T 15/5/15, p 51). Mr Chen stated that his opinion was based firstly as a professional that in going to a town centre you see more people in the town centre as family groupings; his opinion was based on his professional experience and also personal as a parent living nearby (T 15/5/15, p 45).

27. The traffic experts agreed that tandem parking arrangements could be acceptable for staff, but not for gym members whose arrival and departure times might not be the same and who do not know each other (T 15/5/15). Mr Chen acknowledged that it would require a lot of labour to manage and organisation, so he considered that it would be very impractical.

28. Mr Benson and Mr Marquet addressed the issue of parking in their joint report and in oral evidence. In the joint report (ex 2) Mr Benson noted that the discrepancies in the information provided in the SEE and the traffic report arose because sometimes that stated figure for the number of spaces was referring to the total that would be allocated to the gym and sometimes to the total allocation to the strata units inclusive of the residual office tenancies, and that there was an internal discrepancy in the SEE (ex 2, p 21). The discrepancies could have been resolved by the Council through a request for additional information or the Council could make its own assessment of its preferred allocation between residual office tenancies and the gym and make that known to the applicant (ex 2, p 22). Of the 18 spaces available, 15 should be allocated to the gym and three for the residual office tenancies (ex 2, p 22). Acknowledging the shortfall, in his opinion the access arrangements for gym users could be reflected in conditions of consent; and the traffic report had provided a justification for the shortfall, based on the survey showing that there are sufficient vacant car spaces in the Council car park to accommodate the additional car parking demand and the site is within walking distance to bus services and the train (ex 2, pp 22-23). Mr Benson relied on Council approval of a gym at 370 Pacific Highway Lindfield (DA00070/13), with no parking provided (for which he was the applicant), as establishing that it supports the proposition that a new gymnasium using existing commercial premises without enlarging those premises and that is in close proximity to public transport and public parking should be approved even if it does not provide the required parking. In his opinion the nature of gym use in this location is that it will be likely to principally attract people who catch the train to the city and would be parked in the locality already, or who will have come to the precinct by walking or public transport, and people residing in nearby units (ex 2, p 24). Mr Benson did not consider that a more comprehensive parking report was required; and he considered that it is likely there will be an increase in parking spaces available as part of the mooted Village Green project, with 100 spaces at ground and basement level for public parking and a further 100 spaces for commuters, compared with the existing 221 spaces in the public car park. In his opinion some of the 100 commuter spaces would be used by people using the gym before or after catching the train (ex 2, p 25). Mr Marquet maintained that an accurate car parking analysis was not unreasonable given that the development is for the change of use of a building that intensifies its car parking requirements (ex 2, p 26).

Disabled access

34. The Council contends that the application does not address the provisions of the DD Act and requirements of the BCA for compliant access to the premises, and that the application does not address the access and parking provisions of the DCP.

35. The applicant has provided a statement as owner of units 31, 32 and 33 that the proposed gymnasium will not be operated by him or any other strata owner in the subject building (ex P). The applicant relies on the report as to BCA compliance (15 October 2014) submitted with the development application (ex D) which addressed the DD Act and Disability (Access to Premises – Buildings) Standards 2010 (the Standard), and a statement by Ms Queenie Tran, an access consultant, dated 14 April 2015 (ex O), and submits that the concession available where a building is occupied by two or more lessees and where the building owner is not the applicant applies, and there is no requirement for the applicant to provide a continuous accessible path of travel to the area of new work.

36. The Council seeks to have imposed a deferred commencement condition (ex 6) requiring provision of amended plans which, among other things, that indicate a BCA compliant access from the principal entry in the form of a lift, providing access to the tenancies and associated car parking spaces subject to the consent. Mr Marquet commented that the approval of a gym on the first floor at 368 Pacific Highway (ex R) was for an application lodged in 2007 before the present planning controls where compliance with the BCA was required, and noted that the Standard came about in 2010. The DCP brings in the DD Act requirements, and to satisfy cl 2.1 an accessible lift compliant with the BCA or a ramp complying with the Australian Standard would be required to create an accessible path of travel. In his opinion the most appropriate way to gain access to a second storey from the basement car park would be with a lift. Mr Marquet accepted that the applicant would require approval from the owners’ corporation, and that the likely cost may be significant (T 15/5/15, p73). Mr Benson’s evidence was that the premises are strata subdivided, the owner of the subject premises does not control the strata body, and the provision of a lift would require the agreement of that strata body and the owner could not be assured of getting that approval; the installation of a lift going through two slabs would be a very expensive undertaking and would be an unreasonable expectation for this proposed change of use (T 15/5/15, p 76).

Other issues

37. In their joint report (ex 2) the planners addressed the Council’s first contention that insufficient documentation and plans accompany the application to enable an informed decisions and assessment under s 79C of the Act, and that not all documents required by Sch 1 to the Regulation have been provided. Mr Benson conceded that not all the information required by the Regulation had been provided (ex 2, p5), however in his opinion that would not be a basis on which consent should be refused; the Council could have exercised its power under s 54(1) of the Act to request additional information. In response, Mr Marquet noted that the applicant had appealed, and the Council had identified in its Statement of Facts and Contentions the additional information required; further information was filed on 20 February 2015, a s34 conciliation conference was held on 16 March 2015; and no additional information had been received. Mr Marquet noted relevant provisions in the DCP which he considered had not been addressed (ex 2, pp 8-12). The Council did not press its first contention in those terms.

38. In relation to acoustic impacts, the applicant relied on the acoustic report by Noise and Sound Services dated October 2014 submitted with the development application (ex C), and the assessment by the Council’s environmental health officer with recommended conditions (ex 4, p 59). The Council raised no issue with the acoustic assessment.

Submissions

39. The applicant submits that there is sufficient information available now before the Court for the Court properly to exercise its obligations under the Act and that if there are no impacts that the Court considers warrant a refusal it is not precluded from granting approval if there is something missing in terms of Sch 1 to the Regulation. On the disabled access issue, the applicant submits he is entitled to an exemption under cl 4.3 of the Standard because the owner of the building will not operate the gym. The applicant is only one owner. In relation to the parking issue the applicant accepts that there is a shortfall in parking; however the surveys carried out by both the applicant and the Council demonstrate that there is an enormous amount of availability, and this is so close to a train station that there is an argument about sustainability and not encouraging car use. A lot of people will walk or catch public transport to this gym, and there are many car parking spaces available that can clearly absorb any overflow from the gym use. Even if some parking spaces are lost because of the tandem issue there is still sufficient public parking, and there will be in the future, to accommodate this use. In reply, the applicant submits that in relation to the concern that its public car park might be used, members of the gym are members of the public and that is what the public car park is for. With the amount of car parking available the Council should not be concerned with gym users using the public car park. While the DCP states the number of spaces required for a gym, that applies to every gym in every area of Ku-ring-gai and this one happens to be in the middle of a train station and extensive public car parking.

40. The Council submits that there is uncertainty in the application. In relation to the disabled access issue, there is no evidence as to what attempts have been made to have a lift; no evidence as to costings, and Mr Marquet’s statement that lifts could cost between $20,000-$250,000 means nothing; and no attempt to make a case of unjustifiable hardship. The equitable access provisions aim at getting access from the street, and the application should be refused on the basis of applying the controls. The BCA operates independently of the DCP, however the DCP picks up the BCA and provides that it should be complied with. The application is a new part of the building in an existing building, and a modification internally to the building. The requirement for standards about the front entrance is superimposed into the DCP, and there is then a discretion under the DCP as to whether to impose the requirement. In relation to the parking, there are nine spaces for the gym and two for staff, which is a shortfall of 13; if one of those spaces became a disabled space there would be a shortfall of 14. There is a substantial reduction which is met by effectively borrowing from the Council car park. There is no real expert evidence about what difference it makes for parking whether the survey is done in school holiday periods, and the Court is left with the practice of the Council’s strategic traffic engineer that you keep away from it; the applicant did not do that. There is not the confidence that there would not be an impact on the Council’s car park or the area for the loss or shortfall of 13 spaces.

Findings

41. I accept the agreed evidence of the traffic engineers, based on their consideration of the evidence available at the hearing as to the basement car park allocations (ex O) and the floor plan (ex V), on which they provided the the table in exhibit 8. The traffic engineers agreed that the proposed development requires on an application of the DCP car parking requirements 24 spaces for the gym (399sqm GFA at the rate of one space per 17sqm) and five spaces for the residual offices (196sqm GFA at the rate of one space per 45 sqm), totalling 29 spaces. There are 18 spaces allocated to Units 31, 32 and 33, not all of which can appropriately be used for gym patrons. Even if stacked spaces are allocated to the residual offices, there are only 11 spaces available for the gym, a shortfall of 13. None of the spaces shown on exhibit O are identified as accessible parking; the oral evidence did not establish whether any of the spaces could meet the additional space required for that purpose, with Mr Piccoli acknowledging (T 15/5/15, p36) that he did not have the dimensions of the existing spaces.

42. The application relies on gym patrons parking either in the adjacent public car parking area or on the street (ex E, p 2), and the applicant submits that there is sufficient capacity for that to occur. Tables 3 and 4 of the traffic report do show vacant spaces in the adjacent car park and on the street at the surveyed times of weekday 8am, 9am, midday, 1pm, 4pm, 5pm and 6pm, and Saturday 8am, 9am, 10am, 11am, midday and 1pm. However, there are two reasons for caution in accepting that the increased demand for parking generated by the gym use could be met by available public car parking.

43. First, the traffic and parking assessment (ex E) assumed that the gym would have 15 allocated spaces (p 2), and relied on a survey conducted on Friday 19 and Saturday 20 September 2014. Friday 19 September 2014 was the final day in the public school Term 3 (ex 7). While Mr Chen’s evidence was that an increase in parking demand, rather than a reduction, might be expected in school holidays, that evidence was anecdotally based. Mr Piccoli was also unable to quantify his asserted reduction in demand, however his evidence that the Council would avoid undertaking traffic surveys in this period in order to achieve a properly representative situation on a typical week day suggests caution, and casts doubt as to whether it is appropriate to rely on the survey results in demonstrating that demand can be met.

44. Secondly, it is apparent from the evidence as to the Council’s Village Green proposals (ex Q) which included analysis by Council’s strategic traffic planner (Mr Piccoli) that there is at least the possibility that public parking may be reduced as a consequence of the development of an underground car park, and the potential allocation of 100 spaces for commuter parking. To the extent that the suggestion in the report of 9 September 2014 that there is a potential to reduce the number of spaces on Council’s land indicates that the existing parking can meet demand, the evidence before the Court would suggest that that position is likely to change.

45. Further, the evidence before the Court does not include details of predicted numbers of gym users or patterns of use, other than a comment in the SEE (ex B, p10) that likely peak periods of usage are early mornings (before work) and evenings (after work), and that a high volume of lunch-period usage is not anticipated. While based on the report of 9 September 2014 (ex Q) it would appear that there is likely to be an oversupply of spaces on Thursday evenings and Saturday mornings, it is not clear on the evidence before the Court how, if at all, this may correspond with the demand generated by the gym.

46. In those circumstances, the issue is whether the applicant has demonstrated that it is appropriate to approve the proposed development notwithstanding that it does not comply with the provisions of the DCP. The provisions of the DCP must be taken into consideration as a fundamental element in, or a focal point of, the decision making process, without being determinative: Zhang v Canterbury Council (2000) 115 LGERA 373 at [75]. The objectives which the relevant provisions are intended to serve are relevant in undertaking the consideration required by s 79C(1)(a)(iii) of the Act: Zhang at [70]. Section 79C(3A) of the Act requires that if a proposed development complies with standards specified in a DCP the consent authority is not to require more onerous standards, and, if the development does not comply, is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards.

47. The objectives of the car parking provisions in section 9B.2 in Vol A of the DCP include:

1.To provide adequate car parking for the building’s users and visitors, with consideration of building type and proximity to public transport.

48. The applicant relies on the site’s proximity to public transport, and submits that gym users will walk or catch public transport. The site’s proximity to Lindfield train station is a factor in the more generous requirement for the office spaces, specified at one space per 33-45sqm GFA at section 9B.2, rather than the one space per 33sqm GFA otherwise applicable in section 2R.2 of the DCP for offices and business premises. The DCP requires that gyms provide one space per 17sqm GFA, and the parking shortfall is over 50% of that parking requirement. The evidence before the Court does not establish how many gym staff there are likely to be, and whether the spaces notionally allocated for their use will be adequate. The DCP requires at section 9B.2 (14) that a minimum of one space must be provided for accessible parking for people with a disability; there is no such provision in the application, and if required there is, on the evidence before the Court, the potential to further reduce the number of car parking spaces provided.

49. In those circumstances I am not persuaded that the proposal meets the objective in the DCP of providing adequate car parking for the proposed use, or that it is appropriate to approve the proposed use on the basis that the significant shortfall in meeting the DCP numerical requirements should be met by relying on the Council car park or other on-street parking. Whether or not the Council has previously approved gyms without on-site parking under prior planning controls should not govern a proper assessment of this application under the controls now applicable.

Conclusion

50. The proposed use as a gym is permissible under the LEP, and there was no issue put by the Council that such a use would not be consistent with the objectives of the B2 zone. However, I am not satisfied that the proposed development should be approved with such a significant shortfall in parking provision. That conclusion makes it unnecessary to determine the Council’s second contention relating to access for persons with a disability and in particular whether the applicant should be required to provide lift access to the proposed gym.

51. The orders of the Court are:

1. The appeal is dismissed.

2. Development application DA0436/14 for the use of an existing commercial premise as a 24 hour access gymnasium, minor fit-out works, and the reconfiguration of excess floor space to create new offices, at 12-18 Tryon Road Lindfield is refused.

3. The exhibits are returned except for exhibits A, V, 1 and 6.

Linda Pearson

Commissioner of the Court

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Decision last updated: 22 July 2015