Sydney Prestige Tyres Trading as Sydney CBD Car Sales v Sydney City Council - [2011] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation: Sydney Prestige Tyres Trading as Sydney CBD Car Sales v Sydney City Council [2011] NSWLEC 1194
Hearing dates: 27 June 2011
Decision date: 28 June 2011
Jurisdiction: Class 1
Before: Hussey C
Decision:
1. The appeal is dismissed.
2. Development consent for DA No D/2010/635 to use part of the site at 589 to 591 Elizabeth Street Redfern is refused.
3. The exhibits may be returned except for 1, 4, 6, B and C.

Catchwords: DEVELOPMENT APPLICATION - Change in use of approved car spaces to allow car retailing, zone objectives, adequacy of site area.
Legislation Cited: Environmental Planning & Assessment Act 1979
South Sydney LEP 1998
Category: Principal judgment
Parties: Sydney Prestige Tyres Trading as Sydney CBD Car Sales (Applicant)
Sydney City Council (Respondent)
Representation: Counsel
Ms M Carpenter (Respondent)
Solicitors
Ms L Saw (Applicant)

File Number(s): 10263 of 2011

Judgment

This appeal was lodged against council's refusal of a development application proposing the change in use of part of the site at 589 to 591 Elizabeth Street, Redfern, to permit the sale of vehicles.

At present, there is an existing mechanical repair business known as Prestige Tyres operating on the site. This involves the use of some seven internal work bays and associated use of some thirteen designated car spaces around the site, which are used for various vehicle parking and customer drop-off/pick-ups.

The existing operations apparently occur as a result of a development consent granted in 1973 which was on the basis of three working bays within the building, an awning on the northern side, and an office area. This consent provided for a total of twelve configured car parking spaces, i.e. six for customers and six for staff.

Subsequently, in 1989/90, there was an approval or grant to allow for the installation of car alarms and other devices, but that does not seem to have involved any change to the work bay arrangements, or parking requirements.

Consequently, council now considers there is insufficient car parking spaces on the site to allow the change in use of some of the car spaces for car sales.

The initial application was for five of the designated car spaces along the northern wall of the building to be used for sales. Following an assessment of the site operations, the applicant submitted through Mr Nash that it would be content with three spaces for car sales, leaving the remaining for customer parking. The operating hours are to remain the same, i.e. 7.30am to 5.30pm Monday to Friday, and 7.30 to 12.30 on Saturdays.

For the appeal then, three principal contentions were identified which are summarised as follows:

Whether the proposal is inconsistent with the zoning objectives of the current 2(b) residential zone
Whether the site is large enough to accommodate the required number of car parking spaces and
Public interest, mainly concerning potential adverse impacts arising from the operations upon the site

The site is known as 589 - 591 Elizabeth Street Redfern, and is identified as Lot 22 - 26 in DP 1199. The allotment is generally square in shape containing a single storey vehicle mechanic service garage, occupied by Sydney Prestige Tyres, on a total site area of approximately 815 sq m. The site provides a main frontage of 27.5 m to Elizabeth Street, and a secondary access to a side lane, where is precluded because the site is elevated above the level of the lane.

The site is 100 m south of Cleveland Street and 220 m north of Redfern Street. This section of Elizabeth Street is identified as a "classified road" by the Roads and Traffic Authority (RTA) and provides three one-way traffic lanes flowing north - south.

There is limited on street parking available to the north (parallel parking) and south (parallel and rear-to-kerb) of the subject site's frontage, and "No Stopping" zone directly in front of the site. Opposite the site (eastern side of Elizabeth Street) is a bus stop, and no parking for a stretch of 35 m to the north from the corner of Cooper and Elizabeth Street.

Planning Controls

The following controls apply:

(1) South Sydney LEP 1998 ; under which the site is within the Residential (Medium Density) Zone. The following zone objectives were identified as relevant in this matter:

1(a) to allow, in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light-industrial and industrial development.

1(h) to ensure that the usage generated by non-residential development such as this related to operating hours, noise, loss of privacy, vehicle or pedestrian traffic or other factors, is controlled, so as to preserve the quality of life for residents in the area.

(2) Draft Sydney LEP 2011 , under which the site is within the Zone No 10 - Mixed Use Zone, and the proposal is permissible with consent. Similar objectives to those previously mentioned in the South Sydney LEP are relevant.

(3) DCP No 11 - Transport Guidelines for Development 1996 . The objectives under this DCP relevantly include:

To ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking onto surrounding streets.

To ensure that the design of parking and servicing areas and their access is safe and compatible with best practice Standards.

The evidence

Detailed evidence was presented by:

Ms K Pont; Council's Town planner
Mr K Nash; Applicant's Town Planner.

Following the preparation of the individual reports, the planners subsequently conferred and presented two joint planning reports being exhibit 4, and secondly exhibit 6. These reports dealt with the issues on the following basis.

Zoning

Whilst Ms Pont acknowledged that mixed use retailing and light industrial development in this zone were not prohibited, nevertheless she considered it undesirable to incorporate retail car sales on this particular site, as it would restrict the operation and availability of parking of the current car repair business to the detriment of the surrounding land uses, and therefore it would not be compatible.

In particular, she was concerned that there would be an intensification of the land use as a result of the additional on-site parking demand. Whilst this opinion was formulated on the basis of the original five car retailing proposal, she maintained her objections to the reduced three car retailing proposal.

Ms Pont does not consider the applicant has satisfactorily demonstrated how the vehicles associated with the workshop can still be accommodated and then manoeuvred around the site while maintaining safe entry/exit from the relatively busy Elizabeth Street. As there are regular reversing movements required in close proximity to Elizabeth Street footpath, she considered this introduced undesirable safety risks.

Consequently, Ms Pont does not support the current proposal on the basis that it does not satisfy the zone objectives. However, she agreed that a suitable application including appropriate car retailing, could be permissible, subject to satisfactory parking arrangements.

Mr Nash supports the revised proposal for three retailing car spaces, as he considers this will be consistent with the zone objectives. He says that the proposed used car sale use is mutually supportive and a compatible use with the existing car repair station and the adjoining mixed commercial/special use zoning. Furthermore, he does not consider the proposal would result in any amenity impact such as noise, nuisance or disturbance to the neighbours that would result in its refusal.

On the basis of this evidence, I accept that an appropriate car retailing area could be permitted on this site.

Adequacy of the site area

This second contention is the threshold matter in this case. As noted previously, Ms Pont undertook a site inspection of the property, and having observed the various vehicle manoeuvring, considers the proposal will result in an unacceptable intensification of use. As such it would not satisfy the following objectives of DCP 11 following:

To ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking onto surrounding streets.
To ensure that the design of parking and servicing areas and their access is safe and compatible with best practice standards .

Ms Pont bases her opinion on the provisions of DCP 11, which stipulates the provisions of car parking for automotive uses at a rate of three spaces per work bay, and one space per 50 sq m of gross floor area of ancillary retail for visitors.

The application of these controls results in the requirement for twentyone spaces for the exclusive use of the work bays in the mechanic service centre, plus eight spaces for the mechanic retail component i.e. a total of twentynine spaces.

Insofar as the current development does not provide these twentynine spaces, Ms Pont recognises that the proposal has the benefit of the existing consent requiring only twelve spaces. But she says that from her inspection of the site, is not operating in accordance with the 1973 consent and plans.

Consequently, she concludes that:

The lack of provision of on-site parking is likely to result in an overspill of vehicles and the undesirable use of public spaces on the street for part of the business operations or alternatively, the accommodation of too many vehicles on-site resulting in safety hazards for customers and pedestrians.

Against this Mr Nash's assessment of the site operations, including the stacked-parking arrangements, is that it is satisfactory. He acknowledges that the parking configuration is different to that originally approved in 1973, and apparently subsequently modified in 1989/90 and that it now comprises some sixteen on-site car spaces, as shown in figure 2.3 (Attachment A), which includes the designated spaces one to thirteen, plus an additional three stacked spaces in front of space number eight.

In response to Ms Pont's reference to the DCP 11 provisions he does not consider them relevant, considering the status of the original approval and the current workability of the existing operations.

However, during the appeal the planner subsequently considered the provisions of 3.2 of the DCP, which allows for departure from guideline rates. Such departures or variations of the controls could be considered on the basis that:

Provision below the guideline rates will be genuinely considered under criteria set out in this section in conjunction with supporting factual information supplied by the applicant. The use of surveys of comparable developments in comparable locations, is encouraged. With the recycling of older buildings, parking "credits" may be an avenue to explore. Mixed use developments and leasing spaces elsewhere are other options available.

Clause 3.21 then contains the criteria for reduced car parking as follows:

3.2.1 Concessions To Reduce Car Parking

The following criteria may be explored by applicants and will be used by Council to assess whether reducing the provision of car parking will be accepted:

demonstration of reduced parking requirements from surveys of comparable establishments;

the frequency and duration of major parking events is not excessive;

the size and type of development and degree of impact on local parking conditions be reduced;

the availability and level of service of public transport (AMCORD research suggests proximity of 400 m or less to rail stations and trunk bus routes may reduce parking for residential uses by at least 25%);

the availability of car parking on-street and potential for angle parking to be implemented. With the latter, schemes should have in-principal support from council officers prior to submission of the DA and its design would be subject to formal approval by South Sydney Council's Traffic Committee. Any costs associated with such a proposal including design, construction, landscaping and supervision would be at the applicant's expense;

the availability and affordability of parking in nearby car parking stations;

the degree of local patronage anticipated, especially for restaurants and cafes;

the location of non-residential uses, such as schools, local services, employment, retail and recreational facilities, and whether the proximity of these services will reduce the need for vehicular use;

Clause 3.2.2 then makes allowance for credits for existing uses as follows:

3.2.2 Credits for Existing Uses

In circumstances such as a change of use involving refurbishment or conversion of an existing building, it may be difficult to provide the full quota of parking on-site without compromising the building's integrity. It is widely appreciated that this is characteristic of many developments in South Sydney where buildings can have heritage or urban design significance.

In these circumstances, council may, at its discretion apply parking credits to the site. A parking credit may be given where previous development has not provided all or part of their parking requirement and hence can receive a credit for those spaces not previously provided. It is assumed in this instance that the parking not provided for is currently being catered for on-street and is reasonable to continue this practice.

The parking requirement for the new development is then calculated as the difference between that required for the old use (and not provided) and that required for the new use. It should be noted that all calculations are to be made under the new Guidelines.

Accordingly, Ms Pont says this proposal does not satisfy the criteria for any credits. Whereas Mr Nash considers it appropriate for the decision maker to vary/modify the parking guidelines as per 3.2.1 and in such circumstances a credit of nine spaces would apply.

Conclusions

Having carefully considered the evidence, the submissions and undertaken a view, I do not consider this application merits approval.

This proposal is for an additional use of the site to permit three of the existing car parking spaces to be used exclusively for car sales. In this regard, I note that the original application was for five spaces but I am satisfied the parties have been able to deal with the changed (reduced) application. A consequence of this proposal is that the main use of the site - the car maintenance/servicing will have a reduced number of dedicated customer spaces.

As previously noted, I accept that an appropriate car retailing proposal on the site could be permitted. However, in this case, the main question for the consent is whether the parking outcome is consistent with the zone objectives and the objectives for the Transport Guidelines.

The applicant's case was initially based on the 1973 approval, which required twelve car spaces. Consequently, the applicant contends that the proposal will not interfere with the existing operation, and that the three car spaces can comfortably be contained within the site.

Considering that the zone objective 1(h) requires appropriate controls, and vehicle and pedestrian traffic to preserve residential amenity, and that the transport objectives then require an acceptable level of on-site parking to minimise overflow onto surrounding streets, together with the car parking and service areas being designed so that their access is safe and compatible with best practice, I accept that the approach of Ms Pont to initially consider the parking guidelines, is appropriate.

On this basis, there are currently seven working bays, and with the application of the specified three spaces per bay, then twentyone spaces would be required. Some additional space would also likely be required in respect of the office/service area.

However, as shown in attachment A, the site can only effectively contain thirteen spaces. In this regard, I discount the possible additional three multiple stacked spaces that are apparently use in front of space eight. It seems to me that this use would involve considerable car shuffling with inherent convenience and safety risk. They would also unsatisfactorily impede access to spaces four to seven.

In addition to this, I consider that spaces nine, ten, and eleven are poorly configured because if a car is parked in space eleven, then cars in spaces nine and ten would likely involve awkward reversing manoeuvres.

In my assessment, the maximum car spaces available then would approach current practice for convenience and safety would be twelve spaces.

Insofar as the applicants relied on the twelve or thirteen parking spaces originally approved in 1973, as being acceptable for the existing workshop, it seems to me that this is largely misplaced because the original approval was for only three work bays, i.e. the approval was for three working bays and twelve car spaces of which six were customers and six were for staff.

Consequently, the applicant was unable to explain the process by which the additional four working bays came into existence, and also whether any extra parking spaces was or should required.

On the basis of the original consent, it seems to me that there would be an obvious case for increasing the number of customer spaces in circumstances where the work bay numbers have more than doubled. In this regard, I accept that there probably would not need to be a corresponding increase in staff parking. On this scenario, the required car parking spaces would be:

12 original (as accepted by 7A)

plus

6 (extra customer spaces and four bays)

plus

1 (for extra staff)

19

This would generate a need for 19 on-site spaces and therefore the original twelve is inadequate.

If the proposal were then to be approved, three spaces would be removed from the customer parking and designated exclusively for car sales. This would result in nine spaces being effectively available for the work bays, if the current practice in terms of parking configuration and accepted manoeuvring were provided.

In my assessment, this would result in an unacceptable deficiency of on-site parking for the mechanical workshop - particularly taking into account the unexplained increase in the four service bays. I do not accept Mr Nash's opinion that the extra stacked car spaces yield an extra three spaces, which would involve considerable shuffling and manoeuvres, some of which would likely be within the Elizabeth Street footpath area, satisfies the amenity and safety objectives.

It also occurs to me that if the three car sales spaces were permitted, then there is a likelihood of customers inspecting the vehicles, expecting to be able to park on the site. Given the restricted on-street parking in the immediate neighbourhood, I consider the car sales traffic, an inability to accommodate sales enquiries on-site would likely have a negative traffic effect rather than any positive benefits.

With respect then to the provisions of 3.2 of the DCP, Ms Pont acknowledged that car parking concessions under 3.2.1 could be considered. However, this initially requires the applicant to adequately address the specified criteria. As the applicant did not undertake this task, there was no substantive evidence by way of surveys or other details to allow any parking concession.

With regard to s 3.2.2, credits may be allowed where there is a change of use involving refurbishment or conversion of an existing building, and this constraint restricts the ability to provide a full quota of parking spaces.

But the proposal does not involve any alteration to the building, instead, it is to change the use of some of the existing external car spaces. In the circumstances, I agree with Ms Pont that the application does not qualify for any credit parking under cl 3.2.2.

Insofar as Ms Saw made submissions regarding other decisions in Marrickville Council, which related to a different residential type development and one in Western Australia, I accept that the DCP includes car parking credit policy, but the applicant has not discharged its responsibility to establish any credit or parking concessions is reasonable in this case. Therefore, I do not think these cases have any significant relevance to the subject application, because credit could be allowed in a properly established case.

In summary then, I consider the application should fail, because the applicant through Mr Nash has not demonstrated that the proposed development would result in a satisfactory parking outcome. Instead, it is intended to retain the seven existing work bays, whereby the application of the DCP 11 provisions would require twentyone spaces. My extrapolation of the original approval for twelve spaces for three bays means that approximately nineteen car spaces would be required.

However, as the site can only reasonably provide twelve car spaces, in my assessment that would be near current practice requirements, I think this is a significant deficiency. If the application was to be approved, then at least three of the available twelve spaces would be taken out of service and this would likely have the effect of exacerbating parking problems at the site.

Whilst Mr Nash said that he had seen sixteen cars parked on the site, my observation at the view indicated that any manoeuvring of the vehicles in the multiple stacked configuration would involve extra management and care, which would not accord with current traffic/parking practice. I understand that it could be possible to manage the parking, but where significant departures from the accepted practice are proposed, then some detailed supporting evidence is required, i.e. it could be a Traffic Management Plan. However, the applicant provided no substantive evidence to support the somewhat disorganised parking regime on the site.

In the ultimate, whilst I accept that some customers will use readily available public transport, nevertheless their vehicles will require on-site parking. The evidence before the Court indicates that the existing twelve/thirteen car spaces on-site is likely to be insufficient for the existing seven work bay servicing operations, and the proposal to reduce this by three spaces would result in an unacceptable parking outcome. Such outcome would not satisfy the specified objectives in s 1.2 of the DCP:

To ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking onto the surrounding streets,
To ensure the design of parking and servicing areas and their access is safe and compatible with best practice standards;

Consequently, I do not consider that the public interest would be well served by the approval of this application and that it should fail.

Court orders

(1) The appeal is dismissed.

(2) Development consent for DA No D/2010/635 to use part of the site at 589 to 591 Elizabeth Street, Redfern, namely three existing car spaces for car sales is refused.

(3) The exhibits may be returned except for 1,4,6, B and C.

R Hussey

Commissioner of the Court

Decision last updated: 15 July 2011

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Sydney Prestige Tyres Trading as Sydney CBD Car Sales v Sydney City Council [2011] NSWLEC 1194

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Medium Neutral Citation:	Sydney Prestige Tyres Trading as Sydney CBD Car Sales v Sydney City Council [2011] NSWLEC 1194
Hearing dates:	27 June 2011
Decision date:	28 June 2011
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	1. The appeal is dismissed. 2. Development consent for DA No D/2010/635 to use part of the site at 589 to 591 Elizabeth Street Redfern is refused. 3. The exhibits may be returned except for 1, 4, 6, B and C.
Catchwords:	DEVELOPMENT APPLICATION - Change in use of approved car spaces to allow car retailing, zone objectives, adequacy of site area.
Legislation Cited:	Environmental Planning & Assessment Act 1979 South Sydney LEP 1998
Category:	Principal judgment
Parties:	Sydney Prestige Tyres Trading as Sydney CBD Car Sales (Applicant) Sydney City Council (Respondent)
Representation:	Counsel Ms M Carpenter (Respondent) Solicitors Ms L Saw (Applicant)
File Number(s):	10263 of 2011