W Projects (No. 25) Pty Ltd v The Council of the City of Sydney

[2007] NSWLEC 153

Land and Environment Court

of New South Wales

CITATION:

W Projects (No. 25) Pty Ltd v The Council of the City of Sydney [2007] NSWLEC 153

PARTIES:

APPLICANT
W Projects (No. 25) Pty Ltd

RESPONDENT
The Council of the City of Sydney

FILE NUMBER(S):

11218 of 2006

CORAM:

Hoffman C

KEY ISSUES:

s 96 Application :- Amendment of consent D2006/01277 for a strata subdivision of commercial building,

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Local Environmental Plan 2005

DATES OF HEARING:

05/03/2007 and 06/03/2007

EX TEMPORE JUDGMENT DATE:

6 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr. P. Tomasetti, barrister
instructed by: Ms J. Hewitt
of Home Wilinson Lowry Lawyers

RESPONDENT
Mr S. Kondilios, solicitor
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

6 March 2007

11218 of 2006 W Projects (No. 25) Pty Ltd v The Council of the City of Sydney

JUDGMENT

1 This is a class one appeal No. 11218 of 2006 between W Projects (No. 25) Pty Limited v City of Sydney in regard to conditions of a s 96 application to further amend consent No. D2006/01277 for No. 51-57 Holt Street, Surry Hills. The approval is for strata subdivision of an existing commercial building.

2 Council had approved in 2005 the addition of two floors, one floor with a mezzanine on top of an original building. Those additions have been built. The original building is perhaps 20 years old and was approved originally with a public car park of six half levels in the basement, and at ground floor in the rear are tenants’ parking and loading bays. The two car parks have separate drive entries from Holt Street.

3 The conditions in dispute are Conditions 4(c), Condition 5 and Condition 8. They state:

“4(c). The following areas must be designated as common property on the final strata plan, namely that part of proposed lot 1 within the colonnade and shown as T on the plan.”

4 The condition was originally amended 14 December 2006.

5 Condition 5 states:

“The remaining public car park lots 54 to 126 inclusive and lots 128, 129 and 131 must be consolidated into one lot.”

6 Condition 8 states:

“The ground floor on-site car parking spaces and the basement 1,2 and 3 storage spaces are not to be used by those other than an occupant of the subject building. The strata subdivision is to include an appropriate documentary restriction pursuant to s 88B of the Conveyancing Act 1919 so burdening all the ground floor car parking lots and the basement one, two and three storage space lots in the strata plan with the council being the authority to release, vary or modify the restriction.”

7 The issues are:

Issue 1 - Retention of Condition 4(c)

1. The applicant seeks to include an external colonnade area as part of a lot. The current approved use for the adjoining premises is as a printing shop. There is no approval to use the subject external area for any purpose. The proposed lot is not consistent with either the area nor the nature of the approved use. Unless and until a use is approved for that area, the area should be part of the common property.
Issue 2 - Retention of Condition 5

2. The requirements for the operation of a public car park result in the need for a unified or co-ordinated ownership. In particular, public car parking requires:

(a) Co-ordinated access (boom gate);
(b) Co-ordinated security;
(c) Fee collection; and
(d) Monitoring to satisfy consumer and legislative requirements (including the Car Parking Levy Act and guidelines).

Issue 3 - Retention of Condition 8

3. This condition has been imposed to ensure that the tenant car spaces within the building are only used by occupants of the building. This is to protect the amenity of the building and neighbourhood, and to ensure consistency with the following provisions of the LEP:
(a) The objectives of Clause 64 of the LEP are in part to encourage commuting by public transport, and to ensure that tenant car parks are not occupied by persons other than occupiers of the subject building;
(b) The current building (and subdivision approval) preserve less than the tenant spaces permitted (being 28) under Clause 65 of the LEP. The condition also prevents the further erosion of tenant parking. It is reasonable to assume that tenant demand will exceed supply, and in this respect the condition is not onerous.

8 The respondent’s evidence came from Mr S Longhurst, specialist surveyor for the council assessing strata and other subdivision development applications.

9 The applicant's evidence came from Mr G Shiels, consultant town planner and traffic engineer.

10 In regard to Issue 3, the 28 car spaces referred to is the calculation under the original consent with the added two floors. But, the respondent accepted that the 17 tenant spaces and 2 loading bays on the ground floor would be sufficient given the public car park in the basement being available for any overflow.

11 Condition 8 directly reflects the terms of the Sydney Local Environmental Plan 2005 ch 2 pt 5 car parking cll 64 and 65 and at the hearing the applicant withdrew the appeal on Condition 8.

12 In regard to Issue 1, Mr Longhurst supported the statement in the issues and added:

“The proposal to include the colonnade area as part of the printing shop within proposed Lot 1 is not orderly development of land under the Act. The impacts of the use of that area on the occupants of the subject site and the surrounding area have not been assessed. If the use of the area was to be assessed against the use of the adjoining premises as a printing shop, it would be determined that the use of the colonnade area with the printing shop is inappropriate.”

13 Mr Shiels said:

“The purpose of removing this condition is to allow for a subsequent use of the premises, for instance a coffee shop to utilise the outdoor space and activate the street frontage. If the area is part of common property it becomes a difficult exercise to lease or purchase that space from the body corporate. My understanding is that the consent granted by council for the printing shop does not include the outdoor space. If the current tenant proposed to use that space then they would need to lodge an application with council and satisfy council that the proposed use was acceptable.”

14 In cross-examination Mr Shiels agreed that the owner of the building is currently a single entity that has control of any strata plan and can include an exclusive use of the colonnade area by inserting a clause in the strata to benefit Lot 1. That would still need consent of the body corporate as owner if a development application were to be lodged that affected the colonnade. If the colonnade is part of Lot 1 body corporate consent may not be needed. The applicant saw this extra step as a needless complication.

15 The respondent put that any development application that required work to the structural materials of the colonnade would still require body corporate consent even if the terrace or colonnade was part of Lot 1.

16 Mr Longhurst said in his experience a colonnade, and it should be borne in mind that this colonnade is beside and directly accessible off the public footpath, is best as a common property. A use within lot 1 would expect to use the colonnade if it had paid to own the colonnade as part of a strata lot. Council or even the body corporate might refuse that use of the colonnade as inappropriate, for example, if the print shop currently in Lot 1 wanted to extend out into the colonnade. Ownership of the colonnade creates expectations in any owner.

17 I agree with Mr Longhurst that the exclusive use clause in the strata plan protects the interests of any occupant of Lot 1 without creating the financial commitment and expectation of use of the colonnade, if it was to be part of the strata lot. In any case, the design of the building with the colonnade directly adjoining and accessible from the public footpath expresses an intent that it be common property, therefore, I do not amend or delete condition 4(c).

18 In regard to Issue 2, Mr Longhurst supported the statement in the issues and added:

“Strata subdivision of the car spaces within the public car park into separate lots would result in a disjointed and dysfunctional operation particularly in the long term. This is not orderly development under the Act. Some spaces would be leased by their owners to the car park operator whilst some would not, the latter being used by their owners or by others who have private arrangements with the owners. Under cl 64 of the Local Environmental Plan, two of the objectives for car parking control are:


(b) to encourage commuting by public transport to central Sydney in order to reduce the number of motor vehicles travelling through and to central Sydney and to improve overall environmental quality and pedestrian amenity and

(c) to improve the attractiveness and competitiveness of central Sydney for retail and commercial activities by providing a reasonable level of tenant and short stay public car parking whilst discouraging commuter car parking.

Under cl 66(1) of the LEP, two of the restrictions that apply to public car parks are that it:


(b) will not encourage commuter parking nor reduce the proportion of public transport users travelling to the city each day and

(c) will be used for short stay public car parking only, that is regulated by a restriction in opening hours or fee structure or both.

With the use of many of the spaces by commuters who work in the area there will be serious non-compliance with provisions of the LEP.”

19 Mr Shiels said that he agreed with Mr Longhurst that there should be co-ordinated access, security and fee collection. He also agrees that there should be effective monitoring of activities within the car park by the operator. From observations of the car park made by Mr Shiels, the gentleman in charge carries out a supervisory role. There is currently council approval for a public car park in the subject premises. The operators of this car park have three years remaining on their lease and “I am instructed”, said Mr Shiels, “at the end of that period that use will cease.”

20 In the meantime, it is proposed that individual spaces will be sold to tenants within the building and the conditions of sale will be that those spaces are made available exclusively to the operator of the car park. They will receive remuneration for these spaces but they will have no use entitlements. If council wishes to reinforce the operation procedures, there could be a requirement for the applicant to prepare a car parking management plan that articulates all of the requirements that council would seek to impose. In Mr Shiels’ opinion “This would provide for the level of control that council is pursuing.”

21 Mr Shiels confirmed that he had been instructed the public car park would cease in 2010 when the current operators’ lease ran out, but that this original instruction had been modified recently to say that the discontinuance of the public car park operation was not necessarily so.

22 The respondent put that if the use is abandoned, it would require a development application for any other use. It could not simply lapse into a private car park operation.

23 It seems to me that the only practical alternative for the car park would be a private car park, and that could result from strata subdivision of each individual car space and sale to separate purchasers. The applicant agreed that the intent was to sell the car spaces on the public market and that indeed future owners may deal with car spaces as a commodity.

24 The applicant said any fear of the car park operation ceasing to be a public car park could be overcome by a condition of consent that requires an operator to exist and to maintain the public car park operation and that all privately purchased car spaces must be leased to the operator. The applicant brought documents regarding Nos 320 to 384 Harris Street, a car park where the Sydney Council advised the Minister for Infrastructure and Planning in 2003 that a strata subdivision of a car park could be acceptable with a similar condition.

25 Mr Longhurst said he had prepared the draft of that advice but subsequent problems of the type referred to in the issues of this appeal meant he would not recommend that practice again. He agreed under cross-examination that most problems he had enumerated arose out of tenant car parking in city offices or apartment buildings where the owners subleased their car spaces to one or more persons.

26 In coming to a decision on this, I bear in mind that a summary of the evidence in how it sits with the requirements of the Local Environmental Plan is that a public car park operates one day at a time. A user, be it a short stay shopper or a commuter, rents the car space on a daily basis or on a relatively short term basis. As a result, the driver cannot be assured of getting into the public car park or if they have a short term arrangement, it is probably expensive as both experts agreed. Therefore a driver is more likely to consider the alternative of public transport than if they have purchased a car space or leased it longer term.

27 Perhaps a condition that includes all the terms of the plan of management for an operator to maintain the public car park function may overcome the council’s objections, and retain the objective of motivating car owners not to drive and to use public transport. However, I am not convinced by the applicant’s evidence that the objectives of the Local Environmental Plan can be achieved in the way this application is presented to me.

28 Therefore, I do not amend condition five and dismiss the appeal. The orders of the Court are:

1. Appeal No. 11218 of 2006 is dismissed.
2. The exhibits are returned to the parties.

___________________
K G Hoffman
Commissioner of the Court
Rjs/ljr