Westfield Limited v Sutherland Shire Council

Case •

[2011] NSWLEC 1333

•

17 November 2011

Land and Environment Court


New South Wales

Medium Neutral Citation: Westfield Limited v Sutherland Shire Council [2011] NSWLEC 1333
Hearing dates:19-23 September 2011
Decision date: 17 November 2011
Jurisdiction:Class 1
Before: Tuor C
Decision:

The parties are to file Short Minutes of Order which reflect this judgment by 24 November 2011.

Catchwords: APPEALS - development application and applications to modify condition of consents to provide controlled access to Westfield Miranda car park. Social and economic impacts of the proposal on the locality. Demand for parking in surrounding streets and impact on residential amenity.
Legislation Cited: Environmental Planning and Assessment Act 1979
Sutherland Local Environmental Plan 2006
Cases Cited: Health Projects International v Baulkham Hill Shire Council [2008] NSWLEC 1477
Milne v Minister for Planning (No 2) [2007] NSWLEC 66
Randell v Willoughby City Council [2005] NSWCA 205
Westfield Limited v Burwood Council (Appeal N0: 10139 of 2011 dated 1 May 2000)
Category:Principal judgment
Parties:

Westfield Limited (Applicant)

Sutherland Shire Council (Respondent)
Representation:

Counsel
Mr A Galasso, SC with Mr N Eastman, barrister (Applicant)

Mr T Robertson, SC (Respondent)
Solicitors
Mallesons Stephen Jaques (Applicant)

Pikes Lawyers (Respondent)
File Number(s):10176, 10177 and 10178 of 2011

Judgment

  1. These are three appeals in relation to the provision of car parking for staff and visitors at Westfield Miranda Shopping Centre, 600 and 542-572 Kingsway, Miranda (the site).

  1. Appeal 10178 of 2011 is against the refusal by Sutherland Shire Council (council) of a development application under the Environmental Planning and Assessment Act 1979 (EPA Act) to install a car park control system (DA10/0877).

  1. Appeal 10177 of 2011 is against the refusal by the council of a modification application (MA10/0299) under s 96(1A) of the EPA Act to modify a development consent (DEV900349) to delete the wording 'on an unrestricted basis' from condition 21 to enable controlled parking.

  1. Appeal number 10176 of 2011 is against the refusal by the council of a modification application (MA10/0298) under s 96(1A) of the EPA Act to modify a development consent (DA08/1163) to delete the wording 'on an unrestricted basis' from condition 71 to enable controlled parking.

  1. The parties agree that the appeals may be heard together and that the evidence in one appeal is evidence in the other.

  1. The key issues between the parties are whether the proposal will have an unacceptable social and economic impact on staff and visitors to Westfield, which will result in the displacement of cars to surrounding streets and impact on residential amenity. The issues in dispute centred on the number of car spaces that should be allocated for staff parking and whether a fee should be charged for visitor and staff parking.

Site and its locality

  1. The site is known as Westfield Miranda and comprises three lots on the southern side of the Kingsway. It is irregular in shape with an area of about 75,461sqm. The site is developed with a multi level shopping centre with associated car parking. It includes structures erected above roadways that connect different parts of the shopping centre.

  1. The site extends across three street blocks with 18 entrances. Its primary access is from the Kingsway with secondary access from Kiora Road. Vehicular access is also provided from Jackson Avenue, Urunga Parade and Wandella Road. A bridged car park structure is constructed across Wandella Road linking the western car park to the main shopping centre building and car park with a retail and car park link constructed across Kiora Road connecting the eastern end of the centre.

  1. The Sutherland to Cronulla rail line forms the site's southern boundary and Miranda Railway Station, which is accessed from Kiora Road, is located to the south-east of the site.

  1. The site is located at the south-western end of the Miranda commercial area. Surrounding development comprising a range of retail, commercial and mixed use developments. A primary school, high school and a playing field are located near the commercial area with residential areas surrounding the centre, some of which contain residential flat buildings and others detached dwelling houses.

Planning framework

  1. The site is within Zone 8 - Urban Centre under Sutherland Local Environmental Plan 2006 (LEP 2006). The proposals are permissible with consent.

  1. Sutherland Development Control Plan 2006 (DCP) applies to the site and whilst there are no specific controls within that plan that apply to the implementation of a parking management system, Chapter 7 deals with vehicular access, traffic, parking and bicycles and is a relevant consideration.

The proposal and its background

  1. A detailed summary of the history of the proposal is provided in the Statement of Facts and Contentions filed by the council.

  1. A development application for extensions to the shopping centre (DEV900349) was approved by council in 1990 and subsequently amended in 1993. It includes condition 21 which requires that 'the car parking area shall be made available on an unrestricted basis at all times for employees and visitors vehicles...'.

  1. DA08/1163 was approved by council on 16 April 2009. It provides for the expansion of the shopping centre and an increase in on site parking from 4,320 to 5,180 spaces. Condition 71 requires that the car parking area '...shall be made available on an unrestricted basis at all times for employees' and visitors' vehicles'. Work approved under the consent has not commenced and is anticipated to start in 2013.

  1. The s 96 applications are seeking to amend condition 71 of DA 08/1163 and condition 21 of DEV900349 to remove the requirement that parking be unrestricted to enable the introduction of controlled parking with a fee for long stay parking and staff.

  1. DA 10/0877 seeks consent for 'the installation of a car park control system including boom gates, ticket machines and concrete plinths. Installation of directional signage to car park entries'. The system would not be introduced until after the works approved under DA08/1163 have commenced operating.

  1. The s96 applications and DA10/0877will enable the introduction of controlled parking. It is proposed to introduce a fee for visitor parking after the first two hours. The proposed fee structure is:

2 hours or less             free

2-3 hours   $2

3-3.5 hours                   $5

3.5-4 hours                   $6

4-4.5 hours                 $10

4.5-5 hours                 $15

5.5-6 hours                 $25

6-6.5 hours                 $30, and

more than 6.5 hours  $40

  1. Five hundred parking spaces (increased to 900) are proposed to be allocated to staff and tenants of the site and a parking fee of $4.00 per day would apply to those spaces. The staff spaces would be located in designated parking areas with access controlled by a computerised card control system.

  1. The proposed conditions include that there would be no charge for cars which enter the car park after 6pm and that patrons of the cinema, restaurants on the Kingsway and medical surgeries within the centre would have three hours free parking. There would be no fee for disabled staff parking.

Evidence

  1. The Court visited the site and heard evidence from people who objected to the proposal. Their principle concerns were that two hours would provide insufficient time for their shopping and they may park elsewhere or be inconvenienced. Residents in surrounding streets stated that their amenity is already adversely affected by commuters and other people parking in their streets and that the proposal would exacerbate the problem and would extend the problem into other residential streets and into the weekends.

  1. Mr M Worsley gave evidence on behalf of the Shop, Distributive and Allied Employees' Association (SDA). His main concerns were the impact of the fee on the workers at Westfield, the safety of workers if they have to walk through the car park at night or in surrounding streets and that the fee can be raised without consultation. He stated that retail workers are low income earners who often work part time and juggle work with other commitments such as childcare. He referred to a survey undertaken by the SDA of staff and customers which indicated strong opposition to the proposal.

  1. The Court heard expert planning evidence from:

For the council

  • Mr B Threlfo Traffic engineer/planning
  • Mr J Storer Civil engineer/economist
  • Dr J Stubbs Social planner

For the applicant

  • Mr T Roger Traffic engineer
  • Mr P Leyshon Town planner and research analyst
  • Ms J Ohlin Social planner
  • Mr N Juradowitch Town planner

Number of staff parking spaces

  1. Mr Storer and Mr Rogers agree that the existing number of car spaces (4320) and the number of car spaces approved under DA08/1163 (5,180) comply with the Roads and Traffic Authority Guide to Traffic Generating Developments (RTA Guide) which requires 4.1 spaces per 100sqm of gross lettable area (GLA). The number of existing car spaces does not comply with the requirements of the DCP of one space per 30sqm of gross floor area (GFA) as these were approved under different controls. However, the additional car spaces approved under DA08/1163 (860 spaces) exceed the requirements of the DCP for the additional GFA of 21,670sqm. The RTA Guide and the DCP provide no delineation as to the allocation of car spaces between staff and visitors.

  1. In accordance with condition 21 and condition 71, car parking is currently unrestricted and staff park in prime locations near the entries to the centre.

  1. The proposal is seeking to 'corral' staff into designated parking areas to free up prime spaces for customer use, particularly during the busiest periods in the middle of the day (11am-1pm) where 90% of the car spaces (about 3900 spaces) are occupied.

  1. The experts generally did not object to the provision of designated staff parking areas provided there is a sufficient number of spaces and the areas are in convenient and safe locations. The key disagreement between Mr Storer and Mr Rogers is the number of car spaces that should be allocated to meet the demands of staff and prevent displacement of cars into the surrounding residential areas. Mr Storer considered that actual staff figures should be provided but, in the absence of such figures, he and Mr Rogers provided estimates based on parking exit surveys undertaken by Westfields. They agree that there are approximately 16,000 cars parked in Westfields during a day. Mr Storer estimates the number of parking events each day attributed to staff as about 1088, whereas Mr Rogers estimates the number to be about 825. The difference relates primarily to the different assumptions on the number of commuter parking events and the number of parkers (staff, commuters and visitors) who stay more than three hours.

  1. Mr Storer stated that his staff parking figure corresponded to his analysis of the petition of staff undertaken by the SDA (1000) and the survey of tenants undertaken by Dr Stubbs (1,100). Mr Storer recognised that these figures estimate the staff parking per day and that some adjustment should be made to reflect the proportion of spaces that are needed at any one time due to the 'staggering' of shifts.

  1. Mr Rogers estimates that 75% of staff parking spaces over the day would represent peak staff parking, being approximately 600-650 spaces. This would reflect the high number of part time and casual workers and their 'staggered' shifts.

  1. Mr Rogers then calculates the likely increase in staff parking to reflect the increase in the floor space approved under DA08/1163 (an increase in GLA from about 100,000sqm now to about 125,000sqm). In his opinion, about 800-850 staff parking spaces would be required for the existing and approved development. He noted that this figure corresponds to the number of car spaces allocated for staff parking at Warringah Mall which also has about 125,000sqm of GLA.

Findings

  1. The applicant has agreed to a condition which requires that 900 spaces be provided for staff and tenant parking. The council is seeking 1000 spaces. The difference between the estimates of the experts and the position of the parties is within a small range of variability. The experts' figures are based on different assumptions which, to a greater or lesser extent, have limitations. For example, Mr Storer bases his conclusion that there are 50 commuter parkers on a survey of commuters which he undertook during the Easter school holidays before the Easter Holiday Weekend and Anzac Day public holiday (five days). I accept that this would not be representative of daily commuter figures. This also differs from the Joint Report where Mr Storer agreed that there are around 150 long stay parkers within the Westfield Miranda car park who are not customers or workers at Westfield.

  1. There are also inadequacies in Mr Storer's reliance on the survey undertaken by the SDA as this includes non workers. Dr Stubbs' survey, although a random survey of a hundred tenants and their staff numbers, does not include any of the majors eg Woolworths which have fewer employees per square metre.

  1. While there are also limitations in the assumptions of Mr Rogers, these are based on his experience and surveys of other Westfield centres, although in different locations. A key difference between his estimate and that of Mr Storer is the recognition that a large proportion of workers are shift and casual employees who work minimum three hour shifts which are 'staggered' during the day, with the greatest number working during the peak period in the middle of the day.

  1. I accept that Mr Rogers' estimate is reasonable and would provide an adequate number of spaces to meet the demand for parking generated by staff and is unlikely to result in displacement of cars into surrounding residential areas. I have therefore accepted the Applicant's condition that requires 900 spaces be dedicated to staff parking. However, due to the limitations in the methodologies of both experts, the staff parking areas should be surveyed within 6 months of operation to better ascertain the number of staff who use it and whether the number should be revised up or down. This survey should be undertaken with a survey of the surrounding streets before and after the introduction of any fee to determine the level of displacement into surrounding streets.

Impacts of imposing a fee for parking

  1. The other key disagreement between the experts was whether a fee should be imposed for staff parking. They were less concerned about the imposition of a fee for visitor parking but disagreed on the number of hours that should be free before any visitor fee commenced. The fee sought by council would be after three or preferably four hours which would ensure that the majority of shoppers have free parking and would not seek to park in surrounding streets or re-enter the centre.

  1. The applicant is seeking a fee free period of two hours for visitors. Mr Leyshon stated that a key element of 'shopper psychology' is the perception of the availability of parking. This perception is strongly influenced by access to parking spaces in close proximity to desirable entries. The car park is never at capacity and there are always available spaces, however, these may be in areas such as the roof that are not perceived as desirable. The current unrestricted parking means that staff are able to park in the desirable locations near entries and visitors, including commuters, are able to park for unlimited periods which reduces the turn over of spaces. The main purpose of the application is to free up prime spaces for increased customer use whilst providing adequate parking for staff needs.

  1. The experts generally did not raise issue with 'corralling' staff parking into specific areas and they accepted that any fee for shopper parking should be significantly more than the fee for staff and should commence before the minimum shift of workers (three hours) to prevent staff parking in the shopper parking area. They also agreed that a fee for staff parking was not required to achieve the objective to free up prime car spaces. They disagreed on the likely social and economic impacts of imposing such a fee and the potential for cars to be displaced into surrounding streets and impact on residential amenity. They also disagreed on whether the introduction of a fee would encourage greater use of public transport.

Amenity impacts on surrounding streets as a result of the introduction of a parking fee

  1. Mr Threlfo and Mr Storer were concerned that the imposition of a fee for parking, particularly for staff, may result in cars parking in the surrounding streets or people moving their cars to avoid paying a fee. The principal concern of the residents was that they already experience cars parking and circulating in the surrounding residential streets which they consider impacts on their amenity due to noise and inconvenience. Commuter and other parking already reduce access to on street parking for residents and results in situations where cars park across driveways.

  1. Mr Rogers and Mr Juradowitch stated that the introduction of paid parking for staff will result in some staff changing their travel to work. The options include: paying the daily fee of $4.00; travel by means other than car; park in surrounding streets or get a lift to work.

  1. The experts agree that there is minimal available unrestricted on street parking within 500m of the site and there is currently no resident parking scheme or restrictions on parking in the residential streets. Mr Rogers and Mr Juradowitch consider that due to the lack of available on street parking close to the site there would be no significant shift of staff to park in the streets. Mr Storer considers that people will walk a considerable distance to avoid paying a fee, depending upon their particular circumstances. Mr Rogers referred to surveys that were undertaken at Westfields in Warringah Mall and Hornsby which indicated that there was no major change in on street parking demand following the introduction of a fee for staff parking.

  1. Mr Threlfo considers that if sufficient free parking is provided for staff there would be no displacement into surrounding streets, however he estimates that the fee could result in the displacement of up to 100 staff cars into surrounding streets. This is consistent with the results of the surveys for Warringah Mall and Hornsby. He initially accepted that the figure is numerically acceptable but after considering the resident evidence and viewing the surrounding residential streets, Mr Threlfo considered any further displacement would have an unacceptable impact due to the nature of the streets which are narrow and cul de sacs.

Social and economic impacts of the introduction of a parking fee

  1. The Court heard extensive evidence on the social and economic impacts likely to result from the introduction of a parking fee, particularly for staff.

  1. Dr Stubbs and Ms Ohlin generally agreed on the demographic profile of shoppers based on the Australian Bureau of Statistics (ABS) 2006 Census of Population and Housing (Census) for the Sutherland local government area (LGA). They disagree on the profile of the workers and on the data set that should be employed.

  1. Dr Stubbs considered that the relevant database for the consideration of worker demographics is Travel Zone 710 collected by ABS and analysed by the NSW Bureau of Transport Statistics. This indicates that 68% of people use cars to travel to work in the travel zone which extends over the whole of the town centre. Dr Stubbs states that although 75% of workers are from Sutherland LGA, a large proportion of these (46%) are from suburbs other than Miranda and its surrounding suburbs. 24% of workers are from outside the LGA and their demographic profile may be different to that of Sutherland LGA and Miranda.

  1. Dr Stubbs referred to 'equivalent household multipliers' and stated that within Sutherland LGA there are different demographic profiles and the impact of imposing a fee will affect people differently. Dr Stubbs considered that factors such as higher housing costs in Sutherland and greater costs for a family with children could impact on individuals ability to absorb the fee for parking. She states that retail workers 'have a very disadvantaged socio economic status. A high proportion are young, working part time and female, and working in low status occupations'.

  1. Dr Stubbs concludes that the proposed fee is likely to have a significant impact on the income of some workers. They may choose not to pay the fee and to park in the surrounding streets which would impact on the amenity of residents. In her opinion, catching public transport was not a convenient option for some workers due to its limited availability in areas of Sutherland, the travel time in comparison to car use and the need to combine work with factors such as child care.

  1. Ms Ohlin did not agree that there would be a significant impact on the workers of Westfield Miranda from the imposition of a fee. She stated that the predominant proportion of workers at Westfield (75%) are from Sutherland LGA and Miranda and there is no significant social disadvantage in the areas from which the workers are drawn. Sutherland LGA is among the least disadvantaged LGAs in NSW at rank 141 of 153 LGAs (1 being the most disadvantaged). The high proportion of couples with children and the lower rate of single person households means that the income of workers is likely to be a household income rather than a sole income. The proposed fee would have less impact given that the household income for the LGA is relatively high.

  1. Ms Ohlin did not consider that the imposition of a fee would result in displacement of parking into surrounding residential streets given the discounted rate of the fee and the options for public transport. She stated that workers elsewhere are responsible for their own transport costs and the cost of driving to work is more expensive than public transport. Miranda is well serviced by public transport if workers choose to take this option rather than pay a fee.

  1. Dr Stubbs and Ms Ohlin also held different opinions on whether the proposed fee would impact on the safety of staff. Dr Stubbs' evidence is that Miranda is unsafe in respect to 'steal from person' and certain assaults and staff walking to their cars would be at increased risk. Ms Ohlin states that Miranda is significantly safer than other areas of Sydney and the times at which the reported incidents occur is not established but it is likely that a high proportion would be at night when the parking fee is not in place. In addition, measures such as CCTV and the location of secure staff parking will not increase risks to staff.

  1. Mr Storer and Mr Leyshon drew different conclusions on whether the proposed fee would have a significant economic impact in the locality. They agree that cost benefit analysis (CBA) is the appropriate methodology to assess the economic impacts of the proposal and that the locality is dependent on the impacts identified.

  1. The experts reached similar conclusions on the costs to visitors and workers and the benefits to Westfield of the fee. Their key disagreement was on the cost/benefit to business. Mr Storer accepted that if Mr Leyshon's assumptions were correct in relation to 'shopper psychology' that there would be an increased turnover of cars and a resultant increase in shopper expenditure and net benefit to business. Based on Mr Leyshon's figures, at worst the net cost of the proposal would be $1.2 million per annum but this would last only two years and, in his opinion, is not a significant adverse economic impact given the overall annual turnover at Westfields of $712 million.

  1. Mr Leyshon accepted that CBA analysis includes the valuation of time but that people value time differently. He accepted Mr Storer's costs which included a component for time taken through increased travel time. Mr Leyshon also agreed that the staff parking fee of $4 per day would be a significant adverse economic impact for workers who earn $20,000 per year, if this is their only source of income. Although, he considered that car ownership amongst such workers would be lower. He also agreed that the fee would be a significant economic impact on workers who earn $40,000 per year if this is their only source of income and if they currently drive to work and park at Westfields.

Greater use of public transport through the introduction of a parking fee

  1. In Mr Rogers' opinion the introduction of a fee for parking would encourage greater use of public transport, particularly by staff, which is a stated objective of the DCP and other planning policies. Miranda is well serviced by public transport including bus and rail which provide local and regional transport services to the centre. The other experts for the applicant generally shared this opinion.

  1. Mr Storer accepted that 'sustainability' may be a valid reason to encourage public transport use. But he did not accept that the introduction of a fee would achieve this outcome. In his opinion the fee for visitors may result in shorter and more frequent trips for shoppers which would not result in increased use of public transport or sustainability outcomes. Further, he considered that the decision of staff to use public transport would depend on its availability, the time taken and comparative cost. While Miranda is well serviced by public transport, many areas in Sutherland are not. In his opinion, fee would not necessarily result in increased use of public transport but staff would seek to park in surrounding streets if they chose not to pay the fee. The other experts for council generally shared this opinion. Dr Stubbs analysed alternate forms of available transport and concluded that these would result in a higher cost to individuals compared to public transport, although the analysis did not factor in the cost of running a car.

Findings

  1. The development consents for DA08/1163 and DEV900349 approved extensions to Westfield Miranda. The increased floor space required an increase in the number of car spaces provided to meet the demand for parking generated by both employees and visitors of the centre.

  1. Condition 21 of DEV900349 and condition 71 of DA08/1163 required that car parking areas shall be made available at all times on an unrestricted basis. The applications under s 96(1A) are seeking to remove the words 'on an unrestricted basis' from condition 21 and condition 71 to enable the introduction of controlled parking.

  1. Section 96 of the EPA Act relevantly provides:

(1A) Modifications involving minimal environmental impact.
A consent authority may, on application being made by the applicant or any other per s on entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with:
(i) the r e gulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.
.........
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

  1. There is no dispute between the parties that the development as modified would be substantially the same development. The car parking approved under the development consents is ancillary to the retail use. The proposal to charge a fee for parking does not change the parking from an ancillary use to a separate land use, such as a commercial car park.

  1. The matters of relevance to the s96 applications and DA10/0877 under s79(c) of the EPA Act include the DCP (s79C(1)(a)(iii)) and social and economic impacts of the proposal on the locality (S79C(1)(b).

  1. The objectives for parking in the DCP relevantly include:

a. To ensure all land uses and/or combination of activities provide
sufficient parking on site to satisfy the demand for parking by
different vehicle types generated by the development, including
Traffic Generating Development.
b. To ensure all land uses have a described parking provision.
c. To minimise reliance on street parking.
d. To minimise amenity impacts on neighbouring properties, including streetscape, noise and light spill.
.........
g. To encourage greater use of more sustainable transport modes
such as public transport, motor bikes, walking and cycling.

  1. The additional car spaces approved under DA08/1163 comply with the requirements of the DCP. The car spaces approved under DEV900349 were in accordance with a different planning document. The experts agree that the existing and proposed parking is adequate to meet the demand for parking generated by the development.

  1. The key issues between the parties are whether the number of spaces to be provided for staff and the proposal to charge a fee for visitor and staff parking would result in the displacement of parking into the surrounding streets and have unacceptable social, economic and amenity impacts.

  1. The parties agree that under s80A of the EPA Act, the Court has the power to impose a fee regime if it will mitigate the likely impacts of a development. However, they disagree on whether it can regulate the amount or details of the fee.

  1. Mr Robertson SC, for the council, submits that the details and amount of fee must be included in the conditions in order for the Court to be satisfied that the impacts are mitigated. He refers to the decision of the Court of Appeal in Randell v Willoughby City Council [2005] NSWCA 205 to support his submission that if the Court has the power to regulate the circumstances in which charges can be levied, it follows that it has the power to regulate the level of fee. At [38] and [39] the Court of Appeal states:

38 This was not a case in which either the purpose or the effect of the decision was or would be to interfere with market forces. No question arose as to the establishment of a new business which might compete with existing businesses. Rather, the question was whether the Claimant should be entitled to charge for an aspect of its services for which it cannot now charge, because of the existence of a condition which the Claimant assumed to have been validly imposed. In this situation it would not have been surprising if the Claimant had sought to call evidence of the economic impact of the condition on its operations. But its present argument would appear to entail the conclusion that such evidence should not be considered. If a planning authority can impose a condition regulating the circumstances in which charges can be levied, it would be absurd to suggest it cannot consider the economic impact of imposing or varying such a condition.
39 It is therefore implausible to suggest that economic impacts on others must fall outside the statutory concept. This point is illustrated by returning to the concept of direct economic impact, noted above. The imposition of a parking fee must have a direct economic impact on each person who thereafter uses the parking lot for a period of less than two hours, that being the period of free parking under the existing consent conditions. No doubt the impact on one individual would be dismissed as insignificant. However, the direct impact must properly be understood as applying to many individuals over an extended period of time. This impact cannot be so readily dismissed and the Claimant expressly resiled from the proposition that any such impact could be ignored as "de minimis". No doubt that concession was impelled by the consideration that the Claimant's strenuous pursuit of the proposed condition variation demonstrated that the power to charge fees was a matter having significant economic consequences for it. It would then be hard pressed to deny that there was any economic impact on users, on the basis that they were a disparate group of individuals. Indeed, arguably the consent authority would be entitled to identify the economic impact as including both the adverse effect on the car parking community and the equivalent beneficial economic impact on the Claimant. The Claimant has failed to demonstrate legal error in this respect on the part of the Commissioner.

  1. Mr Robertson also referred to Health Projects International v Baulkham Hill Shire Council [2008] NSWLEC 1477, where Moore SC referred to Randell and regulated fees for parking.

  1. Mr Galasso SC, for the applicant, submits that the power to regulate extends only as far as is necessary to mitigate likely impacts. The establishment of a fee regime is sufficient to address potential impacts of the proposal and regulating the amount of fee is beyond what is required and is therefore beyond power. He refers to the decision in Westfield Limited v Burwood Council (Appeal N0: 10139 of 2011 dated 1 May 2000) where at [11] Brown C states:

....it is not the role of the Court to determine whether the $3 parking fee for staff is appropriate or not, but what implications this charge will have on the parking provisions within the carpark and in the surrounding streets. To do this however some assessment needs to be made on the appropriateness of the fee.

  1. To accept Mr Galasso's submission, I must be satisfied that the establishment of a fee regime is adequate to address the potential impacts of the development, principally the impacts if parking is displaced from the centre into the surrounding residential streets.

  1. I note that the applicant's version of conditions has excluded the fee amounts for visitor parking consistent with Mr Galasso's submission regarding the power to regulate a fee. However, it includes a $4 fee for staff parking which may be increased annually in accordance with the movement with the Sydney Consumer Price Index or the annual percentage increase in Council rates levied by the Council, whichever is greater. It would appear that the inclusion of a monetary amount for staff parking is inconsistent with Mr Galasso's submission.

  1. Condition 71 states that 'to ensure that the carparking area satisfies the demands of the development it shall be made available on an unrestricted basis at all times for employees' and visitors' vehicles.' The purpose of this condition is to ensure that the parking approved under the development consent meets the objectives for parking under the DCP to provide parking on site that satisfies the demands for parking generated by the development in order to minimise the reliance on street parking and amenity impacts on neighbouring properties. T he purpose of condition 21 would be similar.

  1. The question before the Court is whether the amendments to the conditions and the approval of DA10.0877, which would enable the introduction of a parking fee regime, would meet the objectives of the DCP for parking. The social and economic impacts of the proposal on the locality should be considered within this framework.

  1. Mr Galasso referred to the decision of Milne v Minister for Planning (No 2) [2007] NSWLEC 66, where Jagot J said:

22 Under s 79C(1)(b) of the EPA Act the consent authority, in determining a development application, is to take into consideration the likely impacts of the development, including (relevantly) social and economic impacts in the locality. 23 The fact that all people are members of society and engage in some form of economic activity does not mean that each and every impact of development on a person amounts to a social and economic impact. It is for this reason that, when dealing with the social and economic impacts of development, courts have rejected notions of the profitability of individual businesses and focused on the potential for detriment to the "extent and adequacy of facilities available to the local community if the development be proceeded with" (Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675 at 687). This focus reflects that part of the definition of "environment" in s 4(1) of the EPA Act concerned with people in their "social groupings". It also reflects certain objects of the EPA Act (s 5), which are incapable of being understood outside the context of people as community members (including the promotion and co-ordination of the orderly and economic use and development of land, the provision and co-ordination of community services and facilities, ecologically sustainable development and the provision and maintenance of affordable housing). Social and economic impacts thus concern effects on the relations between people in their capacity as members of communities and their environment.
.............
29 Accordingly, development that contributes to achieving the relevant planning objectives for Chinderah and the region may have social and economic impacts - but they are impacts contemplated as part of the orderly and economic use of land. In weighing up any such impacts, regard should also be given to the observations of courts that unfounded fears of impacts on amenity (however widespread) cannot be material to planning assessment, but that "demonstrable social effects" are relevant, as is evidence of impacts capable of objective assessment (Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, unreported, 17 February 1997. See also, for example, New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at [53] to [64], Jarasius v Forestry Commission of New South Wales and Others [No 1] (1988) 71 LGRA 79 at 92, Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [190] to [208]). For these reasons, as Rivercolt submitted, it is the cogency of residents' concerns, not their number, which may give rise to relevant considerations

  1. Mr Galasso submits that there is no demonstrable social effects of imposing a fee for staff parking as 'the cost of travel to work is a cost generally borne by persons who work as a legitimate incidence of that employment'. He submits the impacts of a fee for staff parking are not a relevant consideration under s79C(1)(b) with respect to workers. Similarly, the cost of parking for visitors is not a relevant social or economic impact.

  1. Having considered the planning purpose of the conditions and the objectives of the DCP for parking, the social and economic impacts of the proposal are principally whether the fee would act as a disincentive for staff and visitors to use the parking provided on site and result in displacement of vehicles into surrounding streets. Other social and economic impacts on individuals and businesses are of little relevance to the consideration of whether the planning purpose sought by the conditions and the DCP is achieved.

  1. Having considered the evidence of the experts I accept that:

  • placing a fee on parking can act as a disincentive to the use of the parking spaces. The extent depends upon the amount of fee and when it occurs.
  • The provision of parking plays an important role in 'shopper psychology'. This includes not only the number of spaces but also where they are located, particularly their proximity to convenient entry points into the shopping centre.
  • The applicant's objectives of preventing staff from parking in the car spaces near entry points and limiting long stay parking can be achieved by charging a fee for visitor parking and providing designated staff parking areas. Such a fee must be triggered within the minimum shift period (3 hours) and must be sufficiently greater than any fee charged for staff parking. A fee on staff parking is not required to meet this objective.
  • If a fee is imposed on staff parking, staff will either pay the fee, catch public transport, park in the street or be driven to work. Their choice will depend on their ability to pay the fee and the convenience of other options, including time.
  • Imposing a fee on visitor parking will result in a greater turnover of visitor car parking spaces and increased traffic movement.
  • The objective of greater use of public transport is unlikely to be achieved by the visitor fee due to the increased turnover of parking and it would not, of itself, justify the introduction of a fee.
  • The introduction of staff and visitor fees will result in some cars no longer using the parking provided on site and parking in surrounding streets, however, the extent of displacement is unclear.
  • The displacement of cars into surrounding streets adersely impacts on the amenity of residents and does not meet the objective of the DCP for parking.
  • 65% of shoppers leave within 2 hours, 90% leave within 3 hours and 97% leave within 4 hours.
  • There are no demographic indicators that suggest Sutherland or the workforce of Westfield are disadvantaged.
  • 75% of staff at Westfield live within the Sutherland LGA. 68% of workers in the travel zone drive to work.
  • The majority of staff at Westfield are part time and casual. 20% of part time staff are under 25 years.
  • Retail workers are relatively low paid.
  • A fee of $4 per day would have a severe adverse impact on workers who earn less than $40,000 per year, if this is their sole source of income.

  1. As I accept Mr Galasso's submission that I cannot regulate the amount of the fee I must therefore be satisfied that the fee regime will not result in displacement of cars into surrounding streets and associated amenity impacts. The regime should therefore set a fee free period which will enable the majority of shoppers to park on site and complete their shopping thereby limiting the likelihood that they will choose not to park in the centre or seek to re-enter the centre after the fee free period.

  1. I am not satisfied that the proposed two hours free parking is an adequate period to mitigate the potential for shoppers to park in surrounding streets or re-enter. Mr Galasso's submits that the level of fee to be charged after this period should not be set by the consent authority and may vary over time and depending upon the objective to be achieved. If the objective is for a turnover every two hours to encourage a greater number of shoppers, then the fee could be large and may result in shoppers parking in surrounding streets rather than paying the fee. Whereas, if the objective is to prevent staff parking in prime locations and limit long stay parking then the fee only needs to apply within the minimum staff shift and be greater than any fee charged to staff. The latter is the stated objective of the applications and this can be achieved by establishing a regime which provides 3 hours free parking for shoppers. This will provide greater certainty that the majority of shoppers (90%) will park within the centre and not seek to park in surrounding streets.

  1. There is no need to charge staff a parking fee to achieve the objective of relocating staff parking away from prime positions, provided a sufficient fee is introduced for shoppers at a time prior to the minimum staff shift (3 hours plus time to access their place of work). The introduction of a fee for staff parking may encourage some staff to use public transport. Equally, the introduction of a fee may result in some staff parking on streets or paying the fee. The choice will depend on factors such as availability, cost and time. In assessing the economic and social impacts of a fee, no definite conclusions can be drawn from the evidence as to the likely choice that would be made and therefore the likely displacement of cars into surrounding streets.

  1. However, shift workers are likely to be more sensitive to a daily fee and to the time and cost taken to travel by public transport (given the level of remuneration or travel costs in proportion to the fee and /or the travel time in proportion to the hours worked). The agreed evidence of Mr Storer and Mr Leyshon is that a fee of $4 per day would have a significant adverse impact on workers earning less than $40,000 per year, if this is the sole source of household income. I accept that for a number of workers there will be other sources of income but the imposition of a fee for parking, particularly for shift workers (20% of whom are under 25), would act as a disincentive to using the car park and may result in displacement of parking into surrounding streets.

  1. To mitigate the potential for staff to park in surrounding streets, it is reasonable that no fee be charged for the period of the minimum shift (plus a reasonable period to walk to and from the parking space to the place of work). I therefore find that staff parking should be freely available for a minimum period of four hours after which time a fee may be charged.

  1. In reaching these conclusions, I note that inherent in the determination of parking numbers to meet the demand generated by specific uses is the assumption that parking is not provided for every staff or visitor. The parking number required under the DCP would be based on assumptions about the use of other forms of transport and the number of staff and visitors likely to need parking. This parking is to be provided on site rather than rely on the availability of parking in surrounding streets. A number of staff and visitors to Westfield would already use public transport, walk or choose not to use the car park and park in surrounding streets. However, visitor and staff parking required by the DCP should be available for those people who wish to use it and any fee should not act as a deterrent to its use. Therefore to meet the objectives for parking under the DCP any fee regime should ensure reasonable access to the parking required to meet the demands of the development. Any fee regime should also meet the reasonable objectives of Westfield for the improved operation and management of the centre.

  1. Access to the car park for visitors and staff and the stated objectives of Westfield can be achieved through amendments to condition 21 of development consent DEV900349 and Condition 71 of development consent 08/1163 to delete the words 'on an unrestricted basis' and by including new conditions 21A in DEV900349 and 71A in 08/1163 which state:

No fee may be charged for parking other than for valet or secure parking until such time as the works for the construction of the car park and associated vehicular and pedestrian access-ways approved under DA08/1163 and the works for the construction of the controlled parking system approved under DA 10/ 0887 are completed. Any fee charged shall be in accordance with the conditions of consent in DA10/0887.

  1. New conditions 21A and 71A will ensure that any fee for visitor and tenant parking will not be charged until the works approved under DA08/1163 and DA10/0887 are completed. The fee will then be charged in accordance with the conditions of consent in DA10/0887.

  1. With the above amendment to the condition and the additional condition, I am satisfied that the proposal will have a minimal environmental impact and that Appeal No: 10176 of 2011 and Appeal No: 10177 of 2011 may be upheld and the applications under s 96(1A) may be approved.

  1. The parties raised no issues with the works proposed in DA10/0877. I am satisfied that Appeal No: 10178 of 2011 may be upheld and consent granted subject to conditions that include the following requirements:

  • The provision of 900 car spaces for staff parking
  • No fee for visitor parking is to be charged before three hours which reflects that 90% of shoppers leave the car park within three hours and this is therefore unlikely to result in displacement of cars into surrounding streets or cars circulating and re-entering the car park.
  • No fee for staff parking is to be charged before four hours which will enable part time and casual workers to park without a fee for a minimum shift and therefore not act as a disincentive to using the car park and park in the surrounding streets
  • a survey of the staff parking areas and parking in surrounding streets is to be undertaken prior to and after the introduction of any fee to more accurately determine the number of staff parking spaces required to meet the demands of the development and whether staff parking is displaced into the street network by the imposition of a fee.

Other conditions

  1. The parties disagreed on the following conditions:

  • Condition 7 in relation to the contribution under s 94A. The applicant is seeking an amendment to the condition to enable the option, subject to council discretion, of a deferred periodic payment and/or 'works in kind' for the contribution. The council is opposed to this amendment. Limited reasons were provided to support the applicant's position and the condition is therefore unchanged.
  • Condition 19 in relation to vehicle queuing. I accept council's version of the condition that the parking control system should operate to prevent queuing off site and in the evert that this does occur the boom gates shall open automatically.
  • Condition 20 in relation to monitoring and reporting on the boom gate system. The condition should be amended to require any works or operational adjustments recommended in the report to be implemented in consultation with council.

Directions

  1. The parties are to file Short Minutes of Order which reflect this judgment by 24 November 2011.

Annelise Tuor

Commissioner of the Court

Decision last updated: 22 November 2011

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Cases Citing This Decision

1

Caversham Property Pty Ltd v The Hills Shire Council [2012] NSWLEC 1083