White v Verrocchi
[2008] QPEC 2
•1 February 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
White v Verrocchi [2008] QPEC 002
PARTIES:
TERRANCE ANTHONY WHITE AS GENERAL PARTNER OF TERRY WHITE CHEMISTS AUSTRALIA FAIR, A LIMITED PARTNERSHIP
(Applicant)
v
MARCELLO VERROCCHI
(First Respondent)
and
GOLD COAST CITY COUNCIL
(Second Respondent)
FILE NO/S:
BD 935 of 2007
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
1 February 2008
DELIVERED AT:
Brisbane
HEARING DATE:
11 October 2007, 11 December 2007 and 29 January 2008.
JUDGE:
Rackemann DCJ
ORDER:
It is declared that the commencement of the first respondent’s pharmacy at premises situated at 2/83 Scarborough Street Southport constituted assessable development for which a development permit was required for it to be lawful.
CATCHWORDS:
Declarations – whether development assessable or self assessable – whether compliance with acceptable solution as to carparking – whether relevant acceptable solution was that in the Constraint Code or LAP Place Code – whether offsite spaces could be counted – whether spaces have to be actually provided or whether it is sufficient that there be an unperformed obligation for spaces in an adjoining development to be made available
COUNSEL:
Mr J. Haydon of Counsel for the appellant
Mr S. Ure of Counsel for the first respondent
Mr A. Knox Solicitor for the second respondent
SOLICITORS:
Wendy Hart Solicitor for the appellant
DLA-Phillips Fox for the first respondent
McDonald, Balanda & Associates for the second respondent
The applicant and first respondent are competing pharmacists at Southport. The applicant’s pharmacy is in the Australia Fair shopping complex, while the first respondent’s is in one of two buildings on adjoining premises. The first respondent did not obtain a development permit for its pharmacy. The issue in these proceedings is whether such a permit was required. The determination of that issue is of relevance to a separate proceeding, between the applicant and first respondent, which is pending in the Federal Court. The second respondent took a neutral position.
The first respondent began operating a pharmacy on the premises situated at 2/81 Scarborough Street, Southport in February 2007. It is common ground that the commencement of that use constituted development by way of a material change of use. Pursuant to the Integrated Planning Act 1997, a development permit is necessary for assessable development but not for self-assessable development or exempt development.[1] The first respondent contends that the development is self-assessable. Self-assessable development does not require a development permit, but a person must comply with any applicable codes for self-assessable development.[2]
[1] See s 3.1.4.
[2] See s 3.1.4(3), s 4.3.2.
It is common ground that:
(i) The pharmacy is a “shop” for the purposes of the Gold Coast planning scheme;
(ii) The site of the shop is within precinct 1 of the Southport Local Area Plan (LAP) under the planning scheme;
(iii) Within that precinct a shop is self-assessable development, but only if it complies with the acceptable solutions of the relevant code or codes;[3]
(iv) The only respect in which the development is alleged not to comply with relevant acceptable solutions is in respect of the carparking provided.
[3] See s 4.7.1 of Part 5 Division 1 Chapter 2 of the Planning Scheme
The codes which apply to development that is self-assessable in the LAP area are set out in s 7.1 of the LAP and include the Southport LAP Place Code (the Place Code) and the Carparking, Access and Transport Integration Code (the Constraint Code).
The Place Code applies to all development indicated as self, code or impact assessable in the LAP table of development.[4] For self-assessable development, only the acceptable solutions to performance criteria PC1 – PC15 apply.[5] None of those relate to the number of carparking spaces provided. Pursuant to s 2.5 of the Constraint Code, only the acceptable solutions to performance criteria PC1 – PC16 apply to development identified as self-assessable in a relevant LAP. The provision of carparking spaces is dealt with in PC16 (and the acceptable solutions thereto) of the Constraint Code as follows:
[4] S 8.2.1 of the LAP.
[5] S 8.2.2 of the LAP.
Provision of carparking spaces
PC 16
Sufficient carparking spaces must be provided to meet the carparking needs of the development. The number of carparking spaces provided must be consistent with the practical opportunities available for shared carparking provision and the operation of alternative transport modes to private motor vehicles.
AS 16.1 Car parking is provided in accordance with the number of spaces required for the specific use listed in the Table to Acceptable Solution AS 16.1.
AS 16.2 If an additional building is constructed, or an existing building is extended, the car space requirements determined from Table to Acceptable Solution AS 16.1 accrue only for the additional building or extension, provided that the use of the land remains the same and any existing area for carparking is not reduced or, if disturbed, any existing car spaces are replaced in the new development.
The rate for a “shop” specified in the table is “6.7 spaces per 100 m² of GFA (one (1) space per 15 m² of GFA)”.
Section 2.4 of the Constraint Code provides that:
“Where a domain or LAP Place Code contains carparking requirements that differ from this Code, the LAP requirements take precedence”.
PC60 of the Place Code requires that “adequate onsite carparking facilities must be provided for new developments, to ensure that residents and customers are adequately catered for”. AS 60.2 states, in part, that carparking is provided at the rate of one space per 30 m² of GFA or part thereof for a range of uses, which include a shop. While PC1 – PC65 apply to all code and impact assessable development in the LAP, it has already been observed that, pursuant to s 8.2.2 of the Place Code, only the acceptable solutions to PC1 – PC15 apply for self-assessable development. Consequently, for a shop which is self assessable development, AS60.2 does not apply and the Place Code does not contain carparking requirements for that development which differ from those in the Constraint Code.
There are 39 onsite carparking spaces to service a number of businesses including the pharmacy. Most of those spaces are allocated for the exclusive use of various tenants under their respective leases. The pharmacy is, pursuant to its lease, allocated just two exclusive use spaces and there are only four unallocated spaces. Consequently, a maximum of 6 spaces are in fact available for those attending the pharmacy. Even leaving the leasing arrangements to one side, it is common ground that the material change of use in this case resulted in a requirement for a greater number of carparking spaces than that currently provided onsite.
The carparking requirement, calculated by the town planners in their joint report, is 13 spaces, being some 6 or 7 greater than the requirement for the uses approved under an earlier permit.[6] The calculation in the joint report was based on the rate in AS 60.2 of the Place Code. If AS 16.1 of the Constraint Code were applied, the requirement would be 25.
[6] Mr Grummitt’s trial report suggested the requirement was between three and seven
Notwithstanding the deficiency of onsite carparking, the first respondent contended that it can demonstrate compliance with the relevant acceptable solution by relying on spaces in the adjacent Australia Fair development as being “provided” in respect of all development on the subject site, including the pharmacy. The case was initially presented on the basis that the determinative issue was whether those offsite spaces could be taken into account for the purposes of determining compliance with the relevant acceptable solution.
It was contended for the first respondent that there is an historical surplus of seven spaces in aggregate (including onsite carparking and 32 spaces in Australia Fair) to service development on the subject site. The respondent pointed to correspondence which shows that the Council was prepared to accept that proposition at an earlier time.[7] It is that historical surplus of 7 which was relied upon by Mr Grummitt to suggest that there is sufficient carparking, assuming a requirement of only 13. There is however, some difficulty, even if it were accepted that the 32 spaces in Australia Fair are “provided” in respect of all uses on the subject site, including the pharmacy.
[7] Ex 2 pg 80.
The first respondent relies upon the carparking requirement being 13, on the basis of AS 60.2 of the Place Code, when that is not one of the acceptable solutions which, according to the Place Code, applies to self assessable development. It was contended for the first respondent that, by reason of s 2.4 of the Constraint Code, the requirements in AS 60.2 of the Place Code should be taken to apply in lieu of AS 16.1 of the Constraint Code, since both have requirements for a shop.
Section 2.4 of the Constraint Code provides that the LAP requirements take precedence where they contain carparking requirements that differ from the Constraint Code. That provision is concerned with requirements which differ in respect of a relevant development. It overcomes the difficulty which would potentially arise if development were, on the face of the Planning Scheme, subject to differing, but apparently equally applicable, requirements under the Constraint Code and the Place Code. In those circumstances the Place Code requirement is to take “precedence” in its application to the development.
There are precincts in the LAP Area where a shop is assessable development, according to the table of development[8]. In those circumstances, PC 16 of the Constraint Code and PC 60 of the Place Code would both otherwise be applicable. The effect of s 2.4 of the Constraint Code is that the Place Code requirement would take “precedence”[9] in its application to that development. It is not immediately apparent why the Place Code would not also apply the acceptable solutions to PC60 to self assessable development, but it does not. In the case of self assessable development, AS 16.1 of the Constraint Code is the only provision which is applicable, so there is no differing requirement for the purposes of s 2.4 of the Constraint Code. It was not suggested that the pharmacy could, on any view, satisfy AS 16.1.
[8] See the Southport Local Area Plan Table of Development in s 6.0 of the LAP.
[9] with its applicable acceptable solutions.
Assuming, contrary to my conclusion, that AS 60.2 of the Place Code were applicable, a further difficulty arises. AS 60.2 is an acceptable solution to a performance criterion which expressly relates to on-site carparking. The 32 spaces at Australia Fair are not “on-site” carparking in relation to the pharmacy. Counsel for the first respondent pointed out that it would only be the acceptable solution which would take precedence, by virtue of s 2.4 of the Constraint Code. The acceptable solution does not expressly refer to “on-site” carparking but should however, be construed consistently with the performance criterion to which it relates. The reference, in the acceptable solution, to “carparking is provided” is to be read, in context, as a reference to the provision of on-site carparking.
Mr Ure next submitted that, if AS 60.2 of the Place Code applied and the 32 carparking spaces at Australia Fair were “provided” for all development on the site, but the pharmacy’s carparking was required to be “on-site”, then the Court could “notionally” allocate sufficient on-site carparking to the pharmacy, leaving the balance of the on-site and off-site spaces to satisfy the other uses. I do not see a basis for doing such a “notional” exercise in the context of this proceeding, particularly when it would be contrary to the fact that only a maximum of 6 on-site spaces are available to those attending the use, the balance having been allocated, by lease, to other tenancies. Mr Ure acknowledged that presented a difficulty to acceptance of his submission.
For those reasons, it would appear that the pharmacy does not satisfy either acceptable solution for carparking in any event. I will however, deal with the arguments as to the spaces on the Australia Fair site.
The subject site was once part of a larger area, part of which was acquired and incorporated into the Australia Fair development, thereby decreasing onsite carparking opportunities. The approvals for Australia Fair required the “reprovision” of carparking for what was referred to as the “ANZ bank development on Scarborough Street”. The relevant condition in 1989, as modified,[10] required:
“Reprovision of thirty-two (32) carpark spaces associated with the existing ANZ bank development on Scarborough Street… An agreement regarding the above between Council and the others of the subject site shall be entered into to the satisfaction of the town clerk prior to the issue of building approval”.
The word “others” in that condition is an obvious error and should be read as a reference to “owners”. That is consistent with the wording of previous conditions.[11]
[10] Ex 2 pg 53 – letter of 28 February 1989.
[11] See eg Ex 2 pg 40.
On 5 September 1991 an agreement (the tripartite agreement) concerning carparking was entered into between Permanent Trustee Company Limited (then owners of Australia Fair), ANZ Properties (Australia) Ltd and the Council.[12] The recitals stated in part, that:
[12] Ex 2 pg 71.
“2.It was a condition of such approval that Burns Philp Trustees Company Limited provide 32 car parking spaces in Australia Fair for use by employees, servants, agents, customers and invitees of ANZ which carries on the business of a bank at adjoining premises on Scarborough Street, Southport, described as Lot 2 on RP 218873, Lot 1 on RP 54338 and Lot 2 on RP 106085, County of Ward, parish of Nerang. These spaces are to be provided by Burns Philp Trustee Company Limited in addition to complying with the car parking requirements of the Gold Coast City Council Town Planning Scheme and policy provisions relating to the Australia Fair development.
3. Burns Philp Trustee Company Limited was placed in liquidation on the 19th October 1990 and Permanent Trustee has made application to the Supreme Court of Queensland for Australia Fair to be vested in it and Australia Fair is now vested in Permanent Trustee.
4.Permanent Trustee has granted a licence to ANZ to use 32 spaces in the main public car park area for Australia Fair.”
The terms of the agreement included (my underlining):
“2. ANZ agrees with permanent trustee as follows:-
2.1The location of the car parking spaces shall be as reasonably nominate from time to time by Permanent Trustee and shall be reasonably acceptable to ANZ having regard to the interests and convenience of both parties and having regard to the proximity of the proposed parking spaces to ANZ’s existing premises, provided that the car parking spaces shall be contiguous with each other and shall be clearly identified as being for the exclusive use of ANZ and its employees, servants, agents, customers and invitees;
2.2This licence is personal to ANZ and ANZ shall not assign or attempt to assign the benefit thereof or any part thereof PROVIDED that nothing herein shall be deemed to prevent employees, servants, agents, customers and invitees of ANZ from using the car parking spaces pursuant to this licence;
2.4Those members of the staff of ANZ whose names and vehicle registration numbers are from time to time nominated in writing by ANZ to Permanent Trustee shall have access to the car park at all times by means of pass cards issued to such members (ANZ being obliged to procure the return to Permanent Trustee of the pass card of any staff member on his nomination being cancelled by ANZ by notice in writing to Permanent Trustee); and
2.6The number of car parking spaces provided pursuant to this agreement shall not be reduced below 32 without the consent in writing of the Council.”
The expression “ANZ” was defined, at the beginning of the agreement, to be a reference to ANZ Properties (Australia) Ltd with its successors and assigns. The terms of the agreement however, expressly preclude assignment of the benefit of the licence to use the spaces.
At the time of the Australia Fair approval and at the time the tripartite agreement was entered into, ANZ Properties (Australia) Ltd was the owner of the land and sole occupant of the building, part of which is now occupied by the respondent’s pharmacy. It subsequently sold the property and various parts of the building have now been let to a number of different tenants, of which the pharmacy is one. An ANZ bank branch continues to occupy part of the building, pursuant to a lease granted to the Australia and New Zealand Banking Group Ltd. There is no evidence that Australia and New Zealand banking Group Ltd is a successor or assign of ANZ Properties (Australia) Ltd.
The proprietor of Australia Fair maintains what was referred to as a nested electronic boom gated area in part of its northern carpark. It provides controlled access (via pass cards) to 32 spaces in that area to ANZ bank staff only. That area is not, in fact, made available to other businesses, their employees, customers or invitees. Mr Ure, for the first respondent, confirmed that “we’re not cavilling with the fact that it’s been abrogated to ANZ”. He submitted however, that is contrary to an existing enforceable obligation on the proprietors of Australia Fair, by reason of the condition of its approval, to make the spaces available for the various businesses (including the pharmacy) now occupying what was once referred to as the ANZ Bank development. There was no suggestion that the first respondent has sought access to those spaces for those attending the pharmacy.
As Mr Ure submitted, the tripartite agreement could not absolve the proprietor of Australia Fair from any obligation on it to comply with conditions lawfully attaching to its development. It was submitted that it would be sufficient, in order for the spaces at Australia Fair to be counted, for the purpose of determining compliance with the relevant acceptable solution, if, properly construed, the condition attaching to the Australia Fair development required the 32 carparks to be made available for all of the uses now occupying the development at Scarborough Street. That was said to be so even if that obligation was not being performed or enforced or sought to be enforced.
Mr Haydon, for the applicant, ultimately did not cavil with the proposition that the proprietor of Australia Fair might be under an obligation as contended by Mr Ure, but submitted that the spaces ought not be counted in any event because:
(i) the spaces are, in fact, abrogated to the ANZ bank and are not being “provided” in respect of the other uses on the subject site; and
(ii) offsite spaces cannot be counted for the purposes of the acceptable solution.
Assuming, for the purposes of the argument, the correctness of the respondent’s construction of the condition which applies to Australia Fair, a question arises as to whether, in order to be compliant with the acceptable solution the requisite carparking must be actually provided in connection with the pharmacy use or whether it is sufficient that there is provision for carparking in a condition attaching to Australia Fair, creating an as yet unperformed obligation on its proprietor. The answer to that question depends upon a construction of the acceptable solution.
AS16.1 of the Constraint Code requires that carparking “is provided” in accordance with the number of spaces required in the relevant table. That is an acceptable solution to a performance criteria which states that sufficient carparking spaces “must be provided” to meet the carparking needs of the development. Similarly, AS60.2 in the Place Code also states that carparking “is provided” at the stated rate. Those words are apt to refer to carparking which is lawfully and actually provided, rather than just provided for, by way of an unperformed obligation in a condition applying to another development.
There is a difference between the expression carparking “is provided” and the concept of making provision, in the formulation of conditions of some other development, for carparking.[13] In this case, the proprietors of Australia Fair have not actually provided spaces to those attending the pharmacy and, indeed exclude all save for employees of the ANZ bank. That this might involve some non-compliance by the proprietor of Australia Fair with conditions attaching to its development, does not change the fact that the subject pharmacy is being operated without the requisite number of carparks being provided in relation to the pharmacy. The requirements of the relevant acceptable solution, in its application to the pharmacy, are not, in fact, being met.
[13] Compare Stocks and Parks Investments v The Minister (1971) 25 LGRA 251.
It was also submitted for the applicant, that the 32 spaces in Australia Fair could not, in any event, be relied upon to establish compliance with the relevant acceptable solution, because they are not carparks provided “onsite” in connection with the pharmacy. Rather, they are offsite carparks, the subject of conditions applying to another development, to compensate for a shortfall on the subject site. It was submitted that if available, they might form a basis to relax onsite requirements in response to a development application, but do not establish compliance. I have already concluded that is correct in the case of AS 60.2 of the Place Code. It is unnecessary for me to reach a conclusion in relation to AS 16.1 of the Constraint Code, since its requirements could not be met in any event. I will however, note the arguments.
As Mr Ure pointed out, the acceptable solutions to PC16 do not expressly require carparking to be provided onsite. He compared that with other provisions, applicable to assessable development, which expressly refer to onsite carparking or alternatives to providing on-site carparking[14] to suggest that there is no requirement for carparks to be onsite in order to meet the acceptable solution in relation to self-assessable development.
[14] See PC 60 of the Place Code and PC23 of the Constraint Code.
Mr Haydon, on the other hand, pointed to the distinction drawn between a “carpark” for use by another development and “carparking” which is ancillary to development carried out on particular premises. The town planning scheme defines a carpark as:
“any premises used or identified for use for the parking of motor vehicles where such parking is not ancillary to some other development on the same site”.[15]
[15] Chapter 2 of Part 4 Division 1.
The 32 “nested” spaces in Australia Fair would appear to be a “carpark” as defined. Mr Haydon pointed out that the acceptable solution refers to “carparking” which is a different term defined in the explanatory definitions[16] as:
“The ancillary use of any premises for the parking of occupant, employee, customer, visitor and service vehicles…”
[16] Chapter 3 of Part 4 Division 1.
There was debate about whether the “premises” put to the ancillary use for parking must be on the site of development which requires that parking. Mr Haydon pointed to the reference, in the purpose of the Constraint Code, to “onsite”, “on-street” provision and “public carparks”. He submitted that AS16.1 and its associated table, when read in context, refer to on-site requirements. In his submission a self-assessable development must provide the requisite number of spaces onsite. Otherwise, an application for a development approval is required, which gives the Council the opportunity to consider alternatives to full onsite provision. I note that “the car spaces that are available on nearby land and suitable roads” and “any new car spaces that can be provided by the applicant on nearby land” and that “the car parking area is directly connected to the parking area of an adjoining development” are among the matters listed in section 5.0 of the Constraint Code as potentially relevant to a consideration by the Council of whether the minimum number of car spaces to be provided may be reduced.
There is a deal of attraction to the submission that AS 16.1 should be construed as referring to onsite carparking. If that were not so, then a development could qualify as “self-assessable” and thereby require no development application or assessment by the council, even if, for example, its ancillary carparking was provided at some inappropriately remote location from the subject site. It is however, ultimately unnecessary for me to form a concluded view on this, for the reasons stated earlier.
Conclusion
In my view:
(i) The relevant acceptable solution for self assessable development for a shop is AS 16.1 of the Constraint Code.
(ii) The number of carparks required by AS 16.1 is not provided, even if the “historical surplus” of carparks at Australia Fair is taken into account.
(iii) Even if the relevant acceptable solution was AS 60.2 of the Place Code, that acceptable solution is not complied with because:
(a) compliance depends upon taking into account the “historical surplus” of spaces at Australia Fair as being “provided” in connection with the pharmacy use, when, in fact, the spaces are only actually provided by the proprietor of Australia Fair to the ANZ Bank tenancy for use by its staff.
(b) in any event, the acceptable solution ought be construed, consistently with the performance criterion to which it relates, as relating to on site carparking.
(iv) The pharmacy does not comply with the applicable code for self-assessable development and so is assessable development, requiring a development permit.
(v) There is no basis upon which I would exercise the discretion to refuse to grant declaratory relief.
Order
It is declared that the commencement of the first respondent pharmacy at premises situated at 2/83 Scarborough Street Southport constituted assessable development for which a development permit was required for it to be lawful.
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