Willoughby City Council v Randall Pty Limited
[2005] NSWLEC 471
•08/30/2005
Land and Environment Court
of New South Wales
CITATION: Willoughby City Council v Randall Pty Limited [2005] NSWLEC 471
PARTIES: APPLICANT
Willoughby City CouncilRESPONDENT
Randall Pty Limited t/as Monkey Bar Car ParkFILE NUMBER(S): 41220 of 2003
CORAM: Talbot J
KEY ISSUES: Development Consent :- non-compliance with conditions.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B
Evidence Act s 57
Local Government Act 1993 s 68
Sydney Regional Environmental Plan No.5 (Chatswood Town Centre)CASES CITED: Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation (1984) 73 FLR 61;
Blair and Others v Curran and Others (1939) 62 CLR 464 ;
Foster v Sutherland Shire Council (2001) 115 LGERA 130;
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184;
Miller-Mead v Minister of Housing and Local Government & Anor [1963] 2 QB 196;
Munnich v Godstone Rural District Council [1996] 1 All ER 930;
Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205, unreported;
Randall Pty Limited v Willoughby City Council [2005] NSWLEC 51, unreported;
Randall Pty Limited v Willoughby City Council [2004] NSWLEC 507, unreported;
Redland Bricks Limited v Morris [1970] AC 652;
Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407;
Trade Practices Commission v Walplan Pty Limited (1985) 7 FCR 495;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335DATES OF HEARING: 18/07/2005, 19/07/2005, 20/07/2005, 21/07/2005, 25/07/2005, 26/07/2005
DATE OF JUDGMENT:
08/30/2005LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr S D Rares SC with Ms H P Irish (Barrister)
SOLICITORS
Mallesons Stephen Jacques
Mr D J Hammerschlag SC with Mr P R Clay (Barrister)
SOLICITORS
Moloney Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Talbot J
30 August 2005
1 Talbot J : The subject of the dispute between the parties is the operation of a car park which forms part of the total car parking associated with the approved mixed use residential/retail/leisure centre development known as the Regency at 24 Anderson Street, Chatswood. It is known as the Monkey Bar Car Park. The land is within the zone 3(c1) Business Retail under Sydney Regional Environmental Plan No.5 (Chatswood Town Centre) (“SREP 5”).
2 Willoughby City Council (“the council”) is generally seeking relief whereby Randall Pty Limited (“the respondent”) will be required to operate the Monkey Bar Car Park in accordance with the conditions of development consent No. 1996/0643 granted 2 December 1997, as modified on 18 August 1998. This consent is in respect of the Regency development as a whole. The particular conditions of consent relating to the provision of parking are conditions 41 and 45.
3 Conditions 41 as modified provides:-
41 861 car parking spaces are to be provided on site. These spaces are to be physically identified on site, maintained free of obstruction and under no circumstances used for the storage of goods or waste products. Of these 861 spaces, a maximum of 552 are to be allocated to individual residential units. The remaining 59 spaces allocated within the secured residential parking area are to be provided for use by residential visitors to the site. The remaining 250 spaces are to be provided for staff and visitors to the retail and leisure centre and for short-term residential visitor parking. In this respect all 250 spaces are to be maintained as accessible by all these user groups. All car parking spaces are to be managed in accordance with a car parking plan of management which shall be submitted PRIOR TO RELEASE OF THE BUILDING APPROVAL and be to the satisfaction of Council’s Director of Environmental Services. The car parking plan of management shall provide a schedule of fees for the use of the car park and such fees shall be commensurate with other similar car parks in the Chatswood area or as the Director of Environmental Services otherwise directs.
4 Condition 45 has not been modified. It provides:-
45 A comprehensive parking and access management plan is to be submitted to the satisfaction of the Director of Environmental Services indicating how various parts of the carpark will be accessible to visitors and how the different ingresses and egresses will be used. In this respect the plan is to ensure that all residents and residential visitors enter and leave the site via Help Street with no payment being required for residential visitors and that all retail and leisure centre staff and visitors enter and leave the site via Endeavour Street. It is also to make provision for access for visitors to the long-term residential visitor parking within the secured parking area.
5 An amended Parking Management Plan (“PMP”) was approved by the council in March 1999 prior to the issue of Building Approval No. 980501 on 28 July 1999. The PMP provides, inter alia, that:-
(a) the “retail floorspace” and “community leisure floorspace” in the “three level podium” of the Development on the Land, and “short term residential visitors” , “will be served by 250 parking spaces located in the upper basement levels” (“Podium Levels 1 and 2 and Basement Level 1”) of the Development on the Land “accessed from Endeavour Street.”
(b) the Designated Car Parking Spaces “will be operated on a public car parking station basis by one of the experienced parking companies and the scale of fees applying to these spaces will include a ‘first two hours free’ basis.”
(c) in respect of the Designated Car Parking Spaces, “The ingress boomgate will include a ticket dispenser while manual fee collection and ticket checking will be undertaken at the egress boomgate.”
(d) the PMP is to operate in accordance with the parking and access arrangements in Appendix A to the PMP and circulation and parking space arrangements are to satisfy the requirements of AS 2890.1.
6 Condition 41 and 45 of the development consent are to be read in the context of the development consent overall and the relevant statutory controls applicable to the land. In particular SREP 5 proscribes development of a “car parking station” and s 68 of the Local Government Act 1993 (“the LG Act”) prohibits operation of a “public car park” without the prior approval of council. A car parking station is defined in SREP 5 as follows:-
- 1. …
any land (including a building on that land) open to the public and used for the purpose of accommodating vehicles, whether upon payment of a fee or not, but does not include:
(a) land (including a building on that land) which is used for parking, being parking that is ancillary to other development on or adjoining that land,
7 The requirement in condition 41 that 250 spaces (“the designated car parking spaces”) are to be “provided” for the nominated user groups suggests that the prescribed number of spaces must be supplied or furnished for use by staff and visitors to the retail and leisure centre and for short term residential visitor parking. The initial response to that primary requirement is that there are in fact 250 spaces in the car park that can be so used. However condition 41 goes further than merely stipulating that the spaces be provided. They must also “be maintained as accessible by all these user groups.” Furthermore the spaces are to be managed in accordance with the approved car parking plan of management. The provisions of condition 41 foreshadow that there will be a system of charging for use of the car park in accordance with a schedule of fees.
8 The respondent has operated the car park following the sale to it of the relevant strata lot. The lot was created on 11 July 2001 by registration of a strata plan. The sale by Marnwest Pty Ltd (“Marnwest”) to the respondent was settled on 1 July 2003.
Relief sought by council
9 The applicant is seeking declaratory relief and consequential orders in respect of the use of the designated car parking spaces other than in accordance with condition 41 of the development consent. The alleged breaches have been summarised as follows:-
(1) That the respondent has not provided 250 spaces for staff and visitors to the retail and leisure centre and for short-term residential visitor parking, nor has it maintained all 250 spaces as accessible by all those user groups.
(2) That the respondent has applied a scale of fees for parking which is not on a “first two hours free” basis.
(3) That the respondent has on occasions failed to provide for manual fee collection and ticket checking at the egress boom gate.
(4) The respondent has not permitted parking only in the 250 car parking spaces and that circulation and parking spaces have not satisfied the requirement of AS 2890.1.
(5) The respondent has not complied with the guidance signage and system requirements of the PMP or alternatively has failed to provide signage sufficient to give clear guidance to drivers of vehicles when they approach, depart, enter, circulate within and leave the property in their vehicle.
10 The council is also seeking relief in respect of:-
(1) The respondent’s alleged failure to comply with a s 121B Order allegedly made pursuant to the EP&A Act on 11 April 2003.
(2) The alleged use of the premises by the respondent for the prohibited purpose of a car parking station contrary to SREP 5.
(3) The alleged operation of a public car park without the approval of the council contrary to s 68(1) of the LG Act 1993.
The history of the respondent’s interest in the car park
11 The council is the owner of the leisure centre. The centre is the subject of a lease granted to Marnwest for a term of 20 years commencing 20 December 2001. Marnwest has sub let the centre to Space Health Clubs Limited (“Space”). Marnwest transmits the annual rent of $1,050,000 paid by Space directly to the council under the terms of the head lease. Pursuant to the sub lease (executed with the consent of the council as head lessor) Marnwest agreed to provide the health club with not less that 189 car spaces on a non-exclusive basis. It also granted an option in favour of the health club for a further 60 spaces at 85% of the current market licence fee. It is apparent therefore that the current lessee of the leisure centre (owned by the council) could monopolise the use of the 250 car spaces referred to in condition 41 albeit on a non-exclusive basis. The obligations of Marnwest in respect to the provision of car spaces for Space under the sub lease and option agreement were expressly assumed by the respondent pursuant to the conditions of the contract for the sale to it of the car park.
The argument
12 The respondent has on two occasions made applications to modify the original consent. Notwithstanding subsequent appeals to this Court under s 56A of the Land and Environment Court Act 1979 and an appeal to the Court of Appeal ( Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205, unreported) the applications were unsuccessful. In the course of a judgment, following remittal to him after an appeal, Commissioner Bly reaffirmed his earlier decision “that approval of the lease application …[that up to 60 spaces may be made available for lease provided at least 190 spaces are maintained as accessible for all user groups]… would result in the 60 car parking spaces becoming a car parking station as defined and as a consequence would be prohibited by SREP 5.” Furthermore the Commissioner held that the leasing of 60 spaces would make them unavailable to user groups within the meaning of condition 41 thereby precluding the characterisation of the use as ancillary to the Regency development ( Randall Pty Limited v Willoughby City Council [2004] NSWLEC 507, unreported). An appeal from that further decision was dismissed by this Court on 17 February 2005 ( Randall Pty Limited v Willoughby City Council [2005] NSWLEC 51, unreported).
13 According to Mr Rares SC, who appears for the council, the decision by Commissioner Bly on remitter created an issue estoppel ( Blair and Others v Curranand Others (1939) 62 CLR 464 at 531 and 533 per Dixon J) and accordingly any permanent leasing of spaces, irrespective of the user, is a different and not ancillary use.
14 However the Commissioner had before him a proposal to allow the leasing of 60 spaces whereas the Court is now required to deal with a factual circumstance where the council alleges:-
(1) The licensing of some car spaces on an exclusive basis since 1 July 2003;
(2) Offers of an opportunity for early bird parking;
(3) The exclusive and permanent reservation of a substantial number of spaces.
15 The council essentially relies on the words in condition 41 that 250 spaces “are to be provided for” the three user groups. Conversely the respondent contends as follows:-
The underlying purpose and concept behind Condition 41 is that adequate provision (by way of accessibility) is to be made for those who have any reason, prospective or retrospective (however small and however transient), for being at the Regency Centre beyond merely parking there. Use by persons who seek only to park there is clearly permitted, but such use is so far as is practical and reasonable, to give way to use by persons who have reason for being there. In other words, the operator is to do what is reasonable to make sure that there is enough space to cater for those people.
16 Accordingly the respondent says that condition 41 read sensibly with the PMP permits and indeed requires admission to the car park by the public without any requirement that the car park operator analyse the particular activities or intention of the users. The key to the respondent’s argument is the concept of “availability if required.”
Objections to admissibility of evidence
17 The determination of an en globo objection to major parts of the council’s evidence on the grounds of relevance was reserved at the hearing under s 57 of the Evidence Act.
18 The outcome of the threshold question as to relevance depends to a significant extent upon the proper construction of the conditions of consent. If the key to the concept of condition 41 is, as the respondent contends, namely that accessibility to the designated user groups is available “if required” then the motives and actions of individual members of the public using the car park will have no relevance
19 The casual use of the car park by individuals who may not meet the strict characterisation of “visitors” to the retail and leisure centre is peripheral to the determination of how the car park is operated. Having regard to the nature and variety of the tenancies in the retail centre, I accept the respondent’s argument that it is unrealistic and unworkable to expect some form of formal vetting of every entrant. This is even more obvious when it is appreciated that the PMP only requires the ingress boomgate to include a ticket dispenser whereas manual fee collection and ticket checking is specified at the egress boomgate.
20 It can hardly be said that because an unspecified, but not obviously significant, number of patrons of the car park do not actually visit the Regency commercial and residential components that the default on the user’s part necessarily becomes the fault of the operator where the operator has otherwise complied with conditions of consent. The word “visitor” has a wide connotation embracing a diverse range of purposes including, for example, a mere short inspection of some part of one of the retail premises or some verbal enquiry that does not immediately or even ultimately lead to the conclusion of a commercial transaction.
21 It therefore becomes relevant only to have regard to the fundamental operating procedures and practices employed by the respondent to determine whether there is satisfactory compliance with the conditions of consent. Evidence that relates to the manner in which the car park is operated in the context of the allocation of spaces and individual contractual arrangements has been admitted and taken into account. The evidence upon which I have relied is in respect of those matters. The remaining evidence has been rejected. The respondent’s objection is upheld to that extent.
22 The council seeks to rely on a series of surveys and interviews with persons using the car park. This material is further rejected on the basis that it is so unreliable that it should be given no weight. The lack of professional rigour in the conduct of the surveys, the unsatisfactory process of soliciting answers to the questions and in some cases the element of bias undermines the efficacy of this evidence.
Licence agreements
23 Upon completion of the contract for sale the respondent took over a series of existing licence agreements in respect of parking spaces in the Monkey Bar Car Park pursuant to Deeds of Assignment executed by Marnwest. The 13 Deeds of Assignment produced by the respondent in answer to a Notice to Produce relate to 15 spaces. The documents disclose that the individual licenses were for terms that have by now expired.
24 The records of the managing agent Ray White (Chatswood) confirm that the respondent itself has entered into 66 new licence agreements in respect of reserved spaces for a variety of terms. Ten of these agreements were renewed after the expiration of the initial term. In addition seven licenses grant user rights but not on an exclusive basis.
25 Some of the licensees who entered into new agreements with the respondent were licensees under an agreement assigned to Randall Pty Limited by Marnwest. No new licenses have been granted since 22 April 2004 following the making of interlocutory orders by Lloyd J that precluded further designated parking spaces being made available for lease or licence after that date. Not all of the terms of licenses granted by Marnwest or Randall Pty Limited were concurrent so that the total number of licence agreements does not necessarily equate to the number of spaces the subject of licence at any one time.
26 It is not apparent on the face of the documents whether any of the individual licenses are connected in a relevant sense to a member of the user groups designated by condition 41. Prima facie, it is nevertheless probable that some of the licensees do not have a relevant interest in the Regency development. It may well be that the licensees referred to in the produced agreements were members of Space or were employed at a retail centre outlet in the Regency. I have no way of knowing the true position.
Early bird parking
27 There is evidence that discloses:-
· There are signs displayed in the car park offering concessional rates for parking between nominated hours.
· Media and internet advertising to the same effect.
· Verbal offers in the same terms made by car park attendants to individuals not readily identified or identifiable as being within the designated user groups.
Reserved parking
28 Witnesses have given evidence that a number of spaces within the car park have, from time to time, been designated as reserved 24 hours by a notice affixed to the wall of the parking bay. On 7 October 2004 a Council Development Enforcement Officer counted 38 spaces where such a notice was displayed. On 22 April 2005 another witness confirmed that cars were parked in spaces bearing a notice “ RESERVED PARKING 24 HOURS.” The evidence generally, including that of Christopher Hallam a traffic consultant retained by the council, confirms that up to 42 spaces at various times have been allocated as reserved parking.
29 Financial records produced by the respondent variously described the revenue received as either casual or permanent. No satisfactory explanation has been provided to enable me to ascertain the exact nature of the distinction between the source of the revenue flows described in that way.
The s 121B orders
1.30 After giving notice of the proposal to issue an order under s 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) on 23 July 2003, the council issued an order on 11 August 2003 whereby the respondent was directed within a period of 14 days to After giving notice of the proposal to issue an order under s 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) on 23 July 2003, the council issued an order on 11 August 2003 whereby the respondent was directed within a period of 14 days to “do the following in accordance with the schedule of works.” The schedule of works stated:-
Comply with condition No. 41 of Development Consent No. 1996/0643.
2. Comply with the Car Parking Plan of Management, prepared by Transport and Traffic Planning Associates dated December 1998 and March 1999, reference 9832. In particular the operation of the public parking station, known as the Monkey Bar Car Park, on the basis that the scale of fees applying to these spaces will include a ‘ first 2 hours free.’
31 The order purports to be made under Item 15 of Column 1 requiring the respondent “to comply with a development consent.”
32 The direction is not explicit as to the way in which compliance can be achieved. Nor does it identify with particularity, or at all, the nature of the alleged breach of condition 41 or the PMP.
33 An order made pursuant to a statutory power, particularly in circumstances where serious sanctions can be the consequence of non compliance, must be formulated in precise terms and fairly inform the respondent what must be done to remedy the proscribed conduct ( Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407; Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation (1984) 73 FLR 61; Redland Bricks Limited v Morris [1970] AC 652, Trade Practices Commission v Walplan Pty Limited (1985) 7 FCR 495, King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184, Miller-Mead v Minister of Housing and Local Government & Anor [1963] 2 QB 196, Munnich v Godstone Rural District Council [1996] 1 All ER 930).
34 Irrespective of an incorrect reference to the 1998 PMP, the council’s order does not in any way meet the fundamental tests referred to above and which have been consistently applied by this Court (see for example Irrespective of an incorrect reference to the 1998 PMP, the council’s order does not in any way meet the fundamental tests referred to above and which have been consistently applied by this Court (see for example Foster v Sutherland Shire Council (2001) 115 LGERA 130). The lack of certainty in respect of both aspects of the current order leads inevitably to a finding of invalidity. It follows that the council cannot rely upon the alleged breach of the order as the basis for any orders against the respondent in these proceedings.
Construction of condition 41
35 The development consent determined on 2 December 1997 authorises the use of the whole of the land known as 24 Anderson Street Chatswood (aka 85 Orchard Road) being Lots 1 and 2 in DP 547896 and air space above Endeavour Street for “Demolition of Existing Building, Development of Mixed Use Residential/Retail/Leisure Centre and Associated Car Parking and Relocation/Construction of Pedestrian Bridge subject to compliance with 97 conditions.” Conditions 41 and 45 are therefore a statement of the conditions regulating the use of the associated car parking. The effect of the consent, in respect of car parking, is that the use of the 861 car parking spaces is designated and controlled by condition 41 and the operating procedure for the management of the car park is to be developed pursuant to condition 45.
36 Use of the car park in accordance with the terms of condition 41 will mean that part of the building will not be a car parking station within the meaning of cl 5 of SREP 5. It will be parking that is ancillary to other development on or adjoining that land and accordingly within the exception to the definition. Moreover, even if the use is otherwise technically for a public car park within the meaning of that term as used and defined in the LG Act it will be an activity carried out with the prior approval of council and therefore not in breach of s 68(1). Although questions of fact and degree arise, unless there is general compliance with the requirements of condition 41 and condition 45 the use of the land for the purpose of car parking could be prohibited either as a car parking station under SREP 5 or as a public car park under s 68 of the LG Act 1993.
37 It is important therefore to give close consideration to the meaning of the words and intent of condition 41 in order to ascertain whether the use by the respondent is in accordance with its terms.
38 Rather than being entirely an enabling provision permitting the respondent to carry out the activities to the full extent of its ambit as suggested by Mr Hammerschlag SC in submissions, it is primarily a defined constraint on the extent of the use designed to protect the validity of the consent. It imposes a positive obligation by way of a restraint. The words of the condition are not difficult to understand and there is no patent ambiguity that needs to be resolved. The natural meaning of the words does not lead to an unreasonable result in the context of the statutory regime applicable to a car parking station or a public car park. In my view the condition is expressed in terms capable of interpretation by reference to the ordinary use of language.
39 The application of the ordinary meaning of the word “provided” as used in condition 41 with reference to “the remaining 250 spaces” means that those spaces are to be supplied and furnished for the use by staff and visitors to the retail and leisure centre and for short term residential visitor parking. Notwithstanding submissions to the contrary on behalf of the respondent, the condition does not have such a wide operation that allows uncontrolled use by the public. Obviously there may be some users who can be regarded as on the periphery of what might be characterised as a visitor. Nevertheless the word “visitor” encompasses a wide scope of persons ranging from one with the most casual connection to the centre through to a person with a definite purpose and intent. The purposes for a visit can be as diverse as the nature of businesses in the Regency. However it is made clear by the adoption of the phrases “all 250 spaces” and “maintained as accessible” that the category of persons is closed. In my view the intention reflected in the language is for the 250 spaces to be set aside for the exclusive use by those persons who fall within the specified category. There is no allowance for competition for the use of the 250 spaces except between persons within the designated user groups.
40 That approach to the construction of the relevant part of condition 41 does not, in my view, raise a conflict with the requirement that the designated spaces will be operated on a public car parking station basis. The PMP is referring to the mode of operation, by analogy. It is not a specification of use and has no effect on the limitation imposed by condition 41 in respect of the designation of the approved users. The combined effect of conditions 41 and 45 and the PMP is that provided the persons who use the 250 spaces fall within the category of staff and visitors to the retail and leisure centre or short term residential visitors and provided the designated ingress and egress requirements are satisfied, fees may be charged for the use of the car park (except by residential visitors) and on the basis that the first two hours is free.
41 I cannot agree with the respondent’s primary position that the underlying requirement is limited to the concept of availability to the designated user groups if required. The provisions of condition 41 go further than that and stipulate that not only must the 250 spaces be provided for the nominated persons but all the spaces must be maintained as accessible by all the user groups. There is no expressed temporal element in regard to availability and accessibility.
42 It is therefore necessary to examine the manner of operation of the car park in the above context. If the use and operation complies with the conditions of consent it will be a permissible use. Firstly, as approved by council and secondly ancillary to other development in the building.
Evidence of the alleged breaches
43 The council’s case is that on the basis of evidence in respect of:-
· the licensing of car parking spaces on an exclusive use basis since mid 2003;
· the acceptance of permanent parkers;
· the allocation of reserved spaces; and
· the early bird agreements
the use of the Monkey Bar Car Park is not ancillary to other development on or adjoining the land and accordingly the respondent is carrying out development otherwise than in accordance with the conditions of consent.
44 The terms granted by the respective license agreements produced by the respondent have in every case expired. None of the agreements are dated after Lloyd J made interlocutory orders on 22 April 2004. The latest fixed term expired on 31 January 2005. The exact identity of the individual licensees in the context of proving or disproving association with the retail and leisure centre has not been established.
45 The evidence relied upon in regard to permanent parking includes receipts in the financial records noted as “ Permanent Revenue Credit Card”, “Permanent Cash/Cheque Revenue”, “Permanent EFT Payments” and “Permanent Cards Deposit.” The sum of the payments to the company is referred to as “Total revenue from ‘permanent sources.’”
46 The applicant seeks to prove that up to 62 persons either have been a party to a licence agreement or at some time have held another entitlement to permanent use of a space. Of the 62 it appears that 32 persons were allocated the use of permanent space in April 2005. The evidence relied upon is deduced from the above financial records together with a compilation of information from the records produced by the respondent. The Court is asked to infer from the financial records that at least two new licenses were granted in or about March or April 2005. There is an evidentiary problem with categorisation of these customers in any relevant way for the purposes of condition 41, once again in the context of proving or disproving association with the retail and leisure centre.
47 The advertising of the availability of early bird parking is also claimed to be in some way indicative of permission for persons other than members of the designated user groups to use the car park. The advertising has appeared at the entrance to the car park, in a local newspaper and on the internet. The advertisements contain no statement in respect of conditional use. The internet advertising also comprises an unrestrained offer for permanent parking at $230 per month.
48 The allocation of reserved spaces has not been collated in such a way that allows me to make a direct connection with any of the persons holding a licence, those persons who paid a fee for so called permanent parking or early bird parkers. Neither have I conclusive proof one way or the other in respect of an ongoing or regular connection between the occupier of the reserved spaces and a visitor to the Regency centre.
49 However the cumulative weight of the evidence shows that the respondent has been operating the car park on the basis that preferential availability is offered to the public generally without any apparent regard to the identity of individual users. The evidence relates particularly to the time immediately prior to the commencement of the hearing late last year and again in April of this year prior to the resumption of the hearing. Parts of the scheme include indiscriminate offers of permanent use of spaces, the widespread allocation of reserved spaces, the probability of the carry over from the licence agreements and the unrestricted offer of early bird parking concessions.
50 No evidence has been adduced that would suggest those potential or actual patrons were screened for the purpose of condition 41 or at all. I am entitled to assume that if there was evidence to suggest that the respondent took steps to ensure that as far as practicable users complied with the constraint of condition 41 that evidence would be forthcoming. The opportunity for an explanation or rebuttal is clearly within the capacity of the respondent. No such explanation or justification has been provided.
51 The more probable inference from all the circumstances is that the respondent is operating the car park without any regard to the identity of the patrons. It was open for the respondent to contradict and to lead evidence to the contrary.
52 The respondent has instead relied either upon the construction argument that I have rejected or seeks to discredit the applicant’s case on the basis that it has not been proved to the required standard.
53 The conduct of its case and the total lack of evidence of any process to scrutinise the users or even to display an appropriate notice to the effect that the 250 car spaces in the car park are provided only for staff and visitors to the retail and leisure centre and for short term residential visitor parking leads to the inference that the respondent has no intention of enforcing the constraint imposed by condition 41, namely that the spaces are to be set aside or reserved for the exclusive use of the designated users groups. The lack of evidence of any attempt by the respondent to confine the use means, and I find, that the operation of the car park is in breach of condition 41.
Other issues
This Standard sets out the minimum requirements for the design and layout of off-street parking facilities, including multi-storey car parks for motor cars, light vans and motorcycles.54 The provisions of the Australian Standard – Parking Facilities AS 2890.1 – 1993 has no relevance to any issue arising in the proceedings. In paragraph 1.1 the scope of the Standard is described as follows:-
55 The purpose of the Standard is to prescribe design and layout for construction purposes. There is no evidence that the respondent has carried out structural alterations to the building nor that it has not been constructed according to the approved development and building plans.
56 The complaint of the council that the respondent is not permitting access to the car park on a “two hours free” basis was resolved when interlocutory orders were made by the Chief Judge, by consent and without admission, to the effect that from 20 October 2003 the respondent was required to make available parking in designated car parking spaces for staff and visitors to the retail and leisure centre on the basis that the first two hours of parking is free. There is no evidence to suggest that the respondent is in breach of the order made by the Chief Judge. Accordingly there is now no threat of breach of the requirement of condition 41 that parking spaces are to be managed in accordance with the PMP including a scale of fees incorporating a “first two hours free” basis.
57 The failure on occasions to provide for manual fee collection and ticket checking at the egress boom gate is not of such moment that it would justify a remedial order. The evidence from witnesses is that although there have been times when an attendant has not been available this has generally not caused a problem. The evidence does not support a finding of consistent breach of this requirement.
58 Despite the alleged lack of adequate directional signage those witnesses who gave oral evidence confirmed in cross-examination that they had no practical difficulty in gaining access to the car park or in locating an appropriate space.
59 Raymond Carmont, a traffic surveyor engaged by council, observed a queue of cars seeking entry to the car park on 19 October 2004 and noted there was a “Car Park Full” sign erected for at least 20 minutes. It is not clear to me what issue this evidence addresses but if it is relied upon to show a non-ancillary use by non-designated user groups it is unhelpful in that respect. According to the oral testimony of witnesses, spaces are generally available in the car park to meet the demand.
60 Apart from Mr Carmont’s evidence, no witness complains that since the hearing commenced members of the designated user groups have been unable to find a parking space when required. However there were some complaints prior to that. Apart from Mr Carmont’s evidence, no witness complains that since the hearing commenced members of the designated user groups have been unable to find a parking space when required. However there were some complaints prior to that.
Discretion
61 The respondent relies on the knowledge of the applicant in respect of the method of operation of the car park from at least the completion of the purchase in July 2003 together with the commercial interest of the applicant in the leisure centre to support an argument that I should exercise my discretion not to make formal orders notwithstanding the established breach of the conditions of consent. I accept that the council would have been aware that Marnwest had granted licences to use and occupy car spaces and that it took no action against Marnwest. It did take action by the issue of the s 121B order to the respondent on 11 August 2003, albeit unsuccessfully. Notwithstanding a perceived financial interest in the effective use of the car park in the manner contemplated by condition 41 the council is still to be seen as a proper guardian of public rights. The public is entitled to expect that conditions of development consent will be enforced ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335).
62 Initially the primary concern of the council was directed to enforcing the requirement for provision of two hours free parking in accordance with condition 45 and the PMP. This issue was resolved by consent orders earlier in the proceedings. The council subsequently, on several occasions, reformulated its case to concentrate on the alleged breach of the LG Act. The redirection of the focus of the council, with ultimate success, does not detract from the overall important objective of enforcing the duty imposed by the EP&A Act to carry out development lawfully.
63 Admittedly the council has experienced ongoing difficulty formulating its pleadings. It was necessary for indulgences to be granted by leave in this respect on a number of occasions. It was not until the hearing was in an advanced stage that Mr Rares was able to provide a draft set of orders for which the council ultimately contended. The application of condition 41 in particular presents practical difficulties. Nonetheless I am satisfied appropriate orders can be formulated notwithstanding the practicalities. The parties will be given an opportunity to address this issue after they have appropriate time to consider these reasons. The difficulty in drafting orders that are capable of performance in a practical sense is not, in itself, a reason why the Court should not in the exercise of its discretion make orders.
64 I am satisfied that there is a relevant public interest in making final orders. The intention of the conditions is to ensure that those members of the public who elect to take advantage of the retail and other facilities and amenities in the Regency are provided with adequate parking in the building. If no orders are made there will be no constraint to prevent the respondent from operating the car park without regard to the identity of the patrons. That would be contrary to the objective and intent of condition 41.
Proposed orders
1.65 Mr Rares was repeatedly requested to formulate the form of final orders proposed by the council in response to the continuing criticisms by Mr Hammerschlag, on behalf of the respondent, that condition 41 is so infelicitously drafted that it solicits no reasonable practical or sensible remedy for breach of its provisions. The response by Mr Rares is as follows:-
An order that the respondent by itself, its servants, agents and assigns carry out development of the use of Lot 3 in Deposited Plan 1028853 at 24 Anderson Street,Chatswood (“the Monkey Bar Car Park”) in accordance with the terms and conditions of Development Consent No 1996/0643 granted on 2 December 1997 and as modified on 18 August 1998 and as it may be further modified from time to time pursuant to s. 96 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) or otherwise in accordance with the provisions of the EP&A Act.
2. An order that the respondent, by itself its servants and agents be restrained from permitting a vehicle of a member of the public for the purpose of accommodating the vehicle, whether for payment of a fee or not, entry onto the land known as the Regency, of which the Monkey Bar Car Park forms part, unless an occupant of the vehicle at the time of such entry has a bona fide purpose, not associated with the accommodation of the vehicle, for which he or she so seeks to enter on the Regency land.
3. A declaration that by permitting a vehicle of a member of the public entry onto the land known as the Regency, of which the Monkey Bar Car Park forms part, for the purpose of accommodating the vehicle, whether for payment of a fee or not, when no occupant of the vehicle at any time of such entry has a bona fide purpose, not associated with the accommodation of the vehicle, for which he or she so seeks to enter on the Regency land, the respondent is:
(a) operating the Monkey Bar Car Park as a public car park in contravention of ss.68 and 69 of the Local Government Act 1993;
(b) using the Monkey Bark Car Park as a car parking station in contravention of cl. 7H(2)(c) of the Sydney Regional Environmental Plan No. 5 – (Chatswood Town Centre);
(c) using the Monkey Bar Car Park in contravention of Condition 41.
66 The wording of the second draft order does not allow for practical application. The proposed declaration does not reflect a concluded view. It is not necessary in the circumstances where the council is entitled to relief as a consequence of the breach of the condition. Moreover the facts do not readily afford the opportunity to make the necessary finding of fact and degree to determine whether the use is for a public car park or car parking station as defined. The first order does no more than restate the law.
67 I am prepared to make a declaration to the effect that the operation of the car park in a way that permits indiscriminate use by patrons pursuant to a licence or contract for any periodic term other than by a person who is a member of the designated group of users referred to in condition 41 is a breach of the terms of the development consent. I am also prepared to make orders:-
(1) Directing the erection of appropriate signage in a prominent position before the entry boom gate advising prospective parkers that the use of the car park is limited to the designated user groups.
(2) Restricting the respondent, its successors and assigns from entering into a formal contract entitling a party to use the car park for a fixed period or term beyond a single day other than with persons who are bona fide within the description of the designated users in condition 41.
(3) It may be appropriate for some of the interlocutory orders to be made as final orders
68 Appreciating that some practical operational matters may need to be addressed I direct the parties to bring in a form of consent orders within 14 days to reflect my findings or alternatively in default of agreement the matter will be listed before me at 9.30am Tuesday 20 September 2005 for further argument confined to the issue of relief or costs, if not agreed. Draft forms of proposed orders and written submissions relating only to the outstanding issues of relief and costs are to be filed and served by 4.00pm Friday 16 September 2005. In the meantime the exhibits will be retained.
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