Background
Paro Planning Pty Ltd applied to demolish existing buildings at 245–247 Rocky Point Road, Ramsgate, and construct a shop-top housing development with 30 apartments, including six affordable-housing units, together with retail and office premises, a gym, basement parking, a communal rooftop terrace and landscaping. After Georges River Council did not determine the application, Paro appealed the deemed refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
Most disputed issues were resolved before the hearing. The remaining contentions concerned whether lawful and sufficiently certain vehicular access existed through a car park and Council-owned rear laneway, and whether the proposed on-site parking was adequate. The proposal also exceeded the applicable height standard by 0.5 metres at the lift overrun and fell slightly below the required minimum non-residential floor-space ratio.
The Court’s Holding
The Court upheld the appeal and granted development consent subject to conditions. It held that suitable vehicular access was available through the car park to the Council laneway. A public positive covenant over land owned by the nearby tavern required the registered proprietor to permit the general public unfettered access to and free use of the relevant parking area. Construed in its physical and historical context, that covenant permitted passage through the area from the Ramsgate Road and Dalkeith Street entrances. Council could itself enforce the covenant under s 88E(5) of the Conveyancing Act 1919 (NSW).
On parking, the Court rejected Paro’s claim to credits for existing development because none of the existing structures would be retained and no change of use was proposed. It also found insufficient evidence to justify reducing the Development Control Plan’s minimum retail-parking requirement. Although the four-space shortfall did not warrant refusal, the Court accepted Council’s calculation of a contribution for those missing spaces under s 7.11 of the Environmental Planning and Assessment Act.
The Court upheld Paro’s cl 4.6 requests concerning height and non-residential floor space. The height exceedance was confined to the lift overrun, caused no material additional amenity impact and supported rooftop communal space and affordable housing. The minor non-residential floor-space shortfall was justified by site constraints, while the proposed street-facing retail tenancies would still promote employment and activate Rocky Point Road. The Court was also satisfied that the development exhibited design excellence and met the other applicable statutory preconditions.
Key Takeaways
- A public positive covenant permitting general public access may support lawful vehicular passage to adjoining land when its text, purpose and the site’s physical context establish unfettered use of the access area.
- A parking shortfall need not require refusal, but unsupported reliance on professional experience will not necessarily justify departure from minimum parking rates; a monetary contribution may instead be imposed.
- Minor height and floor-space-ratio departures may be approved under cl 4.6 where the proposal remains consistent with the standards’ objectives and sufficient environmental planning grounds are demonstrated.
Why It Matters
The decision illustrates how the Land and Environment Court assesses whether “adequate arrangements” exist for access where a development depends on privately owned land subject to a public covenant. The Court distinguished such a covenant from an easement and focused on its wording, statutory setting, purpose and the longstanding physical arrangement of the car park.
It also shows that resolving access and parking questions can lead to different remedies: uncertainty about lawful access may determine whether consent can be granted at all, while a modest parking deficiency may be addressed through a contribution rather than refusal.