Re Section 11a of the City Area Leases Ordinance 1936 and Re An Application By Tekmat Investments (Formerly Axiom) Pty Limited To Vary the Provisions of the Crown Lease Relating To Block [1987] ACTSC 51 (17 July 1987)

SUPREME COURT OF THE ACT

IN THE MATTER of Section 11A of the City Area Leases Ordinance 1936
AND IN THE MATTER of an application by TEKMAT INVESTMENTS (formerly AXIOM)
PTY. LIMITED to vary the provisions of the Crown Lease relating to Block 1
Section 24 Division of Turner in the Australian Capital Territory
S.C. No. 665 of 1985
Crown Lease

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Crown Lease - Application for variation of purposes clause - Private objectors - Proposed change in accordance with National Capital Development Commission plan for redevelopment of area - Whether reasonable user of land being impeded - Whether proper in exercise of discretion to grant application - Town planning considerations - Balancing competing factors.

City Area Leases Ordinance 1936 - s.11A.

Morpath Pty Ltd v. A.C.T. Youth Accommodation Group & Others unreported, 26 July 1987

HEARING

CANBERRA
17:7:1987

ORDER

All the words of the habendum of the Crown Lease from the Commonwealth of Block 1 Section 24 Division of Turner in the Australian Capital Territory after the words "by the Lessee for" be deleted and the words "the purposes set out in sub-clause 1(d)" be substituted therefor.

The covenants contained in sub-clauses 1(d) and 1(e) of the said Crown Lease be varied by deletion of the existing sub-clauses and the substitution of the following sub-clause:-

"1(d) To use the said land for one or more of the

following purposes:-

(a) offices;

(b) professional suites;

(c) car parking;

(d) single unit caretaker's flat not exceeding
120 square metres in area;

PROVIDED ALWAYS THAT:-

(i) the gross floor area of the building or
buildings on the said land shall not exceed
1,202 square metres. For the purpose of this
sub-clause 'gross floor area' means the gross
area of the floor or floors of the building
or buildings measured from the external faces
of the external walls excluding rooftop
plantrooms and basements used for carparking
and housing mechanical plant;

(ii) the lessee shall provide and maintain on site
carparking for a minimum of 36 cars;

(iii) The building or buildings shall not exceed
three storeys above ground level."

This order is provisional only and is subject to the condition that if, in

accordance with subsection (9B) of section 11A of the City Area Leases Ordinance, a premium is payable to the Commonwealth in respect of the variation, the premium will be paid to the Commonwealth by the applicant within the prescribed time.

DECISION

This is an application for variation of the purposes clause of the lease from the Commonwealth of Block 1 Section 24 Division of Turner (the land). It has already been the subject of a judgment (1986) 66 ACTR 1. The history of the application to 21 April 1986 appears sufficiently from the reasons for judgment in that case at pp 8-10. Thereafter A.C.T. Youth Accommodation Group Incorporated, one of the original applicants for leave to oppose the application for variation, took no further part in the matter but the remaining 16, all now represented by the same counsel and solicitor, continued their opposition.

2. For convenience sake I set out again the provisions of sub-sections (1) and (2) of s.11A (s.11A) of the City Area Leases Ordinance 1936 (the Ordinance). They read:-

"(1) Notwithstanding anything contained in
this Ordinance, the Supreme Court of the
Australian Capital Territory may, subject to
this section, on the application of the
lessee (in this section referred to as the
'application for variation'), vary any
provision, covenant or condition of a lease
in relation to the purpose for which the land
subject to the lease may be used.

(2) No such variation shall be made -

(a) unless the Court is satisfied that there
are such circumstances existing as in
the opinion of the Court make it
desirable to vary the provision,
covenant or condition in order that the
reasonable user of the land should not
be impeded; or

(b) if, not later than seven days before the
day for hearing named in the notice of
motion filed by the applicant in
pursuance of this section, a certificate
is filed by the Minister with the
Registrar of the Court stating that, in
his opinion, the variation sought would
be repugnant to the principles for the
time being governing the construction
and development of the City of
Canberra."

3. Compliance by the applicant, originally known as Axiom Pty. Limited but now known as Tekmat Investments Pty. Limited (Tekmat), with procedural formalities is conceded.

4. In his affidavit sworn 30 July 1985 and filed in support of the application for variation, Michael Edward Milne, a director of Tekmat, deposed that until the land had been acquired by Tekmat it had been used for residential purposes and continued to be used for those purposes to the date of the affidavit. Mr Milne deposed also that on 1 October 1984 the National Capital Development Commission (the Commission) issued a Policy Plan and a Development Plan (the plans) in relation to Section 24 and Section 43, Blocks 1-9, Division of Turner. Blocks 1-9 of Section 43 form the eastern half of that section which is located one block to the east and two blocks to the north of Section 24. Blocks 1-9 of Section 43 are bounded on the north by Girrahween Street, on the east by Northbourne Avenue, on the south by Gould Street and on the west by the remaining blocks of the section, they in turn being bounded on the west generally by Moore Street. The plans were identified as Exhibit No. MEM 1 to Mr Milne's affidavit. Their preamble stated, inter alia:-

"The Commission considers that there is a
lack of suitable accommodation in Canberra
for small and medium scale commercial uses,
particularly close to Civic Centre. The area
to which these Policy and Development Plans
relate is considered to be well located to
accommodate this type of development."

5. In the Policy Plan the Commission stated, inter alia:-

"The main objective is to provide
opportunities for the development close to
Civic of small-medium scale offices while
ensuring the new development on Blocks 1-9 of
Section 43 is related in form and function to
the existing medium scale commercial nature
of Northbourne Avenue.

Proposals for a change of use to
'Office/Professional Suite' will normally be
supported subject to compliance with the
following criteria:

Buildings in Section 43 Blocks 1-9 shall
be three storeys above ground level
while buildings in Section 24 shall be a
maximum of three storeys above ground
level.

The maximum plot ratio shall be 1:1,
subject to all car parking generated by
the development being accommodated
on-site, in conformity with the
Commission's prevailing standards.
(Some encroachment of basement car
parking into the front landscape zone
may be considered.)

. . .

Continuous building facades shall not
generally occupy more than two blocks,
Proposals to use more than two blocks
will be considered on their merits.

ACCESS AND PARKING

No vehicular access to Barry Drive shall be
permitted from developments on Section 24.
Full carparking demand generated by a change
of use and/or redevelopment shall be
accommodated on site in conformity with the
Commission's prevailing standards. The rate
which represents this standard may vary from
time to time. The current rate is specified
in the Development Plan."

6. In the Development Plan the Commission stated, inter alia:-

"Car Parking shall be provided on-site in the
ratio of 1 per 33m2 of gross floor area.

. . .

s.24. Blocks 3 & 4, 5 & 6 and 12 & 13 will
be required to be amalgamated prior to
development."

7. Included in the Exhibit was a statement concerning the "Procedure for varying lease purpose".

8. If the purpose clause is varied, Tekmat intends to build a three storey building having a gross floor area of approximately 1202 square metres for use as offices and professional suites. There will be provision for a caretaker's flat within the building and parking for 36 cars will be provided within the boundaries of the land. An architect's sketch of the proposed building shows that it would be visually an attractive development.

The preamble to the plans includes the following:-
"The provisions of the Policy and Development
Plans outlined overleaf are designed to
permit change of use and redevelopment to
occur in a manner which retains the existing
high visual quality of this part of Turner
and minimises adverse environmental impacts
on existing residential amenity."

9. Mr Milne's evidence satisfies me that Tekmat sought to achieve the objective just quoted by designing a building which had commercial utility but blended with the residential character of other buildings in the area. I am satisfied that the proposed building would meet the objective just referred to and that generally Tekmat's proposal in respect of the land accords with the plans.

10. It is desirable to describe the general locality.

11. I have already described the location of Section 43, Blocks 1-9. The remaining blocks of the Section, lying generally to the west of a north/south centre line, are occupied by dwelling houses.

12. South of Gould Street and west of Northbourne Avenue lie seven sections of which Section 24 is one.

13. Sections 41 and 42 are bounded on the east by Northbourne Avenue and on the west by Moore Street. They have a common boundary, McKay Street. Gould Street forms the northern boundary of Section 42, the more northerly of the two, upon which is erected Havelock House, a building which used be used for institutional purposes and is about to be used for low cost housing, while Barry Drive forms the southern boundary of Block 41 upon which are erected residential apartments.

14. Moore Street forms the eastern boundary of Sections 24 and 44. Each of those Sections is L-shaped and is a mirror image of the other, the shorter arms of the L in each case being adjacent to Moore Street and separated by McKay Street. The inner arms of both Sections are bounded by McKay Lane which is shaped like a square U. Gould Street forms the northern boundary of Section 44 while Barry Drive forms the southern boundary of Section 24. Watson Street forms the western boundary of both Sections. Dwelling houses used for residential purposes are erected on 12 of the 13 blocks of Section 44 with the 13th block, located directly opposite the land, being used for commercial purposes. Apart from the land, only one block, Block 2, of Section 24 has a dwelling house on it that is used for residential purposes. The remaining 11 blocks are used for commercial purposes.

15. Sections 35, 37 and 45, embraced by Sections 24 and 44 and bounded on the west by Watson Street, are used principally for commercial and institutional purposes. The westernmost block of Section 45 is used for residential apartments.

16. It is of significance that the land south of the seven sections just referred to and of Barry Drive forms effectively part of the business centre of Civic while the land immediately to the east of Section 43 and the seven sections and of Northbourne Avenue is used for commercial purposes.

17. It was agreed that the contest between the parties could be confined to the following grounds:-

"1. The variation sought by the applicant is
repugnant to the principles for the time
being governing the construction and
development of the City of Canberra.

2. There are no conditions existing as make
it desirable to vary the provisions in order
that the reasonable user of the land should
not be impeded.

3. Use of the land for any purpose other
than residential will adversely affect the
residential amenity of residents in the
immediate vicinity.

Particulars

(a) There has been no or no adequate planning
for overspill carparking from Civic into
adjoining residential areas.

(b) The onsite carparking for the land in
question as set out in NCDC Policy Plan
Development Plan dated October 1984 and in
the proposed variation does not provide
sufficient carparking for people who work in
the proposed building let alone people who
will be visiting the proposed development.

(c) If the development is allowed to proceed
there will necessarily be a worsening of the
car parking and traffic flow problems in the
area.

(d) The public transport system is not
adequate and therefore cannot provide a
solution to the lack of planning for
carparking and traffic flow in the area.

(e) The proposed development and its
consequent addition to the carparking and
traffic flow problems will adversely affect
the beauty and tranquillity of the area."

18. Mr Milne contended that the residential amenity of the blocks other than 13 of Section 44 would not be affected. He conceded that some traffic movement would be generated by the proposed development but expected that because the building to be erected would be used for offices, significant activity would occur at usual peak hour times with infrequent activity at other times and virtually none outside working hours. He contended that the major road arteries, Barry Drive and Northbourne Avenue, would draw traffic movement away from the residential areas of Turner to the north.

19. He deposed that parking demands created by the development would be accomodated wholly within the boundaries of the land and that parking space provided would be in accordance with the Commission's requirement of one space per 33 square metres of gross floor area. He elaborated on the question of parking in his oral evidence. He expected an occupancy density of one person per 18 square metres of lettable floor area and therefore expected that there would be between 45 and 55 people occupying the building.

20. Relying on a table, No.40, appearing at p 78 of a document entitled "Metropolitan Canberra - Policy Plan Development Plan" issued by the Commission in July 1984, he calculated that occupancy would generate a requirement for between 30-36 carparking spaces within the area designated by the Commission as capable of accepting them. Having regard to the figures set out in Table 40, (Exhibit E) the calculation was valid enough.

21. Mr Milne conceded that it would not be possible easily to fit more than 36 car parking spaces into the site. He was cross-examined with a view to establishing that the number of occupants of the building was likely to rise beyond 55 to as many as 60 but I accept that the maximum likely occupancy is of 55 persons.

22. He said that it would not be a condition of the lease of office space that one or more car parking spaces should be utilised by the tenant. He conceded that the parking situation was such that it was correct to say that the occupants could not be guaranteed parking for their cars unless they parked in the building or, presumably, partly in the building and partly on the land. Mr Milne said that the design of the building was such that he thought there were roughly 30 car spaces under cover which would be made available on a negotiated basis to the tenants according to their need and that there were other external spaces which would be available for other parking. I accept that there would be 30 basement car parking spaces with six on the surface of the land. Milne assumed that there would be in addition car parking spaces in the street. A suggestion that a nearby nature strip might be converted to parking spaces for a number of vehicles was rejected by the Commission.

23. I am not satisfied that the basement carparking space would necessarily be taken up by the occupants of the building. It seems to me that an appreciable percentage, at least, of those occupants of the building who drove their cars to work would seek to park them elsewhere than in the basement for the cost of that parking would have to be borne either by the employer of the occupant or by the occupant. In either case what may be fairly described as the rental cost of the parking space would represent a quite substantial overhead expense to an employer which would no doubt attract the operation of the Fringe Benefits Tax Assessment Act 1986. If an employee were to rent a basement car parking space for himself or herself, the cost would represent, no doubt, quite a substantial weekly expense.

24. Peter Firman Harrison swore an affidavit on 14 May 1987. To it he annexed a table headed "Parking Demand in City Division c.1990 Assuming Employment Does Not Exceed 30,000" (Annexure H). He calculated that of the 30,000 travelling to work in City Division, 69% or 20,700 would travel by car and that each car would have an occupancy of 1.3 persons. Mr Harrison's view was that the estimate of an employment figure of 30,000 was unduly optimistic. He expected it to be exceeded. It is difficult to calculate with any certainty whether his expectation is likely to be accurate but I think the view he expressed was the most pessimistic of those given. Doing the best one can, I think I should regard his expectation as too pessimistic and accept as good appropriate working figures those set out in Annexure H to his affidavit.

25. He agreed that those figures, although not specifically directed towards the Turner redevelopment, were appropriate for it.

26. As I have earlier indicated, the maximum number of persons working in the building should not exceed 55 with a minimum of 45. Using the figures in Annexure H to Mr Harrison's affidavit, that means that persons working in the building will require a maximum of 29.15 and a minimum of 23.85 parking spaces. Visitors at any one time, estimated at one per ten persons working in the building, would generate a requirement for a maximum of 5.5 and a minimum of 4.5 visitor spaces. The total parking spaces required will therefore range between 28.35 and 34.65. These figures may be rounded to 30 and 36 respectively. The maximum requirement for parking spaces generated by the building will therefore be met by the number of parking spaces provided for in its basement or on the land.

27. That is not to say that the problem presented will be neatly solved in that way. I expect that, as indicated above, some of the occupants of the building will make use of parking spaces elsewhere. On the other hand, the spaces left vacant thereby will, almost inevitably, I think, be used for their original purpose since no other commercial use readily suggests itself and one would expect that the best return for the parking spaces will be sought even though that return might represent a nett loss for that part of the operation of the building.

28. Counsel for the objectors tendered through Mr Malcolm Latham, the Commissioner presently constituting the National Capital Development Commission, the Metropolitan Policy Development Plan of 1984, the Civic Centre Policy Plan and Development Plan and the Turner Policy Plan and Development Plan. Those documents, and no other documents, set out, said Mr Latham, the principles for the time being governing the construction and development of the city of Canberra. The documents have particular reference to the Civic Centre to which I will hereafter refer as Civic and to the nearby suburbs of Braddon and Turner.

29. In his minute of 6 August 1984, the then Commissioner advised the Minister of the Commission's Metropolitan Policy Plan as he was required to do by s.12(1) of the Act which provides that the Commission shall keep the Minister informed of the decisions of the Commission with respect to matters of policy in relation to the performance of its functions. Amongst other things he said:-

"The Metropolitan Policy Plan and
Metropolitan Development Plan essentially
comprise the Commission's strategic plan,
which not only illustrates the physical and
functional end-result, which is an urban
development pattern, but also defines the
policy base for regulating both public and
private sector development. The Metropolitan
Policy Plan shows the principles and policies
adopted by the Commission to guide future
urban development and to regulate
redevelopment."

Earlier he had said, at p 3 of the minute:-

"This report confirms the basic structure of
the Y-Plan as a continuing and valid basis
for guiding metropolitan development at
population capacities up to 400,000. It
indicates that as Canberra's population
reaches a level of 250,000 in a few years
time, and as remaining lands in Tuggeranong
are serviced and occupied, it is necessary to
start now the planning and development of a
fourth "new town" at Gunghalin. In addition
the existing commercial/retail centres at
Civic and Woden are fast approaching
employment/accessibility threshholds which
means that - particularly in the case of
Civic - major investment in roads, public
transport and parking facilities will be
needed from now on in order to maintain their
functional effectiveness in infrastructure
terms."

30. The words just quoted appeared in the Metropolitan Canberra Policy Plan Development Plan (the 1984 Plan) but added to them were the words "otherwise congestion, air pollution and other adverse environmental impacts would increasingly be experienced".

31. In the matter Morpath Pty Ltd v. A.C.T. Youth Accommodation Group Incorporated and Others, a judgment of the Full Court of the Federal Court of Australia, delivered on 26 June 1987 and as yet unreported, makes it clear that the necessary inquiry on the instant application is to be taken in two stages.

"The first stage is to inquire whether the
grounds for jurisdiction described in
s.11A(2) are satisfied. The Court must be
satisfied that it is desirable to vary the
provision in order that the reasonable user
of the land should not be impeded. . . . this
inquiry will involve an inquiry into the town
planning aspects of the proposed new user.
Where . . . the proposal accords with the
Commission's current plans for the land, it
will ordinarily follow that what is proposed
should be regarded as a reasonable use. If
so the grounds for jurisdiction in
s.11A(2)(a) will be made out. . . .

Assuming the grounds for jurisdiction
specified in s.11A(2) are made out . . . the
Court then proceeds to the second stage,
i.e., the question of the exercise of the
wide statutory discretion conferred by
s.11A(1). As has been said, this discretion
should be exercised in the public interest,
balancing society's interest in the fullest
use of the land against the interests of
local occupants in their amenities.

Ordinarily, town planning consideration will
be prominent in any such inquiry. Of course,
the Court is not a planning authority. But
this is not to say that in the exercise of a
judicial discretion the Court should
disregard town planning considerations. On
the contrary, any consideration of the public
interest requires that significant weight be
given to the current plans of the Commission
as the public body charged with that
responsibility. . . . in balancing the public
interest in the full use of land against the
local interest in the amenities, it will be
appropriate for the Court to consider whether
it is proper to permit the variation to
proceed but upon the condition that
compensation is paid to those injuriously
affected (see s.11A(8)(b))."

Morpath Pty Ltd v. A.C.T. Youth Accommodation Group & Others per Beaumont J. with whom Fisher and Davies JJ. concurred.

32. Tekmat's proposal conforms with the plan. Mr Latham's evidence establishes that there has been no change in the Commission's policy as set out in those plans since their issue on 1 October 1984. Such a circumstance was regarded by Beaumont J. in Morpath as a powerful consideration in favour of the conclusion that the restriction imposed by the present purposes clause in a Crown Lease is impeding the reasonable or proper development of the land. Without more, therefore, it might be concluded that the fact that Tekmat's proposal accords with the plan is a sufficient ground to establish the basis for a finding by the Court under s.11A(2)(a). I think it important that before and after the issue of the plan a large number of changes of lease purposes to permit small scale office use had and have taken place.

33. Mr Milne's affidavit of 30 July 1985 upon which the findings set out on pp 5 and 6 above have been made may have been to some extent misleading in that it indicates that all but two of the blocks in section 24 are devoted to commercial use. I have no doubt that that statement was correct in the sense that the use being made of those blocks was commercial. It appears, however, that such commercial use was contrary to the purposes clauses of at least two of the leases, those in respect of blocks 3 and 4 of section 24.

34. On 19 December 1986, Gallop J. made an order in matter No. S.C. 585 of 1986 varying the purposes clause of the Crown Lease of Block 4, Section 24 to permit of its use for professional suites, offices, and car parking. The order was made without objection. Indeed, objections to it were withdrawn. On 11 May 1987, I made a similar order in respect of Block 3, Section 24 (matter No. S.C. 323 of 1987). That order was not opposed either although it seems that the lack of opposition may have been due to a failure on the part of interested persons to note the advertisements advising that the application would be made. The evidence given in respect of the second matter showed that it was proposed to erect one building extending over both blocks. It is not without significance that Tekmat is now the lessee of each of blocks 3 and 4 of Section 24. In the result, therefore, a building not dissimilar in appearance but with an area apparently twice as great as that of the building which Tekmat plans to build on Block 1 Section 24 can be expected to arise on Blocks 3 and 4 of Section 24. The evidence shows that there is a dwelling on Block 2 of Section 24, apparently used for residential purposes. Noone having any interest in Block 2 sought, however, to object to the proposed change of user. But consideration of the effect on that dwelling of Tekmat's proposal in respect of the land ought, I think, to depend on the second stage of the inquiry which I am making.

35. Having regard to the development which has gone on and the uses to which the lands surrounding the land have been and may be put, I think it correct to say that the reasonable user of the land is being impeded and that I ought to enter upon the second stage of the inquiry.

36. The likely effect of the proposed change of purposes clause upon the area immediately surrounding it will depend at least to some degree upon the uses to which land in that immediate area is put. I have already referred to the dwelling on Block 2 of Section 24. Having regard to the changes made in the purposes clauses of the leases of Blocks 3 and 4 of Section 24, the variation sought by Tekmat would, if granted, result in that dwelling house being sandwiched between two office buildings. Block 2 of Section 35 on the other side of and west of Mackay Lane from Blocks 1, 2 and 3 of Section 24 is occupied by a charitable institution while the remainder of Section 35 is used for non-residential purposes. The eastern and greater part of Section 37 is occupied by the Ukrainian Orthodox Church. The eastern and greater part of Section 45 is used commercially.

37. Block 13 of Section 44 lies immediately to the north of Block 1 of Section 24 across Mackay Street. It is No.27 Moore Street while Block 1 of Section 24 is No. 25, Moore Street.

38. Mark James Ryan, one of the original objectors (he has now withdrawn his objection), gave evidence that he was the lessee of Block 13, Section 44 where he carried on practice as a chiropractor. He said that he resided there but I am not satisfied that he in fact did so. In saying this I am not to be taken as deciding necessarily that he was untruthful. I simply do not think that his use of the building constituted residence as that word ought properly to be understood. The use he was making of the land had not at the time he gave evidence been approved under s.10 of the Ordinance although he had made an application under that section a great deal earlier.

39. The force of Mr Ryan's objection and evidence was much reduced when it became obvious that it was he who had sold the land to Tekmat.

40. Mr Chertok, President of the Parish Council of the Ukrainian Autocephalic Orthodox Church, gave evidence that parking was causing inconvenience to his parishioners, particularly to elderly pensioner parishioners. I accept his evidence but accept also that much if not all of the inconvenience has been dealt with by practical measures. Mr Chertok has also withdrawn his objection to the proposed variation.

41. Judith Ann Ward gave evidence which I accept that to some degree the peace of the neighbourhood was disturbed by traffic and rubbish collection. The inference may reasonably be drawn that another building in the vicinity would increase traffic problems and raise the level of noise. She said that if she had more than one visitor who parked in her driveway during business hours, other visitors had to park at least 200 metres away.

42. Ms Watson-Brown who resided at 20 Guild Street, Turner, gave evidence that there was already an overflow in her street of parking by people who worked in Civic or in the Australian National University. She proceeded on the assumption that the provision for parking made in the new building would be less than was required for the number of people who would be using it. As far back as March 1985 there were problems of visibility in getting out of her driveway due to cars parking in the street. She agreed that those problems could be overcome by the exercise of care and caution but I think the problem she described a real one.

43. I return to the grounds upon which it was agreed that the contest as to variation should be fought. The third of those grounds is that use of the land for any purpose other than residential would adversely affect the residential amenity of residents in the immediate vicinity. I have not set out all the steps I have followed in reaching the conclusion that it would to a limited degree but I am satisfied that the whole of the evidence adequately supports it. I reach this conclusion on the basis that any increase in traffic even in respect of the relatively small number of cars entering the neighbourhood as a result of the variation must necessarily aggravate traffic problems in the area. I do not, however, think that those traffic problems would be seriously increased and I think on the whole that the provision for parking which would be required as a result of the variation is adequate.

44. However, other factors intrude. Turner is adjacent to the Civic Centre of Canberra and I cannot see how any redevelopment of Turner can fail to have its effect on the adjoining city area or how, reciprocally, any redevelopment of Civic could fail to have its effect on the Turner area and other residential areas close by.

45. I think the evidence establishes, and I do not propose to analyse it more fully, that the proposals for redevelopment now in hand and the redevelopment which has already occurred now places and will place upon the public transport system a continuing and growing burden which will not immediately be met from available resources. They will also cause what I think will be quite serious parking problems so that there will be a substantial overspill of parked cars.

46. Dr Care, the Commission's Chief Engineer who is responsible for advising him on matters of transport planning, estimated that if all developments in Civic that have been currently approved by the Commissioner were constructed and occupied by 1990 there will be a demand for 15,700 long stay parking spaces. If no action were taken to provide additional parking facilities there would be a shortfall of some 6,200 long stay and 3,000 short stay parking spaces at that time. He deposed, however, that there was action in train to contain traffic overspill in residential areas to the current levels, that is, of the order of some 1,900 vehicles. Action was also to be undertaken to augment the supply of short stay spaces.

47. The Department of Territories and the Commission are currently considering the development of a parking trust fund or account which would be a means of funding or at least subsidising the cost of parking structures and serviced carparks. The Commission and the Department appreciate that a permanent solution will take time to achieve and accept that in the meantime there will be overspill into suburbs.

48. Mr Harrison was more pessimistic than Dr Care. In my opinion his pessimism was justified to some extent by Dr Care's answers given in cross-examination. However, I think that Mr Harrison was probably too pessimistic and I prefer to accept, as did Mr Lane, the Director of Transport Planning of the Department of Territories, that an accurate figure lies somewhere between Dr Care's estimate and that of Mr Harrison.

49. Mr Cooper's evidence and that of Mr Lane together satisfied me of two things. The first is that the public transport system will in the not too distant future if development continues at its present rate in the city area become quite inadequate and secondly that parking will continue to be a problem in that area.

50. In the result, I am satisfied that further applications for variation of purposes clauses within the city area and adjacent suburbs must be carefully looked at to ensure that they meet the test required by s.11A of the Ordinance as interpreted by the Federal Court.

51. Adopting the more stringent test which I would have been prepared to apply following the decision in Axiom (66 ACTR1), I think it probable that I might have refused the application on the evidence before me at that point. However, the evidence now before me indicates that vigorous efforts have been made to deal with the parking and traffic problems which are in existence.

52. I accept that policy is to be followed by implementation. The desirable may not always be immediately achieved and the question is very much one of balancing competing considerations. To enable this to be done, wide latitude must be allowed policy makers. At the same time I think it right to point out that any application for redevelopment beyond that referred to in the plans would be likely to meet formidable barriers.

53. Again I return to the particulars of the grounds.

54. I think there is some measure of truth in the statement that there has been no or no adequate planning for overspill carparking from Civic into adjoining residential areas but I am satisfied that vigorous measures have been taken to contain that parking in the Turner area to minimise its effect and that the situation is presently acceptable. I do not accept that the onsite carparking provided for in the plans for the building is inadequate for the reasons I have earlier given. I accept that to some minor degree there must necessarily be a worsening of the traffic flow problems in the area but consider that to be minimal. I accept that the public transport system is approaching the point where it may be stretched to its limit and that if redevelopment in the city area continues the problems of the transport system may become insoluble unless there is a very great influx of funds to deal adequately with them.

55. I am satisfied, too, that to a degree the proposed development will have some very minor adverse effect on the beauty and tranquillity of the area.

56. Against these factors must be placed the events which have in fact happened. The fact remains that all but two parcels of land of which the land is one in Section 24 are presently used or about to be used for commercial purposes. To require that the purposes clause of the land continue as it presently is would result in what I think may be fairly described as an aberration. It is, of course, inevitable that a decision permitting of the variation will eventually mean that the use of the parcel next to it, Block 2 of Section 24, will alter from residential to commercial purposes.

57. To permit of the variation will go towards tidying up of what presently may be described as an untidy situation. It does not mean that further redevelopment immediately to the north of the land is necessary or desirable nor that developers may assume that the granting of the order will amount to a green light in favour of further development whether the technique of "creeping blight" or other techniques having a similar result be used.

58. Accordingly, I am satisfied on balance, but just on balance, that it is proper to permit the variation sought in this case.