.png)
AAT Court Orders
BCC Carpark Closure
DID YOU KNOW?
After three days of hearings and submissions from all parties, including Brindabella, the ACT Civil and Administrative Tribunal (ACAT) issued Orders on 7 December 2023 to Brindabella Christian Education Limited (BCEL), the governing entity of Brindabella Christian College (BCC) requiring they close the Lyneham carpark and restrict all drop off and pick up access from the last day of school, Term 4 (8th December 2023).
The Reasons for Decision provided by Senior Member M Orlov on 30 January 2024 indicated ACAT determined:
BCEL committed a "deliberate and reckless contravention of planning laws"!
The Tribunal states
"There is clear public interest in discouraging persons who may wish to undertake a
development from seeking to circumvent planning laws to achieve their development objectives. However, the Tribunal sees this as a second order consideration."
The Tribunal continued....
"The determinative consideration, in the Tribunal's view (Item 112) is that the daily
interaction of a large number of young children and cyclists and vehicular traffic
entering and exiting the carpark presents an unacceptable risk of an accident causing
serious injury to a cyclist or child.....
The Tribunal considers that the current configuration of the entrance to the car park,
the verge crossing and intersecting pedestrian and cycle pathways is unsafe.
There is no evidence that it was designed to comply with the PV AGC and relevant standards.
No traffic study has ever been carried out, which would be essential to
a planning assessment.
No consideration appears to have been given to safely managing the interaction
between large numbers of young children and cyclists who cross the entrance to the
carpark daily on their way to and from the primary school and the large volume of
traffic entering and exiting the car park due to its use as a drive-through access point for
dropping off and picking up children attending the College and ELC."
"It is an accident waiting to happen and should not be allowed to continue".
"In the Tribunal's judgment, the overriding public interest is best served by ordering
the controlled activity (illegal activity) to cease on the last day of school term, rather
than allow it to continue up to a period of two years while BCEL pursues an application
to have the land rezoned and for development approval to use the land as a carpark".
You can read the ACAT Reasons for Decision in full below.
************
ACT Supreme Court Matter:
On 30 January 2024, an Injunction initiated by BCEL in the ACT Supreme Court, seeking a stay on ACAT's Orders to close the carpark while the school seeks to appeal the ACAT decision, was held but adjourned until 6 February due to the fact the ACAT Reasons for Decision were only released at 9am that morning. An adjournment was given to allow time for parties to read the Reasons for Decision and remarkably without any apparent decision for the above safety concerns identified by ACAT, the carpark immediately re-opened until the injunction hearing on 6 February.
What about children's safety? Who's interests is the Board defending?
ACAT states that Brindabella specifically accepted it had breached the Planning legislation by its use of the land as a carpark and in sealing the carpark without development approval. If BCC accepted it was in breach, why is the Brindabella Board not engaging itself in rectifying the safety risks identified at the verge and driveway crossing for children and pedestrians and seeking proper planning approval?
Is the BCEL Board acting in self-interest or the community interest in taking an appeal to the Supreme Court? What outcome will be achieved? The carpark and crossing will not automatically be any safer by running an appeal against a decision it accepted and agreed to? Can BCC afford to pursue such an appeal?
Whilst the injunction can potentially achieve a longer stay on the ACAT Orders and keep the carpark open, BCEL has also applied for leave for an appeal of the ACAT Orders in the Supreme Court, which is listed for a hearing on February 21.
You can read more about the Supreme Court matter below. As we have new information, we will update.
MORE DETAILS
Click on the following links for more information:
ACAT Reason for Decision & Final Orders
After considering the views and evidence of all parties, Transport Canberra and City Services (TCCS), ACT Planning and Land, Lyneham Community Association Inc (LCA), and BCC as a third party joined, ACAT determined the Brindabella Board of Directors had "wilfully and deliberately" breached planning provisions.
The ACAT hearings revealed that, contrary to an announcement made by the BCC Board Chair at the 2016 Presentation Night which many will recall, BCEL had not purchased the land as claimed and had in fact failed to obtain the required planning approvals to use it as a carpark and permanently seal it.
ACAT also determined the driveway access to the carpark, and its pedestrian crossing, to be illegal and unsafe. Orders initially given to require its demolition and removal were retracted on 7 December 2023 however, when BCEL challenged the legality of the demolition orders and ACAT was unable to establish who originally built the crossing and verge.
The ACAT Senior Member highlighted that Brindabella has multiple options before it to source alternate parking arrangements including initiating discussions with the Uniting Church next door, utilising the Lyneham playing & hockey fields carpark, utilising shuttle services, the tram and encouraging BCC families and staff to make better use of local public transport networks. The onus of responsibility was clearly set on BCC to implement a safe and legal transport plan for its staff and parents and ensure the risks to safety and disruption of local residents are minimised. The College was encouraged to engage with TCCS to find workable solution.
You can read ACAT's Final Orders here by clicking on the pdf image below:
ACAT Final Orders
You can read ACAT's Reasons for Decision in full below:
In summary, here are the key points:
-
Greg Zwajgenbergs directions to seal the carpark when the school knew the zoning and the sublease prevented a development application from being approved "involves the commission of a criminal offence under part 7.3 of the Planning and Development Act (Item 17)
-
In written submission to ACAT on 10 November 2023, BCEL Board conceded the use and development of the carpark (by sealing it) was a controlled activity, ie, a breach of planning laws. (Item 20) You can read about controlled activities and disciplinary Action taken by ACT Planning and Development here.
-
The Tribunal rejected evidence provided by BCEL of a Special Resolution and Board Minutes dated 8 November 2023, signed by Suzanne Power, Alyn Doig and Greg Zwajgenberg claiming "the Board has become aware that the use and development of the land for the purpose of car parking may not, in absence an approved development application, be authorised under the ACT planning legislation." The Tribunal states this statement was self serving and noted none of the Directors were made available for testimony or cross examination during the hearings. (Item 61 & 62)
-
The Tribunal states "It is clear BECL knew, since March 2012, that upgrading the gravel carpark would require development approval. The Tribunal finds the decision to upgrade the carpark in 2016 without development approval was a deliberate (not inadvertent) breach of planning laws". (Item 92)
-
Multiple affidavits were received regarding safety concerns and risks to children and pedestrians along Brigalow St and on the carpark crossing.
-
The Tribunal accepted evidence provided by Mr Craig O'Meara (former BCC groundsman 2016-2019. ACAT remarked that the BCEL Directors did not contest or challenge Craig O'Meara's testimony (BCC Groundsman 2016-2019) that he was given directions by Greg Zwajgenberg to seal the carpark in 2016 nor did they challenge his account that Greg Zwajgenberg announced at the 2016 Presentation Night to the school community that BCC had purchased the carpark land. Given ACAT established that BCEL had known since at least March 2012 that it was operating a carpark in breach of planning legislation and zoning, ACAT determined Greg Zwajgenbergs comments to the school community "inexplicable". (Item 32 and 90)
-
The Tribunal did not accept ACT Planning and Land (ACTPLA's) claims that there was minimal risk to children and pedestrians. "The Tribunal is persuaded there is real and foreseeable risk of an accident causing serious injury to a child or cyclist resulting from the interaction of children, cyclists and vehiclular traffic entering and exiting the carpark" (Item 53 & 112)
-
The Tribunal found it "inexplicable" that ACTPLA relied upon and accepted an offsite carpark assessment by Northrop Engineers in providing Development Approval to BCEL in 2016 for the Junior School Building and 15 classrooms, which had required a Planning Dept assessment of BCC's ability to provide its own car parking for staff, parents and students. (Item 89)
-
The Tribunal states it was clear BCEL knew it would "encounter stiff opposition" from the community, following multiple failed attempts at the development applications and a purchase of the car park land historically and that BCEL was reckless in its continued use of the land without applying for rezoning or da (Item 91)
-
The Tribunal considers the responsibility rests with BCEL to inform parents and staff of the need to make alternate travel arrangements and encourage use of public transport and to take reasonable steps such as providing a shuttle bus service or talking to the neighbouring Uniting Church so children can be dropped safely. (Item 110)
-
The Tribunal determined the current configuration of the verge with the driveway is unsafe and built without a development approval and in breach of the Verge and Safety Code. The driveway and verge was built by BCC during the construction of the current two-storey LLC building. (Item 113)
-
It is an accident waiting to happen and should not be allowed to continue (Item 113).
-
The Tribunal states "There is clear public interest in discouraging persons who, in seeking to undertake a development, seek to circumvent planning laws. ACAT sees this as a second order consideration. (Item 111)
-
The College has no on-site car parking (Item 106). To comply the College may need to provide 135 parking spaces. Closure of the carpark will undoubtedly cause inconvenience to staff and parents of children attending the College and ELC. (Item 106-110)
Read More Here
* Riot Act Article 31 January 2024 - Court Allows BCC Unauthorised Use of Carpark to Reopen as Appeal Looms
ACAT Reasons for Decision Read here
The only BCC carpark
A "Trifecta of Non-Compliance"
Sadly, Brindabella's expansion and creation of a carpark on a portion of the neighbouring Lyneham Oval, in breach of a sublease granted in 2009, has been the cause of much controversy and friction with local residents.
The Lyneham Community Association (LCA) brought their long standing safety concerns and evidence of multiple planning breaches by BCC as well as the lack of enforcement by the Planning Authority and crown leaseholder TCCS, to the ACT Civil and Administrative Tribunal (ACAT).
You can read more here:
14 November 2023 Article
Canberra Times: "BCC carpark dispute goes to tribunal"
15 November 2023 Article
Riot Act: "Trifecta of Non-Compliance: Contentious car park dispute finally comes to a conclusion in ACAT"
15 November 2023 Article
Canberra Times: "Tribunal orders BCC to close carpark"
20 November 2023 Article
Riot act: " College Carpark decision a rebuke for government and win for the integrity of planning system"
ACAT's Final Orders included the issuing of a Controlled Activity Order requiring BCC to:
- cease using the carpark, and drive through drop off, from the last day of Term 4, 2023;
- restrict access to the carpark from the last day of Term 4, 2023;
- demolish the entire carpark and reinstate the land within twelve months from the date of Final Orders unless BCC is able to obtain development approval to use the land as a carpark within twelve months of the Final Orders (which will require an approved variation to the Territory Plan, which in turn will require consultation with, and agreement from, the Lyneham community)
The ACAT Senior Member stated that on evidence and submissions before it,
"The breach of the planning laws has been with knowledge and deliberate
and in the teeth of widespread community opposition....
In these circumstances, the issues of where the public interest lies
is considerably more nuanced than the Authority and
the College have addressed to-date".
During ACAT proceedings, all parties agreed and accepted multiple planning breaches by the College had existed ("A Trifecta of Non-Compliance") being:
(1) BCC has been using the neighbouring land (which is a portion of the Lyneham oval), solely as a
carpark since 2009 in breach of the purpose clause of its sub lease with ACT Planning (TCCS).
(2) This land is zoned PRZ1 which does not allow for carpark use so a variation to the Territory Plan
and sub lease would be needed prior to any DA for a carpark being lodged.
(3) Sealing the carpark was a type of development which required a DA which has never been provided.
The ACAT Senior Member has advised Reasons For The Decision will be made public in due course. We will be sure to update the website and notify on reformbcc facebook page as soon as they are made available.
Be sure to follow us on facebook to stay up to date.
History of the Lyneham Carpark
During its earlier years, BCC had sufficient car parking facilities on its own land for staff, teachers and parents as shown in the images below.
As the College expanded and more infrastructure was built, car parking can be seen to overflow onto the neighbouring Lyneham Oval land. The parking lot shown in these images, and used by BCC, is operated on public land, a separate block to the school, which falls under separate zoning requirements under the Territory Plan.
Images below show the progression and expansion of BCC and historical car parking arrangements.
The Lyneham Community Association (LCA) website provides more detailed information in regards this sub lease and the zoning limitations and obligations.
BCC circa 2006
BCC circa 2009
Around 2009, BCC was successful in obtaining a sublease from Department of Sport and Recreation for a portion of the Lyneham Oval (the current carpark). The sub lease included a purpose clause allowing for sports facilities and buildings with ancillary car parking. ACAT has determined that the sub lease did not include provision for a permanent carpark for BCC's daily use.
BCC circa 2012
BCC circa 2017
Historical evidence shows BCC was active in seeking permanent car parking arrangements on this portion of land around 2014 and sought to consult with the Lyneham Community to achieve this. However, proposals by BCC to not only build a permanent carpark, but to also build a sports pavilion which it would operate and share with the Lyneham community, were largely rejected and views on use of the Lyneham Oval and public land became a contentious issue leading to the formation of the Lyneham Community Association Inc.
Ultimately, BCC's development application for a permanent carpark and a sports pavilion were both unsuccessful with ACT Planning Minister, Shane Rattenbury refusing to endorse the proposal due to a lack of community support.
You can read more here:
"Canberra schools plan to build sports centre on neighbourhood oval ended by ACT Government" ABC -15 Sept 2015
Unexplainably however, during the later half of 2016, without planning approval, BCC proceeded to repair the deeply potholed dirt carpark, lay a permanent sub-base, and then permanently seal the carpark surface during the 2016/2017 Christmas holidays whilst informing the BCC parents and staff at the end of year 2016 Presentation Night, they were successful in purchasing the land, which ACAT has now revealed was untrue.
According to the LCA website, a failure of the ACT Planning and Land Department, to monitor and enforce BCC's non-compliance with the planning laws, led the LCA to take BCC's regulatory breaches and the carpark issue to the ACT Civil and Administrative Tribunal (ACAT).
Sadly, the issue of the carpark and Brindabella's non-compliance with planning laws has played out for more than a decade. LCA website provides a very comprehensive history and timeline of events leading to the present carpark closure and ACAT Orders.
You can also read news covering the issue here:
-
Lyneham up in arms as a development application for the oval is withdrawn - City News 21 Dec 2014
-
Oval development and impact on all three schools - LCA 8 May 2015
-
Canberra school withdraws controversial plans to build sports centre on Lyneham oval - ABC 21 Nov 2014
-
Shane Rattenbury criticised for not allowing more debate on development - CBR Times 20 Sept 2015
-
Lyneham community still at odds with Brindabella Christian College - Riot Act 12 May 2015
A petition tabled in ACT Legislative Assembly also reflects community views more broadly:
-
Stop Private Carparks on Protected Public Green Spaces - tabled 28 August 2023
Cumulative Adverse Findings
During proceedings and the issuing of Final Orders, ACAT made it clear that the closure of the carpark is a consequence that the Brindabella Board has brought upon itself for multiple planning breaches.
ACAT determined BCEL was reckless, wilful and deliberate in their planning breaches.
It adds to a growing list of regulatory adverse findings under the current directorship shown in the image below indicating a pressing need for intervention and change in governance.
What does this mean for your and your family in 2024?
An injunction hearing has been adjourned and now scheduled in the ACT Supreme Court 10am Tuesday 6 February 2024 (Case CA/0002/24) to determine if the carpark can be reopened in the short term. It is a public hearing and members of the public are welcome to attend. As and when new information becomes avialable we will seek to update the site.
The ACAT Orders meant the carpark was NOT available for drive through drop off or pick up and alternate plans needed to be made. As at 31January, the school has communicated what it recommends as alternate arrangements for parents and carers and provided information from TCCS should the carpark be reclosed.
Public car parking is available at the Lyneham Hockey Fields on Mouat Street, approximately 600m from the school and Transport Canberra has bus services that service Brigalow St.
