The Brindabella Christian College car park in Lyneham will remain open. Photo: Kate Bradney.
The ACT Supreme Court will not only hear an appeal against a decision ordering the closure and demolition of Brindabella Christian College’s unapproved car park in Lyneham, but has also allowed the car park to remain open while legal proceedings continue.
Acting Justice Ann Ainslie-Wallace granted the college’s application to continue a stay on orders from the ACT Civil and Administrative Tribunal and said she was satisfied the college had demonstrated an arguable case for appeal.
The Lyneham Community Association went to ACAT last year asking it to enforce a Controlled Activity Order over the car park, which sits on public land and the college sealed without development approval in 2016.
ACAT ordered the college to stop using the land as a car park, which it operates as a sub-lease, and to demolish it within 12 months if it couldn’t obtain a DA and Territory Plan Variation.
Senior Member Michael Orlov found that the college had deliberately and recklessly breached the planning laws, but the main reason for ordering the closure of the car park was that it was unsafe and “an accident waiting to happen”.
The college then went to the Supreme Court to challenge the Tribunal’s decision. It was granted a 14-day stay earlier this year after providing “persuasive” evidence, Acting Justice Ainslie-Wallace said.
The court heard that the community association had limited funds and would no longer appear on the application.
Counsel for the ACT, which supports the college’s stance, indicated that the Territory might appoint a contradictor to provide an opposing view to the arguments being put by it and the school.
Acting Justice Ainslie-Wallace said the evidence from ACAT had highlighted the risk of injury to pedestrians from cars entering and leaving the car park, but also that parents would have to find parking on the streets and walk their children to school without it.
She said the college was taking steps to address the risks.
The acting justice said the car park should remain open and ordered the stay of ACAT’s orders to be extended pending the determination of the appeal.
She also ordered that the appeal and leave to appeal be heard together.
Earlier, both counsel for the College and the Territory argued that ACAT had erred in law and its decision was not proportionate.
All parties had accepted the car park was illegal; at issue was whether closing the car park would make the situation on Brigalow Street during morning drop-off and afternoon pick-up better or worse.
They said ACAT was wrong to reject the evidence of TCCS’s traffic expert, who had said the safety issues could be alleviated with certain measures.
ACAT had also not explored whether alternative parking arrangements proposed by the LCA were practical.
They argued that imposing a 12-month deadline on the college should have been a sufficient incentive for it to regularise the car park.
The court will hear the appeal at a later date.
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