Court allows Brindabella Christian College's unauthorised car park to reopen as appeal looms

Brindabella Christian College’s contentious car park in Lyneham has reopened after the Supreme Court granted a stay on ACAT orders to close the unapproved facility as the school prepares for an appeal.

The car park was closed for the first day of term on Tuesday morning (30 January), requiring alternative arrangements for staff and parents but by afternoon it was open again.

Transport Canberra and City Services had organised a transport and parking plan for the college, including new line marking and signage for a pick-up and set-down-only area.

This morning the car park was full and pedestrians were negotiating the verge driveway.

Last December, the ACT Civil and Administrative Tribunal ordered the college to lock up the car park, demolish it and restore the site to its 2009 condition within 12 months unless it could obtain development approval, including a Territory Plan Variation, to use the land.

ACAT had issued the orders to enforce a Controlled Activity Order applied for by the Lyneham Community Association in its long-running dispute with the college over the now-sealed car park, which sits on public land and is used as a sublease through TCCS.

But the college has decided to challenge these orders in the Supreme Court, despite acknowledging that it built the car park without approval.

It had wanted to keep the car park open while it prepared a development application and sought a TPV, which could take up to two years given the community opposition.

In a hearing on Tuesday, the college requested a stay on the car park closure pending an application for leave to appeal against the ACAT orders.

The court adjourned the request until 6 February but at the same time granted a stay until then because ACAT had only published its reasons that morning.

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, did not meet Australian Standards and was “an accident waiting to happen”.

He said the actions of board chair Greg Zwajgenberg, who ordered the sealing of the car park and told parents and staff that the college had bought the land, were inexplicable.

The leave to appeal application will be heard on 21 February.

But the LCA will not challenge the bid for an appeal or any appeal if it eventuates as it can no longer rely on pro bono assistance from lawyers Mills Oakley and it does not want to expose itself to potentially hundreds of thousands of dollars in costs if the appeal is successful.

It was present in court on Tuesday but was not an active participant.

The government could appoint a “contradictor” to ensure an opposing voice in any appeal, but the prospect was that it would proceed unopposed.

LCA deputy chair Trevor Vickers said he would be gobsmacked if the appeal succeeded given all parties had agreed that the car park was illegal.

“We still have this trifecta of no DA, the car park was inconsistent with the lease conditions and the car park contravenes the zoning of that piece of land,” he said.

“I can’t see how the Supreme Court in the appeal could possibly say that ACAT was wrong. It could say ACAT exceeded its powers but the fact remains that the car park is illegal.”

Mr Vickers said it should not be up to the LCA to defend ACAT.

He said the court was wrong to allow a car park that was unsafe and had never met Australian Standards to reopen.

“Clearly, reopening the car park for any duration of time will be putting kids at risk,” he said.

It was also an offence to use an illegal car park.

“The Supreme Court’s granting of the injunction is in effect giving its blessing to the resumption of the commission of an offence,” Mr Vickers said.

The LCA believed that because the car park was constructed illegally, the required public liability insurance was void.

“If the car park is to remain open, we would hope for everybody’s sakes that the appeal is heard as soon as possible,” he said.

Mr Vickers criticised the government’s role in the whole saga.

“One of the ridiculous things in these whole proceedings is that we essentially have the government appearing in court through its barrister saying that the Territory laws don’t need to be upheld. That appears extraordinary to me,” he said.

Brindabella Chrisitan College was contacted for comment.