The contentious issue of the legality of Brindabella Christian College’s sealed car park on public land may finally be coming to a head.
After a decade of dogged persistence, the Lyneham Community Association is about to find out if the ACT Government will act on its claims that the college illegally developed the car park on a section of the adjoining Lyneham Oval or whether it will be able to take the matter to the ACT Civil and Administrative Tribunal to settle the issue once and for all.
The association has always opposed the college’s appropriation of the land, which Brindabella operates as a sublease through Transport Canberra and City Services.
It says the college should not be able to privatise public land that is urban open space, that the car park is unsafe and the school’s lack of transport planning is contributing to traffic issues around the school.
But its many complaints have been dismissed by government agencies with misleading or ambiguous responses or disappeared down bureaucratic rabbit holes as a swag of documents secured through freedom of information requests show.
Now Access Canberra has issued a show cause notice to Brindabella Christian College in relation to possible regulatory action after the association lodged an application for a controlled activity order on 8 December last year.
The association took this action after what it said was the mishandling of its previous controlled activity complaint.
BCC has until today (23 May) to respond to the notice before any decision is made.
If the application is dismissed or the government order is less than what the association is requesting, the matter can be referred to ACAT for review.
The row over the car park on a section of the Lyneham playing fields goes back to 2009 when it was established informally about the time the school built on its previous car park on school land.
The community association says that in late 2016 the school sealed the car park despite the planning authority rejecting a request earlier in the year for a direct sale of the land to complete the project, advising that a Territory Plan Variation would be required and that the development would be in breach of the Planning and Development Act.
In response to the CAC about the car park, TCCS finally said in July last year that it had evolved over time from users of the playing fields, claimed that it was exempt from a development application despite no apparent record of this, remained a public car park, despite signage and allotted spaces to BCC staff, and that it had granted a sublease over the public land for car parking ancillary to an outdoor sports facility.
But the outdoor sports facility, the subject of a DA in late 2014, was never built.
In June 2018, the association wrote to Minister for Sport and Recreation Yvette Berry alleging the school was in breach of its sublease. However, after many months of to and fro between directorates, the official response was that it was a legal matter between the government and the school and could not be discussed with a third party.
But an opinion from EPSDD in an email to TCCS dated 18 June 2018 on the alleged breach is clear that without the outdoor sports facility, the car park should not be able to operate.
“A lease (or by extension a sublease) might provide for a particular purpose (the dominant purpose) and an ancillary purpose might also be allowed,” it says.
“If the dominant purpose does not proceed, then the ancillary purpose also cannot proceed. Hence, the ancillary purpose cannot operate in the absence of an active dominant purpose.”
The association took up TCCS’s response with Access Canberra, which replied in a 19 July 2022 email that TCCS believes the car park is ancillary to the playing field and therefore did not require a DA.
Association spokesperson Kate Bradney said recent FOI requests showed the government had knowingly allowed this development, via inaction, despite its contravention of planning legislation.
Ms Bradney said the government repeatedly dismissed the community’s concerns and even provided misleading information to persuade the community that the car park was legitimate, despite all of the ACT Government internal correspondence saying the opposite.
“The FOIs show, pretty clearly, that the ACT Government has always been aware that the car park isn’t permitted or legal, but they did nothing about it, despite the community members and the Lyneham Community Association pleading with them to take action for years and years, a decade almost.”
Ms Bradney said the development of the car park and the lack of transport planning by the college had caused congestion and rat running through Lyneham streets, making them increasingly unsafe, particularly for young children, especially on Brigalow Street where the car park driveway is located.
“Now Brindabella Christian College is larger than ever, and there are more cars than ever before, driving even more dangerously on and around Brigalow Street, and every day walking our kids to school, we have to worry about being hit by a car or seeing a kid be hit by a car,” she said.
Mr Bradney said that if the ACT Government had acted with good administrative conduct, it would have intervened to address the school’s growth and the resultant traffic issues and not allowed the loss of protected public green open space reserved for outdoor recreation and the environment.
“The consequence is that the community is put at incredible risk and have lost the amenity of our place, our neighbourhood, and our space,” she said.
In February, the association launched a Legislative Assembly petition, Stop Private Car Parks on Protected Public Green Open Spaces, which has garnered more than 1000 signatures.
It was aimed at the Brindabella car park and a temporary Canberra Grammar School car park that that school wanted to seal and make permanent.
But in March, the planning authority rejected the DA in a significant victory for community groups campaigning against land creep by private entities.