A long-running dispute over the legality of a car park on public land used by the Brindabella Christian College in Lyneham is about to come to a head with the local community association preparing to take action that will likely end up in the ACT Civil and Administrative Tribunal.
The issue may have wider implications for private organisations, particularly schools, that seek to use public land for their own use.
The ACT Government has dismissed previous complaints about the car park but the Lyneham Community Association plans to submit an application to the planning authority for a Controlled Activity Order, which would enable it to challenge those decisions in ACAT.
“The ‘Controlled Activity’ that we will be citing when we submit the application for a Controlled Activity Order is undertaking a development that requires development approval without approval,” an association committee member said.
But the window for doing so may be limited because the new draft Planning Bill proposes to close off that avenue for the public to argue planning issues, partly to stop frivolous and vexatious applications.
The community association says the design of the car park puts vulnerable active travel road users at risk, including children attending other schools in the area, and degrades a protected community urban open space.
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 in spite of 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 controlled activity complaints about the car park, the government said it had evolved over time from users of the playing fields, remains a public car park, despite signage and allotted spaces to BCC staff, and that Transport Canberra and City Services had granted a sublease over the public land to the school to “use a portion of land within Block 23 for car parking ancillary to the outdoor sports facility”.
But the community association has always contended that the school built and enhanced the car park for its own use without a development application or adherence to the normal codes and standards for such a structure.
Association committee member Kate Bradney said she became involved after witnessing near misses and being bumped herself at the car park entry and exit on Brigalow Street, which she claimed was poorly designed and dangerous.
She said cars cross over the footpath and the makeshift zebra crossing to drop off and pick up school children at the same time Lyneham Primary School students were making their way along the footpath.
Ms Bradney said the government response to the controlled activity complaints, a lesser mechanism which can’t be escalated to ACAT, and in Freedom of Information requests were contradictory, and it appeared the government was treating the car park as a fait accompli that should be formalised in legislation.
The government response said public maintenance infrastructure work sealed the car park and it was therefore exempt from requiring a DA but if that was the case there would be some evidence such as a tender or contract, she said.
The response also justified the car park by saying that the planning authority had recognised it when approving DAs for school buildings, claiming in fact that these DAs would not have been approved without the car park.
Ms Bradney said there was ample evidence that the school was behind the car park from the start and sealed it in defiance of the planning authority.
This included historical aerial photographs, statements from the school, car park design plans from the school’s developer, and historical statements from the government in 2012, 2014 and early 2016 explaining that the school did not have permission to develop a formal car park.
She said Transport and City Services Minister Chris Steel had refused to intervene when approached earlier this year, saying it was a private car park and it was up to the school to improve the access.
But in July the government insisted in its response to her complaint that it was a public car park.
“If you asked any single person on the street they would not know it is a public car park, it’s used exclusively by Brindabella people, it’s called Brindabella Car Park,” Ms Bradney said.
She said it was originally chained off so only school people could use it but the community association complained and the chain was removed but the sign stayed.
The community association is also connecting with the Griffith Narrabundah Community Association which is engaged in a similar battle with Canberra Grammar School over plans to make a temporary car park on a block off Monaro Crescent permanent.
“Whatever happens in the future for our situation, it’s going to set a precedent for other public land,” Ms Bradney said.
Brindabella Christian College board chairman Greg Zwajgenberg did not respond to questions about the history, status or safety of the car park, but he welcomed the Lyneham Community Association’s plans to resolve the situation in ACAT.
“Any move to now seek resolution in ACAT will fully assist us in our desire to purchase the land in question to formalise our car park with more permanent surfacing, which should have occurred years ago,” he said.
In 2015, the school proposed to develop the oval for a sports and performing arts complex with shared parking and a Kiss & Drop area but it did not proceed after community opposition.
Mr Zwajgenberg said the design would have absorbed the current car park and straightened out the current doglegs in the footpath.
“This is still the best community option,” he said.