15 November 2023

'Trifecta of non-compliance': Contentious car park dispute finally comes to a conclusion in ACAT

| Lizzie Waymouth
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car park at Brindabella Christian College

ACAT said it was satisfied it was “in the public interest” to enforce a controlled activity order prohibiting the use of the land as a car park and drive-through access point, which will come into effect at the end of the current school term. Photo: Region.

Brindabella Christian College will need to cease using its car park that was installed without development approval by next month, the ACT Civil and Administrative Tribunal (ACAT) has ruled.

The private school’s sealed car park on public land formed the basis of a dispute between the Lyneham Community Association (LCA) and the ACT Planning and Land Authority, which was heard in the tribunal on Monday and Tuesday (13 and 14 November) before a decision was made on Tuesday afternoon.

The LCA has long opposed the college’s appropriation of the land, which it 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 college and the nearby Lyneham Primary School.

The LCA applied to the ACT Government for a controlled activity order, but this was refused, and it appealed this decision in ACAT.

The tribunal said it was satisfied it was “in the public interest” to enforce a controlled activity order prohibiting the use of the land as a car park and drive-through access point, which will come into effect at the end of the current school term on 7 December.

The controlled activity order will mean the land ceases to be used as a car park and an access point for dropping off and picking up school children.

“Vehicular access to the land is to be blocked by a locked chain, steel bollard or the like from the last day of the current school term,” ACAT senior member Michael Orlov said.

The controlled activity order would require the demolition of the car park and reinstatement of the land 12 months after the order is made unless the college obtains development approval to use the land.

The verge crossing would also be demolished and the curb and footpath would be reinstated before the commencement of the next school term in 2024.

Mr Orlov said the tribunal will give its reasons at a later date.

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LCA member Kate Bradney told Region she cried when Mr Orlov made his orders.

“The car park isn’t safe, and it’s not permitted, and finally, someone in a position of power decided to take action,” she said.

“I couldn’t really believe what I had heard. It was such an incredible feeling of finally being heard.”

“But it’s bittersweet because I can’t fathom why it fell on our shoulders and why the ACT Government refused to help us keep our kids safe, and protect our public land, and uphold our laws.

“Children from both schools were put at risk by the unsafe car park, and it’s an incredible relief that we can keep our community safe.”

Ms Bradney said she was motivated to act on the car park after frequently seeing near misses where an accident could have happened on the road, and “one particular near miss that still gives me goosebumps”.

“That’s when I realised if I didn’t do something, someone was going to be seriously injured.

“I couldn’t understand how such a poorly designed car park could have been developed that didn’t fit the standards and codes, and so I started digging.

“It’s the [college’s] responsibility to implement a safe and a legal transport plan for their school community that doesn’t rely on them deliberately and repeatedly undermining the ACT’s laws and putting local children and the community at risk.

“It’s in their hands now, and we hope they care and support their school community so we can all arrive at school safe.”

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The row over the car park on a section of the Lyneham playing fields began in 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.

The tribunal heard that the college had achieved “the trifecta of non-compliance”: the car park was in breach of the purpose clause of the sublease between the school and the Territory, its development is prohibited as the land is zoned as PRZ1 (urban open space), and a development application was required but never supplied.

While the LCA says the existing situation posed a safety risk to schoolchildren, the tribunal also heard that removing the car park would result in traffic congestion and other safety concerns.

A senior traffic engineer who gave evidence to the tribunal said that the loss of the car park, which has approximately 100 spaces and is typically full at pick-up and drop-off times, would likely result in vehicles being displaced onto the surrounding local roads, making an already busy street worse.

He said the most significant safety issue lies in dropping students off in the street, as this increases congestion and risk from children crossing the road as they may not be dropped off on the right side of the street.

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Drove past Grammar this morning 9.45. 22/11 Cars parked all over the public space they wanted to claim. Seems that nothing changes including ACT Gov failing to deal with illegal parking.

J a c k d a w12:15 pm 20 Nov 23

Just to be quite clear – MY considered Trifecta is –
1. Originally, BCC should have commercially paid the ACT Govt. & Ratepayers for its co-opting the ‘stolen’ section of the public playing fields next to its own land.
2. Repetitious NIMBY whinging about the BCC is all too often simply misdirected, taking insufficient account of the plain fact that the BCC is a commercial business already significantly subsidised by the public purse.
Providing education to children and employment to teachers and staff ought to be given some credit, even if their parsimonious god-bothering is painful to some. Mismanagement and sloppy business practices should not be overlooked, but now the Lyneham BCC site is filled to the brim with (now ugly tin street-front) buildings, the co-opted car park becomes unavoidable practically, provide BCC pays us a real price for its civic value.
3. I have tried to limit my criticisms of the folly of the Lyneham Community Associations’ fortering so much ill0informed Quixotic tilting at irrelevancies, as well as at NIMBY ‘solutioneering’. That is, not addressing patent realities, but inventing other non-solutions to ill-defined issues. Read the LCA’s delicate sensitivity about permitted comments specified on its website.
LCA needs to work WITH the BCC to achieve some mutual compromises to the issues of BBC (over-) development, regularising the ‘stolen’ car park, and traffic control.
BCC is part of Lyneham now, long since.
Brigalow Street is what it is.
Cars rat-running through lower Lyneham, and now excess on-street car-parking, as well as children’s safety are consequences LCA needs to address, if their self-appointed status as locals’ advocates is to have any truth.
One pedestrian’s death on the Primary School’s crossing is Not to be forgotten.
Any other would be now Lyneham’s grossest negligence.
Cooperation and compromises are essential to reverse the ACAT’s silly ruling.
J a c k d a w

J a c k d a w4:32 pm 19 Nov 23

#40 – 19 Nov. ’23
But What “Trifecta ” ?
First, after reading all the previous comments here, I can only infer that most folk did not read the facts cited in the article.
Secondly, to my understanding, all that the Board of BCC need to do is to get a formal DA lodged promptly for their (existing, tarred car-park) development of “their” co-opted public playing field land, The public land to which they have previously “obtained” effective control and occupation courtesy of some supposedly relevant part of the ACT local government.
Years ago, a long-standing Lyneham Community Association’s stalwart futilely gathered gullible petitioners’ signatures that advocated against the BCC occupying that public land, seemingly without even a peppercorn of due rent.
And now, on the face of it considering the tacit approval(s) that BCC have previously gained, how will that DA be denied by the hapless department ?
Lastly, can anyone actually credit that the current opinionated executive (all self-appointed) of Lyneham Community Association, have been whisked-off down the fairy-land path of getting (supposedly) a victory in the ACAT, which triumph very regrettably:
i./ delivers 100 parked cars into lower Lyneham’s streets west of the College,
ii./ forbids dropping-off / pick-ups by parents twice a day OFF those busy local streets,
iii./ contrary to an urban traffic Expert counselled against the folly of the ACAT decision’s consequences, and
iiii./ in which LCA seemingly took no effort to consider the BCC’s circumstance from the College’s perspective.
A terrible Trifecta of “beware of what you wish for .. ..”.
What else can be the final DA outcome other than somehow to accept the car-park essentially to be a fait accompli ?
I can only hope that BCC DA adopts decent traffic-management advice to create a second entry-exit path to/from the existing combined off-street drop-off AND staff car-park, so as to address the congestion that the existing design created.
But to see the car park returned to green grass – utterly ridiculous.
Lyneham as a suburb has more than ample playing fields. All around the three adjacent schools – BCC, the Primary, and the LHS.
Brindabella (Christian) College is grown so densely Topsy-like, as unavoidably to demand the maintenance of the status in quo (ante ACAT).
All the other dreams of Elysian Fields are a nightmare, practically for lower Lyneham residents near to BCC.

Steve Hackett10:47 am 19 Nov 23

With them encroaching on public land can we also look at the eyesaw that is the rubbish dump behind the school. I ride past there often and during the week I swear it looks like it is getting closer to the cycle path and Sullivan’s Creek. It has been there for years and is undoubtably a breeding ground for snakes and vermin not to mention risks to student safety and it only has a “temporary” construction fence around it, but it almost being treated as a permanent installation.

Anyone else think BCC are just going to ignore the Orders and continue on their lawless ways. Should get them 3- 4 years of reprieve

Glenn Treacy7:14 pm 16 Nov 23

Do unto others as you would have them do unto you” is a biblical concept. Let’s build a public carpark on their oval. They obviously wont have a problem

What a mess this is! What made the school authorities think they could do as they pleased? What thinking resulted in Access Canberra ignoring this prohibited development for so long ? Is this the reason the Government attempted to repeal the provision that allowed for citizens to seek a controlled activity order in the recent planning amendments? Has anyone involved referred this matter to the Integrity Commission? Dors anyone else think this whole matter just stinks?

The biggest failure is not the school or what they tried to get away with, but the weak-kneed government. As regulators Access Canberra are a total joke and embarrassment. Why is it up to local residents to have to step in and take legal action? Going to ACAT would have cost those local residents money and time. You see this time after time with this lazy, bumbling government. Again, where was the government regulator, and why hasn’t the Minister stepped up and apologised for letting the residents of Lyneham down?

You are correct. There is any number of other examples occurring around town that have residents’ blood boiling. This is but the most high profile example.

ChrisinTurner6:57 pm 15 Nov 23

It is healthier if children are dropped off at least 500m from the school and they walk.

Stephen Saunders5:07 pm 15 Nov 23

More recently, there they go again, building illegal structures. Having a cross out front not only protects them from the consequences of their actions, it guarantees frequent injections of federal loot, no questions asked.

There are so many dodgy issues and problems with this school, I’m unclear as to why they’re still allowed to operate. The students have problems with them, the parents do and the local community. Some NFPs are not what they appear.

Private schools for private benefit all too often show no regard for the local community. It’s great that ACAT did its job, but no surprise that the ACT government failed to do its job in managing the land for the community to begin with.

There are too many people who think they can do whatever they want, no matter who it harms. If the school built over its carpark, it is not up to the community to replace it, nor must the community give in to such arrogant exploitative actions.

Well done to the local community organisation and to ACAT!

Private schools provide a public benefit too. Pls don’t smear all private schools – which educate half the kids in this country – because of the actions of one school.

What is the public benefit? I have yet to see any public benefit.

I do see public costs with money going into private school properties that are not available for the use of the public.

Public funding should benefit the public, not private operators who enrich their schools and build luxurious facilities with taxpayer funds, whilst public schools struggle to meet basic needs.

There are 2 private schools near me that cause much public nuisance in not managing their property outside their fences, obstructing public footpaths and in one case, actively preventing the building of a footpath and fixing of a broken one that would enable older and less mobile locals to walk safely past the schools.

Ray Polglaze6:34 pm 15 Nov 23

It seems obvious that when the school designed the building on the previous car park that was on their land, that they should have included a replacement car park in that building or somewhere else on their land.

That would or should be the standard practice. All sorts of developers and organisations include parking in their buildings. They can’t just put up a building and then fence off the adjacent public land and make that their parking.

Why not? ACT Government is doing it right now on what has been car parking in the Phillip Trades area exclusively for their bus driver mates in the TWU…. I don’t hear you squealing about THAT one!

The parking area that was not a parking area but used as one by workers who could not get a bus to work has now been appropriated for parking by bus drivers who need parking because they are unable to catch a bus to work because their work conditions severely when they can drive buses to get people to work. Have I got it right?

Err these private schools that you disparage educate the same people who become teachers, doctors and business owners that employ you, me and everyone else in the real world. If you’re a public servant, they pay the taxes that pay you. Look beyond your petty local grievances.

They do not have the right to abuse the law or the community. Private schools are disparaged when they do the wrong thing, as would be appropriate for any business or organisation.

Just wondering3:34 pm 15 Nov 23

Not arguing with the case being put, but the danger that already exists in that area will be increased a hundred-fold if the car park is closed off without a fully developed alternative.

lynehamlover4:11 pm 15 Nov 23

That’s BCCs problem to solve. They just need to make it legal and make it safe.

The sooner that school is shut down the better

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