You can’t park there! Yes I can – after all, the Commissioner says it’s a parking space!!!

by | Sep 2, 2016

Sydneysiders and Melbournians alike face parking levies. Property owners in both cities will be interested in the recent Victorian Supreme Court decision on whether a parking space exists.
State parking levy legislation applying to parts of Sydney (Parking Space Levy Act 2009) and Melbourne (Congestion Levy Act 2005) define a “parking space” in similar terms.
The Victorian legislation definition has two limbs:

” (a) a space set aside for the parking of a motor vehicle, whether or not the space is used for the parking of a motor vehicle and whether or not the space is permanently
delineated as such; or

(b) a space used for the parking of a motor vehicle, whether or not the space is permanently delineated as such –

but does not include a space that is part of the carriageway of any street, road or lane open to or used by the public”.

The alternatives of a space set aside for parking and a space used for parking of a motor vehicle also form the basis of the NSW legislation.

In Secure Parking Pty Ltd v Commissioner of State Revenue [2016] VSC 344, the Court had to consider several purpose-built car parking stations operated by Secure Parking in the Melbourne CBD. In each instance, Secure Parking had implemented measures (such as placement of metal and plastic bollards, water-filled barriers, bunting flags, signage and chains) to prevent some of the parking bays delineated on the floor of the particular parking station being accessed in order to park motor vehicles. The denial of access occurred during the whole of the 2013 calendar year (CY 2013) and arose due to rolling management decisions commencing in the 2012 calendar year and taken throughout CY 2013. The aim was to reduce the number of spaces available for use in each parking station and was a response to low demand for parking accommodation.

The Commissioner issued an assessment of congestion levy for the 2014 calendar year (CY 2014) on the basis that the non-accessible bays were “car parking spaces” for congestion levy purposes in CY 2013. (Under the Congestion Levy Act, assessments are based on the existence of car spaces in the prior year and not the year to which the assessment relates.)

The issue was whether the parking bays which could not be accessed due to the measures were “parking spaces” for purposes of the congestion levy because they had been “set aside” for the parking of motor vehicles. Secure Parking argued that the non-accessible spaces did not exist as parking spaces in CY 2013 because they were not set aside for parking and were not used for parking at any time in CY 2013. In effect, its primary contention was that it should be assessed for congestion levy in CY 2014 by reference only to those car spaces which were accessible through the entirety or part of CY 2013. In the alternative, it sought to apply the proportioning rule in s. 26(2) in respect of closure of parking bays during the autumn and spring school holidays.

Both parties appeared to accept that the central notion of “set aside” was “to separate out for a particular purpose” (Secure Parking) or that the relevant bays were “separated for the parking of motor vehicles” (Commissioner).

At the most fundamental level, their difference in applying this notion was the weight to be given to the decision of the operator to remove the bays from being available for use against the combined weight of the (sole) historic use for parking, the purpose-built character of the bays as spaces for parking, and the degree of ease with which the bays could be returned to actual use for parking of vehicles. In support of the weighting process, the parties looked to the purposes of the legislation and the extent to which their respective reliance on the factors were conducive to achieving the purpose underpinning the legislation.

The Court’s decision embraced the view that “set aside” entailed separation out or setting apart for a particular purpose. However, this required consideration of the essence of the relevant bays, while recognising that use for a purpose inherent in their essence was not required at all times.

The Court upheld the Commissioner’s decision that the non-accessible bays were set aside as car spaces:

” … if these spaces were not set aside as parking spaces, what were they set aside for? It would be too narrow a focus to say that they were not set aside for anything and were awaiting a new designation or purpose. There is no evidence to support that conclusion. They remained spaces in purpose-built commercial car parks awaiting use when demand made that a sensible business course for Secure Parking to adopt.”

In relation to application of the proportioning rule in s. 26(2), the Court determined that blocking off parking spaces in school holidays did not mean the spaces were not set aside during those periods.
It is understood that Secure Parking Pty Ltd is pursuing the whole matter before the Court of Appeal.

While the case deals with parking spaces in the context of public car parks (i.e. where “the predominant number of spaces are set aside for, or used by, the general public”), it must not be overlooked that the Congestion Levy Act has a wider reach and the concept of “parking space” is relevant to that more extensive application and to the ameliorating taxation provisions. Given the Act visits the “sin” of previous year parking spaces on new owners, the Act has significant potential implications.

While the Commissioner may, indeed, say something is a parking space, perhaps one could add – ” … but, watch this space”.

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