Architecture Design Studio Pty Ltd v Fairfield City Council

[2019] NSWLEC 1253

Land and Environment Court

New South Wales

Medium Neutral Citation:	Architecture Design Studio Pty Ltd v Fairfield City Council [2019] NSWLEC 1253
Hearing dates:	15 May 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1)   The applicant is given leave to rely upon amended plans. (2)   The appeal is upheld. (3)   Development application No. 479.1/2017 for use of an industrial unit as a place of public workshop and community centre at 54 Orchardleigh Street, Yennora is approved subject to the conditions in Annexure A. (4)   The exhibits are returned other than Exhibits A, C and 1.
Catchwords:	DEVELOPMENT APPLICATION – place of public worship (mosque) and community centre – uses currently operating – parking availability – proportion of parking that should be on-site and on-street – objections based on impact of parking on nearby businesses and in street – proposed cap on numbers – DCP interpretation to determine required parking rate – plan of management
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979
Texts Cited:	Fairfield Citywide Development Control Plan 2013
Category:	Principal judgment
Parties:	Architecture Design Studio Pty Ltd (Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: J Reid (Applicant)   Solicitors: Concordia Legal (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/113507
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Architecture Design Studio Pty Ltd (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Fairfield City Council (the Council) of Development Application No. 479.1/2017 (the application).

2. The application sought consent under the EPA Act for the use of an existing industrial unit as a place of public workshop (PPW), being a mosque, and as a community centre (the facility) at Lot 1 DP 715096 being 54 Orchardleigh Street, Yennora (the site).

3. The operator of the facility is Daar Al Muddathir, a non-profit charity organisation providing a range of services to the local community. In addition to offering prayer services, the facility provides youth support programs and workshops, social well-being programs, migrant integration programs, and educational and counselling services.

4. The site is located on the northern side of Orchardleigh Street in the south eastern portion of the Yennora industrial precinct. The land adjoining and in the vicinity of the northern, western and eastern boundaries of the site is also in the industrial precinct and contains predominantly industrial buildings. Opposite the site is Knight Park, used for community sporting activities, with the remaining sites on the southern side of Orchardleigh Street comprising low density residential development.

5. The site currently contains a two storey industrial building at the rear extending to the side and rear boundaries. The site is accessed from Orchardleigh Street and there is an at-grade car parking area in front of the building which currently contains 12 car parking spaces in a tandem parking arrangement.

6. In the Statement of Facts and Contentions (SFC) filed with the Court by the Council, the primary contention raised by the Council was the impact of the proposed facility on on-street car parking in the area. The Council also claimed the proposed uses were not consistent with the objectives of the IN2 - Light Industrial zone in which the site is located under the provisions of the Fairfield Local Environmental Plan 2013 (the LEP), albeit the uses are permissible with consent in the zone.

7. The application had also failed to demonstrate that the noise and visual impacts from the facility would be acceptable and there was insufficient information in order to complete an assessment.

8. The application was notified and two objections were received from adjoining businesses including from Fletcher Building, on behalf of their subsidiary, Rocla. Rocla owns an adjoining business two properties to the east of the site which has access from Orchardleigh Street to its rear parking area. The objections raised concerns that the proposed uses had already commenced and were having an impact particularly during Friday lunchtime prayer times with illegal parking on their properties, over driveways and/or in terms of impacting available on-street parking in Orchardleigh Street. Other issues raised included inconsistency with the objectives of the IN2 zone and the incompatibility of the proposed uses with uses in an industrial area.

9. The appeal was the subject of conciliation under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). The parties could not come to a conciliated agreement and conciliation was terminated.

10. However, amendments were subsequently proposed by the applicant in an endeavour to address the Council’s contentions. This included capping the number of people at any one time on Fridays at the facility to 77, comprising a maximum of 70 worshippers and 7 staff. There would therefore be no community centre activities occurring during Friday prayer. On all other days, numbers would be capped at 30 attendees and 5 staff.

11. It was also proposed to provide an additional 10 car parking spaces within the building to supplement the 12 tandem spaces that already exist at the front of the site, providing for 22 on-site parking spaces. The 10 new spaces would also be in a tandem configuration however, the rear 5 bays in each tandem pair would be allocated to staff.

12. The Court granted leave to the amended application on April 10, 2019.

13. The amended application was notified and a second submission was lodged from Fletcher Building with their objections similar to those raised in their submission on the original proposal.

14. The hearing commenced on-site with the parties and their experts. The Court viewed the existing facility including the parking arrangements and heard from a representative of Rocla who summarised Fletcher Building’s written objection. This raised instances of illegal parking in the street and on their site from worshippers attending the Friday lunchtime prayer. In response, the company had installed electronic security gates at the entrance to their car park in Orchardleigh Street which has resulted in cessation of illegal parking on their site. However, this did not address the potential for future illegal parking over their driveway as had occurred in the past. However, the representative did not identify any instances of illegal street parking since the conciliation conference had been held.

15. The applicant advised the Court that, using the ground floor, the Friday prayer has previously been held with up to 140 worshippers attending. This area was now to be used for the additional on-site car parking with the prayer area restricted to a 63.75m² area on the upper level to accommodate a maximum of 70 worshippers.

16. To assist with enforcing this maximum, the applicant had prepared a Plan of Management (PoM) in support of the amended application (Exhibit C). The PoM relates specifically to prayer and religious services and management of the prior and post Friday worship.

17. The overall process to manage the Friday prayer set out in the PoM assumes capacity attendance. On Fridays, staff designated as ‘counters’ are responsible for counting and managing the number of people on-site. A counter is to be stationed at the main entry to the premises. An assigned traffic controller, qualified by the RMS traffic controller course, may act as another counter. Each counter will be equipped with communication devices. The main entry counter will be responsible for overseeing the number of attendees within the prayer hall.

18. The controllers will control traffic and parking immediately prior to and after the prayer time. They will manage the entry and exit of vehicles, ensure pedestrian safety, and observe and advise on the capacity of the car park and off-site parking within the vicinity.

19. The PoM also includes noise management and complaints handling measures.

20. In agreed conditions of consent filed with the Court, there is a requirement for the PoM to be amended in terms of dealing with complaints and requiring that the Council agrees in writing to any changes to the PoM.

21. Expert Joint Reports were filed in the proceedings which indicated that, with further modifications to the application and agreed conditions of consent, on the basis of surveys and a Parking Study undertaken, the application addressed all of the Council’s contentions. The modifications included the redesign of the front car parking area so that the parking was not in a tandem configuration, and provision of a landscaping strip at the front of the site adjoining the front and side boundaries. As a result of the provision of the landscape strip, only 21 car spaces could be provided on-site rather than 22.

22. Leave was sought and granted to the modified plans arising from this joint conferral (Exhibit A) with the amendments agreed to be minor.

23. The Council however, was not satisfied that, notwithstanding that the traffic experts were satisfied that there would be adequate parking on-site and available in the street for the development, the provision of parking to be accommodated on the site rather than on the street was not in accordance with the requirements of the Fairfield Citywide Development Control Plan 2013 (the DCP). As a consequence, too much parking would end up on the street and would impact the availability of on-street parking for other businesses and residents in the area.

The Parking Contention

24. The required car parking provision for development is contained in Chapter 12 of the DCP. Table 1 of Chapter 12 lists the parking required based on use. There is no specific requirement for a community centre. However, given no community uses are to occur when the Friday prayer is held, and the Friday prayer time represents the peak usage of the site in terms of parking demand, it was agreed that the appropriate parking requirement to be met was only that required for a PPW.

25. The stated objective in the DCP for car parking provision rates is to ensure adequate off-street parking is provided to serve the needs of development.

26. The following is the relevant extract from Table 1 dealing with PPW parking:

27. In their expert Joint Report (Exhibit 6), the traffic experts, namely Mr Higgins for the applicant and Mr Hollyoak for the Council, agreed that the DCP states that, for a PPW, the appropriateness of the DCP parking rate should be confirmed by way of a Parking Study. They also agreed that, as the community centre and mosque are currently operating, a reliable Parking Study could be undertaken and an accurate assessment made of the peak parking demands during their operation.

28. As no seating is provided, the experts applied the rate of 1 space per 2m² of worship floor area (considered to be greater than 1 space per 3m² of gross leasable area).

29. Mr Higgins is a director of Traffix. Traffix had prepared a Traffic Impact Assessment report, which accompanied the application, and had also commissioned on-street parking surveys, as part of their Parking Study. These surveys were undertaken by a company called Traffic Information Specialist (TIS).

30. The parking surveys were undertaken during the Friday prayer peak period over three Fridays in March and April, 2019 and included interview surveys questioning how worshippers arrived at the site.

31. The survey results indicated that the percentage of those walking to Friday prayer ranged from 32% to 50% across the three Fridays surveyed, resulting in an average of 44%. Therefore, a significant number of worshippers walked to the site. Mr Higgins concluded that it is likely these people are drawn from the local employment areas surrounding the site. The balance on average arrived as a car passenger (24%) or drove (32%).

32. Mr Higgins therefore concluded that, with a maximum permissible total of 70 worshippers, and based on this modal split, the development would generate a demand for 22 car spaces as well as 7 staff parking under a worse-case scenario. A total of 29 car spaces were therefore required.

33. Mr Higgins then interpreted the DCP as requiring a minimum of 50% of that parking demand being accommodated on-site. On this basis, the development required 15 car spaces on-site. The balance of the parking could be accommodated on the street, subject to availability.

34. In order to assess on-street parking availability, parking surveys were conducted within a 400m walking distance from the site notwithstanding that the DCP permits parking in all streets within a 400m radius. Therefore, Mr Higgins argued, the surveys could be considered a conservative assessment of available on-street parking within 400m of the site.

35. The results of these surveys indicated that, during the critical parking demand period, being Friday lunchtime, there was a minimum of 22 car spaces available on-street on average within 400m, including no fewer than 16 spaces available in Orchardleigh Street. Therefore, there was spare capacity on-street even under the current conditions with the facility already operating.

36. Currently there are 12 car spaces on-site. The amended application initially proposed that this be increased to 22 spaces including 2 disabled spaces (this was revised after the traffic engineers’ Joint Report was finalised to be 21 spaces including 1 disabled space in order to accommodate the landscaping strip sought by the Council’s planner). Hence, Mr Higgins argued, the DCP requirement for 15 car spaces on-site was not only met but exceeded and this would result in a reduction in the on-street parking demand over the existing situation, with additional car spaces now proposed for the site.

37. Mr Hollyoak noted that the DCP states that, for the Parking Study, the worship capacity should assume 1 person per 0.75 m² of worship area. He noted that there appeared to be additional capacity for worshippers available and additional demand beyond 70 worshippers.

38. In this regard, staff from Mr Hollyoak’s company had attended the site during the Friday lunchtime prayer and noted the number of worshippers entering the site was being limited to 70 by staff at the site boundary with those arriving after this capacity was met being turned away. His counts showed around 75 to 77 people entering and leaving the site during the peak Friday lunchtime period, which was consistent with the 70 people and 7 staff limit proposed in the application.

39. Mr Hollyoak did not dispute the modal split between worshippers walking, driving and as passengers provided by Mr Higgins. He considered the vehicle occupancy rate of 1.3 was about right, although rates for mosques can range between 1.3 and 1.8. His surveys had shown an average of 1.58 people per car, being a higher occupancy rate. He did not however, question Mr Higgins modal split conclusions based on a car occupancy rate of 1.3.

40. Mr Hollyoak concluded that the parking demand for the site, if parking for all 7 staff is also accommodated, appeared to be somewhere between 29 and 36 parking spaces. In the worse-case scenario, this would therefore require 18 spaces to be provided on-site and 18 off-site. If 22 were provided on-site, then up to 14 needed to be available off-site (later adjusted to 21 and 13 respectively). He did not disagree with Mr Higgins’ on-street parking supply analysis or conclusions that there was ample available on-street parking to meet the estimated parking demand during the peak prayer period. This was because the surveys indicated that there were 16 parking spaces available in Orchardleigh Street within 400m of the site during that period.

41. The traffic experts noted that the redesign of the existing parking on-site would improve the current tandem or stacked parking arrangement in terms of the operation of the facility, as long as staff were available both before and after the Friday prayer period to control numbers, as was proposed in the PoM.

42. Notwithstanding the findings of the traffic engineers, Mr Seton, lawyer for the Council, submitted that the provisions of the DCP, in terms of determining the required parking for the proposal, had not been appropriately applied.

43. He claimed that, to correctly apply the DCP, one has to firstly calculate the required parking rate based on 1 per 2m² of worship floor area then undertake a Parking Study to confirm the rate. The proposed worship floor area is 63.75m². The DCP requires an assumed capacity of 1 worshipper per 0.75m² of worship area. This equates to 85 people. Traffic generation is then to be based on 1.3 people per car. This results in 65 cars. Of this demand, 50% must be provided on-site, being 32 spaces. He argued that doing the same calculation applying to a maximum of 70 worshippers had a similar result.

44. Based on this interpretation of the DCP, with only 21 spaces provided on-site, there was a shortfall of 11 spaces. This equated to a shortfall in the order of 33%. Further, 32 car spaces had to be available on-street within 400m and the surveys did not indicate that availability. Therefore, the DCP objective for car parking provision was not achieved as the on-site provision rate in accordance with the DCP calculation requirements had not been met.

45. Mr Higgins argued that, notwithstanding this DCP interpretation, the parties had the benefit in this instance of surveys based on how the facility was actually operating. Further, the peak parking demand being met only occurred one hour a week.

46. However, Mr Seton questioned the reliability of the surveys as it was dependent on how they were undertaken. The applicant would have had prior warning of the surveys and could have managed the facility accordingly. He also queried the interview surveys commissioned by Mr Higgins who had not conducted the surveys himself and could not supply the list of interview questions asked. For example, when somebody responded that they had walked, were they asked if they had walked from their parked car or from somewhere else?

47. Mr Higgins advised that his understanding from speaking to TIS was that respondents were specifically asked whether they had walked from their car, and those people were not included in the recorded numbers of those who walked. He accepted however, that he did not know where they had walked from.

48. Mr Seton submitted that the Court should have no confidence in the survey data as to how people arrived. The questions were not provided and it was not clear where the walkers came from. Mr Higgins had never been to the site on a Friday and there was no documentation on the survey details. The design of the survey and how it was undertaken were important factors in determining the accuracy of the findings. As Mr Higgins did not do the surveys, he was unable to answer the Council’s concerns.

49. Further, the data collected by Mr Higgins was not directly comparable with Mr Hollyoak’s surveys which were based on camera footage showing people coming in and out of the centre, therefore multiple entries and exits were possible, including by staff. It was therefore questionable which survey results the Court should have regard to.

50. Mr Seton also noted that people turned away once the mosque was at capacity would have already parked and the impact on on-street parking supply had already therefore occurred.

51. Ms Reid, counsel for the applicant, noted that the Council’s expert, Mr Hollyoak, had only two concerns: firstly that the floorspace allowed more than 70 worshippers; and secondly, that the parking should not be in a tandem arrangement. Both these concerns had been addressed in the amended application and proposed conditions of consent. The numbers would be limited to 70 worshippers and 7 staff and Mr Hollyoak was satisfied that there was sufficient parking in the locality for these numbers. He also respected Mr Higgins’ evidence. If the survey results were correct, there was adequate parking.

27. She noted that the key DCP objective is that adequate off-street parking is available and that has been demonstrated. Further, there are various ways to interpret the DCP parking table for PPWs. In any event, it seemed reasonable that parking required and available should be confirmed by a Parking Study as was required and had been undertaken. There was no definition of ‘Parking Study’ only that it assesses the appropriateness of the parking rate to be applied. The note in the table includes the assumptions. Nowhere does it say that you cannot use the Parking Study to work out what is appropriate. The Court has in front of it a detailed assessment from two experienced traffic engineers who say that adequate and appropriate parking is provided on-site whichever survey results are used. The application goes better than the required provision of 50% of parking demand being provided on-site, there is a limit on the number of worshippers, and a requirement to comply with the PoM which manages how the parking is used and worshipping numbers controlled. The fact is that there is ample parking on the street. Even the objector had noted that, since they had installed gates on their site, there have not been problems with unlawful parking. Finally, the peak demand to be met is only for one hour per week.

28. Ms Reid further submitted that, if the Court applied the DCP as the focal point for determination of what parking is required, then consideration is required of the needs of the development. It doesn’t mean the DCP parking rate is a development standard such as in an LEP. What is now proposed provides a better outcome because there will be 21 spaces on-site. Even if the Council was correct on how to interpret the DCP, the Court has the benefit of considering the rate calculated in the context of expert reports on actual demand. Therefore, the Court could conclude there would be adequate car parking to service the development and thus meet the objective for parking provision in the DCP.

29. She also noted that the Council had not raised any concerns about impacts on residents in the area. In response to the issues raised by the objector, both traffic experts indicated that when they or their people had been at the site, they did not notice cars parked illegally across driveways. If any cars were illegally parked, they would have been excluded from the counts undertaken in the on-street surveys.

30. However, Mr Seton questioned that there was adequate off-street parking to meet the unmet parking demand on-site. Two objections had been received from local businesses saying parking was of concern and the applicant should be made to comply with Council’s controls. The focus should be on a proper interpretation of the DCP but neither traffic expert had done this. It states how to calculate the rate, then do the study to confirm this, and then up to 50% can be provided on-street. It is not that 50% of the number the traffic engineers come up with that can be provided on-street. By correct DCP calculation, 32 spaces should be on-site. The experts agreed that an 11 car space shortfall was significant if that is what is needed correctly applying the DCP.

31. Therefore the development relied more heavily on on-street parking than the DCP allowed. Whilst that parking may be available, this development should not be able to use all the capacity. Case law indicates that the Court can not consider that what is proposed is a better outcome than an illegal existing development and the applicant should get no benefit from that argument. In Mr Seton’s view, the evidence did not support the shortfall proposed. You do not start by asking how many spaces are available on-street to determine how many should be provided on-site.

32. In response, Ms Reid submitted that the two written objections need to be read in the context of the original application where only 12 parking spaces were available on-site. The amended application provided more spaces and only one objection had been lodged in response to it with the oral evidence of that objector focusing only on a concern that there was a DCP shortfall. The Council’s expert says 36 spaces are needed with 50% (being 18) required on-site. In excess of that are provided on-site.

33. In summary, she argued, the applicant had: undertaken the only Parking Study provided for the proceedings which established the appropriate rate of parking as required by the DCP; proposed to restrict worship numbers; and would provide 21 car parking spaces on-site even though the Council’s expert says only 18 spaces are required. The Court could therefore be confident of the data based on the evidence of Mr Higgins, and Mr Hollyoak accepted Mr Higgins’ evidence.

Findings

59. The Council agreed that the only issue in contention, following amendments to the proposal and agreed conditions of consent, was the acceptability of the amount of parking to be provided on-site. The Council’s concern was that the DCP required rate of provision for a PPW had not been met in accordance with the Council’s DCP interpretation. The Council also raised concerns with the validity of the interview surveys in terms of establishing the modal split for worshippers attending Friday prayer from which the applicant’s traffic engineer had determined the peak demand for parking.

60. However, the applicant disagreed with the Council’s interpretation of the DCP, arguing that, in any event, the DCP should only be a guide. It clearly references the appropriateness of, and requirement for, a Parking Study to determine what actual demand would be and therefore on-site provision should be. Accordingly, the applicant undertook a Parking Study, including surveys of attending worshippers, to assess demand and determine the required on-site parking provision. This required provision is not only met but will be exceeded. The Council’s traffic expert did not disagree with the Parking Study or the findings albeit the Council’s lawyer questioned the survey methodology.

61. Based on the evidence of demand that was before the Court, which had been reviewed by the Council’s traffic expert, the traffic engineers agreed on the likely peak parking demand that would be generated by the development. Further, having determined that demand, they agreed that more than 50% of that demand could be met on-site and that there was ample capacity on-street within a 400m walking distance of the site to provide the additional parking required that could not be provided on-site. There was no expert evidence from the Council based on its own surveys that a greater amount of on-site parking should be provided.

62. The Council relied on a submission that both the experts had misinterpreted the DCP requirement as to how to do the required Parking Study. Therefore, the applicant’s Parking Study should be given little weight. That is, one must first calculate the required parking based on the floor area of the worship hall then undertake a Parking Study to validate the outcome of that calculation. The Council’s DCP requires that the Parking Study assume 1 worshipper per 0.75m² of prayer area resulting in an assumed 85 worshippers. This number is then discounted by an assumed car occupancy rate of 1.3 to 72, thus requiring 50% (or 36 spaces) to be provided on-site. However, only 21 spaces were proposed.

63. However, in my view, this is not an appropriate application of the DCP table in the circumstances.

64. Firstly, the rate of parking provision for a PPW where no seating is provided, applying the greater rate per m² agreed by the parties, is 1 space per 2m² of worship area. This would require 32 spaces with a worship floor area of 63.75m². If 50% of that required provision had to be provided on-site, 16 spaces would be needed on-site. A total of 21 spaces are to be provided on-site, so that requirement is met.

65. Secondly, I agree that the DCP requires that this calculated rate of provision is to be confirmed by a Parking Survey. As Mr Seton pointed out, the DCP then requires that the Parking Study adopt a number of assumptions including the assumed number of worshippers. However, in this instance, the actual maximum number of worshippers is known and will be restricted by the consent. That number is less than would otherwise need to be assumed (ie 70 rather than 85). Using assumptions when facts are not known is a reasonable approach. However, that is not the case in this instance. Assumptions that can be validated or amended by facts should be, and were.

66. Thirdly, whilst both parties added 7 spaces being required for 7 staff, staff parking in addition to the rate of provision to adopt based on worshipper numbers is not required by the DCP. It can therefore be reasonably assumed that the rate required based on worshipper numbers includes an allowance for staff parking, although I accept that PPWs would not typically have a significant number of staff on-site.

67. Using Mr Seton’s calculation, but based on actual worshipper numbers and the remaining DCP assumptions, with no required additional staff parking, there is a demand for 54 bays with 27 provided on-site, a 6 space deficit not an 11 space deficit.

68. However, the Council sought landscaping to be provided where no landscaping currently exists. Whilst I accept landscaping is required by the DCP for new development, and the strip provided is less than the DCP requirement, this application is for a change of use of an existing building. The landscaping will improve the amenity and appearance of the site and the existing development and the Council accepted it would result in the loss of 1 space than is otherwise accommodated. Allowing for this, the actual deficit if the DCP was otherwise applied as Mr Seton sought, but based on known facts rather than assumptions, the agreed on-site shortfall would be 5 spaces.

69. However, the DCP parking rate table clearly references the requirement for a Parking Study to confirm the appropriateness of the rate to apply to a PPW. That Study was undertaken by the applicant and included interview surveys and on-street parking supply surveys. There was no disagreement between the traffic experts as to how that study should be undertaken or in terms of the results that were produced. The Council did not do its own study.

70. Whilst I agree that it is unfortunate that details of the questions asked in the interview surveys were not provided, there is no reason for me not to believe the evidence of Mr Higgins that, based on his advice from those undertaking the surveys on his behalf, on average 44% of worshippers would walk to Friday prayer from the local area and not from their parked cars. On this basis, parking only needs to be provided for the balance of worshippers noting also that the DCP table assumes a car occupancy rate of 1.3 people. Based on the evidence, this rate was low, meaning a higher number of worshippers attending as passengers in cars driven by other worshippers, or walking, is likely.

71. If this is the case, the provision of 21 on-site parking spaces will more than adequately meet the demand for 50% of the required parking to be provided on-site for Friday worship, and therefore at all other times the facility is operating. It would take a much higher percentage of worshippers to drive to exceed the 50% number of required spaces provided on-site.

72. Further, whilst I must have regard to the DCP, its provisions are to be flexibly applied and there is no definitive explanation as to how the rates table is to be interpreted to determine required on-site parking provision when it is based on assumptions notwithstanding there are known maximum attendee numbers, staff on-site, and a likely car occupancy rate that is higher than the DCP assumes.

73. By referencing the requirement for a Parking Study to confirm a PPW’s required parking rate, the DCP clearly identifies that there is uncertainty about what the parking provision should otherwise be.

74. Therefore, in my view, it is reasonable that emphasis should be given to the results of the Parking Study and survey results that were provided to determine required on-site parking provision. This is given that, irrespective of the calculated rate derived from interpreting the DCP table, the rate must be the subject of a Parking Study to confirm its appropriateness.

75. The evidence from that study was that there would be adequate parking in Orchardleigh Street, within a 400m walking distance, to accommodate the demand for off-site parking without having to consider other streets within a 400m radius.

76. Even allowing for Mr Seton’s reasonable concern that worshippers may have known the surveys were being undertaken, the evidence indicated that the Fridays surveyed were with peak capacity of 70 worshippers attending, and there was still available on-street parking. I consider it unlikely that up to 30 worshippers deliberately only walked on those survey dates, or said they walked, in order to favourably influence the survey results. Further, the on-street parking surveys and number of worshippers attending were largely validated by the Council’s own expert, Mr Hollyoak.

77. Mr Hollyoak indicated that, if the survey results were accurate, then adequate parking would be available on-street to meet peak demand with the 21 car spaces provided on-site. Further, he respected the evidence of Mr Higgins.

78. I also note there are stringent requirements in the PoM to restrict worship numbers to a maximum of 70 and to manage parking during the Friday prayer peak times. Also, that it was agreed that, other than for one hour a week, there would be substantially less demand for parking than is being accommodated on-site in the application.

79. Whilst I accept that the applicant should not be given the benefit of the argument that what is proposed is an improvement on what has previously occurred unlawfully on the site, it is the case that the application is not for that unlawful development. What is proposed has substantially less worshippers and more on-site parking than currently exists and there is a substantial improvement to the usability of the existing car parking with an improved layout not totally reliant on tandem spaces.

80. The original objections from two nearby businesses were based on experiences when the facility was operating without consent or a PoM with up to 140 worshippers and only 12 on-site tandem parking spaces. Even at that time, no objections were received from nearby residences on the opposite side of the street. The only remaining objection, based on the amended application which limits worship numbers and improves on-site parking, related to a concern that there was a non-compliance with the DCP parking rate, and with the potential for illegal street parking, albeit none had been noted since the worshipping numbers had been reduced to 70. The objections to the application are therefore not a basis to refuse the application.

81. The only car parking objective in the DCP is that the parking provided meets the demand for off-street parking to serve the needs of the development. I am satisfied that this objective will be met, in particular outside the peak period of Friday lunchtime but including during that peak period, which is only for one hour per week.

82. In summary, based on the expert evidence available to the Court, I am satisfied that there will be sufficient parking on-site and in the surrounding street network to meet the demands of the development, including during peak periods, without adversely impacting on-street parking, as agreed by the relevant experts.

83. Therefore, I do not consider it is appropriate to refuse the application on the basis of the amount of on-site parking proposed.

84. There were no remaining contentions from the Council in terms of planning issues or impacts on residents or neighbours. The planners agreed that the development met the objectives of the zone including providing services for the local employment area.

85. On this basis, and given that no contentions other than the amount of on-site parking to be provided were raised by the Council or the objector in terms of the amended application, consent is granted to that application in accordance with the agreed conditions of consent.

Orders

86. Accordingly, the Court orders that:

1. The applicant is given leave to rely upon amended plans.

2. The appeal is upheld.

3. Development application No. 479.1/2017 for use of an industrial unit as a place of public workshop and community centre at 54 Orchardleigh Street, Yennora is approved subject to the conditions in Annexure A.

4. The exhibits are returned other than Exhibits A, C and 1.

…………………………..

Jenny Smithson

Commissioner of the Court

Annexure A (244 KB)

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Decision last updated: 07 June 2019