City of West Torrens v St Mary & Anba Bishoy Coptic Orthodox Church
[2007] SASC 223
•21 June 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
CITY OF WEST TORRENS v ST MARY & ANBA BISHOY COPTIC ORTHODOX CHURCH
[2007] SASC 223
Judgment of The Honourable Justice Debelle
21 June 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
Application for development consent – construction of church hall and car parking – whether Commissioner erred in consideration of the nature and bulk of proposed building – whether Commissioner correctly characterised the intended land use – whether car parking was adequate – appeal dismissed.
Coulton v Holcombe (1986) 162 CLR 1; Uniting Church v City of Happy Valley and Gilbert (ERDC No.446 of 1996); University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Water Board v Moustakas (1988) 180 CLR 491, applied.
Chyswick Pty Ltd v Kingston District Council (2003) 128 LGERA 266; McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539, not followed.
Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165; Liemal v Adelaide City Council (2007) 246 LSJS 467; Potter v City of Holdfast Bay (2005) 142 LGERA 39, considered.
CITY OF WEST TORRENS v ST MARY & ANBA BISHOY COPTIC ORTHODOX CHURCH
[2007] SASC 223Land and Valuation Division
DEBELLE J: This is an appeal from a decision of a Commissioner of the Environment Resources and Development Court.
For a number of decades before 1982 a church has stood in Goldfinch Avenue, Cowandilla and has been used for worship. In November 1982, the Coptic Community of Adelaide purchased the site and established the St Mary and Bishoy Coptic Orthodox Church.
The church building is of single storey construction. Behind it, there is a single storey hall which is used as a youth centre. The Coptic Community also owns other land in the neighbourhood including dwellings on two allotments immediately to the south of the allotment on which the church stands. The allotment closest to the church is used for administrative purposes. The Community uses the buildings for a mixture of church related uses including regular services, religious instruction and meetings. There is no provision for car parking for the church or any of the uses associated with it. The only area for car parking is at the kerbside in Goldfinch Avenue and nearby streets.
The Coptic Community seeks to redevelop its land. It applied to the City of West Torrens ("the Council") for development consent to demolish the two dwellings on the two allotments south of the church and to construct in their place a two storey building larger than the church and an area for car parking for 37 cars. The proposal includes new paving, landscaping and fencing. The height of the new building will be 8.5m to the ridge line. A dome is to be constructed on the new building. The top of the dome will be 10.5m above ground level. The new building will be used for a number of purposes including meeting and assembly rooms, Sunday school activities, classrooms, library and administration. It will have kitchen facilities. The upper floor comprises a hall with a stage and will be used as a function hall for church functions, weddings, christenings and funerals. Those activities are already conducted in the Community's existing buildings and in a marquee erected on the site. The Community believes the facilities are of an unacceptable standard and seek to replace them. The existing single storey church building and youth centre behind it will remain and will continue to be used for church purposes.
The Community does not intend to hire the facilities out to the public. They are intended solely for the use by the Coptic Community.
The Council refused the application for development consent. The Community appealed to the Environment, Resources and Development Court (“the Environment Court”). A Commissioner of the Environment Court allowed the appeal and granted development consent subject to 18 conditions. The Council appeals to this court against that decision.
The Locality
The planning experts essentially agreed on the area of the relevant locality. It is an area extending north from the junction of Sir Donald Bradman Drive and Goldfinch Avenue to Hounslow Avenue and bounded on the east by Bagot Avenue and on the west by Wilson Street. Goldfinch Avenue is predominately residential in character. At the western extreme of the locality is Flora MacDonald Lodge, a two-storey mansion now used as a large nursing home. It is visible from the subject land. Beyond Goldfinch Avenue, the locality is dominated by the Hilton Shopping Centre, the administration centre for the Council, and a range of commercial and retail developments along Sir Donald Bradman Drive.
A Residential Zone
The subject land is located in a large Residential Zone for which the Council's Development Plan prescribes certain Objectives and Principles of Development Control. The Residential Zone is divided into eight Policy Areas. Each of those Policy Areas has its own character statement and Principles of Development Control which take precedence over the provisions for the Residential Zone and the Council-wide provisions: see the introduction to the Objectives and Principles in the Residential Zone. The subject land is located in Policy Area 39.
The Objectives for the Residential Zone provide that a variety of types of dwellings are permissible in the area with a predominance of medium density residential accommodation in certain places. The Objectives are in these terms:
Objective 1: Safe, pleasant, convenient and distinctive living environment for all residents provided by a range of housing together with local Community facilities that complement the living environment.
Objective 2: A zone primarily accommodating dwellings of various types at low to medium densities and one to two storeys in height.
Objective 3: A predominance of medium density residential accommodation in areas in close proximity to:
(a)neighbourhood or district centres or nodes of activity;
(b)public transport stops and routes; or
(c)areas of public open space.
The Principles of Development Control allow two-storey residential flat buildings in Residential Policy Area 39: see Principle 6. The following Principles also relate to non-residential development:
Principle 7: Non-residential development of a local Community nature such as small shops under 250 square metres, health and welfare services, child care facilities, primary and secondary schools, recreation, open space and similar facilities may be developed within the zone provided that they are of a nature and scale that serves a local function only and do not detrimentally affect the character and amenity of the locality by way of emissions, traffic generation and other impacts.
Principle 8: The scale, bulk and design of non-residential development should be sensitive to the desired future character of the surrounding residential environment.
Principle 9: Landscaping of non-residential development should be of a high standard and should be used, where practicable, to provide continually with residential streetscapes.
Principle 13: The street, building and landscape design should maintain or enhance streetscapes and neighbourhood character in existing areas, or establish attractive and appropriate streetscapes in new areas.
Principle 14: The streetscape should reflect the functions and characteristics of the street type in the traffic movement network and be designed to encourage pedestrian access and to support or establish a sense of place and street identity.
The proposed development is neither a complying nor non-complying development.
The character statement for the Residential Policy Area 39 provides:
Residential Policy Area 39
Policy Area 39 should continue to develop as a residential area of medium density and infill development. Development will be in keeping with the existing character of the area with buildings that maintain the traditional character through a variety of designs. Appropriately designed modern interpretations of the existing residential character, such as post World War Two and 1950s Tudor style housing, will be encouraged where suitable.
That character statement is supplemented by two Principles of Development Control. The first requires development to be consistent with the character statement. The second provides that dwellings should conform with prescribed site areas and dimensions.
A Local Community Facility
Objective 1 and Principle 7 for the Residential Zone states that non-residential development in the form of local community facilities may be permitted. Notwithstanding that the Coptic Church did not serve a local community in the strict sense, the Council stated in the Environment Court that it was willing to accept that the relatively small congregation of the Coptic Community rendered it similar in nature to a local community facility.
The Council's Concerns
The Council’s concern in the Environment Court concerned three aspects of the proposed development. The first was the scale and bulk of the proposed building. The Council contended that the height, bulk and scale were greater than any existing development in Goldfinch Avenue including the existing church, that it was not conducive to the desired character for the Policy Area, and that it was contrary to Principles 7 and 8 of the Residential Zone. The Council’s second concern was the adverse effect of the movement of vehicular traffic along Goldfinch Avenue to gain access to the car park. The Council’s third concern was that the car parking was inadequate particularly if the building were to change hands. In that event, it said, the hall might be used for activities not related to the church and be used more regularly by large groups with the consequence that the proposed car parking was entirely inadequate.
The Commissioner’s Decision
The Commissioner decided that, when considering the bulk and scale of the proposed building, regard should be had to the existing church building, albeit that the proposed building was wider and higher than the church. It was not, however, as deep as the church and youth centre behind the church. He believed that the greater height and bulk of the proposed building will be ameliorated by the fact that it is to be substantially set back from Goldfinch Avenue and to a greater distance than the existing church. In his view the bulk of the building was ameliorated also by the extensive fenestration in the building and the articulation of the western elevation and the southern elevation of the ground floor. He concluded that, on balance, the proposal was sufficiently in sympathy with nearby development to satisfy the relevant provisions of the Development Plan including Principle 1 for Policy Area 39 and Principles 7 and 8 for the Residential Zone.
When considering the nature of the land use, the Commissioner decided that the proposal represented a continuation of the existing use by the Coptic Community rather than an intensification of that use.
On the issue of car parking he concluded that, because the activities on the subject land were to be restricted to those presently undertaken by the Coptic Community, the number of vehicles associated with the church and activities and functions associated with the church was unlikely to change to any great extent. The provision of 37 on-site car parks would, therefore, reduce reliance on kerbside parking in the locality. After noting other issues such as the proposed landscaping, the Commissioner allowed the appeal.
The Grounds of Appeal
In this Court, the Council essentially relied on three grounds of appeal, namely,
1the Commissioner had erred in his consideration of the nature and bulk of the proposed building;
2that the Commissioner had failed to deal correctly with the characterisation of the intended land use; and
3that the Commissioner had failed to deal correctly with the question whether the car parking was adequate.
Underlying the submissions was the contention that the Commissioner had failed correctly to apply the Development Plan, had omitted to refer to some provisions of the Development Plan, and had undue regard to what was already on the site.
Scale and Bulk
The following is a summary of the evidence on the question of the scale and bulk of the proposed building. Mr Burns, a town planner called by the Council, expressed the view that the scale of the proposed building was well in excess of the existing church and other buildings in the locality. He said that no attempt had been made to make the building compatible with the existing and desired character of the Policy Area so that it was in conflict with Principle 1 of the Policy Area and Principle 8 of the Residential Zone as well as some other Council-wide Principles to like effect. In his view, the proposal would be more appropriately located in a Centre Zone.
Two persons who resided in Goldfinch Avenue and a third who resided in Bagot Avenue at the rear of the subject land expressed their concerns about the bulk and height of the building. The two residents in Goldfinch Avenue also stated that it would be desirable that access to the car park should be gained by means of an allotment owned by the Community with a frontage to Bagot Avenue.
Mr Holmes was the planner called by the Coptic Community. In his opinion, the bulk and scale of the building were not excessive given that two-storey development was contemplated in the zone for such developments as medium density residential flat buildings, offices, child care centres and schools. He pointed to the fact that the building had substantial setbacks on all its boundaries and to the fact that the existing church building with the dome provided a gradation in scale from the residential development to the north.
Mr Roder, who appeared for the Council, submitted that the proposed building was so large that it was incompatible with the residential nature of the locality and should have been refused on that ground. He submitted that the Commissioner had failed to address the correct questions when considering the issue of the scale and bulk of the building and had failed to address the issues in Principle 8.
The Commissioner began his consideration of the issue by referring (at paragraph 49 of his reasons) to the following passage in the decision of the Environment Court in Uniting Church v City of Happy Valley and Gilbert (ERDC No. 446 of 1996):
We agree ….that the overall height of the proposed auditorium and the roof form proposed therefor find no parallel in any of the residential development within the locality. However, to say that the proposed building does not resemble nearby dwellings is to say no more than that it is not a residential use of land. It is unlikely that forms of development, such as churches or schools, which serve a neighbourhood or wider residential area, will be of a scale or form comparable to that of the residential development nearby, albeit that their materials, colours, form and siting should be in sympathy with that development.
The Commissioner continued:
50. The fact that the bulk and scale of the subject proposal differs significantly from surrounding residential development does not, in the context of the view expressed by the Court in Uniting Church, constitute a basis upon which a conclusion can be arrived that the residential amenity of the locality will be adversely affected.
51. Are the materials, colours, form and siting of the proposed development in sympathy with nearby residential development?
52. The context within which the proposed development is to take place includes the existing church building, which is a substantial structure, albeit not as large as the proposed hall. It is set substantially further away from the northern, western and eastern boundaries of the subject site than is the existing church building, and is also set back more than 7.0m from the latter. The width of the proposed building, at 18.6m, is some 5.5m greater than that of the existing church (13.1m) and its depth considerably less than the combined depth of the church and hall to its rear. Proposed materials, colours, and dome elements create an architectural idiom similar to the existing church, albeit incorporating much better detailing.
53. The roof and parapet height of the proposal is some 2.5m greater than the ridge height of the church, and the top of the dome about 2.7m higher than that atop the tower on the church building. However, the greater height and bulk of the proposal will, in my assessment, be ameliorated by its substantial setback from Goldfinch Avenue, relative to the existing church, by the extensive fenestration, and by the articulation of the western and ground floor southern elevations.
54. Having regard to all the evidence, to the views expressed by this Court in Uniting Church v City of Happy Valley, to what I observed on the view and to the context established by existing development in the locality, I am satisfied that, on balance, the proposal’s materials, colours, form and siting are sufficiently in sympathy with nearby development to satisfy the relevant provisions of the Development Plan, including Policy Area 39 Principle 1, and Zone Principles 7 and 8. While Mr Burns was of the view that the proposal conflicted with Council Wide Principles 73, 75 and 79, I am not persuaded these provisions are relevant inasmuch as they appear under the heading ‘Residential Development’. In any event, the matters called up under these headings are generally covered by Zone Principles 7 and 8.
Mr Roder submitted that the reasoning in Uniting Church was erroneous so that the Commissioner had erred in relying on it. He also submitted that the Commissioner had been distracted by the factors of materials, colours, form and siting instead of addressing the issue of scale and bulk. I do not agree. When the Commissioner’s reasons on this issue are read as a whole, it is apparent that he has correctly addressed the issue of scale and bulk.
The passage from Uniting Church quoted by the Commissioner does no more than state the fact that it is unlikely that buildings such as churches or schools will resemble neighbouring dwellings. That is a consequence of their intended function. The passage does not prescribe criteria by which to determine the issue of scale and bulk. The reference to materials, colours, form and siting is a reference only to the need for those factors to be sympathetic with neighbouring developments. It is clearly implicit in the passage quoted that, if they are not, it is unlikely that development consent would be granted. In the paragraph following the quoted extract, the Environment Court went on to determine that the proposal was of a scale that would "achieve a degree of harmony with surrounding development". I do not think that the Commissioner has incorrectly applied the reasoning in Uniting Church.
When determining the question of scale and bulk, it is necessary for a planning authority first to make an assessment of the extent of the scale and bulk of the proposed building. In discharging that task it will make an assessment of the scale and bulk of the proposed building and then compare it with the nature of existing development in the locality and the overall scale and bulk of that development. The planning authority must have regard to the character and amenity of the area and to the relevant provisions of the Development Plan and determine whether, given the scale and bulk of the proposal, it merits development consent. On occasions the proposed building might be so large that it must be refused. On other occasions, there might be aspects of the proposed development which compensate for its bulk. An obvious example is a large building separated from other development by open space and trees.
The Commissioner’s reasons in the present case show that he was aware of the bulk of the proposed building. In paragraphs 52 and 53 he refers to the objective features of that bulk, at the same time noting features which compensate for it such as the siting of the building and its set back, and comparing the proposed building with the existing church and youth centre. He has had regard also to architectural features of the building. The terms in which the Commissioner has expressed his conclusion in paragraph 54 suggest that the issues might have been finally balanced but he has found that they are weighed in favour of the proposed development. I am satisfied that the Commissioner has correctly addressed the issues and has had regard to all relevant factors when considering the scale and bulk of the proposal. No error in his approach to these issues has been demonstrated.
Mr Roder pointed to the terms of paragraphs 50 to 51 and submitted that the Commissioner had focussed on those issues and had ignored the question whether the building was so bulky that development consent should be refused. I do not agree. It is apparent from the Commissioner’s reasons, when read as a whole and in particular paragraphs 52 and 53, that the Commissioner has acknowledged the bulk of the building. He has had regard to the factors in paragraph 51 for the purpose of considering whether they are sufficient to offset the bulk of the building.
As the Commissioner has correctly approached the question of scale and bulk, it follows that his decision that the proposal satisfies the Development Plan is quintessentially a planning decision made after weighing relevant factors. As this court has repeatedly said, it will not substitute its planning opinion for that of the Environment Court. It will not set aside a decision of that court unless it is satisfied that the Environment Court has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional: Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 173; Potter v City of Holdfast Bay (2005) 142 LGERA 39 at [45], [79]; Liemal v Adelaide City Council (2007) 246 LSJS 467 at [41].
Clearly, the proposed building will be large. However, it is not the only two-storey building in the locality. Reasonable minds may reasonably differ on the question whether it is so large by reason of its bulk and scale that it is so out of character with the residential development in the locality that development consent should be refused. That proposition only serves to emphasise that this is an issue of planning principle with which this court should not interfere. For these reasons, this ground of appeal fails.
Land Use
The second issue on which the Council relies turns on the terms of paragraph 47 of the Commissioner’s reasons in which the Commissioner identified the land use as a continuation of the existing land use and not an intensification of it. Paragraph 47 reads:
The church is a long-established use in the locality, and the development proposed is directed towards a continuation rather than an expansion or intensification of that use, albeit more spacious accommodation for existing activities is proposed. In land use terms, I find that the subject proposal constitutes a continuation of an existing use, and therefore satisfies the relevant land use provisions of the Development Plan, including Zone Principle 7. Concerns expressed regarding intensification of activities on the site resulting from the facility being hired out for non-church activities can be addressed by imposition of an appropriate condition, something the Appellants have advised they are willing to abide.
Mr Roder submitted that the Commissioner had erred in this conclusion. The proposed land use, he said, was more correctly identified as an expansion and intensification of the existing use. He submitted that it was unreasonable to expect that a modern hall of this size was not going to be extensively used.
Mr Malak is a member of the Development Committee of the Coptic Church and is the project manager for the intended development. He gave evidence of the extent to which the Coptic Community uses the site. His evidence was that the proposed hall will cater only for the needs of the Coptic Community. It will not be hired out to the public or to persons not associated with the Community.
The Coptic Community has a membership of some 96 families representing approximately 295 people. The maximum attendance at church services has been 250 people. Most services are attended by 150 persons or fewer. The Community does not propose to change the manner in which the church currently conducts its activities on the subject land. The church has experienced a decline in its congregation. Since 1995 there has been a reduction of 32 families.
Mr Malak's evidence as to the use of the site by the Coptic Church was that, apart from regular weekly services, the Community has weekly gatherings for tea or coffee after their Sunday mass, annual celebrations of the Coptic Christmas, Easter, Coptic New Year, as well as an occasional wedding, engagement party, baptism and a wake after a funeral. The average attendance for the Sunday mass was about 150 persons.
Occasions on which more than 100 to 150 persons would be likely to attend are relatively few. They are limited to the major church festivals, Easter, Christmas, the Coptic New Year, and a festival on 11 September in each year and the celebration of Good Friday. In addition, the numbers attending a baptism, engagement party, wedding and funeral might be as many as 200-250 persons. In the past five years, there has been one wedding, three engagement parties, and five baptisms as well as two funerals. Mr Malak was not cross-examined on that summary or on the question whether the number of functions might increase given that the new hall would be a substantially more attractive venue for functions than the existing marquee and other facilities. The effect of the evidence of Mr Malak shows that on average there are two occasions in each year when the premises are used for functions.
There are five major religious services at which more than 150 persons attend. They are the festivals of Easter, Christmas, the Coptic New Year and a festival on 11 September in each year as well as the commemoration of Good Friday. If those five occasions are added to the average of two other functions in each year, the position is that more than 150 persons will attend this site on no more than about seven occasions in each year.
The evidence was that the Coptic Community currently holds its functions and activities in the church building, in an adjoining dwelling and in a marquee at the rear of that dwelling. The new building will plainly be an improved and more attractive facility. As already noted, the Community intends to use the new building only for its own purposes. The Coptic Community does not tolerate the provision of alcohol at any of its functions and allows only background music at social functions. It does not permit bands to play at its functions. It stated its intention to submit to a condition that it would not hire the hall to persons not members of the Community and the Commissioner has imposed a condition to that effect. It does not propose to hold any additional functions. Thus, the effect of the evidence is that the Community is rehousing its existing functions. It is transferring its functions and its activities from the administrative building and marquee to the new building. In short, the Community is continuing its activities as before but in a new venue.
Given that the Community is intending to conduct its activities in a new venue, it is a continuation of the existing use. It might be said that it is an intensification of the existing use in that the new premises replace other unattractive and inadequate premises and allow for greater numbers to attend. However, the question whether it is a continuation or an intensification of an existing use is not material to the question the Commissioner was deciding which was whether the proposal fell within Principle 7 of the Principles of Development Control for the Residential Zone which requires that the proposal “not detrimentally affect the character and amenity of the locality by way of emissions, traffic generation and other impacts”. The Commissioner was concerned to examine how the premises were to be used and the effects on the character and amenity of the locality of that use. The resolution of that issue does not turn on whether the intended use is more accurately described as a continuation or an intensification of the existing use. Instead, it turns on how the proposed development will be used. The Commissioner has accepted the evidence led on behalf of the Coptic Community on that question. That evidence was not challenged. The basis upon which the Council expresses its concern is grounded on a possible transfer of the site and the buildings upon it to a person other than the Coptic Community. The Commissioner has concluded that that concern can be addressed by an appropriate condition. It has not been demonstrated that he was wrong in doing so. While it is possible that the land could change hands, it is not likely to do so at least in the foreseeable future. If the Church changes hands and the new owner seeks to use the hall more frequently than the condition permits, the new owner will in all likelihood have to provide additional car parking.
This ground of appeal therefore fails.
Car Parking
Mr Roder’s final contention was that the car parking provided by this development was wholly inadequate. In support of that contention he submitted that the Commissioner had failed to give effect to the evidence from the traffic experts, had misunderstood the effect of that evidence and had failed to address Principles 25 and 27 of the Council-wide Principles of Development Control.
The issue of car parking must also be considered against the proposed use of the hall and the fact that the Coptic Community intends to continue to use it in the same way as hitherto.
The evidence of the traffic experts concerning the hall was not markedly divergent. Both noted that at present there was a complete absence of any car parking. Mr Weaver, who was called by the Council, expressed a concern that, when used to capacity, the hall would generate a demand for car parking for up to 100 vehicles of which only 37 could be accommodated on the site. He was aware that the Coptic Community did not intend to hire the hall out to the public. Mr Weaver expressed a concern as to the use of the hall should the Coptic Community leave this site, although he acknowledged that was unlikely. In his prepared statement he said:
I therefore do not support the proposed development unless considerations are included in any planning consent which limit future activities to those currently occurring on site.
The word "considerations" is plainly intended to be "conditions". The Commissioner said in his reasons that Mr Weaver "was unable to support the proposal unless conditions were attached to any planning consent limiting future activities to those presently occurring on the site". That statement fairly represents the effect of the evidence of Mr Weaver.
Mr Foley was the traffic engineer called by the Coptic Community. He reviewed the demand for car parking, noting the few occasions in each year when the peak demand for car parking occurred. His statement emphasised that 37 car parking spaces would improve the existing position in which none were provided. His only comment on the demand created by the hall was:
Similarly for the large functions (celebrations held at the Church) provision of parking on the site will reduce the extent of on-street parking.
He was not cross-examined on that statement. He was not asked whether he believed that the car parking provided for the hall was adequate. He was not asked whether he believed the new hall would lead to more occasions with a high demand for car parking. Mr Foley's evidence was clearly founded on the fact that the Coptic Community did not intend to use its land for any activity different from its existing activities.
It was in that state of the evidence that the Commissioner reached this conclusion:
Both traffic experts who gave evidence concluded that the proposal, if implemented, would result in an improvement in traffic conditions in the locality and a reduction in kerbside parking associated with church activities, the key difference between their opinions being that Mr Weaver's support for the proposal was contingent upon future activities being confined to those presently occurring on the site. Inasmuch as the Appellant, through Mr Malak, has indicated its willingness to abide a condition confining the use of the subject premises to church activities only, there is common ground between the experts as to the proposal's acceptability on traffic and parking grounds.
After referring to the question whether vehicular access should be provide from Bagot Avenue and to some features of the design of the car park, the Commissioner continued:
Inasmuch as the activities on the subject land are restricted to those presently undertaken by the church, the number of vehicles associated with the church and circulating in the locality is unlikely to change to any great extent, and the provision of 37 on site car parks will, on the evidence, reduce reliance on kerbside parking in the locality.
That conclusion accords with the evidence. I reject Mr Roder's argument that the Commissioner has failed to give effect to the evidence from the traffic expert or has misunderstood the effect of that evidence.
The Council's case in the Environment Court was that, while a car park for 37 cars improved the provision of car parking it was insufficient. The Council did not make any particular submission as to the demand created by the hall or examine whether the new hall would lead to increased usage by members of the Coptic Community. Given the evidence of Mr Malak and the concession made by Mr Weaver, it would have been difficult to do so.
In support of his argument that the provision for car parking was inadequate, Mr Roder submitted that it was unrealistic to expect that the new hall would not be more extensively used. There is no basis in the evidence for that submission, especially given that the evidence was that the Coptic Community will not hire the hall out to the public. That evidence is reinforced by the condition of the grant of development consent by the Commissioner limiting the use of the hall to the Community.
Mr Roder relied on Principles 25 and 27 of the Council-wide provisions in the Council's Development Plan. Principle 25 provides that the development should provide on site car parking to accommodate all vehicles which are expected to visit this site. Principle 27 deals with the issue of sharing car parking with adjoining developments. The Council did not refer to those principles in the Environment Court. There are facts to be examined which bear on those issues, particularly as the extent to which the use of the land might result in a greater number of functions on the site than hitherto. Another issue is whether it is reasonable to require the Coptic Community to provide car parking to cater for 250 persons attending the hall when that demand is limited to some seven occasions in each year. It was implicit in the evidence of both Mr Weaver and Mr Foley that it was not. Regard must be had also to the fact that there is no off-street car parking at present and the proposal improves that position.
A party is bound by the conduct of its case and is not, except in the most exceptional circumstances, to be permitted to raise a new argument which, whether deliberately or by inadvertence, it has failed to put during the hearing: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483: Coulton v Holcombe (1986) 162 CLR 1 at 7 to 8; Water Board v Moustakas (1988) 180 CLR 491 at 497. There is no basis for departing from that principle in this case especially as the issues as to car parking now raised turn on questions of fact which were not explored in the evidence.
Mr Roder relied on the decisions in Chyswick Pty Ltd v Kingston District Council (2003) 128 LGERA 266 and McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539 but the circumstances in each are altogether different. Those decisions do not assist the resolution of the issues in this appeal.
Whatever force there is in the Council's concerns at the inadequacy of car parking, it must be recognised that the intended use of the land will be in the same form and to the same extent as hitherto and the proposed development represents an improvement on the existing situation in respect of car parking. There is also a real question whether it is reasonable to require the Coptic Community to provide car parking for a demand which occurs on about seven occasions in each year. The proposed development is quite different from a development such as an hotel or shopping centre where there will be high demand for car parking for most days in each week. The inescapable fact is that there is no provision for car parking at present. The evidence was that the Church was going to conduct the same activities as it has to date but in new and improved facilities which will provide additional car parking for 37 cars.
For these reasons, this ground of appeal also fails.
Conclusion
The Council has failed on each of its grounds of appeal. I therefore dismiss the appeal
0
7
0