Coptic Orthodox Church v Hornsby Shire Council

[2007] NSWLEC 546

Land and Environment Court

of New South Wales

CITATION:

Coptic Orthodox Church v Hornsby Shire Council [2007] NSWLEC 546

PARTIES:

APPLICANT
Coptic Orthodox Church

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10189 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Section 96 Application :- refusal to amend the existing consent for operating hours of the church, traffic, noise, fencing, car parking,

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan 1994

DATES OF HEARING:

26/06/2007, 27/06/2007 and 28/06/2007

 
DATE OF JUDGMENT: 

30 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannaford Lawyers

RESPONDENT
Mr A. Hudson, solicitor
of Wilshire Webb Staunton Beattie Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

30 August 2007

10189 of 2007 Coptic Orthodox Church v Hornsby Shire Council

JUDGMENT

1 This is a Class 1 Appeal No.10189 of 2007 between the Coptic Orthodox Church and the Hornsby Shire Council in regard to the refusal to amend the existing consent for operating hours of the church at 444 Galston Road, Galston.

2 The church has been operating for some years after approval by Development Consent No. 1021/2003. It is on a 2.024 ha property in amongst other “hobby farm” properties of about the same size. The original approval permitted the extension of the existing house to provide the church auditorium and a room at the rear for Sunday school. Also a carparking area for 17 cars was approved with an overflow area on a grassed paddock for another 15 cars to be used to absorb expected growth of the congregation over a 10 year period and extra cars on special religious days.

3 Apparently the growth in the congregation has been much greater than anticipated and neighbours have counted up to 111 cars parked on the church property, and regularly numbers of 60-70.

4 The hours of operation approved in the original consent were limited by the council in its approval including the maximum number of persons attending to be 80, the neighbours say apparently to conform with rural residential amenity. The neighbours also report activities well beyond the approved times and more than 80 persons on site, especially each Sunday, and at other times during the week.

5 The application proposes a Section 96(2) modification to Development Consent No. 1021/2003 to amend only Condition No. 71 of the consent in relation to the hours of operation of the development.

6 Condition No. 71, as it exists, states:

71. The approved hours of use for the chapel, including earliest arrivals and the latest departures of the congregation attending services, are restricted to the times listed below:

Weekday evenings 7.30pm to 9.30pm
for meetings only
Saturdays 6pm to 8.30pm

Sundays & Public Holidays 8am to 11.30am

Services in the chapel must not commence or finish within 30 minutes of the earliest arrivals and the latest departure times respectively.

7 The proposal is to amend this condition to provide as follows:-

71. The approved hours of use for the chapel, including earliest arrivals and the latest departures of the congregation attending services, are restricted to the times listed below:

1. Weekdays from 8.30AM to 9.30PM
2. Saturdays from 8.30AM to 9.30PM
3. Sundays and Public Holidays from 8.00AM to 6.30PM
4. Midnight Mass on 6th January, Christmas Eve for the Coptic Orthodox Church
5. Midnight Mass on Easter Eve

THE SITE

8 The site is known as Lot 22 DP 239110, No. 444 Galston Road Dural. The site is located on the western side of Galston Road to the north of its intersection with Old Northern Road. 145 metres to the south are the intersection of Carters Road and Galston Road adjacent a bend in Galston Road. The site has a splayed frontage to Galston Road of 71.39 metres and has northern and southern boundaries of approximately 304 and 331 metres, depth respectively.

9 Existing development on the site comprises a single-storey brick/tile dwelling/church set back approximately 150 metres from Galston Road. The building is located part way down a low ridge line. About half of the property has drainage to Galston Road, over an average slope down the site of 5%. The other half of the land drains to the north west towards neighbours. Stormwater from the buildings is currently disposed of on-site, with any overland flows draining to the road or to the rear. Sewer is also via an onsite disposal system.

10 Vehicle access is currently provided from Galston Road via a sealed driveway located on council's road reserve adjacent to the northern boundary of the site. The approved car parking areas are in front of the church between the driveway and the southern boundary. The driveway continues past the house on the northern side to garages at the rear behind the tennis court.

THE LOCALITY

11 The surrounding properties comprise a mix of rural/ residential uses. The streetscape generally includes dwellings and rural structures with relatively large setbacks to boundaries set amongst informal native bushland. There are some non residential uses such as a large plant nursery and garden outlet, and a private school in the rural zone some distance away. Galston village is about 2km away.

STATUTORY CONTROLS

12 The site is zoned Rural BA (Small Holdings - Agricultural Landscapes). The use is defined as a `dwelling' and `place of worship' and is permissible pursuant to Clause 7 of the Hornsby Shire Local Environmental Plan 1994. Clause 7(2) of the LEP requires that the objectives of the zone are to be taken into account before Development Consent is given to the carrying out of development within that zone.

13 The relevant development control plans for the proposal are:-

(a) Rural Lands Development Control Plan,
(b) Community Uses Development Control Plan,
(c) Car Parking Development Control Plan

14 The respondent raises the following issues in this appeal:-

1. NOISE
There will be unreasonable noise impacts on the adjoining neighbours in the use and enjoyment of their properties from the increased activities of the Church.
PARTICULARS
(a) Noise from increased activities of parking; vehicle movements on the land; people getting into and out of vehicles; people congregating, socialising and eating on the land; gala, fete and market days.
(b) Insufficient acoustic information has been submitted to support the application in its current form including:-
i) noise logger position located at the closest residential premises to the proposed development, and
(ii) background noise sampling to be taken at the nearest effected residential property boundary in accordance with EPA's NSW Industrial Noise Policy (2000), Hornsby Shire Council Policy and Guidelines for Noise and Vibration Generating Development (Acoustic Guidelines V.5, 0000) and the DEC's Noise Guide for Local Government (2004).
2. VISUAL IMPACTS AND DESIRED FUTURE CHARACTER OF THE ZONE
The visual impacts of the proposed acoustic fencing. are unreasonable given the rural / non-urban and open character of the land.

PARTICULARS
(a) 1.8m high acoustic fence to be constructed along the entire length of the driveway (Noise &Sound Services Report No. 20855 - May.2006).
(b) 1.8m high and 45m long barrier fence along the subject property's southern boundary (Noise & Sound Services Report No. 20855 Rev.A - October 2006).
(c) No change to existing. landscaping or proposed landscaping is proposed for the fencing.
(d) The performance criteria of the fences and gates element of the Rural Lands Development Control Plan ("the Rural Lands DCP") states. in rural areas, fences should be compatible with the open character of the area.
(e) The prescriptive measures of the fences and gates element of the Rural Lands DCP states where the street has few or no fences, solid fencing should be avoided to maintain the open streetscape appearance and character of the area, and. that high, solid fences constructed as sound barriers should be avoided.

CONTROLS
• Objective (c) of Rural BA (Small Holdings - Agricultural Landscapes) zone.
• Rural Lands DCP and Elements - fences and gates; acoustics and effluent disposal.
• Community Uses Development Control Plan and Elements - acoustics

3. CAPACITY OF EXISTING EFFLUENT DISPOSAL SYSTEM
Insufficient information has been submitted to establish that the operation of and capacity of the existing effluent disposal system is sufficient to cater for the proposed increased activities on the site by the Church.


PARTICULARS
(a) A site capability and system design report outlining the most suitable system for the site must be prepared in accordance with both AS1547 - Onsite Domestic Wastewater Management (2000) and Environment & Health Protection Guidelines - Onsite Sewerage Management- for Single Household (1998)
(b) The performance criteria of the effluent disposal element of the Rural Lands - DCP states effluent and household wastewater should be disposed of in a manner consistent with the land capability of a property.
(c) The prescriptive measures of the effluent disposal element of the Rural Lands DCP states an application for an onsite sewage management facility would need to demonstrate that the disposal of the effluent will occur in a manner that is consistent with the matters for consideration listed in the Division 4 of the Local Government (General) Regulation 2005 .

CONTROLS
Rural Lands DCP and Elements - effluent disposal.

4. CARPARKING
The applicant has withdrawn the request for increased overflow carparking and relies on the existing development consent which provides for parking (bitumen spaces and informal spaces) to cater for a peak number of eighty (80) people on the site. A new condition 67C should be imposed to the effect that all parking on the land must be confined to the approved bitumen carpark area and the approved informal overflow area.

5. PUBLIC SUBMISSIONS
In addition to the above issues objections have been received as follows:-
(a) excessive number of cars parked on the site and in areas outside the approved parking areas,
(b) regular episodes of more than eighty (80) persons on the site,
(c) activities being carried out outside the approved hours,
(d) increased traffic in Galston Road,
(e) change from a small Church to a large Church,
(f) non-compliance with conditions including number of patrons, landscaping, hours of use, lights spillage from the crucifix and driveway lights, and
(g) privacy impacts

15 The respondent’s evidence was heard from:

• Mr P Fryar, town planner for the council.
• Ms S Spencer, sewerage engineer for the council.
• Mr H & Mrs L Vains, objector and neighbouring resident of No.450 Galston Rd, Dural.
• Mrs G J Hart objector and resident of No.446 Galston Rd, Dural
• Mr F I Mackintosh, objector and resident of no.452 Galston Rd, Dural.
• Mr P & Mrs L Clarke objectors of No.5/3 Spurway Dr, Baulkham Hills, previous neighbours and objectors of No.442 Galston Rd Dural.
• Mr L Leoncino, current neighbour and resident of No.442 Galston Rd.
• Mrs E Muller objector and resident of No.460 Galston Rd Dural.
• Mr R Black objector and resident of No.458 Galston Rd Dural

16 The applicant’s evidence was heard from:

• Mr J Toon, consultant town planner.
• Mr A Norris, consultant sewerage engineer.
• Bishop Daniel of the Coptic Orthodox Church in NSW, QLD, NT and Singapore, and Trustee of the Coptic Orthodox Property Trust of NSW, QLD and NT, Australia.

17 A traffic report from consultant Traffix, transport and traffic planners, was tendered but the respondent raised no issue in regard to that, although the objectors had concerns in that regard. The consultant was not called for cross-examination.

18 The parties agreed on a joint expert for the assessment of acoustic impacts, and that the Court should appoint Mr M J Harrison. His report is in Exhibit 3, with a supplementary report in Exhibit A

19 There were written objections from other nearby property owners who did not appear at the hearing.

20 There were a considerable number of letters of support from parishioners who did not appear at the hearing.

21 The church and residence are in the one building situated in about the centre of the allotment. The Vains house is the closest being about 50 m from the church at the closest point.

22 The Vains are separated from the church by the battle-axe driveway to the Harts. The driveway is along the entire southern boundary of the church land, and the entire north boundary of the Vains, a distance of about 330 m each. The Harts house is beyond the driveway so it is at least 200 m from the church and would be the 3rd closest house to the church. .

23 The 2nd closest house to the church is probably the Leoncino’s which is at the rear of their land about 150m away. (see Exhibit 3 the Harrison report)

24 The 4th closest house to the church is probably the Mullers who have a battleaxe allotment adjoining the south side of the Harts. The Mullers house is probably 250m away from the church.

25 The subject property is nearly all pasture except for some boundary trees and some trees near the house. Other properties have some pasture, but more trees, and close to the houses there are landscaped gardens.

26 The church and house have a paved and partly covered terrace at the rear or west side, then a grassed area and then a tennis court located along the southern boundary. Beyond the tennis court to the west are some small storage sheds and garage and then pasture as the land slopes gradually down towards the Harts and the Mullers and the Leoncinos.

27 The rise in the land to the south means that the Vains house is on land about 3 m higher, and the gradual slope continues up to the Mackintosh property that appears to be on top of the rise.

28 The Vains, the subject site and the Leoncino’s have about the same sized lots, and they are long relatively narrow lots. As a result of the 60 m width the houses and church are not as far apart as they might have been if central on square lots of 2 ha each.

29 In the case of the church, being an extension to the house on its south side, it comes to within 4.650m of the south boundary. The church is offset to the boundary and the space between has in it a large air-conditioning plant. I was told that it had been a major source of noise to the Vains, and it was now disused and new air-conditioners are installed on the north side of the church.

30 A lapped and capped 1.8m high timber fence had been erected on the southern boundary adjacent the church and extending along the side of the paved terrace and the grassed area to the tennis court. The ground rises about 0.75-1.0m from the church and paved area up to the fenceline, so it creates an increased acoustic buffer to the Vains.

31 The impacts on the neighbours appear to result mainly from the noises associated with the activities of the outside areas beyond the currently approved hours plus of course the cars coming and going and the related car door slamming and engines starts, acceleration etc.

32 The neighbours said the actual religious ceremonies inside the church are not a problem now the air-conditioning noise has been fixed. After the ceremony, the parishioners remain for some hours for a BBQ in the area behind the church. The greasy smell of the cooking pervades the area especially the Vains, but others complained of it too depending on the wind. The noise of loud conversation and laughing etc has become a disturbance, and the children play in the tennis court that has been converted for use with play equipment as seen during the Hearing.

33 At times, ride-on noisy motorised farm tricycles and quad-bikes have been used for fun rides in the paddock on the rear half of the property, and soccer in the paddock between the car park and the road. But the main nuisance from vehicles is the cars that regularly are much too numerous for the 17 permanent and 15 overflow spaces. The neighbours showed photos and records of cars parked along the driveway, beside and towards the rear of the house between it and the Leoncino’s boundary, and in the paddock between the church and Galston road.

34 In these areas that are not approved for parking, the usual pattern appears from the photos to be 90 degrees or parallel parking off both sides of the driveway that runs along the Leoncino side of the property, and 90 degrees to the southern boundary facing the Vains across the narrow battleaxe driveway of the Harts. Another double row of cars is then able to park between those 3 rows of cars on the front paddock.

35 The parking shown in the photographs has extended down the front paddock from the church towards Galston Rd as far as a telegraph pole on the Hart’s driveway about 65 m from the end of the existing lapped and capped fence near the church. Parking in the north side and at the rear of the house was shown in photos to be 1 – 2 rows of cars adjacent to Leoncino property boundary and extending sometimes to the west side of the tennis court.

36 During the visit to the site inside the church, the respondent counted the seats and submitted that there was capacity for 146 persons, when the approved maximum capacity is 80 persons. It was put that this vindicated the evidence of the objectors on the numbers attending the church services and other activities.

37 The evidence from the applicant was that the ceremony itself takes about 2 hours, so that with time for arrival of assistants beforehand and then the congregation, it fills the approved Sunday time limits of 8am to 11.30pm without any time for associated activity.

38 Part of the Sunday ritual is the fasting of the congregation from the night before. Thus it is the custom of the Coptic Orthodox church everywhere, not just at Galston, for the congregation to stay at the church and break the fast together with a meal, and to socialize with each other. Without that the Sunday services would not conform to the custom.

39 The letters of support from members of the congregation say in summary that the parish serves about 40 families, and the number of cars rarely exceeds 50-60. Part explanation for this regular exceedance of the approved 17 formal and 15 over flow parking capacity, is that members of the same family may bring 2 cars, if they have to depart to different destinations after the service, or if some are not staying for the meal and socializing.

40 They agree that on Easter and on Orthodox Christmas (6th January) there are more people than usual and that accounts for the larger numbers reported, but not at other times.

41 The “overwhelming smell” complained of during the meal preparation, they find difficult to accept as it is claimed to be ordinary Australian BBQ type food and/or sandwiches.

42 The Consideration of Issues in the joint report of the Town Planners, Peter Fryar (PF), for Hornsby Shire Council, and John Toon (JT), for the applicant are:

Issue 1. Noise.
(a) Deferred until Harrison Noise report submitted

Issue 2. Visual Impact of proposed acoustic fencing .
(a) PF and JT agree that a 1.8m high fence along the entire length of the driveway is incompatible with the rural environment and the intentions of the Rural Lands DCP.

(b) It is noted that already a 1.8m high solid timber fence has been erected near the church on the southern boundary.

JT considers this fence to be acceptable because of its close association with existing built elements, namely the tennis court, the converted house-church and the existing 2.0m high hedge adjacent to the fence that screens it on the Harts driveway side.

PF considers this fence to be incompatible with the rural environment and the intentions of the Rural Lands DCP although PF was unaware that the fence had been erected and has not undertaken a site inspection to form a definite opinion in relation to the suitability of the fence.

(c) Should (a) be required for acoustic reasons then JT and PF agree that a berm plus landscape would be a preferred solution. JT notes that there are no dwellings on adjacent properties to the north between the house-church and Galston Road; he does not consider any acoustic treatment is justified in this location, noting that Galston Road is moderately trafficked through each day of the week.

(d) JT and PF agree the fence in (a) would not comply with this issue. JT said the fence in (b) would comply with this issue. PF says (b) does not comply.

(e) PF and JT agree with this issue.
Issue 3. Effluent Disposal.
Neither JT and PF have expertise in this field.

Both PF and JT consider the matter can be dealt with by conditions

Issue 4. Car parking.
PF and JT consider this matter can be dealt with by condition.

Issue 5. Public Submission.
PF states that the public submissions arise out of a more intensive use of the facility than the consent of March 2004 permitted. PF understands that the original Development Application provided a ten year 'Masterplan' for development and use of the land by the church. Already, the church is seeking to expand the operation beyond the 'Masterplan' and have continually operated outside the terms and conditions of the consent.

PF and JT agree the church is used outside the hours granted in the March 2004 consent.

JT states that the reason for seeking the modification to the consent of March 2004 is to enable the various church activities to continue in a manner consistent with a planning consent. JT is of the opinion that the range of activities that take place in the church is no different to what was intended initially. JT notes the unreasonable requirement that the approved hours include earliest arrivals and latest departures within time slots that are the scheduled times of services. The main Sunday morning service is from 10.30am - 11.30 am.

JT states that in the original DA, church elders nominated times of services and did not take into account before service preparations or after service socialising.

The latter is a particularly important social function following the Sunday morning service when 'bread' is taken in a social manner. It is at this time that the children will play games appropriate to their age. To JT’s knowledge this event is likely to cause 'chatting' and 'playing' noise. It is JT’s understanding that this activity would normally extend to about 1.00pm on Sunday.

JT considers the other source of noise to be that associated with vehicles arriving and departing. This is likely to take place outside the hours approved in the March 2004 consent.

PF states that the numbers attending the church are greater than stated in seeking consent and restricted by a condition of consent. JT states that the church elders say that the numbers attending are within the consent.

JT and PF are both aware that a DA has been submitted for a Sunday School and an amenities building, each about 27m long by 11m wide linked together by a central foyer 10m by 9m. JT and PF consider this proposal to be indicative of a higher level of site usage than was possible with the original consent of March 2004.

This proposal sets out times of activities and number of attendees in greater detail. This proposal was refused by council on 1 April 2007.

JT advises that he has been retained to advise on an alternative design and layout that is foreshadowed to be submitted later this year.

JT states that the church seeks approval for extended hours in accordance with the modification of Consent No. 1021/2003 as outlined in the Statement of Basic Facts. JT sees no reason why that approval should be withheld.

43 Bishop Daniel said in Exhibit B, that to complete the Sunday services the breaking of the fast together is important, and by 2pm on Sunday all attendees of the service should be off the property.

44 He noted that the noise report by Mr Harrison showed that with some additional works there should be no unacceptable impacts on the neighbours.

45 He noted one additional day per year of celebration, namely the patron saint of the Galston church. He said however his parishioners dispute the number of 111 cars on site on a day of major celebration put by the objectors. If that was the number, he expected it would have been on the patron saint’s feast day and so it would be only once a year. He supported the contention that while the calculation for carparking spaces by the traffic experts is 2.8 persons per car giving 37 for a congregation of 80; some families brought 2 cars when they are to depart for different places afterwards. So using 2.8 as the multiplier to estimate the number of persons on site can be misleading.

46 Bishop Daniel referred to the illuminated Cross on the church that is one of the issues. I was told that had been resolved between the council and the church by reducing the intensity of the illumination. The Bishop noted that all Christian churches have a traditional Cross, and he found it difficult to understand why an objector said the preferred blue illumination of the Cross would be more appropriate in Kings Cross.

47 His Grace disputed that the church at Galston affected the value of its neighbours’ properties and thought the presence of a church is a positive influence on a community, educating its parishioners in their religion and in being good citizens. He was not called for cross-examination.

48 Mr Harrison the acoustic expert had been agreed by both parties to be their single expert. He had set up acoustic measuring equipment on the site for a period to obtain background noise levels on which to base his calculations.

49 He said in his report in Exhibit 3, that it was based on the given maximum number of 80 persons attending at 2.8 persons per car average. This he estimated would create movements of 45 cars per hour or 10 cars per 15 minutes during the arrival and the departure periods.

50 His report said that taking into account people and cars of the above numbers and the outside activities on a Sunday, and the stated activities during the other days of the week, the noise emissions would not create sleep arousal between 8am- 6.30pm Sunday and 8.30am- 9.30pm other days.

51 Bearing in mind the reported 111 cars and the 146 seats in the chapel, he was asked to calculate the noise emissions for that scenario. He was able to do that overnight and gave oral evidence on the next day of the hearing.

52 He said that 60 cars operating in the front paddock with 30 movements every 15 minutes during arrival/departure phase would generate 50dbA at 30m distance from the Vains’ house, or 40dbA with a 1.8m lapped and capped timber fence using 18mm thick palings and cover-battens. The fence needed to be along the south boundary for the extent of the parked cars.

53 The 30 m setback line from the Vains house is the usual distance for estimation of noise intrusiveness he said, even though this line is about 5 m inside the Vains’ boundary (allowing 10 m for the width of Hart’s driveway).

54 He said 110 cars and their movements would produce 53dbA at 30 m from the Vains’ house or 43 dbA with a similar barrier fence.

55 He said 146 persons socializing in the back yard of the church with normal conversation for such a crowd would generate 49dbA at 30m from the Vains’ house or 42dbA with the existing barrier fence extended down past the tennis court. The backyard is further from the Vains’ house than the carpark.

56 He said for all these noise emissions, 43dbA at 30m from the Vains’ house is the critical level for sleep arousal or nuisance. During the times of day on a Sunday that he nominated, he did not believe the noise would be unreasonable if the barriers were installed.

57 Asked why the neighbours found the current noise unacceptable, he said it could only be because the noise nuisance criteria are based on average sound energy levels over 15 minute periods. Those levels would be exceeded by:

• A child screaming
• Someone calling back to the child
• Someone laughing
• Groups of persons doing the above at the same time.

58 Asked how to reduce those kinds of noise, he said the fence would have to be higher. A height of 2.5m would be needed, and that should give a 15dbA noise reduction. That would reduce noise well below background noise level. Laughing by a group, or a child’s scream would still be heard, as would any instantaneous loud noise, but at a lower level than it would be with a 1.8m fence.

59 The existing fence between the Vains and the church and the back yard would be the one to raise to 2.5m and to extend it west across the back of the tennis court and return it 2m into the property. He had allowed in his calculations for the rise in the ground in recommending 2.5m for the actual fence.

60 He said the closest point of 30 m to the Vains house from the church back yard was only a corner of the house at its western end. So areas further away would have greater separation and therefore less noise from the socializing activities there.

61 In regard to the carpark, he said if 110 cars left over a one (1) hour period the noise level would average 40dbA, but the Vains would still hear a car door slam and an engine start. It would just be less noisy than now.

62 Mr Harrison said the noise criteria of the statutes are adopted on the basis of a theoretical “reasonable person”. Most reasonable persons will hear a noise that is 5dbA above background noise level, but would not find it intrusive. Most reasonable persons would find a noise that is 15 dbA above background to BE intrusive.

63 He held the opinion that with the 1.8m fence in place at the carpark, a car start or a car door slam would be below 15 dbA background and therefore “reasonable”.

64 He agreed that in the country the quietest background noise level can occur around midday. This is due to morning breezes rustling leaves and night-time insects buzzing; these noises are often not present around the middle part of the day. Traffic on Galston Rd also could be greater in morning and afternoon peaks, not at midday. In fact his noise logger showed on this site the background noise average in the middle of the day is 38dbA and at night it is 39 dbA.

65 Mr Harrison agreed that locating his logger behind the church meant his background noise averages would be lower since there would have been some protection from traffic noise. He said this made his calculations on intrusiveness more conservative. Higher background noises would have meant the church site could make more noise before it would calculate as “intrusive”.

66 So for the Vains, this gave an added assurance in regard to the reduction of noises from the socialization. In regard to the carpark noise, any traffic on Galston Road would raise the background noise level there and make carpark activity less audible. Mr Harrison had used the back yard background noise level for all his calculations and that would mean, he said, that carpark activity should be less audible than his figures, and so further reduce noise impacts on the Vains.

67 The sewage experts for each party Mr Norris and Ms Spencer had met and provided a joint report. They agreed that the current aerated wastewater treatment plant could cope with up to 90 persons, but the effluent disposal area was too small at the moment. They agreed on conditions for the enlargement of the disposal irrigation area from 370 sq m to 518 sq m, as there was plenty of room on-site for that. Seven (7) conditions were tendered in Exhibit 5. The applicant accepted the conditions. The sewage experts were not called to give evidence.

68 The planning experts gave oral evidence on the acoustic recommendations for sound barrier fencing.

69 They agreed the 2.5m high fence to the back yard is desireable from an acoustic point of view, and since the existing fence is not noticeable from the road, the extra height would not be noticeable either. This is due to its starting adjacent the church so that building would take any viewer’s attention. The fence would be screened by the church where it would extend past the back yard and past the tennis court, along the boundary to the garage where it would return at right-angle to the boundary 5m to end against the garage.

70 Mr Fryar had an “in principle” objection to the fence being a solid fence as this is contrary to the rural DCP. However, we saw that from the road, even looking down the Hart’s driveway, the existing fence could scarcely be detected. And it had screen vegetation within the Hart’s driveway that softened its appearance from the Vains. The Vains, on their property also had screen vegetation along the Hart’s driveway boundary, presumably to give privacy from cars using the drive. The Hart’s driveway adjacent the tennis court is on higher ground, so the fence height would be acceptable there.

71 As a result, I formed the opinion that the 2.5m height extension to the existing 1.8m fence is acceptable and desireable as an acoustic barrier, together with its extension past the tennis court to the garage as described.

72 Mr Toon and Mr Fryar had looked at the original proposal for an acoustic fence on the property boundary adjacent the carpark, and decided it would be unacceptable visually. They abandoned the earth mound idea.

73 Mr Fryar objected to any solid fences in the rural residential area as the DCP favoured “see-through” qualities to maintain the open landscape appearance. He was taken to the list of other types of uses permissible with consent in the same zone. These included animal boarding and training facilities, child-care centres, community facilities and rural industries. It was put to him that many of them would require at least some solid fencing, and indeed the council DCP on Community Uses required some walls. Also, the rural DCP encouraged the retention of windrows that would resemble solid fencing or hedge rows in the landscape. Further, that in the rural DCP element ”Acoustics”, the DCP acknowledged that noise sources be screened by acoustical treatments including walls to minimise noise for neighbouring dwellings.

74 The final proposal for the carpark acoustic fence is to locate it 2m in from the Hart’s driveway boundary so it is behind the existing line of photinia shrubs planted in the subject site from the church all the way to the Galston Road boundary. The new fence would go only as far as the informal carpark area 65m from the end of the existing fence near the church.

75 The new acoustic fence is proposed as 1.8m lapped and capped timber of 18mm thickness. On the carpark side of the new fence the applicant proposed another continuous row of photinia.

76 Mr Fryar saw some merit in the amended proposal, in view of the provisions of the DCP’s brought to his attention. But, he objected to the photinia as he noted the same shrubs beside the existing fence, being mature and on the south side of the fence did not have much vegetation at lower levels.

77 The applicant amended the planting schedule to include ground cover and screen shrubs from a list nominated by council together with irrigation and replacement conditions, in order to ensure the screen would look like a hedgerow, and the fence would be concealed from both sides.

78 The fence would end about 60m from Galston Rd, so it would not be obvious to passers-by once the vegetation grew.

79 Mr Fryar agreed the existing church had consent and the fence and landscaping would reduce impacts of the extended hours on neighbours and the landscape. But he added if the church operated in accordance with its existing consent, it would “fit in” without extra works.

80 He thought the extension of the hours of operation would make its impact unacceptable on the neighbours. He noted the church appeared almost never to have operated within its consent conditions, so he had concerns about legitimising any extra hours.

81 It was put to him churches did not usually have restrictions on hours of operation. He agreed, but said most of them are quite old, and no restrictions would have been imposed back then. More recent consents that he had dealt with, including associated youth centres, church halls, etc did have restrictions.

82 He agreed that typical functions of a “place of public worship” are: a wedding, a christening, a funeral, a Sunday school, church administration meetings, counseling of church members, confessional sessions and even casual visits by church members to the clergy who live on site. The currently approved hours of operation would not allow many of those activities.

83 In reply he was asked why the council had placed such restrictions on the church. He said the council was concerned at the potential impacts and had requested additional information on functional requirements from the church. The church had nominated the approved times and numbers of persons and carparking requirements.

84 The council had asked for and received a 10 Year Plan from the church and it had nominated 80 persons and a 17 car carpark with a 15 car overflow area as sufficient, together with the times for functions. The council had approved what was asked but was conscious of the need to preserve rural residential amenity in the future by limiting the church to that. There was no mention in the 10 Year Plan of a nursing home, a retirement village or a school, and yet the church did lodge a DA earlier this year for a 6-classroom facility with large hall and a function room, a library, kitchen, toilets and a large verandah-foyer. It had been refused by council.

85 Mr Toon had referred to the latter DA in a joint report and said that he was currently working on an amended scheme for a fresh DA.

86 Mr Fryar said there had been no new 10 Year Plan submitted, so the council had a real concern that there is no plan, and therefore no ability of the council to understand future demands and impacts. On the basis of the existing 10 Year Plan, the church had exceeded its stated limits almost from the beginning. So the council had little choice but to say no to any legitimising of the non-compliances until it had an understanding of the future. In a technical sense the church operations had exceeded the capability of the site to maintain the reasonable rural amenity of and compatibility with its neighbours, and to maintain the rural landscape objectives of the statutes and controls.

87 It was put to him that having 146 seats in the church did not mean a breach of the 80 seat condition. Mr Fryar said the council inspections in Exhibit 15 had confirmed on seven different occasions between 33 and 130 cars on site. The limit is 32. On three of the occasions there were 80 cars or more and even if most had only one occupant that exceeds 80 in the church. Also the officer observed cars typically had 2 to 4 persons in them. Most of these inspections showed operations outside the approved hours.

Conclusions

88 In regard to alleged breaches of the existing consent it is part of the structure of the Court that such matters are dealt with through Class 4 proceedings, whereas this appeal is brought under Class 1.

89 To the layman it may seem trite to say that alleged breaches cannot be found or prosecuted in Class 1, but perhaps it makes the position clearer to say that I am dealing with the actual consent document and proposed amendments to it, not alleged operational non-compliances on the site. The council, if it sees fit will have to take separate action on those matters.

90 In coming to a conclusion I take note of the fact that the applicant has not amended its 10 Year Plan, and does not seek to increase the numbers of persons attending church services beyond the 80 approved. Therefore I presume the church and its parishioners intend to comply with those conditions, because any further breaches may be actionable.

91 The applicant submitted that the original application responded to the council’s inquiries about times for religious services in a naïve way, and therefore did not include times for the other normal functions of a church.

92 One could say the council might be expected to anticipate the need for times for funerals, marriages, baptisms, confessional sessions etc, and having no mention of them, ask for additional information.

93 It is clear that the approved times allowed in the original consent would not permit reasonable periods for the normal religious rituals. Even the Sunday service has only a long enough period for the actual service, not the arrivals before, the customary breaking of the fast, socialising and departures that are not unusual expectations in many religions. The funeral held on a Monday with 50 cars on site recorded at 2pm was out of approved hours said Mr Fryar. It is not reasonable that a funeral at a place of public worship, on a weekday, around the middle of the day should be placed in such an invidious position. I make no comment about the 50 cars, the conditions of consent are clear on that.

94 It is reasonable for the neighbours to have what Mr Harrison says is a “reasonable” acoustic environment for the enjoyment of their rural residential zone. His calculations for the carpark acoustic barrier fence and the backyard acoustic barrier fence show that there will be no exceedence of applicable noise criteria. This does not mean the neighbours will hear nothing of the church functions and the cars coming and going that are carried out in accordance with approved conditions, but it does mean the noise environment will be “reasonable” and not reach the criterion level for “intrusiveness”.

95 A reading of the rural and the community facilities development control plans shows that walls are an expected means of noise attenuation provided they are built in a way to conform with the rural landscape objectives. It is my conclusion that the final options for the backyard fence to be raised and extended, and the carpark fence to be extended and set back from the southern boundary and landscaped both sides will maintain the rural landscape objectives and give the noise attenuation for the neighbours said by Mr Harrison to be “reasonable”.

96 The extension of hours of operation of the church and the fuller knowledge of its rituals and customs requires such measures to be completed BEFORE the extended hours come into operation. A period of 60 days to construct the works is allowed. If completed before that time the new hours can commence.

97 The respondent posed a draft condition to require a church official to stand at the gate on Sundays and during other ceremonies to count cars and persons and stop overflow situations occurring. That is a matter for the church clergy and officials to determine on how to maintain compliance with conditions of consent. If they do not maintain compliance then the government authority has its options.

98 The parties conferred on another set of draft conditions filed on 6 July 2007. Subject to the addition of the sewage disposal and treatment conditions agreed by the engineers, and amendments to conform with this judgment, I see nothing sufficient for refusal of the s96 amendment application.

99 Therefore the Orders of the Court are:

1. The appeal is upheld.

2. The s96 application to amend the development consent No. 1021/2003 issued by Hornsby Shire Council in regard to a church at 444 Galston Rd, Galston is granted as set out in the conditions in Annexure A including “the Plan referred to in condition 48A” attached hereto.

3. The exhibits are returned to the parties except Exhibits 3, 4, 5, 16, A, B, D.

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A.K/ljr