Dong v Canterbury City Council

[2008] NSWLEC 1517

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Dong v Canterbury City Council [2008] NSWLEC 1517

PARTIES:
APPLICANT
Judy Dong

RESPONDENT
Canterbury City Council

FILE NUMBER(S):
10860 of 2008

CATCHWORDS:
Appeal :- refusal of consent for a religious bookshop and a place of public worship, fire safety, traffic and parking, numbers of worshippers and provision of sanitary amenities.

LEGISLATION CITED:
Environmental Planning and Assessment Regulations (2000)

CORAM:
Hoffman C

DATES OF HEARING:
10/12/2008

EX TEMPORE DATE:
10 December 2008

LEGAL REPRESENTATIVES

APPLICANT
Ms J. Dong, litigant in person

RESPONDENT
Mr D. Baird, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

10 December 2008

10860 of 2008     Judy Dong v Canterbury City Council

JUDGMENT

1. This is a Class 1 Appeal No 10860 of 2008 between Judy Dong and Canterbury City Council in relation to the refusal of consent for a religious bookshop and a place of public worship on the first floor of premises at 229 Beamish Street, Campsie. 

1. The premises has another shop selling frozen seafood on the ground floor.  The upper floor was approved in 1993 for conversion from a dwelling to offices.  The partitions from the office are in place on the first floor and are to be used for the proposal.  The plans submitted are rudimentary single-line drawings that show an existing solicitor’s office in the front section of the first floor that will remain, and the subject premises behind. 

1. The subject premises comprise a bookshop of about 60 square metres area and the place of public worship totalling about 228 square metres.  Within that area there is a kitchen and two toilets at the rear, and stairs at the front and at the rear of the building. 

2. The kitchen and toilets, as I have said, are within the place of public worship section of the proposal, along with 8 small rooms of around 6 square metres each, and a large room in the remainder with a stage at one end. 

1. Apparently the solicitor’s office uses the toilets and kitchen at the rear of the public worship area, however no information was available as to whether or not there is a continuing right of access if this proposal is approved. 

1. The issues are:

   1.The application must be refused as insufficient information has been provided to enable a proper and complete assessment of the application. 

   Particulars:

   (a)no information has been provided in relation to the proposed hours of operation;

   (b)no information has been provided in relation to the maximum number of people that will attend the place of worship;

   (c)no information has been provided with respect to the number of staff operating or supervising the place of worship;

   (d)no information has been provided in relation to how services will be conducted at the place of worship, example, whether a minister will be conducting services, whether music will be played, whether there will be group singing, and whether amplification equipment will be used;

   (e)no information has been provided confirming the fire safety measures that are in place or that are proposed; and

   (f)no parking assessment with survey or information to assess parking requirements has been provided.

2. In the absence of the above information, it is not known how the proposed use of the premises as a place of worship will operate so as to determine whether there is any potential undesirable impact on the surrounding area in terms of vehicular generation, noise generation, and to determine the suitability of the building in terms of fire safety.

   2.The application must be refused as the proposed development is unacceptable in so far as it does not provide for adequate on-site car parking in accordance with the Canterbury City Council Development Control Plan 20.  Car Parking. 

   Reasons.

   (a)There is no provision for on-site parking at the premises.

   (b)Clause 3.2 of DCP 20 relevantly provides:

   “When the use of the building changes, the number of on-site parking facilities required may be increased, for example, from office to shop uses.  In these cases Council will generally request the additional parking to be provided.”

   (c)Table 3(a) of DCP 20 specifies a guideline rate for various types of development.  Relevantly, with respect to a place of public worship it provides the following:

   “Cars.  A parking assessment with survey of similar developments is required (see s 2.1.3).  As a guide, one space per five people (accommodation capacity) for the first 100 persons, then one space per 3 people thereafter.
   Bicycles.  Visitors.  Minimum one space per 20 visitors or part thereof.”

   (d)Clause 3.5 of Development Control Plan 20 relevantly provides:

   “Properties within Canterbury’s local town centres may experience difficulties in providing off-street car parking due to the constraints of the existing sites and buildings. 
   In order to support the development of alternative off-street parking facilities, a financial contribution may be levied on development, redevelopment or change of use in local centres that does not comply with parking requirements specified in this DCP”; and

   (e)The applicant has not provided to council a parking assessment with survey of similar developments, nor has the applicant provided council with sufficient information to assess the parking requirements generated by use of the premises for the purpose of a place of worship.

3. The Court heard evidence from Ms P Bizimis, Acting Senior Development Application Assessment Officer and submissions from the applicant, Mrs J Dong, who represented herself. 

4. Mrs Dong said the documents tendered by the respondent contained copies of her application and relevant correspondence with council, and she did not need to tender anything else. 

1. The evidence from the respondent is that the council had sought for many months to obtain proper details of the proposal, in compliance with the Environmental Planning and Assessment Regulations (2000), and the council had been unsuccessful in obtaining satisfactory details.  In particular, Ms Bizimis said the council was concerned about the potential impact of the place of worship.  This resulted in refusal of the application. 

1. After the refusal, Mrs Dong had written to the council giving some information, namely that a maximum of 153 people would attend the place of worship at any one time, between the hours of 7am to 11pm Monday to Saturday, and 9am to 11pm Sundays, and there would be three staff with no pastor preaching, and no musical band, but with DVD, VCD, or CD music player accompaniment.  Mrs Dong said at the moment there were four worshipers attending regularly at the premises, along with her own family. 

2. During the hearing, Mrs Dong said that God had revealed to her and her husband there should be no limit on the number of persons attending the place of worship, nor any limits on the hours.  She said a vision from God had motivated her and her husband to open the premises to aid those in need in Campsie. 

1. The council’s draft conditions of any consent put a limit of thirty persons at any one time in the place of worship.  This was related to a credit for car parking from the original consent for offices, allocating one space to the solicitor’s office and six to the combined bookshop and place of worship.  Six car spaces allowed for thirty persons under council’s DCP 20.  Ms Bizimis said also that with a limit of thirty, she was satisfied there would be no unacceptable impacts on traffic and parking or other amenity impacts external to the building, and that internally the existing two toilets could provide facilities for thirty, and the building could be made fire-safe. 

1. If the number of persons was 153 or unlimited, Ms Bizimis had no assessment of how the building could satisfy sanitary or fire safety requirements.  And on a rough calculation, a s 94 contribution would have to be made for car parking of thirty-one spaces if the number of persons attending was 153, but that contribution would only be taken if a parking and traffic study showed that the additional parking and traffic impacts would be acceptable. 

2. I asked Mrs Dong if the council’s draft conditions were acceptable, and she said they are not.  I also asked if they were imposed in any consent with a limit of thirty persons as drafted, would she obey that limit.  Mrs Dong said she would not obey, as God had directed her otherwise. 

1. The respondent submitted that under s 93(3) of the Environmental Planning and Assessment Regulations (2000), development consent must not be granted unless the authority is satisfied the building complies, or can be made to comply, with Category 1 Fire Safety provisions as are applicable. 

2. Such information is not available, along with the other information not supplied by the applicant when required by Case Management prior to this Hearing.  The information is  in regard to fire safety and traffic and parking generation.  As a result I am in no position to approve the proposal as previously sought for 153 worshipers at any one time, let alone for an unlimited number and with no limit on attendance hours, as put by Mrs Dong. 

1. The applicant Mrs Dong may well have benefited in the preparation of its application if she had expert advisors and legal representation, however the applicant’s case before me at this Hearing cannot be approved.

1. Therefore the orders of the Court are:

   1.The appeal is dismissed;

   2.The exhibits are returned to the parties except Exhibit 2.

   ___________________

   K G Hoffman
   Commissioner of the Court

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