Haladhar Holdings Pty Ltd and Shire of Kalamunda
[2012] WASAT 143
•11 JULY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HALADHAR HOLDINGS PTY LTD and SHIRE OF KALAMUNDA [2012] WASAT 143
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: 20 MAY 2011, 9 SEPTEMBER 2011 AND 23 JANUARY 2012
DELIVERED : 11 JULY 2012
FILE NO/S: DR 253 of 2010
BETWEEN: HALADHAR HOLDINGS PTY LTD
Applicant
AND
SHIRE OF KALAMUNDA
Respondent
Catchwords:
Town planning Development application Place of public worship Hare Krishna Temple, Temple operating from a former Gospel Hall Temple operations proposed within existing footprint Ashram adjacent to Temple Ashram land zoned residential Temple redevelopment generally satisfactory to Shire after mediation and reconsideration Outstanding issue of accommodating sufficient parking onsite Whether scope of review extended beyond parking Whether adequate car parking provided Extent to which demand for parking for some exceptional peak operational events controlled outcome of review Whether use contrary to orderly and proper planning as expressed through local planning scheme's parking requirements Whether condition could be imposed requiring amalgamation of Ashram land with Temple land Calculation of car parking by reference to 'net lettable area' Whether compliance with Scheme minimum for onsite parking warranted in the circumstances Whether traffic management plan warranted Whether 'denominational' use should be restricted Whether dual simultaneous use of facilities should be prohibited Whether conditions difficult to police Observations on religious freedom in planning cases Review allowed and conditional approval given to redevelopment
Legislation:
Shire of Kalamunda Local Planning Scheme No 3, cl 5.8, cl 5.8.1, cl 5.8.2, cl 5.8.3, cl 5.8.4, cl 5.8.4(c), cl 10.2(p)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review allowed
Conditional approval given to redevelopment
Category: B
Representation:
Counsel:
Applicant: Mr M Flint
Respondent: Mr C Slarke
Solicitors:
Applicant: Flint Moharich
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Axicon Design v Port Phillip [2000] VCAT 782
Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525
DeKazos v Macedon Ranges SC [2005] VCAT 837
Di Stasio v Yarra Ranges SC [1999] VICCAT 149
Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810
Hutchinson v Glen Eira CC [2009] VCAT 1841
Inglewood Church of Christ v City of Stirling [2005] WASAT 305; 41 SR (WA) 99
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Love and City of Joondalup [2006] WASAT 69
Morgan and City of Albany [2008] WASAT 211
Parramatta Seventh Day Adventist Church v Parramatta City Council (1985) 58 LGRA 83
Ringtank v Ballina Shire Council [2007] NSWLEC 580
Rophael v City of Preston (1987) 31 APA 466
Scrofani v Maribyrnong CC [2007] VCAT 2167
Secretary, Department of Social Security v Riley (1987) 17 FCR 99
Stein and Shire of Chapman Valley [2006] WASAT 105
Tsang Hui v Strathfield Municipal Council [1989] NSWLEC 48; (1989) 130 LGERA 30
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Hare Krishna movement has, for many years, occupied as a place of worship a former Gospel Hall in Canning Road, Kalamunda. For some time now, the Hare Krishna movement has had aspirations to redevelop that site to build upon it a more fitting and substantial Temple. Eventually, following a long development approvals process, including substantial mediation in this Tribunal, the movement's plans received the conditional go ahead from the Shire of Kalamunda, subject to the resolution of one major issue: accommodating the necessary parking for devotees and visitors to the site.
The applicant's case was that the Temple redevelopment would actually increase onsite parking, reduce land use conflicts and reduce neighbours' amenity concerns (such as they were) by moving certain activities inside the Temple. The applicant submitted that, overall, the existing operations on the site would not intensify the use of the land. The applicant also contended that a planning tribunal should not view issues such as parking through the prism of exceptional operational peaks. The Tribunal generally agreed with that proposition.
The Shire pointed to already existing parking shortfalls, at least on certain festival days associated with the Temple. In addition, the local planning scheme would appear to have required more than double the number of car parking bays than were on offer under the new development. The Shire's position was that the shortfall of onsite parking bays should be met by using the nextdoor Ashram site. The Ashram site was already used informally for overspill parking.
The Shire proposed that that site should be formally consolidated with the Temple land. Although the Ashram site was zoned residential, the site's amalgamation with the Temple site would be the start of, in effect, the regularisation of that land's status.
The Shire's view was that unless amalgamation of the two lots went ahead, the whole of the redevelopment (which was otherwise generally unobjectionable) could not proceed. The whole of the development proposal was, in fact, before the Tribunal on the review. The Tribunal agreed generally with the Shire that, unless sufficient parking could be accommodated onsite, the Tribunal could effectively bring the whole of the proposed redevelopment to an end by dismissing the review.
The Tribunal drew the parties' attention to how planning tribunals elsewhere in Australia had tackled similar problems with respect to parking issues at places of worship. These initiatives included mandating a particular denominational use; preventing simultaneous use of certain facilities (here, a new function centre was proposed to be built upstairs on a new floor over the main hall area); and aspects of traffic management planning, including notifying neighbours of peak operating events. Both parties were generally supportive of the imposition of these types of conditions. The Shire, however, called for a comprehensive traffic management plan.
The Tribunal dismissed concerns that some of these conditions might be difficult to police.
Both parties employed expert planners and traffic engineers. Various surveys of parking were undertaken. A former President of the Temple gave evidence on behalf of the Hare Krishna movement. In the result, the Tribunal was satisfied that, conditioned as indicated above, the site was capable of accommodating sufficient visitors' parking onsite. Amalgamation of the two lots would not be required. However, amongst other things, a comprehensive traffic management plan would be necessary, which would include notification to neighbours of certain events and would 'extend to the recognition of the informal parking arrangements on the Ashram site'. This was seen as an incidental and very occasional use of residential land, as occurred now.
The application for review was therefore allowed and conditional approval was given to the redevelopment.
Introduction
This review concerns proposals by Haladhar Holdings Pty Ltd (applicant), a corporate entity of, or agent of, the Hare Krishna community (the International Society for Krishna Consciousness or ISKCON), to develop and expand an existing Temple (place of worship) on land zoned for that purpose situated at No 159 (Lot 117) Canning Road, Kalamunda (subject land). Nextdoor, at No 155 (Lot 116) Canning Road, is an associated Ashram (in fact, a six bedroom dwelling house) owned by the same entity on land zoned residential.
Over time, the compass of the review has been substantially reduced. But the parties remain at odds over three critical and interrelated matters. These are:
1)the number of car parking bays to be provided on the subject land in light of the 'expanded' Temple development;
2)whether land 'associated' with the Temple, that is the adjoining Ashram's land, ought to be 'recognised' as a legitimate source of car parking bays; and, if so,
3)whether that land ought to be formally amalgamated with the Temple land so as to ensure that onsite parking is appropriately regulated as a condition attaching to the whole site.
In short, the respondent's position is that the entire redevelopment (which is not now otherwise objectionable, given appropriate conditions are to be imposed on the development) ought not to proceed unless sufficient car parking bays are provided onsite; that these car parking bays can only be accommodated on the two sites if and when they are considered together; and that, in these circumstances, the Ashram land ought to be legally consolidated with the subject land.
Procedural history of the review
The matter originally commenced in the Tribunal in August 2010. Over the intervening months, the applicant's proposal was extensively mediated in the Tribunal, modified in various ways, and the remaining issues were eventually heard in the Tribunal in May 2011 and then September 2011. During the hearing the Tribunal conducted a view of the land and the buildings, including visiting inside the Temple building, the Ashram and one objecting neighbour's residence.
The very final submission, as it happens, a joint submission from the parties on the revised and agreed calculations of onsite parking requirements and related matters taken from earlier evidence, came into the Tribunal in March 2012. This document had been sought by the Tribunal in September 2011. Most of the other conditions in dispute have been sensibly resolved by the parties following on from discussions connected with the various hearings, and are reflected in the filing of a minute of consent orders in December 2011.
Subject land and the modified proposals
The subject land is 3,922 square metres, or almost 1 acre in size. Under the Shire of Kalamunda Local Planning Scheme No 3 (LPS 3), the land has been zoned as Local Reserve Public Purpose (Church) for some decades and has, during that time, been used by three religious movements or denominations, the latest being the Hare Krishna movement. The land is zoned Urban under the Metropolitan Region Scheme (MRS).
The current building, originally a 'Gospel Hall', was approved for use as a 'Place of Public Worship' in 1979 and for the last three years it has been used as a Hare Krishna Temple, as is mentioned above.
The applicant's counsel, Mr Flint, described the current physical development on the subject land as follows:
1.The [Temple] building is a single storey solid brick structure set back approximately 20 metres from the front boundary.
2.The main hall within the building is octagonal with the floor stepped down towards the centre.
3.There is an entry foyer at the rear (eastern end), with men's toilets in the southeast corner and ladies' toilets in the northeast corner.
4.There is an internal store room in the southwest corner of the building and a store room in the northwest corner of the building, which is accessed externally.
5.There are external canopies at the sides and rear of the building.
6.There is a brick fence at the front boundary with gates for entry (northwest) and exit (southwest).
7.The rear of the [subject land] is currently bitumen paved with 66 marked car parking bays.
The new development proposes the creation of several additional rooms and facilities, including a kitchen and associated storage, with a large dining or function hall to be added over the top of the existing large worship and prayer area (described above as the 'main hall'). Such extensions to the existing structure are intended, amongst other things, to largely replace any outside use at the rear of the building, and any incidental activities carried on in the car park (see the reference above to 'external canopies'). Certain impressivelooking spiral towers, improved parking and landscaping, and a new entrance gate are proposed by the applicant.
As foreshadowed, the respondent's position is that this modified development proposal may be conditionally approved, subject to satisfactory resolution of the interrelated parking and consolidation of land issues.
Currently, as appears from the description above, there are some 66 car parking bays on the subject land, with some informal overflow parking (of, it seems, up to approximately 18 vehicles) on the adjoining Ashram land. The proposal is, as part of the redevelopment and expansion of the Temple, to increase car parking bays on the subject land to 74 bays (later clarified to a figure of 73 bays).
Notwithstanding a potential planning requirement of about 160 car parking bays under LPS 3, the respondent would accept, at a minimum, some 110 car parking bays in total, based sensibly and pragmatically upon the reasonable and likely use of the proposed development, including there not being any dual (simultaneous) use of both the main Temple area and the upstairs function centre. Thus, approximately 36 extra car parking bays would have to be accommodated on the adjoining site were the figure of 110 car parking bays to be maintained.
Aspects of the Temple and the Ashram operations
Of some importance is that Hare Krishna religious services incorporate a communal meal of 'sanctified vegetarian food' (prasadam) at the end of the service, something which takes place, currently, immediately outside the Temple (at the rear of the building, under a canopy), with the preparation thereof taking place in a mobile kitchen van. This van, which is also used offsite for meal delivery, is currently moored in the car park and currently occupies four car parking bays. The proposed internal kitchen will replace the van for onsite meal preparation, and the van will be shifted offsite, thus freeing up four car parking bays. A proposed condition, arising out of discussions between the respective planners, replaces a disputed condition (condition (f) dealing with the kitchen facilities' use for onsite activities), and has apparently resolved any concerns about this matter.
The number of attendees and the number of religious events and festivals that generate the existing and possibly increased demand for car parking bays is discussed in some detail below. Currently, the building is approved for occupation by a maximum of 450 persons.
The associated Ashram operates, as mentioned, using an existing domestic residence, and is located on the immediately adjoining subject land (to the north). It contains a single men's quarters (for the priests and 'managers'), a study, and also operates as a 'Sunday School'. It seems that nearly all of the current activities found in the Ashram (not including its residential and domestic uses) will end up being transferred, in whole or part, to the expanded Temple operation. The effect of this will be to bring the use of the Ashram site more into conformity with its zoning status.
The scope of the review
After mediation, and following on from an invitation to reconsider the decision under review issued by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA), the decision of the respondent dated 22 February 2011 was, as far as is relevant, as follows:
[The Shire grants] approval for the redevelopment of the existing place of worship on lot 117 (159) Canning Road, Kalamunda (lot 117) with revised plans received on 27 November 2010, attachment 2, subject to the following conditions:
(a)Before the use of the redevelopment commences, 74 car parking bays, which meet the relevant Australian [S]tandard for access and manoeuvring, are to be constructed on Lot 117 and clearly marked.
(b)(i) Prior to the commencement of the development, lot 117 is to be amalgamated with Lot 116 (No 155) Canning Road, Kalamunda ['lot 116'] to create a single lot, and 36 car parking bays are to be constructed on the land presently comprising lot 116 in addition to the 74 bays required by the preceding condition. The 36 bays shall be constructed and marked out in accordance with a design approved by the Shire and the relevant Australian Standard.
(ii)As an alternative to the requirements of the preceding paragraph the owner of lot 117 and lot 116 may enter into a legal agreement with the Shire, prepared by the Shire's solicitors at the owner's cost, which shall include provisions which:
•allow a period of 12 months for the amalgamation of Lot 117 and Lot 116 to be effected;
•allow the deferral of the requirement to construct 36 bays until a reasonable time specified by the Shire after the completion of the amalgamation;
•authorise the Shire to do all things necessary to complete the amalgamation process, or to construct the car bays, at the cost of the owner in the event of the owner's default;
•require the owner to provide to the Shire before a building licence is issued an unconditional and irrevocable bank guarantee from an institution satisfactory to the Shire in the sum of $581,040, being equivalent to the payment of cashinlieu of providing 36 car parking bays;
•allow the Shire to draw on the bank guarantee in the event the amalgamation is not effected in accordance with the deed, and to place that money in the car parking trust fund kept pursuant to clause 5.8.4(c) of [LPS 3];
•charge Lot 116 and Lot 117 in favour of the Shire and authorise the Shire to lodge an absolute caveat over those lots in order to protect the Shire's interests under the deed. The deed must be executed prior to the grant of a building licence.
(iii)As an alternative to the requirements of the preceding paragraphs (i) and (ii), the owner of Lot 117 may pay to the Shire the sum of $581,040, being equivalent to the payment of cashinlieu of providing 36 car parking bays as provided for in clause 5.8.4(c) of [LPS 3].
The additional conditions imposed by the respondent on 22 February 2011 are reproduced below.
For the moment, the Tribunal will pass by any suggestion of a possible conflict between the residential zoning of the Ashram site with the requirement that 36 car parking bays are to be created thereon (see condition (b)(i)). If there were to be any such amalgamation of the subject land with the land forming the Ashram site, then, without more, the zoning of the Ashram site might remain problematic at this level of permanent and formal use. The Tribunal will return to this issue below.
During opening submissions, it became clear that the applicant, through its counsel, Mr Flint, had assumed that such an 'approval' in these terms meant that, in effect, conditional consent had already been given and therefore the disputed conditions were the only issues before the Tribunal. This was not the position of the respondent. As indicated above, it was the respondent's position that the whole of the development should be considered as being in jeopardy if the conditions were not or could not be met.
Given the result in the review, it is unnecessary to express a final view on these differences between the parties, except to observe that, in the ordinary case, the whole of the matter under review is before the Tribunal for de novo reconsideration. Here, that would be the whole of the new proposed development. Of course, from a practical point of view, the Tribunal still remains to be guided by the parties' views on what is in issue between them. Sheppard J said in Secretary, Department of Social Security v Riley (1987) 17 FCR 99, at [104]:
The matter [of confining the decision under review] is not without its practical importance. It is very difficult for a Tribunal to review a decision if the matter is completely at large. In a particular case it may have to do its best, but such a situation leads to great difficulty in defining issues and preparing evidence.
Alternatively, here the dismissal of the review because of inadequate parking would have the same practical effect of bringing the proposed development to an end for the applicant.
The planning framework
It is common ground that the outcome of this review is governed by the interpretation and application of certain provisions of LPS 3. Clause 10.2(p) of LPS 3 requires that, in giving planning approval, 'due regard' is to be had to, in effect, the adequacy of parking arrangements.
Further, Table 3 of LPS 3 deals specifically with 'Parking Requirements' in relation to any development, referenced to various land use categories. The calculation of car parking bays under Table 3 must be read in light of the various subclauses of cl 5.8 which deal with the following matters:
i)parking 'specifications' (cl 5.8.1);
ii)the extent of the discretion given to vary the requirements of Table 3 (cl 5.8.2);
iii)reciprocal parking (cl 5.8.3); and
iv)cashinlieu payments (cl 5.8.4).
In addition, the respondent has a related local planning policy, namely, DEV 41, Framework for Assessing Requests for Variations to the Number of Car Parking Bays. Relevantly, that policy provides that:
[t]he Shire will not consider onstreet parking as part of the calculation of car parking bays for a development proposal.
For the use classification 'Place of Worship' the specified requirements under Table 3 are '1 bay for every 5 [square metres] of NLA'. 'NLA' is defined in LPS 3 as follows:
'[N]et lettable area (NLA)' means the area of all floors within the internal finished surfaces of permanent walls but excludes the following areas
(a)all stairs, toilets, cleaners cupboards, lift shafts and motor rooms, escalators, tea rooms and plant rooms, and other service areas;
(b)lobbies between lifts facing other lifts serving the same floor;
(c)areas set aside as public space or thoroughfares and not for the exclusive use of occupiers of the floor or building;
(d)areas set aside for the provision of facilities or services to the floor or building where such facilities are not for the exclusive use of occupiers of the floor or building[.]
As we shall see, the interpretation and application of this clause was the subject of some disagreement between the two planners engaged by the parties.
Issues
Thus, the main issues may be summarised to this point as follows:
1)What are the planning framework's car parking requirements in relation to the proposed development?
2)How are those requirements to be satisfied in the circumstances of the case, in particular having regard to the use or availability of the adjoining Ashram site?
Respondent's case
The respondent's case proceeded upon the basis that there were a number of issues concerned with 'orderly and proper planning' as reflected in LPS 3 that, when fully taken into account, would support the respondent's position. Mr Slarke (who appeared for the respondent) firstly emphasised that what was being considered must be treated as, in effect, a new Temple development, so conditions appropriate to that development, in the abstract, should be considered. Next, and notwithstanding that position, the smaller existing Temple development had already had incidents where inadequate parking had been demonstrated. Mr Slarke also suggested that a new development would be likely, of itself, to attract more visitors.
As will be seen, the applicant's case is predicated upon there not being simultaneous use of the upstairs function hall and the downstairs Temple room or main hall. Mr Slarke submitted that, nonetheless, it could not be ruled out that a future user (say, another denomination or another similar user) could end up using both spaces simultaneously, thereby increasing the demand for car parking bays.
In summary, Mr Slarke's position on the parking issue was as follows:
1)Ordinarily, a lack of suitable onsite parking in connection with a development is a significant factor justifying the refusal of planning approval.
2)Where, as here, the subject land and the adjoining Ashram land can accommodate suitable, and necessary, parking arrangements (when those sites are considered as a single operation together), approval may be granted.
3)Here, however, such arrangements require certain conditions to be imposed on the subject land's development in order to effect that outcome.
4)The most suitable primary condition is for the formal, legal amalgamation of the subject land with the adjoining land.
5)If the Tribunal, for whatever reason, is minded not to impose such a condition, then refusal of the entire proposed development should follow.
6)Such a condition involving the use and status of the adjoining land has a sufficient planning purpose, is reasonable and has a nexus with the proposed development.
7)Arguably, such a condition could not be imposed without amalgamation of the lots.
8)In particular, the subject land and the adjoining land have common owners, common physical access and common use including, importantly, current use of the adjoining land for occasional overflow parking.
9)Any such arrangement would, in effect, also legitimise or regularise, to the extent necessary, the current possibly nonconforming use or uses of the adjoining land, which is zoned residential.
Applicant's case
Mr Flint submitted that the fundamental premise of the applicant's case is that, with the new development, no significant or practical intensification of the use of the subject land would take place. Rather, there would be a better rearrangement of the already existing activities taking place on the subject land, activities that have remained (and will likely remain) relatively stable. More onsite parking would be provided, and more activities could be accommodated indoors. In short, the building bulk would increase, but its footprint would stay the same.
On the issue of parking, the applicant submitted that 73 car parking bays were sufficient as it was a principle of planning that one does not 'plan for [operational] peaks'. Further, the additional approximately 36 car parking bays mandated for the Ashram site might compromise its functionality and would come at a 'significant' financial cost.
The applicant acknowledged that it had conceded the possibility of an additional 18 car parking bays (10 at the rear and 8 at the front) on the adjoining Ashram land as more or less permanent 'overflow' parking. Of course, as has been mentioned, such a formal use of this land, which is zoned Residential R10, may itself be problematic without any consolidation of the two sites.
Evidence of Mr Hopping on behalf of the applicant
The applicant called Mr AR Hopping, who is both a former Temple President and a VicePresident.
Mr Hopping has had a long association with the Hare Krishna movement in both Perth and, before that, in Sydney. He gave evidence concerning the nature of the Hare Krishna movement's religious philosophy and the use of its site. Mr Hopping's evidence is consistent with the general material on the same points considered by, say, Bryson J in Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810.
Such evidence alluded to the 12 'major' festivals held according to the lunar calendar and the separate regular fortnightly 'Sunday feasts'. In addition, Mr Hopping had participated in two wedding 'ceremonies' (which required additional, separate civil ceremonies for legal recognition of the marriage) over the last three years. I assume that these additional legal formalities took place offsite.
The numbers attending the Sunday feasts had been relatively stable at about 150 - 200 persons, but there were hundreds more 'interested' persons on an email list kept by the Hare Krishna movement. That email list was, however, replete with 'dead' addresses.
Mr Hopping said that it was rare for the two events (that is, festivals and Sunday activities) to overlap but, even so, the numbers, he thought, would remain about the same.
The dates of the major festivals were advertised on the Hare Krishna movement's website. If the dates fell on a weekday morning, then, he thought, maybe only 15 - 20 people would attend. Otherwise, only a handful of visitors would visit daily. Importantly, Mr Hopping emphasised that the Hare Krishna movement did not seek to proselytise; it did not seek members simply for the sake of having large numbers 'on the books'.
In his witness statement, Mr Hopping described the numbers associated with peak events on the site as follows (at para 13):
Throughout the year 5 festivals are held. These draw a larger crowd but the maximum at anyone [sic] time in the temple hall rarely exceeds 300. The largest festival, 'Janmastami', the birthday of Lord Krishna held in August/September, may throughout the day attract up to a total of 600/700 visitors, but the maximum at anyone [sic] time on that day rarely exceeds 300 350 persons with the vast majority of these attending during the evening. Some come for a short visit and others stay longer. Regarding the other smaller festivals, Gaura Purnima and Nityananda Trayodasi are held in February/March and may attract 250/300 guests in total throughout the day. Balaram Purnima is held one week before Janmastami and attracts a similar number to Gaura Purnima and Nityananda Trayodasi. Nrshima Caturdasi is observed in May and up to 300 guests in total throughout the day attend also.
Specifically on parking, Mr Hopping noted that there was parking available on the verge of Canning Road, which is a main road (as it turns out, an 'Other Regional Road' under the MRS) that runs past the Temple site. There were, he noted, no parking restrictions on Canning Road, but it did not have marked car parking bays.
Mr Hopping accepted as fairly accurate the professional count of parked vehicles undertaken by Ms Heidi HergetLansdell for Saturday, 19 March 2011. This survey was conducted between 4 pm and 8 pm. Ms HergetLansdell is a senior transport and traffic engineer with Donald Veal Consultants, a firm engaged by the applicant.
Ms HergetLansdell's survey is at fig 5, pages 10 and 11 of Annexure 2 to her witness statement dated 13 May 2011. The survey date was for the second most important day in the Temple's 2011 calendar, being Gaura Purnima or the appearance of 'Sri [Lord] Chaitanya Mahaprabhu'. Ms HergetLansdell's analysis was as follows:
The peak demand was measured at 77 vehicles, with 12 vehicles parked on the adjacent property [that is, the Ashram site] and 4 of the existing onsite bays occupied by the mobile kitchen trailer. This equated to car parking demand of 65 vehicles being accommodated on the site in the context of 62 bays available with temple management rearranging the existing car parking layout to allow for some tandem parking onsite.
In crossexamination, Mr Hopping conceded that for Sunday parking, while it was usually around 150 200 visitors, it could on occasion range from 250 300 visitors. He noted the core hours as running from 5 pm to 8 pm, with the communal meal at around 7.30 pm. He thought that only about 80% of visitors would stay for most of the period.
He accepted that this site was the only Hare Krishna Temple in Perth, and that most devotees attended by car or shared vehicle. The Temple was not particularly well served by public transport in the evening. He accepted that there were some 31 trafficgenerating occasions (that is, relevantly significant events) over a year.
On the major event of Janmastami, commemorating the birthday of 'Sri [Lord] Krishna', he confirmed that there could be '600 to 700 visitors throughout the course of the day'. A communal meal followed after midnight, but many followers would have gone home by then.
In the result, the parties reached a joint position on Temple attendances, flowing from the written and oral evidence otherwise received by the Tribunal, which was as follows:
There is an average attendance at the fortnightly Sunday programs of about 150 to 200 people.
With respect to the five annual festivals:
•Janmastami, the largest festival, may attract up to a total of 600 700 people throughout the course of the day, with the maximum at any one time rarely exceeding 300 350 people.
•Nrshima Caturdasi attracts a total of up to 300 people throughout the course of the day.
•Gaura Purnima, Nityananda Trayodasi and Balaram Purnima may attract a total of 250 300 people throughout the course of the day.
These attendance numbers, with particular emphasis on the nonpeak attendances and the 'average' attendances, will be jointly considered below, together with the calculation of NLA and the results of the various parking surveys.
The overall impression garnered from Mr Hopping's evidence is that on the vast number of occasions that we are presently concerned with, parking for visitors can be accommodated onsite. On the relatively few occasions where parking could not be fully accommodated onsite, then practical efforts, with varying degrees of success, were directed into managing those situations, starting with use of the Ashram site.
It is convenient to now turn to the planners' evidence, commencing with the issue of parking.
Parking: planners' evidence
As we have seen, the issue of parking originates in the requirements under LPS 3 arising out of the calculation of NLA. The relevant provisions of LPS 3 are referred to or reproduced above.
Mr D Caddy was called by the applicant to give evidence, and Ms A Butterworth was called by the respondent. Both experts are experienced town planners.
I should begin by observing that the calculation of car parking bays unfortunately differs from the clauses under consideration in, say, Inglewood Church of Christ v City of Stirling [2005] WASAT 305; 41 SR (WA) 99 (Inglewood). There, at least whatever else initially occurred with respect to such calculations, a reckoning could be (and was ultimately) referenced to seating capacity, and not simply to a measure of floor area. Thus, the references to the 'minimum parking provision [under the Scheme] is one bay per 3 square metres in relation to fixed seats and one bay per 5 square metres in relation to nonfixed seats "calculated over that portion of the building capable of accommodating seating" ' (Inglewood, at [53]; Senior Member Parry, as he then was).
Be that as it may, here, in short, the applicant's expert planning witness, Mr Caddy, was in agreement with the respondent's expert, Ms Butterworth, that, but for the exercise of some discretionary allowances, the NLA of the proposed development under LPS 3, if read literally, would be in the vicinity of 796 square metres.
This would lead to a requirement for 160 car parking bays, based upon a calculation of one car parking bay for every 5 square metres of NLA under LPS 3. However, as I understand it, Mr Caddy would consider notionally 'removing' from this calculation some areas of floor space (possibly areas like the foyer and the vestibule), based upon his understanding of the site's daytoday use, to bring the figure down to 128 car parking bays. His view was that the express discretion in cl 5.8.2 of LPS 3 could then be engaged to reduce the number further down to 59 car parking bays.
Ms Butterworth maintained, in effect, that 110 car parking bays would be appropriate for this site, and otherwise disagreed with Mr Caddy's methodology, preferring, in the first instance, to focus on the application of the text of LPS 3 and then to exercise an appropriate discretion.
In the result, the parties reached a joint position on their different calculations of NLA, which was summarised as follows :
The [a]pplicant's position is that the net lettable area of the existing development is approximately 217 [square metres].
The [r]espondent's position is that the net lettable area of the existing development is 262.6 [square metres] …
The [a]pplicant's position is that the net lettable area of the proposed development is 789.82 [square metres].
[The applicant's total] figure is comprised of the following elements of the proposed development as depicted on the [relevant plan]:
store; deity room; 2 x paraphernalia; dry store; cool room; kitchen; coats; temple room; foyer; multi-purpose room; vestibule; president [office]; ground floor office; shop; first floor office; and, dining function hall.
The [r]espondent's position is that the net lettable area of the proposed development is 796 [square metres].
[The respondent's total] figure is comprised of the following elements of the proposed development as depicted on the [relevant plan]:
deity room; 2 x paraphernalia [area]; store; [cupboard]; temple room; foyer; multi-purpose room; vestibule; dry store; cool room; kitchen (ground floor); coats; president [office]; ground floor office; shop; first floor office; and, dining function hall. (emphasis added)
Thus, at least in terms of the NLA and considered by itself, the final positions of the parties are not that dissimilar. For the applicant, it appears that its NLA figure, if applied, would lead to a requirement for around 158 car parking bays, and for the respondent, 160 car parking bays. The respondent properly acknowledges that, in any case, a 'purist' calculation of car parking bays derived from the mechanical application of the NLA, read with Table 3 of LPS 3, would lead to a result which would be excessive and unreasonable; hence, the advocacy of 110 car parking bays.
The true number of bays that will reasonably be required will therefore be a mixture of the Table 3 calculation modified for the particular circumstances of the case, including the likely attendance numbers, reflected in the results of the various parking and traffic surveys. These interrelated matters will be considered below.
However, before leaving the planners' evidence, there are a number of other generally related and useful observations made by each of them that I briefly record here for the sake of completeness:
•Ms Butterworth added that, in her opinion, the application of cl 5.8.4(c) of LPS 3 dealing with a possible cashinlieu sum for missing parking bays, if available, would not be, in effect, good 'policy', as that would not overcome the starting point of the need to demonstrate sufficient onsite parking. Further, there did not appear to be any prospect of the respondent applying the monies received, as there seemed little likelihood of land being acquired and bays being constructed by the respondent in the vicinity of the proposed development.
•Mr Caddy pointed out that a condition requiring amalgamation of the two sites and additional parking, although arguably valid, may create problems, as 'the properties are not zoned the same way'. Further, the perception that the second site could become a 'public carpark' might also cause amenity problems in the immediate neighbourhood.
•Ms Butterworth was concerned that there should be put in place a formal legal obligation (and not just an informal arrangement) to provide the additional car parking bays thought to be necessary. It was her view that this could be best achieved by the amalgamation of and subsequent appropriate redevelopment, in minor respects, of the adjoining subject land.
•In response to the suggestion that there could be imposed a 'no dual use' condition (that is, a condition prohibiting simultaneous use of the worship area downstairs and the function/meal area upstairs), Mr Caddy thought that there might be such practical difficulties in policing such a condition that it ought not to be imposed.
•Ms Butterworth thought that one could not necessarily rule out an increase in patronage because of the existence of a new and more comfortable facility, but she properly conceded that this was mostly speculation.
•Finally, Ms Butterworth suggested that it would be reasonable to address, by the imposition of two further conditions on the development, the areas affecting one of the objecting neighbours (Ms A Owen see below). Those proposed conditions dealt with a suitable boundary fence and the provision of a landscape strip and landscape management plan.
I turn to consider matters of parking and traffic.
Parking and traffic evidence
As already mentioned, the applicant called Ms HergetLansdell to give evidence. The respondent relied upon the evidence of Mr Rodney James Ding, who is a senior traffic and transport engineer with CPG.
The parties provided the following summary of their respective car parking survey evidence for the assistance of the Tribunal as follows:
Ms HergetLansdell gave the following evidence:
Parking demand surveys were conducted on four occasions Sunday 6 February 2011, Sunday 27 February 2011, Sunday 13 March 2011, and Saturday 19 March 2011.
The surveys conducted on 6 February 2011, 27 February 2011 and 13 March 2011 were carried out from 4 pm to 8 pm during the time of the fortnightly temple service, with the rider that on 6 February 2011 the service was presided over by a visiting guru.
The survey conducted on 19 March 2011 was carried out from 4 pm to 8 pm and on that day the festival known as Gaura Purnima was being celebrated.
The peak parking demand that was observed during the surveys was as follows:
•Sunday, 6 February 2011: 53 cars;
•Sunday, 27 February 2011: 54 cars;
•Sunday, 13 March 2011: 54 cars; and
•Saturday, 19 March 2011: 77 cars, comprised of 65 cars on Lot 117 and 12 cars on Lot 116 immediately to the north.
Mr Ding gave the following evidence:
A parking demand survey was conducted on Sunday 24 April 2011 during the time of the fortnightly temple service.
The peak parking demand that was observed was 81 cars, comprising 72 cars on Lot 117 and 9 cars on Lot 116 and the Canning Road verge.
As Mr Hopping observed, 24 April 2011 was, in fact, Easter Sunday in that year, and he thought that more visitors might have been attending than was usually the case because of the public holidays around that time. Mr Hopping also confirmed (see the table above) that Saturday 19 March 2011 was the 'second most important day in the Temple's 2011 calendar'.
I should note that Mr Ding also agreed, based upon his observations and expertise, that a figure of 110 car parking bays for the new development was reasonable.
Evidence of the objecting neighbours
The Tribunal received witness statements from three nearby residents: Ms A Furfaro (who resides on Canning Road); Mr LP Snook (who resides on Petunia Street) and Ms A Owen (who resides on Pauline Avenue). All three neighbours raised amenity concerns arising out of the conduct of visitors to the Temple and visitors to the site when other religious movements previously occupied the site. Their complaints drew attention to the occasional parking on their front verges and on their crossovers and in their driveways, and otherwise parking on the verges of nearby public streets.
Mr Snook produced detailed figures and photographs relating to two major events in particular: 2 September 2010 and 21 November 2010 (a religious festival and a wedding, respectively). He observed that overspill parking was being accommodated at the nearby Woolworths car park. He estimated that on 2 September 2010, there were approximately 180 cars parked in connection with the event: 60 onsite; 60 on the Canning Road verges; 20 on the Pauline Avenue road verges; and 40 in the Woolworths car park.
In addition, Ms Owen, whose back fence abuts the Ashram site, complained about noise and light spill, cooking and incense odours, and intrusions on her privacy. Ms Owen thought that the proposed use of the Ashram site might make matters worse for her. Other practical matters were noticed concerning fences (including claims of a damaged fence) and screen planting. It is to be noted that the internal improvements to the Temple and the additional facilities are likely to lessen some of the amenity impacts, such as they are, on Ms Owen.
Ms Owen sought, in effect, some special conditions that she submitted should be imposed on the development to overcome these areas of concern. As mentioned above, Ms Butterworth thought that the imposition of certain conditions to overcome these matters was a 'reasonable' course. If necessary, this is a matter that the Tribunal will return to below.
Of the three objectors, only Ms Owen was briefly crossexamined. She acknowledged that the damage to the fence was done by a previous occupant of the Ashram site.
Conditions other than parking
The following additional conditions were imposed by the respondent in its reconsideration decision of 22 February 2011:
…
(c)The applicant is to install and maintain mature screen planting on the southern, western and eastern boundaries and within the rear parking area to the satisfaction of the Director of Planning and Development Services.
(d)Provision of a colours and textures schedule for approval by the Director of Planning Development Services. The development shall subsequently be carried out in accordance with the approved schedule.
(e)The maximum total occupancy for the premises is 450 people at anyone [sic] time.
(f)The Kitchen facilities approved as part of this facility may only be used for on site activities and shall not be used for the preparation of food to be consumed off site.
(g)Submission of a plan detailing the location of all external lighting, for approval by the Director of Planning Services. The lighting plan and subsequent lighting installed must demonstrate that any light spill to adjoining properties is minimised to acceptable levels. All external lighting must be installed in accordance with the approved plan.
(h)Construction work outside the period 7.00 am to 7.00 pm Monday to Saturday and at any time on Sundays and Public Holidays is not permitted.
(i)The proposed front fence is to be treated with antigraffiti coating upon completion.
In December 2011, the parties reached agreement to replace some of those conditions with other conditions, and to add certain other conditions, as follows:
…
(c)The Applicant is to install and maintain mature screen planting on the southern, western and eastern boundaries and within the rear parking area in accordance with the attached plan marked 'Attachment 1' [not reproduced]. The initial screen planting is to be with advanced trees with a minimum 100 litre root bag.
(d)The development is to be carried out in accordance with the colours and textures identified on the attached plans marked 'Attachment 2' [not reproduced] and 'Attachment 3' [not reproduced].
(g)A plan for external lighting is to be prepared by the Applicant and approved by the Director of Planning and Development Services in accordance with the following criteria:
1.All lighting shall be designed and installed so that as far as reasonably possible, by way of hooding and orientation, minimal light will be cast onto any adjoining property or road reserve.
2.Lighting shall not cause a nuisance to adjoining residents or the travelling public and shall comply at all times with the requirements stipulated under Australian Standard AS42821997 'Control of the Obtrusive Effects of Outdoor Lighting'.
3.Light cast onto the parking area shall be limited to a maximum of 125 Lux measured at any specific point on the parking area, with an average of 30 Lux.
Any proposed increase in the illuminance of external lighting shall be approved in writing by the Director of Planning and Development Services.
(j)The festival float is not to be located on either Lot 116 or Lot 177 Canning Road, Kalamunda.
(k)Upon completion of the development the subject of this approval, the mobile kitchen van is not to be located on either Lot 116 or Lot 117 Canning Road, Kalamunda.
The parties have accepted their respective planners' suggestion that condition (f) be modified as follows:
The Kitchen facilities approved as part of this facility may only be used for on site activities and shall not be used for the preparation of food to be consumed off site, with the exception of not more than 5 local events per calendar year advised at least 14 days in advance to the Shire.
As will be seen below, the Tribunal has decided to impose all of these amended or modified conditions as part of the development approval in this review.
And, as the Tribunal has ultimately not required amalgamation of the two lots (see below), no direct development conditions can be imposed upon the Ashram site. Thus, Ms Owen's remaining concerns will have to be addressed as a matter of cooperation between neighbours.
Other conditions suggested by the Tribunal
On 19 January 2012, the Tribunal sought from the parties' legal representatives their views on the possible imposition in this review of certain conditions modelled on those imposed by other planning tribunals in Australia. These are cases where those tribunals have grappled with issues similar to matters raised in this review concerning the provision of adequate parking at places of public worship. The suggested additional conditions, and their respective sources, were as follows.
In Parramatta Seventh Day Adventist Church v Parramatta City Council (1985) 58 LGRA 83, Cripps CJ imposed the following condition:
[Condition](xviii) The church hall not to be let to members of the public and not to be used by any person other than the Seventh Day Adventist Church. The church hall not to be used at any time when the church is being used.
His Honour found that the church had a capacity of 250 persons with an associated church hall catering for up to 400 persons. Eightytwo car parking bays were provided for patrons. Cripps CJ said, at [89]:
In my opinion, there ought be some limitation on church activity on the site to take account of the requirements of the surrounding neighbourhood. I also consider that it should be a condition of the [planning approval] that the church hall not be used at any time when the church is being used and that it not be let publicly to any person or to be used other than by the Seventh Day Adventist Church.
The parties' views were also sought on the former Victorian Tribunal's decision in Rophael v City of Preston (1987) 31 APA 466 (VAAT). There, a condition (condition 14) was imposed which required specified denominational church use only of the buildings and development.
Finally, there was the Victorian Civil and Administrative Tribunal's more recent decision in Hutchinson v Glen Eira CC [2009] VCAT 1841 (Hutchinson). There, a condition was imposed as follows:
At the commencement of each calendar year the permit holder must leafletdrop residents of the following streets [a list of 10 specified streets not reproduced] advising of the dates of High Holy days and the 12 late hour Saturday night events in that year when demands for kerb[]side parking may increase/be used later in the night.
In Hutchinson, the Victorian Civil and Administrative Tribunal said, at [4] - [5]:
Although residents may not like the existing parking situation, that situation will continue whether or not I grant this permit [development approval] …
In considering the concerns of residents, I have to be satisfied that the increased hours of the Synagogue do not result in unreasonable amenity impacts, rather than trying to address wider parking issues caused by existing activities in and around Princes Park. Except for the 5 High Holy Days, the effect of this permit is to increase the length of time persons can be on the site rather than allowing any increase in overall numbers. Other than on those High Holy Days the new limits do not seek to increase the total number of persons on the site and nor do they seek an increase for the whole week just to cater for the increased number on those special occasions. Instead a more sophisticated approach has been taken to tailor numbers and times to actual requirements.
And, at [17], the Victorian Civil and Administrative Tribunal said :
The last change and the one which has by far the greatest impact on parking is the desire to allow up to 800 people on site for the five High Holy Days a year. Put plainly, I do not expect the Synagogue to provide on-site parking to meet the demands generated on these 5 High Holy Days. It is not something [that] I would require for any development with a low number of exceptional peak demands (such as shopping centres at Christmas or Easter or sports grounds for final series) and it is not something that I would require for this Synagogue. (Emphasis added)
The respective views of the parties, which were generally positive about such additional conditions, and the Tribunal's response, are both set out below.
Discussion of the case
I begin the discussion of the issues by reminding myself of the advice offered by Cripps CJ in Tsang Hui v Strathfield Municipal Council [1989] NSWLEC 48; (1989) 130 LGERA 30 at [36], concerning the amenity impacts of less mainstream religious establishments:
The subject land is zoned residential but churches and educational establishments are permissible in residential areas. There are many churches in residential areas in Sydney, some of which have functions and undertake activities more intrusive than the subject proposal [a Buddhist temple and monastery].
While we are here not dealing with a Buddhist temple, a planning tribunal must always be mindful that 'at back of [all of these types of] proceedings is a question of freedoms to exercise religious beliefs': Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525 at [544] per McHugh JA.
Turning to the specifics of the case, I begin by endorsing Mr Flint's submission to the effect that one should not view the case through the prism of exceptional operational peaks. In Hutchinson, the Victorian Civil and Administrative Tribunal made the same point when it said, at [17]:
[The Tribunal] do[es] not expect the Synagogue to provide onsite parking to meet the demands generated on these 5 High Holy Days. It is not something [that the Tribunal] would require for any development with a low number of exceptional peak demands (such as shopping centres at Christmas or Easter or sports grounds for final series) …
Nevertheless, as will be seen in more detail below, the Tribunal will require the applicant to furnish, at regular intervals, a comprehensive traffic management plan (TMP) to ameliorate amenity impacts that flow from the events that generate 'exceptional peak demands'. That TMP will extend to the recognition of the informal parking arrangements on the Ashram site, as an incidental and very occasional use of residential land (as occurs now), for so long as it remains in the same hands as the Temple's owners.
The crucial issue in the case therefore becomes: is the proposed parking in the circumstances of the case adequately catered for, thus justifying a departure from the NLAlinked parking requirements under LPS 3? The answer to that question has to be, I think, 'yes'.
The Tribunal generally accepts the evidence of both Mr Hopping and Ms HergetLansdell, which is to the effect that, exceptional peak demand events aside, the site, as to both its current and its projected use, is capable of meeting the demand for car parking arising out of its usual religious activities on the subject land.
That position will be reinforced because of the additional conditions that the Tribunal will impose (see below). The use is likely to remain stable, as it will be confined to the Hare Krishna movement. Further, the proposed TMP will take account of any informal overspill parking arrangements, as now occurs, on the Ashram site. The development will also be conditioned so as to preserve, in effect, the current method of operating the Temple, such as to prevent simultaneous dual use of the hall and function centre.
I return to the question of the adjoining Ashram site. I commence by noting Scrofani v Maribyrnong CC [2007] VCAT 2167 where the Victorian Civil and Administrative Tribunal said, at [17]:
In my view it is inappropriate for the Council [by way of a condition] to attempt to direct traffic through land in a separate title even though there is an association with the adjoining use.
The other side of the coin is that there can be no doubt that, as a matter of planning law and principle, a land consolidation or amalgamation requirement can be imposed as a planning condition in an appropriate case. Thus, in DeKazos v Macedon Ranges SC [2005] VCAT 837, the Victorian Civil and Administrative Tribunal said, at [9], (citations omitted):
In the period since the introduction of the Victoria Planning Provisions, the Tribunal has supported the use of conditions requiring the consolidation of allotments in relation to applications for subdivision and the construction of dwellings on rural zoned land …
However, as the Victorian cases suggest, such a condition may well be in pursuit of a larger or more settled policy objective. Although I would not rule out the possibility of ad hoc requirements for amalgamation in particular circumstances, I would not take that course here. We are dealing here with land (the Ashram site) which is differently zoned, and although held in the same hands, it is, at the moment, effectively held on trust for use for a specified religious purpose. Without expressing any concluded view on the issue, the situation may well be different if the zoning were the same and we were dealing with, say, a mixed or commercial land use. Different considerations may also apply if a development application, or related matter, concerning the Ashram site itself were to come before the Tribunal.
Nothing I have said here is, of course, inconsistent in principle with, or affects, the desirability of a comprehensive TMP, including recognition therein of the existing use of the Ashram site for overflow parking in respect of the relatively rare occasions of exceptional peak demand.
As to the additional conditions suggested by the Tribunal, as mentioned already, both parties were generally supportive of the imposition by the Tribunal of conditions along the lines recommended. The respondent noted that there were occasions when restricting land use to a specified user was appropriate (cf Stein and Shire of Chapman Valley [2006] WASAT 105). The respondent submitted that, as regards any limitations on land use (that is, the dual use prohibition as regards simultaneous main hall and upstairs function use), such a condition might fall into the category of matters where the Tribunal should be 'cautious about imposing conditions which will provide difficulty for the respondent to police'. The respondent cited Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [42].
Compare also on this topic Love and City of Joondalup [2006] WASAT 69 at [37] (conditions ameliorating amenity impacts of a childcare centre) and Morgan and City of Albany [2008] WASAT 211 at [77] (conditions ameliorating amenity impacts arising out of the riding of motorcycles).
In Ringtank v Ballina Shire Council [2007] NSWLEC 580, Senior Commissioner Roseth said, at [25]: 'It is not good policy to impose conditions that are unlikely to be complied with'. The Victorian case of Axicon Design v Port Phillip [2000] VCAT 782 dealt with increased seating and the resulting impact on car parking requirements in respect of the expansion of an existing restaurant. The Victorian Civil and Administrative Tribunal there said, at [49]:
A further issue was raised regarding the enforceability of any permit condition which allowed different patron numbers at different times. [The Council] submitted that such a condition would be difficult to enforce or police. Although compliance with such a condition would require additional monitoring, I do not consider that to be critical. I accept [the traffic engineer's] evidence that [such] varied seat restrictions are not uncommon as part of a permit regime.
Similarly, in Di Stasio v Yarra Ranges SC [1999] VICCAT 149, at [6]:
The success of this proposal will depend almost entirely on the readiness of the Applicant to rigidly comply with the conditions of the [planning approval]. The Tribunal concedes that the conditions relating to bus transportation [to transport patrons to a restaurant site to be used only for private functions] are difficult to police. However, limitations regarding patron numbers and the frequency of functions can be readily monitored. (emphasis added)
In my view, the suggested restriction on simultaneous dual use is likely to be complied, with and otherwise falls into the category of regulation that 'can be readily monitored'.
As to the condition derived from Hutchinson, Mr Flint, on behalf of the applicant, produced a draft condition very similar in form to that set out above, specifying six roads and streets in the immediate vicinity of the Temple to be leafleted.
Mr Slarke, on behalf of the respondent, submitted that:
The thrust of the condition imposed in Hutchinson (in the form suggested [by the applicant]) is supported but is not, of itself, considered by the Respondent to be adequate. As suggested at the hearing by the Respondent, and in the evidence of Mr Ding, a management plan should be required to cater for expected peak parking demand during festival events. The Applicant should be required as a condition of planning approval to submit for approval by the Respondent and thereafter comply with a traffic management plan to cater for festival events. The management plan should include (without limitation) details of how additional parking demand is to be managed (eg use of wardens, location of onstreet parking or parking at nearby shopping centre etc) together with a method for notifying nearby residents. The latter may include a leaflet drop in the streets … but it is suggested that the leaflet drop should occur at a suitable time in advance of each festival event, and not just at the commencement of each calendar year.
The Tribunal generally agrees with Mr Slarke's submission.
Although it was said in Inglewood, at [77], that 'by its nature, a church is a land use which is unlikely to give rise to adverse amenity impacts of the type sought to be addressed by [a] management plan' each case must be, I think, considered on its merits. As the cases set out above demonstrate, such plans (or aspects of them) might be usefully incorporated into the conditions of approval.
The TMP contemplated by the additional conditions to be imposed by the Tribunal should properly extend to giving as much notice as is possible to neighbours and residents in respect of the five major festival events in a time frame close to each of those events. Further, weddings (both as to their number per annum and notice of them) should be regulated by conditions.
Conclusion
In the result, the applicant has made out its case, and conditional approval will be given for the Temple redevelopment.
The parties will be directed to bring in a draft form of final approval, and a set of consolidated conditions not inconsistent with these reasons which reflects the conditions imposed by the respondent in its decision of 22 February 2011, as modified by the minute of consent orders of December 2011, and including a new condition (f) as appears above. In addition, conditions must be added confining the use of the land to the religious, related and incidental activities of the Hare Krishna movement; prohibiting simultaneous dual use of the hall and function centre (without written approval of the respondent, in advance, in special circumstances); regulating the number of weddings held; and requiring a comprehensive TMP, to be reviewed at regular intervals, and which includes recognition therein of the current incidental use of the Ashram site for some overflow parking in respect of occasions of exceptional peak demand.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The parties are directed to bring into the Tribunal, within 14 days, a draft form of final development approval, and a set of associated consolidated conditions not inconsistent with these reasons for decision.
3.Liberty to apply is reserved for 28 days.
I certify that this and the preceding [118] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER
9
2