Hillsong Church Limited v Council of the City of Sydney

Case •

[2012] NSWLEC 1059

•

16 March 2012

Land and Environment Court


New South Wales

Medium Neutral Citation: Hillsong Church Limited v Council of the City of Sydney [2012] NSWLEC 1059
Hearing dates:5,6 September 2011, 12,13,14,15 December 2011, written submissions 23 December 2011, written submissions after reopening to allow further documentation 14 March 2012
Decision date: 16 March 2012
Jurisdiction:Class 1
Before: Brown ASC
Decision:

1. The appeal is upheld.

2. Development Application D/2011/17 for use of Unit 2, 138-196 Bourke Road, Alexandria for a place of public worship is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit 14.

4. The applicant is to pay the costs of the respondent that were incurred in respect of the assessment, and proceedings relating to the original development application the subject of the appeal up to 31 August 2011.

Catchwords: DEVELOPMENT APPLICATION: use of a factory unit for a place of public worship - whether consistent with the zone objectives - immanency and certainty of draft LEP - whether inconsistent with the strategic planning direction for industrial areas - whether negative impact on the viability and operations of adjoining industrial uses by way of the traffic and parking associated with the proposed development - costs
Legislation Cited: Draft Sydney Local Environmental Plan 2011
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Road Transport (Safety and Traffic and Management) Act 1999
South Sydney Local Environmental Plan 1998
Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289
Trivest Pty Ltd v The Council of the City of Sydney [2010] NSWLEC 1273
Category:Principal judgment
Parties:

Hillsong Church Limited (Applicant)

Council of the City of Sydney (Respondent)
Representation:

Counsel
Mr C McEwen SC with Mr M Staunton (Applicant)

Mr P Tomasetti SC (Respondent)
Solicitors
Addisons Lawyers (Applicant)

Maddocks Lawyers (Respondent)
File Number(s):10576 of 2011

Judgment

  1. ACTING SENIOR COMMISSIONER: This appeal is in response to the refusal of Development Application D/2011/17 by the Council of the City of Sydney (the council) for the use of Unit 2, 138-196 Bourke Road, Alexandria for a place of public worship.

  1. The contentions raised by the council can be summarised as:

1. the proposed development is inconsistent with the zone objectives,

2. the immanency and certainty of the councils draft LEP,

3. the proposed development is inconsistent with the strategic planning direction for industrial areas, and

4. the proposed development will have a negative impact on the viability and operations of adjoining industrial by way of the traffic and parking associated with the proposed development.

The site

  1. Unit 2 forms part of a collection of buildings called "Sydney Corporate Park" (the Corporate Park) which is bounded by Bourke Road to the west, Doody Street to the north and O'Riordon Street to the east. The buildings are located on a number of separate lots but in one ownership and comprise an area of 11.82 ha. A range of land uses is contained within the Corporate Park and include industrial, warehouse and office/retail. The largest occupier is Hannan Print. Uses in the general location of Unit 2 include Hannan Print, warehouse and distribution centres, a child-care centre, an Australia Post outlet and ancillary uses such as a cafe and a hairdresser.

  1. Unit 2 is located within the north western corner of the Corporate Park and the most convenient access is from Doody Street via an internal road called Graphix Row.

The proposal

  1. Unit 2 will be converted to accommodate a number of key functional spaces that comprise:

  • an auditorium seating 951 people,
  • meeting rooms together with storage and preparation areas, and
  • lounge, green room, toilet facilities and parents room.

  1. The proposed development proposes to use the site as a place of public worship to be known as "Hillsong Church" (the Church). The Church will involve a number of different activities at different times during the week. The amended Statement of Environment Effects identifies the following activities as being conducted on the site, the hours of use and the maximum number of patron.

Activity

Hours

Max. attendance

Monday

Bible studies

Personnel development courses

8.00am-7.00pm 7.00pm-10.30pm

300

150

Tuesday

Bible studies

8.00am-10.30pm

300

Wednesday

Bible studies, Youth program

8.00am-7.00pm 7.00pm-10.30.pm

300

250

Thursday

Women's group.

Worship team/ choir rehearsal

9.30am-midday 7.00pm-10.30pm

100

250

Friday

Bible studies Youth program

8.00am-7.00pm 7.00pm-10.30pm

300

400

Saturday

Church services

4.00am-10.30pm

1050 (per service)

Sunday

Church services

8.00am-10.30pm

1050 (per service)

  1. Church services will be the main activity conducted at the site and will be held in the auditorium during weekends only. Two services will be held on Saturday evenings and the Sunday services will be held throughout the day and the number of services will respond to demand. Each service is expected to attract 400 people to a maximum of 1050 people (including staff members) and will be typically 90 minutes in duration. A changeover period of 45 minutes will be allowed at the end of one service and the start of the next service to allow for the turnover of patrons and parking.

  1. Unit 2 will also be used during the week for a range of less intensive activities including meetings by various church related groups, children's activities and bible studies groups.

Relevant planning controls

  1. The site is zoned Industrial 4 under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposed development is permissible with consent, within this zone. Clause 8 provides that in assessing any development application consideration must be made of the goals and objectives in the document The Strategy for a Sustainable City of South Sydney . Clause 10 provides that consent must not be granted unless the proposed development is consistent with the objectives of the zone.

  1. Clause 28 provides requirements for built environment design principles and master plans.

  1. Draft Sydney Local Environmental Plan 2011 (draft LEP) is a relevant consideration having been advertised. The site is zoned IN1 - General Industrial under the draft LEP where the proposed use is prohibited in this zone.

  1. Development Control Plan No. 11 - Transport Guidelines for Development (DCP 11) applies to the proposed development.

  1. Other planning documents relied upon by the council are:

  • Metropolitan Plan for Sydney 2036 (the Metropolitan Plan),
  • Draft Sydney City Subregional Strategy 2008 (the Subregional Plan)
  • Ministerial Section 117 Direction 1.1 (the s 117 Direction) and
  • City of Sydney Southern Industrial Area Land Use and Urban Design Study (the Southern Industrial Area Land Study), and
  • The Strategy for a Sustainable City of South Sydney (The Strategy),

The draft LEP

  1. The site is zoned IN1 - General Industrial under the draft LEP where a place of public worship is a prohibited use. The zone objectives are:

· To provide a wide range of industrial and warehouse land uses.
· To encourage employment opportunities.
· To minimise any adverse effect of industry on other land uses.
· To ensure uses support the viability of nearby centres.

  1. Clause 1.8A of the draft LEP is relevant and provides savings provisions that state:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.

  1. As an exhibited draft LEP, it is matter that must be considered under s79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

Additional information

  1. By notice of motion filed on 6 March 2012, the council sought an order that the Court take judicial notice of certain resolutions of council committees and the council in respect of the draft LEP. The notice of motion was heard on 7 March 2012 and I made the following directions:

1. The respondent is granted leave to reopen the proceedings for the purposes of providing to the Court:

1.1 the resolution of the Planning Development and Transport Committee of 5 March 2012,

1.2 the resolution of the Central Sydney Planning Committee of 8 March 2012, and

1.3 the resolution of the Council of the City of Sydney of 12 March 2012.

2. The resolutions referred to above are to be filed by midday 14 March 2012.

3. The parties are granted leave to make written submissions in relation to the resolutions by midday on 14 March 2012.

4. The council is to provide any submissions in reply by 4 p.m. on 14 March 2012.

5. The council is not admitted to file any further evidence.

6. The council is to advise the applicant of the resolutions and provide copies of the reports by close of business 13 March 2012.

  1. The effect of the resolutions was to confirm that the council had resolved to endorse the draft LEP, including the provisions that prohibit places of worship within the IN 1 Zone. The council further resolved that the draft LEP be referred to the Minister with a request that it be made.

  1. As part of the documentation provided by the council in accordance with the directions of 7 March 2012, an affidavit of Francesca O'Brien, the Manager of the City Plan Review team, was filed. I do not read this affidavit, as the directions were clear that no additional evidence was to be provided.

T he evidence

  1. Mr Wynne, the applicants town planner, stated that the draft LEP is not certain or imminent and should not be given significant weight in determining the proposed development. At the time of the substantive hearing, the council had not adopted the draft LEP and there remains potential for modifications based on the submissions during the advertising period although this ultimately was not the case following the council's adoption of the draft LEP on 12 March 2012. Mr Wynne further states that the council is also in the process of commissioning the "Employment Land Study". The study is to "assist the City in responding to submissions on the Draft City Plan". Mr Wynne notes that the Employment Land Study area includes land proposed to be included in the IN 1 Zone under the draft LEP. He notes that the study brief specifically seeks to address, in part "amendments to land use tables and detailed zoning controls to ensure an appropriate supply of employment land" and "review the draft City Plan LEP land use tables for employment zones and assess their capacity to allow for retail and other services (including places of public worship) while maintaining the viability of the areas for employment and industrial uses". The study brief provides a time line for reporting in November 2011 followed by exhibition and considerations of submissions with a final report presented to the council in March 2012, although Mr Wynne acknowledges that this timeframe has been breached and the study has not been finalised.

  1. Mr Wynne further states that the Director General of the NSW Department of Planning and Infrastructure (the Department) has confirmed in correspondence dated 6 December 2011 that the draft LEP, as it affects the proposal, is not certain or imminent. This letter states that the outcomes of the Employment Land Study are to be considered before a decision is made on the draft LEP and the council's proposal to prohibit places of public worship in the IN 1 Zone is "not a final policy position".

  1. At the time of the substantive hearing, Ms Grose, the council's strategic planner, stated that the IN 1 Zone is consistent with the council's coherent and demonstrated intent to protect industrial land, as on at least two occasions the council has endorsed this zoning. In her opinion, and even at the time of the substantive hearing Ms Grose maintained that there is no evidence that the proposed IN 1 zoning, and the prohibition of places of public worship, will be amended because:

  • any amendment would contravene the direction set by the Metropolitan Plan, the Subregional Plan and Ministerial Direction 1.1 - Business and Industrial Zones,
  • the Department has been involved in the development of the draft LEP, and
  • the s65 certificate issued by the Department, while identifying some minor issues with the draft LEP, raised no issues related to the IN 1 Zone.

  1. The evidence of Ms Grose was confirmed by the council's resolution of 12 March 2012.

  1. Ms Grose further states that the completion of the draft LEP is not reliant on the outcomes of the Employment Lands Study. The council has an agreement (Local Environmental Plan Acceleration Fund - Funding Agreement) with the Department to submit the finalised draft LEP by 30 March 2012. In her opinion, this deadline will be met and this was confirmed by council's resolution of 12 March 2012. The Employment Land Study however has not been commissioned and the draft report will not likely be finalised. at the earliest, until the second half of 2012.

Findings

  1. The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at para 5). Relevantly, in Terrace Tower , Spigelman CJ states at paras 6 and 7 that:

6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

  1. If the draft LEP is imminent and certain, Terrace Tower (para 7) raises the question of whether the proposed development will preserve the character anticipated by the zone in the draft plan and whether the proposed development will undermine the objectives of that zone.

  1. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:

30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in para [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at para [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.

  1. His Honour further states (at para [35]):

...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.

  1. The questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application. Secondly, if the proposed development is imminent and certain whether the proposal undermines the expressed future planning objectives for the area in the draft LEP.

  1. On the question of whether the draft LEP is imminent and certain, I agree with Mr Wynne. At the time of the substantive hearing, there was no dispute over the status of the draft LEP. The draft LEP has been advertised, the submissions were currently undergoing consideration by the council staff and a report is likely to be submitted to the council prior to 30 March 2012 to satisfy the terms of the Local Environmental Plan Acceleration Fund - Funding Agreement between the council and the Department. The additional information provided with the reopening of the hearing confirmed this evidence.

  1. The status of the proposed Employment Land Study is also uncontroversial with the evidence of Ms Grose indicating that tenders are in the process of being sought for the preparation of this document with completion later in 2012 and exhibition and adoption in early 2013. The additional documentation provided by the council makes no reference to the status of the Employment Land Study.

  1. The critical issue, in my view, is the likely impact of the Employment Land Study on the finalisation of the draft LEP. Put simply, Mr Wynne maintains that the draft LEP will not be finalised until the Employment Land Study is completed and adopted by the council whereas Mr Grose is of the view that the draft LEP will be finalised prior to the completion of the Employment Land Study and that if the findings are inconsistent with the gazetted draft LEP then amendments to the gazetted draft LEP will be made as an independent process.

  1. I am satisfied that Mr Wynne's evidence should be preferred because it reflects the most recent correspondence from the Department where by letter dated 6 September 2011, from the Director General of the Department, Mr Haddad, to the General Manager of Hillsong Church, Mr Aghajanian, that states:

I refer to your correspondence of 17 August 2011 raising concerns about the provisions of the Draft LEP 2011 that proposes the prohibition of places of public worship in the Industrial 4 zone. You highlighted the implications of this draft policy on the activities of the Hillsong Church, particularly its proposed development application in Doody Street, Alexandria. You sought the Department's urgent advice as to the status of these provisions, particularly in the context of an appeal to the Land and Environment Court.
The proposed prohibition is not a final policy position as the Draft Plan is currently undergoing an assessment by the relevant authorities. I am advised that the Council is considering submissions in that regard, and in due course the Department will also be considering this issue and the merit of any policy decisions in that regard in advising the Minister for Planning and Infrastructure. The proposed prohibition had been put in the context of a Draft Plan seeking public submissions.
As you pointed out in your correspondence, an Employment Land Study which will address, amongst other things f this particular issue, is currently in preparation. I also agree that the finalisation of the Employment Study will be an important input to the future planning of this area. Accordingly, the Department will discuss with Council how the Draft Plan will progress once the outcomes of the Employment Study are known.
In making the above comments, the Department is not in any position to provide you with any comments on the specific merit of your proposal at Doody Street, Alexandria, nor on any other aspect of the appeal now before the Court.

  1. The correspondence make the following relevant points:

  • the prohibition of places of public worship within industrial zones "is not a final policy position",
  • the Employment Land Study is an important input into the planning of the area and will address the question of the appropriateness of other uses within industrial zones, and importantly,
  • the progression of the draft LEP will be based on the outcomes of the Employment Land Study.

  1. Contrary to Ms Grose's evidence, I accept that if the Director Generals correspondence is read in a reasonable and common sense way, there can be no meaning other than the draft LEP will not be finalised until the Employment Land Study is completed. It is considered to be an important input into the make up of the industrial land by the Department. While Ms Grose was correct in stating that the draft LEP would be before the council prior to 30 March 2012 to satisfy the terms of the Local Environmental Plan Acceleration Fund - Funding Agreement, the obligation to make the draft LEP rests with Department, and not the council. Based on the Director Generals correspondence, the draft LEP will not be made until the Employment Land Study is completed. I do not accept that any documentation provided by the council in the reopening of the hearing upsets this conclusion. As the Employment Land Study has not commenced its contents are unknown, as are any potential changes to the draft LEP. I note that no documentation was provided as part of the reopening to alter the status of the Employment Land Study. It follows, in my view that the draft LEP is neither imminent nor certain and as such no weight can be given to this document in the assessment of the development application.

  1. As I have found that the draft LEP is not imminent or certain, it is not necessary to address the question of whether the proposed development will preserve the character anticipated by the IN 1 Zone and whether the proposed development will undermine the objectives of the zone.

Zone objectives

  1. Clause 10 provides that consent must not be granted unless the proposed development is consistent with the objectives of the zone. The zone objectives are:

(a) to facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres, or other land uses which, due to their type, nature, scale, transport requirements or impacts, cannot reasonably be located in another zone, and
(b) to allow for a range of ancillary, non-industrial land uses that provide direct services to industrial activities and their workforce, including associated research, administration, commercial and retail facilities, and
(c) to ensure that development is carried out in a manner which does not detract from the amenity enjoyed by residents in neighbouring localities, the viability of commercial centres in the vicinity, or from the efficient operation of the local or regional road system, and
(d) to provide for appropriate forms of industrial development which will contribute to the economic and employment growth of the area, and
(e) to improve the environmental quality of the City of South Sydney by ensuring that industries conform to strict environmental and hazard reduction guidelines, and
(f) to ensure that the scale, design and materials of construction, and the nature of development, contribute positively to the visual quality of major access routes.

The evidence

  1. Mr Wynne and Ms Grose and Ms Reeve, the council's statutory planner, agreed that objectives (a), (b), (c) and (d) remained in contention.

Objective (a) - to facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres, or other land uses which, due to their type, nature, scale, transport requirements or impacts, cannot reasonably be located in another zone, and

  1. Mr Wynne states that the proposed development satisfies this objective as it is a use, that by virtue of its particular type, nature, scale, transport requirements and impacts cannot reasonably be located in another zone. In his opinion, the proposal would be difficult to accommodate in other zones, notwithstanding its permissibility, because of the particular characteristics of its operation. The particular characteristics are:

  • the dominant aspect of the proposal is holding services in a large scale, auditorium style environment and ancillary facilities, often accompanied by amplified music accommodating up to 1000 people,
  • the peak usage times outside standard business hours has the potential to conflict with sensitive land uses and the proposed location within an industrial zone minimises potential impacts,
  • the auditorium services are reasonably intensive, involving amplified music and large numbers of people coming to and leaving the site with the potential to impact on residential amenity - the proposed location minimises potential impacts,
  • the auditorium services generate relatively high levels of traffic and demands for parking and other zones are not suitable to accommodate such demands without unreasonable impacts on residential, retail and business activities,
  • the Church is not a typical place of public worship and has a specific character and function that requires a combination of specific site and locational requirements that are not readily satisfied in areas, other than in the industrial zone, and
  • the difficulties in establishing a large-scale auditorium style place of public worship in the Mixed Use Zone is highlighted by the significant public objections to other applications by the Church.

  1. Mr Peter Leyshon, a town planner and retail analyst, provided evidence for the applicant. On the question of whether the proposed development can be reasonably located in another zone, Mr Leyshon states that locating the proposed development within a Mixed Use zone may be problematic because of the existence of adjacent residential development and the potential for further residential development in the zones. On the basis that the Church requires a rental property of about 2700 sq m, Mr Leyshon identifies a number of properties available for rent within a Mixed Use zone however for a number of reasons, none are considered suitable.

  1. Ms Reeve maintains that the proposal does not satisfy objective (a) for the following reasons:

  • the proposed use is not an industrial use or a use that is ancillary to an industrial land use,
  • a place of public worship is a permissible use within the majority of the zones controlled by LEP 1998 and the existence of the applicant's Church at Waterloo within a Mixed Use zone supports the council's position that the proposal can be located in other zones,
  • the proposal relies on car parking that also serves other tenants of the Corporate Park,
  • the size of the Church is not considered to be extreme or at a level that could not be accommodated elsewhere, and
  • it is unclear what advantages the site offers in terms of transportation/parking above other zones.

  1. Ms Grose expresses similar concerns to Ms Reeve.

  1. Mr Adrian Hack, a retail analyst, also provided evidence for the council. He states that from a practical perspective, the question of whether the development can be reasonably located in another zone should not exclude zones outside LEP 1998. He states that the requirements of the Church could be met within existing Mixed Use or commercial zones and he identifies a number of specific sites that he considers suitable. On this basis, he believes that it has been demonstrated that the Church can be reasonably located in another zone therefore; the proposal is inconsistent with this objective.

Objective (b) - to allow for a range of ancillary, non-industrial land uses that provide direct services to industrial activities and their workforce, including associated research, administration, commercial and retail facilities, and

Objective (d) - to provide for appropriate forms of industrial development which will contribute to the economic and employment growth of the area, and

  1. Mr Wynne states that these objectives are not relevant as the proposal is not industrial development.

  1. Ms Reeve states that the proposed development is inconsistent with objectives (b) and (d) as it is not an industrial use or a use that is ancillary to an industrial land use on the Corporate Park site. While some additional employment opportunities may be created, these opportunities are not considered sufficient to outweigh the loss of industrial lands and the potential sterilisation impacts that the use will have on the ability of existing or new industrial uses.

Objective (c) - to ensure that development is carried out in a manner which does not detract from the amenity enjoyed by residents in neighbouring localities, the viability of commercial centres in the vicinity, or from the efficient operation of the local or regional road system, and

  1. Mr Wynne states that the proposed development satisfies this objective because:

  • the proposal is permissible under LEP 1988 and is able to be approved notwithstanding the Masterplan applying to the site,
  • the proposal involves the use of an existing warehouse building that has been vacant for a long period of time,
  • the proposal occupies a building with a floor area of 2700 sq m which represents a very small proportion of the overall amount of industrial floor area,
  • the peak operating times are outside standard business hours thereby minimising potential conflict,
  • sufficient dedicated car parking is provided in close proximity to Unit 2 to cater for its demands, and
  • the proposal does not result in the loss or rezoning of industrially zoned land.

  1. Ms Reeve maintains that the proposal does not satisfy objective (c) as the Corporate Park currently accommodates a range of land uses whose viability and potential for future expansion may be restricted by the proposed Church operations in relation to available parking areas and the overlapping of approved hours of operations. The proposal also has the potential to negatively impact upon the efficient operation of the surrounding road network and is reliant on the use of traffic marshals to assist members of the Church to navigate a complex site.

  1. Ms Grose states that the proposal does not support "the viability of commercial centres in the vicinity" as Sydney and its centres rely on warehouses and other industrial uses being located close by for their successful operation. The proposal results in a loss of industrial lands that would otherwise be supporting commercial and residential centres. Ms Grose rejects Mr Wynnes statement that Unit 2 is a relatively small proportion of the industrial land in the area as the proposal affects a much larger percentage of the site, given its dispersed car parking.

Findings - Objective (a)

  1. Contrary to the approach of Ms Reeve, objective (a) has two independent limbs. The objective does not solely require that any use must be an industrial use or a use that is ancillary to an industrial use to be consistent with the objective. The objective, by the use of the word or provides not only for the uses identified by Ms Reeve but any other land use, (i.e., land uses that are not industrial or ancillary to an industrial use) providing those other land uses satisfy the other criteria in the second limb of the objective. If other land uses, because of their type, nature, scale, transport requirements or impacts, cannot reasonably be located in another zone then they are consistent with objective (a).

  1. The question to be answered is whether the Church satisfies the criteria in the second limb of the objective. Importantly, and again contrary to the evidence of Mr Reeve, the answer to the question must be based on the particular characteristics of the Church, the subject of the development application, and not the more general question of whether a church or place of public worship is an appropriate use within the industrial zone.

  1. If the question is asked in this context, I agree with conclusions of Mr Wynne. The approach of Ms Reeve and Ms Grose that a place of public worship, irrespective of its size, is inappropriate in the industrial zone is puzzling, in that it is a permissible use and inconsistent with the findings in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, where McClellan CJ relevantly states (at para 117):

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

  1. There can be little doubt that the Church has different characteristics to more traditional places of public worship. The application proposes multiple services on Sundays (based on the service times and changeover periods it is possible that there could be up to 6 services per day), large numbers of attendees, amplified music and the need for relatively large areas for car parking and bus set down and pick up areas because of the number the attendees. I have little trouble in concluding that the potential exists for substantial amenity impacts from the general operation of the Church, irrespective of the amount of management and control provided. The fact that places of public worship are a permissible use within a number of other zones within the local government area (and identified in Ex 10, p 13 and Ex 21) does not necessarily mean that the operation of the Church would be acceptable in these zones given its particular characteristics. In my view, the inevitable impacts associated with the proposed Church are best addressed through isolation rather than management practices, if possible.

  1. I do not accept that in answering the question posed by the second limb of objective (a), it is necessary to identify specific sites that may be suitable for the proposed development, as suggested by Mr Hack. This may appear to address the criterion in the objective of whether the proposed use c annot reasonably be located in another zone but, in my view, only in a superficial way. The identification of a site does not mean that it is suitable for the proposed development. Without a thorough examination of the identified site it is not possible to say it is suitable for the proposed use. For example, the rent may be prohibitive or it may have one or more important characteristics that may make it unsuitable. In my view, the question should be answered by a more general inquiry about the particular characteristics of the proposed use and with an understanding of the likely development within different zones. Similarly, I do not accept Mr Hack's evidence that the reference to another zone is a reference to zones in another local government area. I rely on the findings in Trivest Pty Ltd v The Council of the City of Sydney [2010] NSWLEC 1273 to reject this approach.

  1. I am satisfied that the proposed development due to its type, nature, scale, transport requirements and potential impacts, cannot reasonably be located in another zone, and as such the proposed development is consistent with objective (a).

Findings - objectives (b) and (d)

  1. As these objectives relate to industrial uses, ancillary and non-industrial uses that provide direct services to industrial activities, and as the proposed development does not fall with the in any of these categories, I agree with Mr Wynne that the objectives are not relevant for an application for a place of public worship. For reasons set out in the preceding paragraphs, the evidence of Ms Reeve that proposed development is inconsistent with objectives (b) and (d) as it is not an industrial use or a use that is ancillary to an industrial land use must be rejected.

Findings - objective (b)

  1. As I understand, no issue was taken by the council on the likely impact on the amenity enjoyed by residents in neighbouring localities because of its relatively isolated location (some 700 m from the nearest residential development) and the lack of any substantive objection from residential properties. While Ms Reeve and Ms Grose maintained their opposition based on the loss of industrial land (and for this objective, also the association with commercial centres), I am not satisfied that the objective necessarily calls up this indirect association. If the rhetorical question was asked as to the effect the proposed Church would have on commercial centres in the vicinity, the answer would be close to zero given its relatively isolated location and the majority of operating times outside normal commercial hours operation. I do not understand that it was argued that the Church could reasonably be located within a commercial centre.

  1. The effect of the proposed development on the efficient operation of the local or regional road system is addressed later in the judgment and was found to be acceptable.

  1. I am satisfied that the proposed development is consistent with objective (b).

Strategic planning issues

The evidence

  1. Mr McEwen SC submits that the applicant's primary position is that the strategy documents identified by council are to inform the environmental planning instruments that control development. This was a conclusion even accepted by Ms Grose. The environmental planning instruments that are identified in s 79C(1) are mandatory considerations whereas the identified strategy documents are not. Mr McEwen submits that ultimately the strategy documents will be taken into account in the draft LEP and even though it is likely that the site will be in the IN1 zone, it is highly uncertain that this zone will prohibit places of public worship.

  1. Mr Wynne accepts that the strategic planning direction for the area seeks to ensure that the site and surrounding area is used predominantly for industrial type of land uses, however it does not direct that non-industrial uses, that may be compatible or appropriate, are prohibited. The Metropolitan Strategy and the Subregional Strategy establish high-level policy directions for the planning of the city and Ministerial Directions guide the preparation of LEP's in accordance with strategic policy. He notes that the Standard Instrument LEP does not mandate that places of public worship or other non-industrial development are prohibited in the IN1 zone. He notes that the development is not an industrial use however it is a permissible under LEP 1988 that applied to the site prior to the draft LEP. Mr Wynne notes that places of public worship have been included as a permissible use in the IN 1 zone in other local government areas.

  1. Mr Tomasetti SC submits that any assessment of the application is not limited to the matters in 79C(1)(a)(ii) as a means of identifying councils planning intent, as contained in the draft LEP. He submits that the Court should also consider other policy documents, which demonstrate the consistency of council's approach to the zoning proposed in the draft LEP. The Court has power to do so under both s 79C(1) and s 39(4) of the Land and Environment Court Act 1979.

  1. Ms Grose states that the proposed development is not consistent with State government strategic planning direction because:

  • Direction A1.5 of the Subregional Strategy identifies the site as an industrial area of "State Significance" given its location near the port, airport and Central Sydney,
  • the Metropolitan Plan directs that a draft LEP is to retain industrial land, and recognises that industrial uses requires separation from sensitive uses,
  • Ministerial Direction 1.1 reveals that the clear planning strategy is to protect the site for industrial uses,
  • the fact that places of public worship are not mandated as prohibited uses in the IN1 zone is irrelevant as it is clear that the industrial zones are designed to accommodate industrial, ancillary and other compatible uses. Uses such as bulky goods development, showrooms and places of public worship are prohibited, and
  • other local government areas have prohibited places of public worship in the IN1 zone, such as Liverpool and Auburn.

Findings

  1. In accepting the general proposition that it Court is not limited to the planning document identified in s 79C(1) as the sole means of determining whether a development is in the public interest, it must be accepted that environmental planning instruments should be given greater weight in the determination of a development application, unless there is a compelling reason not to do so. This is set out in Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195, where it states:

81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235).

  1. In this case, and for a number of reasons I am not satisfied that the policy documents identified by the council should be given any significant weight in considering the development application. First, and while the Metropolitan Plan identifies the site as part of a "Global Economic Corridor"; this corridor extends from North Sydney to Macquarie Park and from the City to the airport and Port Botany. The representation of the corridor (at pp 18 and 19) represents a wide and largely undefined area. The council placed some reliance on the " Objectives and Actions" component of the Metropolitan Plan and particularly Objective E3 that seeks " To provide employment lands to support the economy's freight and industry needs" and more specifically, Action E3.1 that seeks to " Monitor supply and demand for employment lands, and plan for new employment lands" and Action E3.2 that seeks to "Identify and retain strategically important employment lands". As I understand Actions E3.1 and E3.2 fall within the work contemplated by the council's soon-to-be commissioned "Employment Land Study". It would seem that the council has appropriately responded to this part of the Metropolitan Plan through its actions in commissioning the "Employment Land Study". I do not accept that it can be reasonably argued that the proposed use is somehow in conflict with Objective E3 without the completed "Employment Land Study". In my view, it would be unreasonable to refuse the development application on the basis that the "Employment Land Study" has not been completed.

  1. Second, the Subregional Plan was clearly envisaged to be a document that guided future planning for the Sydney City subregion and not a document that should specifically be used in the determination of a development application. The Introduction, relevantly states:

Subregional planning is an the intermediate step in translating the Metropolitan Strategy to a local level, and recognises that some issues extend beyond local government boundaries and require a "subregional" approach. The draft Subregional Strategies act as a broad framework for the long-term development of the area, guiding government investment and linking local and state planning issues. They also provide the detail required to guide the preparation of Principal Local Environmental Plans (LEPs), which is the key legislation that links local councils and NSW Government in land use planning for each local government area (LGA)

  1. Also, under the heading of "How this Subregional Strategy will be used", the following words are also relevant:

This draft Sydney City Subregional Strategy has been prepared by State Government in discussion with local government and stakeholders.
It acts as a framework for council in preparing their new Principle LEP (scheduled for 2011). Council will be required to ensure its new Principle LEP is consistent with the Subregional Strategies.

  1. Third, I do not accept that the Section 117 Direction 1.1 applies to any assessment of the development application as para 3 states:

When this direction applies
(3) This direction applies when a council prepares a draft LEP that affects land within an existing or proposed business or industrial zone (including the alteration of any existing business or industrial zone boundary).

  1. I also note that para 5 provides the opportunity for a draft LEP to be inconsistent with the terms of the direction on the basis that it can be justified and is acceptable to the Director General of the Department.

  1. Fourth, the Southern Industrial Area Land Study was also envisaged to be a document that guided future planning for the southern industrial area and not a document that should specifically be used in the determination of a development application. The Executive Summary relevantly states (at p 1):

The purpose of the study is to build upon the land use and urban design recommendations that were raised in the Southern Industrial Area Study Stage 1, which was undertaken by the City of Sydney in 2006. This study concludes Stage 2, which seeks to further assess and analyse the historical and planning evolution of the area, to come up with a design structure plan for the area which is then translated into land use and urban design planning controls. The recommendations from this study will specifically provide land use zoning, built form and urban design controls which can be incorporated into the City Plan Local Environmental Plan (LEP) and Development Control Plan (DCP), a new comprehensive package of planning controls being prepared by the City of Sydney.

  1. Fifth, cl 8 provides that in assessing any development application consideration must be made of the goals and objectives in The Strategy. The site is identified as being within the "Major Industrial" area.

  1. Mr Wynne states that the Strategy does not preclude the approval of the proposed development, which is development that is a permissible use under the zoning provisions of LEP 1998. Ms Reeve states that the principal objectives in cl 7 of LEP 1998 is to provide guidance on the implementation of the planning controls and provide an overview of the intent of LEP 1998. She states the following objectives are relevant:

(a) to ensure a sustainable City of South Sydney through the efficient and equitable management and allocation of resources
.
(c) to implement the goals and objectives contained in the Strategy for a Sustainable City of South Sydney published in June 1995 by the Council
.
(f) to create an integrated planning framework of land use control which allowed detailed provisions to be made in development control plans

  1. Ms Reeve maintains that the use of the site as a "place of public worship" is inconsistent with objective (a) as it seeks to use car parking allocated to other users and removes warehouse space from the stock of industrial land. It is also inconsistent with objective (c), in that the site is reserved for "major industrial development" within The Strategy and is inconsistent with objective (f) in that it is inconsistent with the Masterplan approved for the site.

  1. As I understand, The Strategy was published in 1995 and consequently predates LEP 1998 although cl 8 requires the goals and objectives to be considered to the extent that they relate to the proposed development. While still being a relevant consideration, the evidence clearly suggests that this document has largely been superseded by the more recent strategic documents. As required by cl 8 and having considered the Strategy, I am satisfied that there is nothing in the Strategy (or the principal objectives in cl 7 of LEP 1998) that would suggest that the use of an existing factory unit for a place of public worship would somehow conflict with the goals and objectives of the Strategy or the LEP 1988 objectives. While the site is designated as "major industrial development", this designation in the Strategy also provides for "activities with low scale, supporting commercial" which would it be inconsistent with the approach of Ms Reeve where she suggests that the site and surrounding area, should be predominantly, if not exclusively industrial. I have previously found that the proposed development is not inconsistent with the relevant zone objectives.

  1. Sixth, cl 28(2) provides that before granting consent to a development application on land greater than 5000 sq m, the Court must take into consideration in the Masterplan for the land that is available. In this case, a Masterplan was endorsed by the Central Sydney Planning Committee on 23 June 2005, in relation to the assessment of DA D/2004/1721. Ms Reeve argues that proposed development is not consistent with clauses 10 and 31 of the Masterplan because, firstly, it is inconsistent with the objectives of the Industrial 4 Zone, and secondly, the number of driveways or access points exceeds the four driveways in Bourke Road, including the main central driveway.

  1. As a general principle, I accept the submission of Mr McEwen that the matters identified in the Masterplan, do not fetter the Courts discretion to approve the proposed development. If the Court is satisfied that the proposed development is acceptable, when considered against the heads of consideration in s 79C(1) of the EPA Act, then any non-compliance with the requirements of the Masterplan would not be a reason for the refusal of the development application.

  1. In response to the first concern, I have previously found that the proposed development is not inconsistent with the relevant zone objectives. On the second concern, and for reasons set out later in the judgment, the provision of more than four driveways in Bourke Road is acceptable and necessary for the management of vehicles attending the site at weekends. The Roads & Maritime Services (RMS) do not oppose the proposed development and specifically states:

RMS has reviewed the above-mentioned development application and raises no objections to the proposed development as it will not have a significant traffic Impact on the classified road network during weekdays.

  1. I note that the RMS letter makes reference to "weekdays" and I have assumed, on the basis that there was no contrary evidence that the impact on the classified road network on weekends is also acceptable.

  1. While there can be no doubt that the strategic planning documents referred to by the council are extremely valuable for the long-term planning of the Sydney area, I do not accept that they should be given any significant weight in the determination of the subject development application, particularly when these documents clearly identify their purpose as not being a document for considering a single development application. For reasons outlined in the preceding paragraphs, the documents essentially guide the planning process and more specifically, the preparation of LEP's and DCP's. To give the strategic planning document the weight suggested by the council's witnesses, in my view, is overstating their role in the consideration of a development application.

Traffic/parking

The expert evidence

  1. Mr Graham Pindar, provided expert evidence for the council on traffic and parking matters and Ms Reeve, on associated town planning matters. For the applicant, Mr Tim Rogers provided evidence on traffic and parking matters and Mr Wynne provided evidence on associated town planning matters.

The contentions

  1. The contentions raised by the council state that the proposal does not:

  • provide an appropriate assessment of the traffic generated by the proposed development,
  • provide certainty that readily available parking spaces are available at all times for the proposed use,
  • provide a Plan of Management that can adequately address the traffic, parking and pedestrian movements generated by the proposed development, and
  • provide an approval under the Road Transport (Safety and Traffic and Management) Act 1999 for the Plan Management.

The available parking

  1. The Corporate Park occupies a relatively large area of land and is made up of a number of separate lots and 16 different buildings constructed at different times. There are many different occupiers on the site and these users operate generally independent of each other but utilise common infrastructure, such as car parks and vehicle and pedestrian access ways. Boom gates restrict vehicular access to some parts of the site and a security pass is required for entry. The existing car parking is provided in a mix of ground level, basement and multi-storey car parks across the site. A total of 1067 marked car parking spaces are provided for the Corporate Park (or 1709 car parking spaces if the approved, but not constructed deck for Hannan Print is included). For the purposes of this application, car parking is divided into 13 zones.

  1. A significant difficulty in addressing the car parking and pedestrian movement issues for the proposed development occurs as not all occupants of the Corporate Park have allocated car parking spaces. The majority of approvals require a specific number of car parking spaces to be provided for the development however many do not identify a specific location where the required car parking spaces are to be provided. Some also identify a number of car parking spaces in conditions of consent but provide a different number on the approved plans. Private agreements also exist between some occupiers and the owners of the Corporate Park for the provision of car parking spaces and where allocated, the allocation for specific periods of time. This complex parking arrangement for the Corporate Park was not initially fully addressed and this resulted in the proceedings being adjourned to allow the expert town planners and traffic engineers additional time to further consider the car parking spaces for the proposed use, taking into consideration the existing approvals near Unit 2. This resulted in amendments to the application and further reports from the experts on the revised car parking proposal.

  1. Ms Reeve and Mr Wynne agree that the Corporate Park provides a total of 1607 car parking spaces. They disagree on the number of car parking spaces that are available for the proposed development; Ms Reeve maintaining that 1433 car parking spaces are required for the existing industrial land uses, therefore only 174 car parking spaces are available for the proposed development. Mr Wynne states that he has identified a requirement for 1275 car parking spaces, based on a review of the existing development consents in the Corporate Park. This provides for a surplus of 332 spaces for the proposed development (or 349 spaces if 17child-care centre spaces are included for use on Saturday afternoon and Sunday as these times are not included in the development approval). Mr Wynne further states that there are 540 spaces in total in Zones 2, 8 and 11 and a minimum of 70 spaces available on the street within 200 m of the site during weekends. Given the observations of the low levels of usage of the existing car park within the site at weekends, it is likely additional car parking will be available for patrons within the site and on local roads than the 265 car parking spaces specifically allocated for Church use.

The proposed parking

  1. The amended car parking proposal provides for:

  • the use of parking spaces within Zones 2 (further broken down into Zones 2A, 2B, 2C and 2D), 8 and 11. Access to Zones 2A and 2D is from Doody Street (Entry/Exit No.1), Zones 2B and 2D from Bourke Road (Entry/Exit Nos.2 and 3), Zone 8 from Bourke Road (Entry/Exit No.4) and Zone 11 from Doody Street (Entry/Exit No.5),
  • the provision of 27 permanent car park spaces located within Graphix Row within Zone 2 to be available seven days per week for the Church,
  • the provision of 17 spaces allocated to the child-care centre located within Zone 2, after noon on Saturdays and all day Sundays, being outside the approved hours of operation of the child-care centre, and
  • the provision of a maximum of 265 car parking spaces (including the 27 permanent car parking space in Zone 2 and the 17child-care centre spaces ) available for Church use in Zones 2, 8 and 11 after 6:30 p.m. on Monday to Friday, after noon on Saturdays and all day Sunday.

Zones 2A and 2D

  1. Zones 2A and 2D provide for 13 and 23 spaces, respectively. The zones are located in close proximity to the auditorium. Zone 2A is to be used exclusively for staff parking, parking for people with a disability or church patrons with special needs. Zone 2D is to be used exclusively for staff parking. Access to both zones is from Doody Street. A boom gate is to be placed at the Doody Street access driveway to limit parking for staff, people with a disability or people with special needs close to the entrance to the auditorium. Staff will arrive prior to the services and will park along Graphix Row so that there will be little or no vehicle movements along Graphix Row immediately prior to the commencement of services in the auditorium. A traffic marshal will be located at the entrance to Zones 2A and 2D at Doody Street to direct church patrons to the Bourke Road car parking entrances if they are not entitled to park in Zones 2A and 2D.

Zones 2B and 2C

  1. Zones 2B and 2C provide for 22 and 48 spaces, respectively. The existing driveway (Entry/Exit No.2) to Zone 2B will be reopened by removing the temporary roadblocks. A boom gate will be installed at this location and a traffic marshal will manage and control the access driveway. When the 22 available parking spaces within this zone are full, the boom gate will be closed and motorists will be directed to parking Zones 2C, 8 and 11. The existing connection to Zones 2A will be closed and replaced with parking. This will allow for the separation of traffic and church patrons along Graphix Row and allow the northern section to be converted to a pedestrian path between the parking areas and the bus set down/pickup area.

  1. For Zone 2C, the entry of the road (Entry/Exit No.3) will be controlled by a boom gate and a traffic marshal will manage and control the access driveway. When the 48 available parking spaces within this zone are full, the boom gate will be closed and motorists will be directed to parking in Zones 8 and 11.

(3) The regulations may provide for circumstances in which subsection (2) does not apply.
(4) This section has effect despite the provisions of any other Act or law.

The first amendment

  1. Leave was granted for the first amendment on 31 August 2011. The amendments, in general terms, were:

  • different access arrangements,
  • different bus set down/pickup point from Doody Street to within the site, change parking arrangements with Zones 5 and 6 no longer used and replaced with Zone 8,
  • changed starting and ending time for Church services,
  • further details on the number of people using the premises,
  • closure of Graphix Row to vehicles, and
  • a changed Plan of Management.

The second amendment

  1. Leave was granted for the second amendment on 19 October 2011. The amendments resulted in an Amended Statement of Facts and Contentions, a Supplementary Statement of Environmental Effects and an amended Traffic Report, additional expert evidence on traffic and parking and new joint reports on traffic and parking and statutory planning. New statutory planning evidence was necessary as the previous council statutory planning expert was not available beyond the original hearing dates; being on maternity leave. The additional evidence amended the proposal, in general terms, by:

  • additional parking within Zone 11,
  • reduced parking within Zone 2,
  • relocation of the bus set down/pickup area,
  • additional access point to Bourke Road,
  • additional use of traffic wardens, an
  • reduction in the number of patrons to 1050.

The submissions

  1. The applicant's primary submission is that there is no power for the Court to make Orders 3 and 5 pursuant to s 97B because s 97B(2) can only require a costs order in respect of "the original development application". Once the original development application is amended it is no longer "the original development application" and therefore s97B(2) is no further applicable.

  1. Mr McEwen submits that from the first amendment, the development application was no longer "the original application" but instead became an amended development application. The consequence of this is that when the amended development application was amended the second time, s 97B could not apply.

  1. Mr McEwen submits that there are no authorities that indicate what constitutes a minor amendment for the purposes of s 97B(1) but accepts that it is a question of fact and agree in every case. Some principles are set out in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 as to what constitutes a minor amendment.

  1. Mr McEwen submits that the first amendment was minor and therefore s 97B does not apply, in any event. In the context of the application, the amount of parking and the availability within the site has always been in contest and the experts had always considered the parking within the Corporate Park and all of the consents. Although the amended application gave rise to further investigation of consents, these investigations did not arise from the amendment. It arose because the initial assessment, which was undertaken by both parties regarding the number and location of spaces allocated by the numerous consents affecting land, was incomplete. Similarly, the location of the bus stop was always flexible and the management of Graphix Row was a minor extension to the original traffic management plan. If considered against the principles in Futurespace, Mr McEwen submits that the first amendment was minor.

  1. For the second amendment, Mr McEwen submits that as a matter of fact and degree; the amendment was minor. The amount of parking was always in contest and although the second amendment application gave rise to further investigation of consents, these investigation did not arise from the amendment. It arose because the initial assessment, which was undertaken by both parties, was incomplete. The change in patron numbers and the expanded parking locations were only changes to details. Again, if considered against the principles in Futurespace, Mr McEwen submits that the first amendment was minor and as such, not costs order can be no.

  1. Mr Tomasetti submits that s 97B costs orders can, and have been made on multiple locations before by the Court. In circumstances where the Court has allowed the applicant to amend its development application, the section applies or is triggered. Once a development application is amended, it becomes the development application to be assessed under s 79C of the EPA Act. Nothing precludes an applicant from seeking to amend the development application, notwithstanding that it has already been amended before. The section is not expressly constrained so as to apply only to the first amendment made. It logically applies when an amendment to the development application (as amended) is applied for and allowed, except for a minor amendment.

  1. Mr Tomasetti submits that the first amendment is not a minor amendment.

When the development application was lodged with the council, a detailed analysis of available car parking on this site was requested, and repeated on numerous occasions, including the joint conferencing. The production of a detailed parking study may have resulted in the amendments, and the adjournment being unnecessary. The absence of critical information and the lack of analysis by the applicants experts during the initial hearing, led the applicant to realise that the Plan of Management, as proposed, was fundamentally flawed and that reliance on entirely different parts of the site for parking was now necessary. Car parking and traffic was, and is a fundamental part of the development application and is a central contention raised by the council. Mr Tomasetti rejects the submission that the amendments made were merely additional details but a fundamental part of the application.

  1. Mr Tomasetti submits that the second amendment necessitated a significant reassessment, including preparation of amended contentions, new reports, new statements of evidence and further joint conferencing. He further submits that at the time of the adjournment of the initial hearing, the applicant was in full knowledge that any adjournment would result in the council needing to engage a different statutory planner because of the previous statutory planner was commencing maternity leave soon after the first dates for the hearing. With this knowledge, the applicant still chose to adjourn the proceedings, amend its application and seek new hearing dates rather than proceed with the development application that existed at that time.

Findings

  1. The first question to be answered is whether the amendments are "minor". If the amendments are "minor", then the question of a s 97B costs order does not arise. Some guidance on this matter can be obtained from the judgment of Pepper J in Futurespace where Her Honour states (at 42):

42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA:
(a) first, the question of what is 'minor' is one of fact and degree ( Cachia at [25] and the first Groeneveld at [14]);
(b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development ( Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);
(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);
(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);
(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);
(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;
(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and
(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).

  1. If the amendments are considered in light of Futurespace, there can be no disagreement that:

  • the issue of whether the amendments are minor is one of fact and degree (para 42(a)),
  • the two amendments, per se, cannot lead to a conclusion that the amendments are not minor (para 42(b)),
  • even though the amendments do not involve a change in concept, it do not necessarily lead to a conclusion that these amendments are not minor (para 42(d)),
  • because the amendments do not raise an entirely new issue it does not necessarily mean that they are not minor (para 42(e)), and
  • because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties it is not relevant to the determination of whether the amendments are minor (para 42(f)).

  1. In this case, and having regard to the cumulative or overall effect in the context of the amendments, I am satisfied that the first amendment is not minor. I accept that a significant re-assessment of the development application was required by the first amendment. While amendments such as the changed starting and ending time for Church services and further details on the number of people using the premises, could, in isolation be regarded as minor, the change to the bus set down/pickup point and parking areas and the closure of Graphix Row to vehicles clearly amounted to a significant change to the access and parking arrangements for the proposed development. The parking and traffic assessment is complicated by the multiple users (some without development consent) and the specific requirements of development consents that needed to be individually assessed, largely because of the haphazard way in which parking was allocated for the Corporate Park. Because of this arrangement, car parking could not be simply reallocated to another area on the site. Further assessment was also required because of the potential conflict with the Masterplan and the industrial users of the site and Church patrons, even though they operate different peak times. I agree with the submission of Mr Tomasetti that the absence of a detailed analysis of the convoluted parking arrangements within the Corporate Park was a significant reason for the adjournment of the initial hearing.

  1. I also accept that a significant re-assessment of the development application is required by the second amendment for similar reasons as the first amendment. The additional parking within Zone 11 raises the same issues over the allocation of parking within the Corporate Park. The need to prepare an Amended Statement of Facts and Contentions, a Supplementary Statement of Environmental Effects, an amended Traffic Report and additional expert evidence on traffic and parking and new joint reports on traffic and parking and statutory planning highlights the complex nature of the amendments. Minor amendments, in many instances, can be addressed solely through additional oral evidence from the experts.

  1. On the question of whether s 97B costs orders can be made if a development application is amended, I accept with the submissions of Mr McEwen that once the original development application is amended it is no longer "the original development application" and therefore s 97B(2) is no further applicable. The power to modify the development application by the Court is available through s 39(2) of the Land and Environment Court Act 1979 and cl 55 of the Environmental Planning and Assessment Regulation 2000. Section 97B(1) specifies when the provisions of s 79B apply, that is when the applicant files an amended application. Section 97B(2) however places limitations on the provisions of s 79B(1) by limiting costs to "the original development application the subject of the appeal". Having been amended, the "the original development application the subject of the appeal" effectively no longer exists. The development application, the subject of the appeal, is now the amended development application even if Mr Tomasetti's submission that it is an illogical has some practical merit. To grant a s 97B costs order for the second amendment would be in conflict with s 97B(2). The unavailability of s 79B for costs associated with the second amendment does not however preclude the question of costs being sought pursuant to Rule 3.10(1)(a)(iv) of the Rules.

  1. For these reasons, the appropriate costs order is:

3. The Applicant is to pay the costs of the Respondent that were incurred in respect of the assessment, and proceedings relating to the original development application the subject of the appeal up to 31 August 2011.

Orders

  1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application D/2011/17 for use of Unit 2, 138-196 Bourke Road, Alexandria for a place of public worship is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit 14.

4. The applicant is to pay the costs of the respondent that were incurred in respect of the assessment, and proceedings relating to the original development application the subject of the appeal up to 31 August 2011.

G T Brown

Acting Senior Commissioner

ANNEXURE A

Decision last updated: 16 March 2012

Actions
Download as PDF Download as Word Document
Cases Cited

4

Statutory Material Cited

5

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399