Iglesia Ni Cristo v Burwood Council

[2019] NSWLEC 1579

Land and Environment Court

New South Wales

Medium Neutral Citation:	Iglesia Ni Cristo v Burwood Council [2019] NSWLEC 1579
Hearing dates:	22-23 October 2019; 22 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for expansion and enlargement of the existing use of 10 Daisy Street, Croydon Park as a place of public worship to the activities and services outlined in condition 3 of Annexure A, subject to the conditions of consent in Annexure A. (3) The exhibits are returned, except for Exhibits 10, 11, A, C and E.
Catchwords:	APPEAL – development application – existing use as place of public worship – enlargement of existing use – acoustic impacts – traffic and parking impacts – development control plan parking requirements – whether on-street parking is adequate
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Road Rules 2014
Cases Cited:	Burwood Council v Iglesia Ni Cristo (No 2) [2019] NSWLEC 159 Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151 Fodor Investments Pty Ltd v Hornsby Shire Council (2005) 141 LGERA 14; [2005] NSWLEC 71 Iris Diversified Property Pty Ltd v Randwick City Council (2010) 173 LGERA 240; [2010] NSWLEC 58 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 Zhang v Canterbury City Council (2001) 115 LGERA 373
Texts Cited:	Burwood Development Control Plan – Amendment 4
Category:	Principal judgment
Parties:	Iglesia Ni Cristo (Applicant) Burwood Council (Respondent)
Representation:	Counsel: S Berveling (Applicant) R White (Respondent)   Solicitors: McCabe Curwood (Applicant) Houston Dearn O’Connor (Respondent)
File Number(s):	2019/138484
Publication restriction:	No

Judgment

1. COMMISSIONER: Iglesia Ni Cristo (“Iglesia”) is a Christian religious organisation that has been using premises at 10 Daisy Street, Croydon Park as a place of public worship since 2012. The site at 10 Daisy Street has the benefit of an existing use as a place of public worship, but development consent is required by Iglesia to enlarge or expand that existing use to allow them to hold worship services on Wednesdays and Sundays, to hold three week long occasions of celebration each year, and to hold other church related activities on a regular basis, such as meetings, choir practice and bible expositions. On 20 March 2019, Iglesia lodged a development application with Burwood Council (“the Council”) seeking that consent. Following the expiry of the period after which a development application is deemed to be refused, Iglesia lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which appeal forms the subject of these proceedings.

2. The Council agrees to the granting of development consent subject to conditions of consent that require the management of the premises through a Plan of Management, and that limits the number of persons who can attend the site at any one time to 70. The basis for the Council’s position is that is seeks to limit the traffic, parking and acoustic impacts of the activities of Iglesia at the site, given its context within a residential area.

3. For reasons that are outlined below, I have determined that the acoustic impact of the proposed expansion of the existing use is acceptable with the imposition of appropriate conditions of consent. I have also found that the traffic and parking impact of the expansion of the existing use is acceptable, and that the poor parking behaviour that has previously occurred within the street will be prevented and managed effectively through the Plan of Management. As such, I have determined that there is no basis upon which to limit the persons in attendance to the number proposed by the Council.

The development application

4. The development application was lodged by Iglesia after the commencement of proceedings by the Council in Class 4 of the Court’s jurisdiction, in which the Council sought declaratory relief with respect to the characterisation and extent of the existing use. At the time of the hearing of the present appeal, the decision in the Class 4 proceedings had not been given. Judgment was subsequently handed down by Robson J on 7 November 2019 in Burwood Council v Iglesia Ni Cristo (No 2) [2019] NSWLEC 159, in which His Honour made the following orders:

“1. Declare that the premises, being Lots 25 and 26 in DP 9297 and known as 10 Daisy Street, Croydon Park NSW 2133 (‘premises’) may be used as a place of public worship (including for the provision of religious instruction and religious training):

(a) one day a week; and

(b) for occasional religious days of significance; and

(c) for funerals and weddings.

2. Iglesia Ni Cristo (‘Iglesia’) is restrained from using the premises as a place of public worship (including for the provision of religious instruction and religious training) beyond the scope of Order (1) until such time as Iglesia has obtained development consent for the enlargement of the use.

3. Orders (1) and (2) are suspended for three months from 7 November 2019.

4. Costs reserved.”

5. As such, the lawful existing use is confined to the scope described in order 1. In making these orders, Robson J determined that development consent was required for the current use of the premises. At [103]-[104] his Honour states:

“103. I accept Council’s submission that, like Houlakis, the extension of the hours of operation of the Church has resulted in an enlargement of the use as it existed in February 1986. However, I do not consider the concerns regarding members of the Church staying at the premises overnight to be persuasive as the evidence demonstrates that such activity is limited and is in response to security concerns. As such, I do not accept Iglesia’s submission that in the absence of any conditions limiting hours of operation and patronage, there is no enlargement, expansion or intensification of the use within the meaning of s 4.66(2) of the EPA Act so as to require development consent for the current use of the premises.

104.   The evidence of the residents, in particular the long-term residents, provides an understanding of the activities undertaken at the premises as at February 1986. As I have noted earlier, this evidence was unchallenged and, as such, it is clear that the use as at February 1986 constituted a much more modest use of the premises in relation to the number of services being conducted. Simply stated, I find that there has been an enlargement of the use brought about by the increase in the services as at the date of the summons (and presently conducted) compared with the position in February 1986.”

6. The proposed development the subject of the development application before the Court is to enlarge the use, from that described in order 1 in Burwood Council v Iglesia Ni Cristo (No 2), to the following activities and services (“the proposed development”):

7. Iglesia is prepared to limit the number of persons who can attend the site for each of the above activities and services, with a limit of 140 for the services on Wednesday evening and Sunday morning, 140 for weddings, 120 for bible expositions, and various lower limits for the other activities and services. The development application is accompanied by a Plan of Management that manages the times of regular activities and services, the noise emanating from the premises, and the car parking behaviour of attendees. The management of car parking includes rostered parking attendants who have oversight and responsibility for managing parking on the site, parking on the street, and the dropping off and picking up passengers on the driveway.

The site and its locality

8. The site comprises two allotments legally described as Lots 25 and 26 in Deposited Plan 9297, with a total area of 973.8m² and a 24.38m frontage to Daisy Street. The site has a natural fall of approximately 1.4m from the Daisy Street frontage to the rear (eastern) boundary.

9. There are two single storey structures on the site. At the rear of the site is the original brick church, which was built in the 1920s, and is now used as a hall and office. The present church building, which commenced construction in 1935, is located in front of the earlier constructed building. Figure 1 is an aerial photograph of the site.

10. The site is located in a low density residential area characterised by a mix of single and double storey dwellings dating back to the 1920s.

The planning framework

The existing use provisions

11. The term “existing use” is defined in s 4.65 of the EPA Act, which provides:

4.65 Definition of “existing use” (cf previous s 106)

In this Division, existing use means:

(a)   the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b)   the use of a building, work or land:

(i)   for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)   that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

12. Section 4.66 allows an existing use to continue. It provides:

4.66 Continuance of and limitations on existing use (cf previous s 107)

(1)   Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2)   Nothing in subsection (1) authorises:

(a)   any alteration or extension to or rebuilding of a building or work, or

(b)   any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)   without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d)   the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17 (1) (b), or

(e)   the continuance of the use therein mentioned where that use is abandoned.

(3)   Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

13. Section 4.66(2) makes it clear that the continuance of an existing use permitted by subs (1) does not authorise a change to the existing use, including any enlargement or expansion or intensification. Instead, s 4.67 of the EPA Act allows regulations to be made with respect to changes to an existing use. Section 4.67 of the EPA Act provides:

4.67 Regulations respecting existing use (cf previous s 108)

(1)   The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:

…

(c)   the enlargement or expansion or intensification of an existing use.

…

(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

…

14. Clause 42 of the Environmental Planning and Assessment Regulation 2000 (NSW) (“EPA Regulation”) makes it clear that development consent is required for any enlargement, expansion or intensification of the existing use and provides:

42 Development consent required for enlargement, expansion and intensification of existing uses (cf clause 40 of EP&A Regulation 1994)

(1)   Development consent is required for any enlargement, expansion or intensification of an existing use.

(2)   The enlargement, expansion or intensification:

(a)   must be for the existing use and for no other use, and

(b)   must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

15. In light of the decision of Robson J in Burwood Council v Iglesia Ni Cristo (No 2), the existing use of the site the subject of the present proceedings is for a place of public worship, but the proposed development is an enlargement of the existing use and therefore development consent is required for that enlargement or intensification pursuant to cl 42 of the EPA Regulation.

The zoning of the land and applicable controls

16. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority to determine the development application, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Section 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

17. The site is zoned R2 Low Density Residential pursuant to the provisions of the Burwood Local Environmental Plan 2012 (“BLEP 2012”), which applies to the subject site.

18. Whilst a place of public worship is a prohibited use in the R2 Low Density Residential zone, as set out above, the site benefits from an existing use for a place of public worship, and therefore that use can be continued (pursuant to s 4.66(1) of the EPA Act) and can be enlarged or intensified with development consent (pursuant to s 4.67 of the EPA Act and cl 42 of the EPA Regulation).

19. Clause 2.3(2) of the BLEP 2012 requires the Court to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

20. The relevant development control plan is the Burwood Development Control Plan – Amendment 4 (“BDCP”). Table 4 in Section 4.6 of the BDCP concerns the minimum car parking requirements and applies to development in the R2 Low Density Residential zone. For a place of public worship it requires 1 on-site parking space for every 10 seats where fixed seating is provided, resulting in a requirement of 14 spaces where there is seating for 140 patrons.

The incorporated provisions

21. Clause 42, which provides that development consent is required for enlargement, expansion or intensification of an existing use, is taken to be incorporated in the BLEP 2012 by virtue of s 4.67(2) of the EPA Act. Pursuant to s 4.67(3), “any provisions that… would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force”.

22. With respect to provisions in a development control plan which might derogate from incorporated provisions, Iglesia referred to s 3.43(5) which provides:

…

(5) A provision of a development control plan (whenever made) has no effect to the extent that—

(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or

(b) it is inconsistent or incompatible with a provision of any such instrument.

23. In describing the effect of s 4.67(3) in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 with respect to a provision of the Kiama Local Environmental Plan 2011, Preston CJ of LEC said at [68]-[69] (emphasis added):

“68. Any entitlement to change an existing use comes from Part 5 of the EPA Regulation made under s 4.67 of the EPA Act. Clause 41 does provide that an existing use may be changed in one or more of the ways specified in cl 41(1) and cll 42 – 45 of the Regulation, but “subject to” the provisions of Part 5. Each of the provisions of cll 42 – 45 of the EPA Regulation require development consent for the particular change in the existing use specified in the clause. Of relevance here, cl 42 requires development consent for any enlargement, expansion or intensification of an existing use.

69. Accordingly, there is no entitlement to change an existing use in one or more of the ways permitted by the incorporated provisions, only to make a development application seeking consent to change an existing use in one or more of the ways permitted by the incorporated provisions and have a consent authority consider and determine that development application. The test, therefore, is not whether cl 6.4(4) of KLEP detracts from or deleteriously impinges upon any entitlement to enlarge, expand or intensify the existing use, but rather the entitlement to make, and have the consent authority consider and determine, a development application seeking consent to enlarge, expand or intensify the existing use.”

24. This is consistent with the decisions of the Court in Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194, Iris Diversified Property Pty Ltd v Randwick City Council (2010) 173 LGERA 240; [2010] NSWLEC 58 and oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47.

25. Consistent with the decision in Saffioti v Kiama Municipal Council, I consider that the requirement in cl 2.3(2) of the BLEP 2012 to consider the objectives of the zone is not a provision that derogates from the entitlement to make a development application for, and to have the consent authority consider, the enlargement or intensification of an existing use. Rather, the BLEP 2012 must be considered in determining the development application for that enlargement or intensification, pursuant to s 4.15(1) of the EPA Act, and the objectives of the zone must be considered in determining whether such an enlargement or intensification is appropriate.

26. Similarly, I consider that s 4.15(1) of the EPA Act requires me to consider the BDCP in determining the development application for enlargement or intensification, including the requirement of the BDCP with respect to parking. I do not consider that a clause of the BDCP that prescribes a certain car parking provision rate, of itself, is “inconsistent or incompatible” (within the meaning of s 3.43(5) of the EPA Act) with the incorporated provisions. The car parking rates in the BDCP “reflects a council’s expectation”, using the words of McClellan CJ in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254, and those rates cannot be considered a non-discretionary development standard or determinative of the application (see Zhang v Canterbury City Council (2001) 115 LGERA 373 at [75]). They are not “inconsistent or incompatible” with the entitlement to make, and have the consent authority consider and determine, the development application. Those parking rates are therefore a relevant matter for the Court’s consideration, but the provisions of the BDCP must be applied flexibly in accordance with s 4.15(3A)(b), which mandates for the Court, in exercising the functions of the consent authority, to “be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.” This is considered further below.

24. The decisions of the Court in Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 and Fodor Investments v Hornsby Shire Council (2005) 141 LGERA 14 need to be read in light of the later decisions of the Court. Consistent with the planning principle in Fodor Investments v Hornsby Shire Council, the impact on adjoining neighbours remains a relevant consideration when carrying out an assessment of the development application in accordance with s 4.15(1).

Resident evidence of current impacts

28. The hearing commenced with a site inspection, at which I heard evidence and submissions from four local residents. The site inspection also entailed attending the neighbouring property at 12 Daisy Street and viewing the site from their living room window. In addition to this, the Council read:

• Four affidavits of Paul Boutros, resident of 9 Daisy Street, Croydon Park, all dated 14 October 2019;

• Two affidavits of Michael Borosdevi, resident of 20 Violet Street, Croydon Park, each dated 17 October 2019; and

• An affidavit of Nicholas Williams, resident of 12 Daisy Street, Croydon Park, dated 16 October 2019.

29. The affidavit evidence outlined observations of use of the site, both historically, as well as the current frequency and hours of use. Much of this is evidence of the times and dates people were at the site, how many people they saw enter/exit the site, what those people were wearing on some occasions, observations of people being dropped off by car, observations of people sleeping in their cars, and the locations where people attending the site were parking their cars. I do not consider that such evidence is relevant to, or assists me in, my determination of the development application.

30. The actual amenity impacts described by the residents in their evidence on-site and contained (in a limited form) in the affidavits, is as follows:

• Disturbance caused by cars driving up and down the street as they look for car parking spaces, and performing u-turns in private driveways.

• Disturbance caused by cars arriving in the early hours of the morning, including lights flashing into the home and the noise of car doors closing and people talking.

• Illegal parking occurring, with evidence of two occasions when a car was partially parked across a resident’s driveway and a further occasion when a car had stopped on the road (with a driver and passenger in the vehicle) across a resident’s driveway.

• Evidence of cars parking across the driveway of the site.

• Loss of available on-street parking.

• Acoustic impact of the air-conditioning units.

• Privacy impacts to 12 Daisy Street when functions are occurring in the rear grassed area.

31. Given that the current use of the site by Iglesia is an enlargement of the existing use (in accordance with the decision of Robson J), the evidence of current amenity impacts can be relevant in evaluating the likely impacts of the proposed development, whether those impacts are acceptable and how those impacts might be managed. This is consistent with the decision of Preston CJ of LEC in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99, in which His Honour said (at [38]):

"For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level."

32. There are, however, key differences between the past use the subject of the residents’ evidence and what is proposed in the development application. The past use of the site was not managed through a Plan of Management, which is now proposed by the development application. Further, the amenity impacts caused by cars arriving in the local area in the early hours of the morning arose due to church services that commenced at 5:30am, whereas no such services are proposed in the development application. The other amenity impacts identified by the residents are discussed in my consideration below, including how those impacts are proposed to be acceptably managed through the Plan of Management and conditions of development consent.

Expert evidence

33. Mr Robert Toohey, a town planner employed by the Council, and Mr Brian Kirk, a town planner engaged by Iglesia, gave expert opinion evidence concerning the town planning issues in the form of a joint report and in oral evidence.

34. Mr Stephen Cooper, an acoustic consultant engaged by the Council, and    Mr Barry Murray, an acoustic consultant engaged by Iglesia, gave expert opinion evidence on the acoustic impact of the use of the site.

35. Mr Matthew McCarthy, a traffic engineer engaged by the Council, and Mr Robert Varga, a traffic engineer engaged by Iglesia, gave expert opinion evidence on the parking impact of the use of the site. This evidence included considering a parking survey commissioned by Mr McCarthy and conducted by Curtis Traffic Surveys.

36. The expert evidence is considered below.

The acoustic impact

37. The Council identified a number of noise sources in the operation of the site that could cause adverse acoustic impacts. They are the noise from the outdoor areas, the noise associated with on-street parking, the noise from the air-conditioning units, and the noise from within the building.

38. The evidence of Mr Cooper and Mr Murray is that, with the proposed service times in the Plan of Management, there will be no noise disturbance in the night time period caused by on-street parking. The night time period is defined as being from 10pm to 7am, and extends to 8am on Sundays.

39. Mr Murray opines that closing doors and windows of the church building during services, prayer meetings, choir practice, bible expositions and weddings will ensure that noise from within the buildings will comply with the relevant acoustic criterion. This is not disputed by Mr Cooper. The proposed conditions of consent, which are agreed by Iglesia, include the following:

“The use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to “offensive noise” as defined under the provision of the Protection of the Environment Operation Act 1997. The sound level output shall not exceed 5 dB(A) above the ambient background level at any residential receiver.”

40. Mr Cooper and Mr Murray also agree that the noise from the air-conditioning units can be managed through appropriate acoustic attenuation and conditions restricting the use of air-conditioning to certain hours. The conditions proposed by the Council, and agreed to by Iglesia are:

“Mechanical ventilation and/or air conditioning systems and equipment shall be designed and installed in locations that do not cause any noise nuisance or disturbance to nearby residential properties.

Air conditioning plant must not emit noise levels exceeding 36dBA at the residential boundary at any time. No air conditioning plant equipment shall be operated:

(i) Before 8am or after 10pm on any Sunday or public holiday, or

(ii) Before 7am or after 10pm on any other day.”

41. Mr Cooper also opined that adherence to the hours of operation for the air conditioning would be best achieved through a time clock that is attached to the air conditioning such that it automatically turns off at 10pm.

42. On the evidence of Mr Cooper and Mr Murray, I accept that the expansion of the existing use to the times described above has an acceptable acoustic impact on the neighbouring residents, and that the proposed conditions with respect to the emission of noise from the premises and the air-conditioning and are appropriate to manage the acoustic impact. Whilst a time clock is an appropriate way to ensure that there is compliance with the operating times for the air-conditioning units, it need not be required by way of condition but may nevertheless be utilised by Iglesia to achieve compliance.

43. The remaining issue concerns the acoustic impact of the use of the outdoor area between the church building and the church hall at the rear, which was not raised by the Council in its Statement of Facts and Contentions. Both Mr Cooper and Mr Murray agree that it could be the source of an acoustic impact given that the living room of 12 Daisy Street is immediately to the south. As a result, the Council seeks a condition that the area not be used at any one time for more than 6 people, or 6 children. Iglesia opposes such a condition, and instead considers it appropriate to allow the area to be used for outdoor activities up to 12 times per year (on average, once a month) but only between 10am and 4pm on a Saturday or Sunday, and limited to a 3 hour duration, with any gazebo erected to be enclosed on its southern side. Such a condition is supported by the evidence of Mr Kirk, who opined that the area is sufficiently small to limit the numbers of people who will be there, and the limit on the number of occasions to 12 a year will manage the impacts on the neighbour.

44. I accept Iglesia’s submission that limiting the use of the outdoor area to 12 occasions per year is sufficient to mitigate the acoustic impact of use of that area, as the residents of 12 Daisy Street did not identify noise disturbance from the outdoor area as a source of concern during the on-site inspection, despite a direct question from Dr Berveling with respect to the same. I also accept the evidence of Mr Kirk that the number of persons in that area is restricted due to its size. Further, I consider that the average use of that area once a month makes it typical of a residential use of an outdoor area of the same size.

Parking and traffic impact

45. The Council contends that the parking provided for the development, which is currently two spaces, is inadequate and overflow parking in the street has an unacceptable adverse impact on the amenity of residents. To reduce that impact so that it is acceptable, the Council’s position is that the maximum number of people at the site at any one time should be limited to 20, or to 50 or 70 (depending on the occasion) if the parking layout is changed to allow for 5 car parking spaces. As such, they propose conditions limiting the number of persons on the site, as well as requiring Iglesia to construct 5 off-street car parking spaces. The construction of 5 off-street car parking spaces is consistent with a development application for alterations to create the car parking area for 5 spaces, which was lodged by Iglesia in 2012 and remains undetermined by the Council.

46. In support of its position, the Council relies on the residents’ evidence of poor parking behaviour by those who attend the site, including driving up and down the street looking for car parks, performing u-turns and parking across driveways. The Council submits that the evidence of the residents with respect to parking behaviour is a relevant consideration in evaluating the acceptability of the impacts of the proposed expanded use. In this respect, the Council submits that the evidence of Mr McCarthy is that the proposed development creates a demand for 56 car parking spaces, and the impact of those 56 cars looking for parking spaces is unacceptable on the basis of the evidence of the residents. That impact is cars circling the street to look for parking spaces, cars double parking during drop-off and pick-up, illegal parking across driveways, and 3-point turns taking place in resident driveways. The Council submits that this parking behaviour is unacceptable and is caused by the lack of on-site parking, together with the number of people using the site. The Council therefore says that the number of people using the site should therefore be reduced.

47. The Council also relies upon the evidence of Mr Toohey, who considers that the number of persons on the site should be limited in accordance with the car parking rate in the BDCP. He opines that Iglesia should be given the benefit of two parking spaces on the street, plus 5 off-street spaces, and by applying the ratio of 1 car space for 10 persons from the BDCP, this leads to a maximum of 70 on the site at any one time. Mr Toohey considered that there would otherwise be the ongoing amenity impact occasioned by what he referred to as “double-parking”, which was described by him as a car stopping on the road to allow a passenger to be dropped off. Further, the Council relies on the evidence of Mr McCarthy, whose surveys demonstrate that on Wednesday evenings Daisy Street is “parked out”.

48. Iglesia submits, to the contrary, that the evidence of the traffic engineers demonstrates that even on the survey conducted by the Mr McCarthy, there is sufficient parking available in the surrounding streets to accommodate the current capacity and the capacity sought. Iglesia submits that no landowner has a right to park on a public road outside his or her property, and so the available capacity of the public road can be utilised for the sporadic peaks of parking demand occasioned by the proposed expansion of the existing use. To further demonstrate that there is parking capacity in the local streets around the site, Iglesia also relies on a memorandum dated 15 January 2018 from the Acting General Manager to the Mayor of the Council following a 7 day parking survey of Daisy Street and the surrounding streets, Violet Street, Rose Street, Lily Street and Waratah Street (Ex E). The memorandum concludes that the parking associated with the church is acceptable, as follows:

“Overall the street rarely reaches 100% parking occupancy which indicates that residents and their visitors are able to find parking within the street. Naturally parking demand is highest around the Church during the peak times of Saturday evening and Sunday morning. However, it should be noted that on the Saturday and Sunday approximately one third of vehicles were observed to be parked continuously in Daisy Street from 9.00am to 9.00pm (being the study period) without moving. These vehicles likely belong to residents (including trailers which have been left parked in the street). The fact that Daisy Street rarely reaches 100% parking occupancy even with these vehicles parked within the street, indicates that parking associated with the Church can be considered to be reasonable.”

49. Iglesia also submits that the proposed Plan of Management provides the mechanism that will manage the on-street parking so as to minimise the impact on residents in the locality, including by making it clear that the driveway can be used for drop-off, that no dropping off or picking up passengers is to occur in the middle of the street, that using a resident’s driveway to make a 3-point turn is discouraged, and that parking across a resident’s driveway is prohibited. The Plan of Management requires volunteer members of Iglesia to be on a roster as parking attendants, who will oversee the use of the on-site parking spaces, ensuring the safe drop off and pick up of members, and ensuring members do not block residents’ driveways. Iglesia says that the Plan of Management, together with the condition of consent preventing attendees from arriving 30min before a scheduled start time, or leaving 30min after, the scheduled finish time for church activities and services, will be effective in preventing the poor parking behaviour and in minimising the impact of using on-street parking.

50. Accordingly, Iglesia submits that the availability of street parking and the proposed management of on-street parking in accordance with the Plan of Management prevents there from being adverse amenity parking or traffic impacts occasioned by the proposed enlargement, expansion or intensification of the existing use.

The parking and traffic impact is acceptable

51. Whilst there is an impact on the availability of parking within Daisy Street occasioned by the current use of the site, and therefore by the expansion of the existing use, I do not consider that impact to be unacceptable. Nor do I find the amenity impacts caused by the utilisation of on-street parking to be unacceptable. I reach this conclusion for the following reasons.

52. Firstly, although the BDCP requirement for 14 car spaces is not met on the site, the evidence clearly establishes that there is sufficient parking available on the street to accommodate both the needs of the residents and the needs generated by the proposed development. The areas surveyed by Curtis Traffic Surveys (on behalf of Mr McCarthy) are shown in Figure 2.

53. The surveys were done over a period that Iglesia was operating, with 84 people in attendance on the Wednesday evening and 167 in attendance for a Sunday morning service. The proposed expansion of the existing use seeks to limit capacity to 140 for both services. The evidence of Mr McCarthy and Mr Varga, based on the surveys, is that:

• When operating on the Sunday morning beyond the capacity sought in the development application (with 167 persons at the site), the site generates demand for parking for between 42 and 46 car parking spaces. Despite this demand, there remain a minimum 10 on-street parking spaces available in zones b-e, i-n and q-r and 28 parking spaces available in all zones.

• When operating on Wednesday evening with 84 people on site, there was a parking demand of between 26 and 53 spaces. The additional demand if 140 people are in attendance is between 18 and 22 spaces. The spare capacity surveyed at that time was, at a minimum, 28 spaces. Accordingly, the additional parking demand if 140 persons attend the site can be accommodated within the spare capacity across all zones.

54. The evidence therefore establishes that there will remain spare on-street parking capacity at the times when Iglesia intends to operate with an attendance of 140, and therefore that there is sufficient parking available on the street to accommodate the on-street parking demands generated by the capacity proposed by Iglesia, in addition to the parking demands of the residents. This is consistent with the surveys referred to in the Memorandum to the Mayor (Ex E). Given that the conditions of consent require attendees to leave within 30min of the conclusion of the service, and that this will be managed through the Plan of Management, I also accept the evidence of Mr Varga that there would be minimal additional demand on parking on Sundays occasioned by an overlap between people leaving the adult service and those arriving for the child service. In any event, the survey evidence shows that “all visitors arrive for the adult and child session on Sunday prior to the start of the adult session, but not many visitors arrive just prior to the start of the child session” (Ex 5 Annexure D).

55. As such, although the standard with respect to the minimum provision of on-site parking spaces in the BDCP is not met, I accept that the availability of on-street parking is sufficient to provide an alternative solution for the provision of parking supply to meet the needs of both the residents and the users of the site, consistent with objective O1 of Part 4.6 of the BDCP. The use of the on-street parking as an alternative solution is appropriate in the circumstances of the present application, where an existing use is relied upon, where there are no building works proposed and where the parking demand generated by the site is occasional rather than constant.

56. Secondly, I accept that the Plan of Management will manage the parking behaviour of attendees in a manner so as to prevent the adverse impacts caused by parking across driveways and performing u-turns in residents’ driveways. The Plan of Management specifically prohibits parking across residents’ driveways and performing u-turns using residents’ driveways, and makes it clear that pick-up and drop-off of passengers can occur in the driveway of Iglesia. It then seeks to control that behaviour through the use of parking attendants, who will “oversee use of the on-site car spaces, ensuring the safe drop off and pick up of members, and ensuring that members parking in Daisy Street do not block any driveways of residences.”

54. Thirdly, I do not accept the Council’s submission that the driving of vehicles up and down the street looking for parking causes an unacceptable traffic or amenity impact. Vehicles driven up and down the street at low speed is a usual activity associated with traffic on a residential road, and there is no evidence that Daisy Street (or any of the surrounding intersections) is operating at or close to traffic capacity.

55. The above three reasons are sufficient for me to form the conclusion that the traffic and parking impact of the enlargement or expansion of the existing use to that in the proposed development is acceptable. However, I make a fourth and fifth observation that also support this finding.

56. Fourthly, it is clear that the current parking pressure within Daisy Street that is expressed within the residents’ evidence and submissions is exacerbated by the residents’ expectations that the street parking should only be available to them, and their resulting decision to park their cars and trailers on the street. The parking surveys undertaken by Curtis Traffic Surveys demonstrate that very few residents of Daisy Street (each of which has a driveway) are parking in their driveways, and it is clear from the observations on-site and in the surveys referred to in Ex E that residents are parking both cars and trailers on the street. This behaviour, including the parking of a resident’s trailer on the street frontage of the church site, reduces the available parking in the street and increases potential for poor parking behaviour from other users of the public road who need to find parking. Contrary to the expectations of the residents, there is no entitlement for residents to park on the street in front of their properties. Given the availability of driveways for parking, and the availability of parking on other streets within a short distance of Daisy Street as outlined in [52]-[54], any displacement of parking that is caused to residents during the sporadic peak periods of use of the site (Wednesday and Sunday services) is minor and does not create an unacceptable impact.

57. Fifthly, the main amenity issue identified by Mr Toohey was drivers “double parking” during the brief period of around 45 seconds when drivers are dropping off passengers to the church. I consider that this is resolved by the provision in the Plan of Management for church members to be dropped off and picked up on the driveway of the church, which is permitted by r 198 of the Road Rules 2014 and will be managed by a parking attendant. I note that if this nevertheless remains a genuine concern for the Council, then it could be resolved by the Council taking steps to have an area in front of the site that is marked as “No parking”, which will allow the area to be free for cars to stop to drop off and pick up passengers in accordance with r 168 of the Road Rules.

58. For the above reasons, I am satisfied that the proposed expansion of the existing use to the services and activities proposed by Iglesia, with a total capacity of 140, will not cause an unacceptable traffic or parking impact. As such, I do not accept the Council’s position that the capacity should be limited to a smaller number.

Whether 5 spaces should be provided

62. It is apparent that the provision of 5 car parking spaces on the site would be alleviate some of the parking pressure on Daisy Street and surrounds. However, in light of my finding that there is no unacceptable traffic or parking impact occasioned by the expansion of the existing use in accordance with the Plan of Management, there is no basis for requiring it as a condition of the present development application. Further, any works carried out on the site to achieve 5 car spaces would need to reflect what is sought in the development application for the car park shown in Ex 10. There is no evidence to support the planning merits of that application, and Mr Toohey’s evidence was not sufficient in that regard. I accept Mr Kirk’s evidence that any such development application needs proper consideration and assessment, including an assessment with respect to the loss of trees and landscaping. Without evidence that allows me to carry out that assessment, it is not appropriate to impose a condition of consent that would effectively avoid its proper consideration and assessment.

63. As such, I consider that it is sufficient that the conditions of consent require works to be done to bring the 2 existing car spaces into compliance with the Australian standard AS/NZS 2890.1 - 2004 for parking and to have at least one car space compliant with the Australian standard AS/NZS 2890.6 - 2009 for car parking for people with disabilities.

Plan of Management

64. In Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315, Commissioner Brown set out the following planning principle with respect to a Plan of Management:

“In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

6. Is the Management Plan to be enforced as a condition of consent?

7. Does the Management Plan contain complaint management procedures?

8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?”

65. The Council submits that whilst the Plan of Management is broadly consistent with these principles, its procedure for being updated is not adequate as it does not incorporate advertising any changes and consultation with local residents with respect to any such change. I do not accept that this makes the Plan of Management inadequate. The Plan of Management provides the following with respect to its ongoing review:

“The POM is to be reviewed within 30 days following the anniversary of development consent and shall incorporate any operational changes that have been adopted by the Church Leadership Group throughout the preceding year. If amendments are considered to be required, the Leadership Group shall notify Burwood Council of such proposed amendments, for approval by it, which approval will not be unreasonably withheld. A copy of any revised POM will be forwarded to the Council as soon as practicable after advice by Council of its approval.”

66. Given that the Plan of Management concerns the operational management of the site, and the times of the services and activities are contained in the conditions of consent, I consider it sufficient for the Plan of Management to specify that the approval of the Council is required for its amendment. In the course of determining whether approval should be granted, it is matter for the Council as to whether it consults with the local community concerning any proposed changes. I note that any changes to the service times or maximum numbers would require an application to modify the consent.

67. I otherwise accept that the Plan of Management is satisfactory and meets the requirements established by the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council. I accept the submissions of Iglesia that the Plan of Management relates to the proposed use and complements the conditions of consent, does not require people to act in a manner that is unlikely or unreasonable, and allows breaches to be readily identified by reference to the times of activities, the number of people on site and the use of parking attendants. The Plan of Management is also required to be provided to church members, and is incorporated in and consistent with the proposed conditions of development consent. It also provides a process for receiving and managing complaints, and requires that a name and number be displayed at the entrance to the site to a person nominated to receive and manage complaints.

Concerns of the residents

68. As outlined in my consideration of the traffic, parking and acoustic impacts of the proposed development, I consider that none of the evidence or concerns of the residents warrant refusal of the development application. The acoustic evidence demonstrates that, with the elimination of early morning services, the proposed development will not cause an adverse acoustic impact on neighbouring residents during the night time (sleep disturbance) period (see [38] above). The issue with respect to the air conditioning unit is resolved by conditions of consent (see [40]). Further, the evidence also demonstrates that there is sufficient on-street parking to accommodate the parking demands of the proposed development and the local residents, and I accept that the Plan of Management will be effective in managing poor parking behaviour.

Outcome of the appeal

69. For the reasons set out above, I am satisfied that the proposed enlargement of the existing use can be appropriately managed in accordance with the conditions of consent agreed to by Iglesia and the proposed Plan of Management, and will not cause unacceptable adverse impacts. As such, I do not consider the proposed development to be antipathetic to the objectives of the zone to provide for the housing needs of the community or to provide facilities and services to meet the day to day needs of residents. I accept the evidence that there is sufficient on-street parking to accommodate the capacity sought by Iglesia for each service or activity the subject of the enlargement, and that no reduction in those numbers is warranted.

70. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted for expansion and enlargement of the existing use of 10 Daisy Street, Croydon Park as a place of public worship to the activities and services outlined in condition 3 of Annexure A, subject to the conditions of consent in Annexure A.

3. The exhibits are returned, except for Exhibits 10, 11, A, C and E.

…………….

Joanne Gray

Commissioner of the Court

Annexure A (89.6 KB, pdf)

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Decision last updated: 29 November 2019