Islamic Centre Sheikh Albani Incorporated v Fairfield City Council

Case •

[2024] NSWLEC 1215

•

22 April 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Islamic Centre Sheikh Albani Incorporated v Fairfield City Council [2024] NSWLEC 1215
Hearing dates: 21-22 February 2024
Date of orders: 22 April 2024
Decision date: 22 April 2024
Jurisdiction:Class 1
Before: Dixon SC
Decision:

See Directions at [58]-[59]

Catchwords:

APPEAL – development application – change of use of an existing industrial building to a place of public worship – structural adequacy of the building – parking demand – inadequacy of traffic management plan – inadequacy of on-site parking – vehicular access/queuing – pedestrian safety

Legislation Cited:

Fairfield Local Environmental Plan 2013

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.122; Sch 3

Cases Cited:

Architecture Design Studio Pty Ltd v Fairfield City Council [2019] NSWLEC 1253

Texts Cited:

Fairfield Development Control Plan 2013

Category:Principal judgment
Parties: Islamic Centre Sheikh Albani Incorporated (Applicant)
Fairfield City Council (Respondent)
Representation:

Counsel:
N Eastman SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2022/330789
Publication restriction: Nil

JUDGMENT

  1. These proceedings arise following the Fairfield City Council’s refusal of a development application DA 371.1/2021 (DA) for alterations and additions to an existing industrial building at 20 Justin Street, Smithfield (the site) for use as a place of public worship. The application also proposes the lease of land at 13-15 Stein Lane, Smithfield as a car park in association with the proposed place of public worship; and to convert Stein Lane into a shared zone to facilitate pedestrian vehicle access to the site from that car park.

The proposal

  1. The DA particularises the following alterations and additions to the Justin Street site:

  1. Ground floor:

  1. a main entrance fronting Justin Street;

  2. stair and lift access;

  3. men’s and women’s ablutions;

  4. toilets and showers;

  5. vehicle access with six (6) car spaces (including one (1) accessible space);

  6. bicycle parking area, with six (6) bike spaces;

  7. kitchen area; and

  8. bin storage area.

  1. First floor:

  1. stair and lift access;

  2. two (2) multifunctional hall areas; including one (1) hall area to be used as a prayer hall for men and one (1) hall area to be used as a prayer hall for women;

  3. shoe locker rooms;

  4. bathroom and a disabled toilet;

  5. storage areas;

  6. kitchenette; and

  7. office space.

  1. The works to the Stein Lane site include:

  1. In the car park:

  1. the use of 33 car parking spaces for parishioners of the site;

  2. entrance and exit boom gates;

  3. a 1.2 m wide pathway for pedestrians to enter and exit the car park; and

  4. wheel stops.

  1. In relation to the laneway:

  1. creation of shared zone including signage and stencilled pavement treatment.

  1. The use will be for religious programs, social services, counselling, meetings and community activities. The proposed place of public worship will be operated by the Islamic Centre Sheikh Albani Inc., which is a non-profit organisation. Such use will involve gatherings of worshippers from diverse communities and be carried out mainly by volunteers. 

  2. The application seeks approval for hours of general operation at the place of public worship between 9:00 AM and 4:30 PM; as well as for extended prayer and class hours between 5:30 AM and 9:00 PM. The place of public worship will operate seven days per week.

  3. Until such time as the approval and implementation of the shared zone, the maximum number of attendees is to be 27 persons (inclusive of staff) for the Friday midday prayer service and special events. Other activities associated with the general community (including for particular charitable activities and lectures in between daily prayers) are anticipated to have an attendance of fewer than 27 people. Worshippers and staff attending these daily prayers and activities will have access to the six (6) car parking spaces available at the Justin Street site and the available on-street parking.

  4. After implementation of the approved shared zone along Stein Lane, the application seeks approval that the Friday midday prayers and special events have a maximum capacity of up to 105 attendees. Given the site’s location within an industrial area, it is anticipated that the majority of attendees for the daily prayer will walk from their workplace or home to attend prayer. During that time the onsite six (6) car spaces will be reserved for staff and accessible parking, and the attendees arriving by car will be directed through the Traffic Management Plan (TMP) to park in the Stein Lane site, which offers 33 car spaces and/or in the on-street parking. (The amended TMP dated 5 March 2024 provides specific detail in respect of the maximum attendance for each prayer service/activity held at the Justin Street site (TMP at 1.4).) and is to be read with the Plan of Management (POM) dated 21 February 2024 (Ex G)).

Site and environs

  1. The Justin Street site is situated on the western side of the road opposite the intersection with Stein Lane and is within the E4 General Industrial zone pursuant to the Fairfield Local Environmental Plan 2013 (FLEP). The Stein Lane car park is on the northern side of the laneway on land zoned E1 Local Centre pursuant to the LEP Dictionary as illustrated in Figure 1 below.

Figure 1 Location Map (Source: Ex C Tab 1 p 3 (Statement of Environmental Effects prepared by Planzone dated August 2023))

  1. The surrounding development is predominately characterised by commercial and industrial uses. Adjoining properties are of a similar nature to the development site, accommodating a two-storey light industrial building with hardstand areas at the front. There are several places of worship nearby and the area is well serviced by bus stops within 400m of the development.

  2. The original DA proposed works at the ground floor which generated a concern (contention 8(g) and (h)) about the structural integrity of the building, in particular its buildability having regard to relevant Australian Standards including AS2890. These concerns, however, have been satisfactorily addressed by an amendment of the DA to include the following modified plans and certifications:

  • Amended structural design prepared by Horizon Engineers dated 23 February 2024 (Revision C) that illustrates a revised structural layout on the ground floor of 20 Justin Street;

  • Amended Architectural plans prepared by ADS Architecture dated 27 February 2024 (Revision 06) that incorporate the revised structural layout into the architectural design and the car parking spaces on the ground floor;

  • Amended Structural Engineering plans which incorporate additional structural beams and columns to allow the design to utilise narrower vertical columns that provide greater clearance for car parking spaces;

  • A statement prepared by JMT Consulting dated 27 February 2024, that certifies that the revised architectural plans and structural layout comply with AS2890, relating to car parking; and

  1. The amended Structural Adequacy Certificate prepared by Horizon Engineers dated 27 March 2024 (and filed with the Court on 18 April 2024), confirms that the proposed structural design is suitable for the site and for the development on the basis that the existing building on the site is deemed to be structurally suitable, in accordance with the conditions of consent.

The contentions

  1. Having resolved the structural issues, the primary concern of the Council is the adequacy of the car parking and the safety of the proposed pedestrian access over the shared zone (Amended Statement of Facts and Contentions dated 9 November 2023 (ASOFC)).

  2. These topics were addressed by the parties’ traffic experts Mr Steal (for the Council) and Mr Milston (for the applicant) in a series of expert reports and in their concurrent evidence.

Contention - Inadequate car parking and shared zone and pedestrian safety

The applicant’s position

  1. In this case, the Fairfield Development Control Plan 2013 (DCP) sets out generic parking rates for the development of a place of public worship in Table 1 of clause 12.1.1.

Figure 2 Table 1 of clause12.1.1 (Ex 3 Tab 18 (DCP) folio 229)

  1. Relevantly, under the heading “Minimum Number of Car Spaces Required”, Table 1 differentiates between places of public worship – where seating is provided and where no seating is provided.

  2. Where no seats are provided, the Table notes that “[t]he appropriateness of these rates shall be confirmed by way of a Parking Study” and

“For the purpose of the Parking Study worship hall capacity shall be estimated based on 1 person per 0.75m2 of worship area floor space. Traffic generation shall be based on a vehicle occupancy rate of 1.3 persons per vehicle. A minimum of 50% of the estimated parking demand must be provided on site. On-street parking capacity must be available for the remaining spaces within 400m radius of the place of worship otherwise additional off-street parking will be required”. (Emphasis added)

  1. As was apparent at the Court view, this Mosque has a carpeted floor with imprinted mats. Albeit I understand that attendees may choose to use their own mat placed over the allocated spaces to worship. Nonetheless, it is clearly a development that falls into the category of no seats provided.

  2. In addition to Table 1, the applicant also relies on clause 12.4 of the DCP (Ex 3 Tab 18 folio 234) which encourages innovative approaches to the issue of parking provision where it can be demonstrated that the aims of the DCP can be satisfied. The clause provides:

  1. Accepting that the DCP invites three calculations, the applicant relied on the non-seat calculations under the DCP, considerations based on: a worship floor area, and gross leasable area therefore being most relevant. In that regard, the applicant submitted that the calculation of car parking under Table 1 is as follows:

Where no seats provided – the larger of:

  • 1 space per 2m2 of worship floor area – worship floor area 193.95m divided by 2 = 96.97 car spaces

or

  • 1 space per 3m2 of gross leasable area (GLA) – GLA 576.7m2 divided by 3 = 192 car spaces

  1. Given the disparity between the number of car spaces generated by the above calculations - 96 spaces cf. 192 spaces - as acknowledged in the Council’s engineer’s internal memorandum (Ex 3 Tab 8, p 25), the applicant submitted that a parking study was necessary to provide greater accuracy to validate the parking demand of this “bespoke use”. Survey results, which the applicant then argued, were verified by reference to the traffic-survey demands for similar developments approved by the Council e.g. Yennora (Tcpt, 22 February 2024, p 23(38-43)).

  2. The traffic study was carried out by Mr Milston prior to the weekly Friday midday prayer on 10 February 2023. Based on the parking demand of the 130 attendees on that day, Mr Milston gave evidence that he interviewed congregants as they entered the Mosque and asked them what mode of transport they used to travel to the site. To understand the rate of car occupancy, congregants who travelled in a vehicle were also asked to indicate how many people were with them. Mr Milston in referring to his survey results gave evidence that 66% of the people drove to the Mosque and 52% of the cars conveyed more than one person. The average occupancy per car was 1.47 persons. And, although the occupancy rate of 1.47 persons per vehicle as surveyed was different to that set out in the Note to the DCP, he argued that it was appropriate as it reflected the actual use as surveyed on that date.

  3. Mr Milston sought to verify his travel mode split by reference to the survey results at four similar sites, which recorded the same (or a lower) modes of travel split (Ex 6 p 6; Tcpt, 22 February 2024, p 19). In giving that evidence, Mr Milston rebuffed the Council’s assertion that he had “cherry picked” comparable travel mode splits by stating that his conclusions were supported by additional morning prayer attendance surveys he carried out in May 2023 (Ex 6, p 6; Tcpt, 22 February 2024, p 20).

  4. Based on the evidence of Mr Milston, the applicant submitted that if the demand for onsite spaces is 50% of 47 spaces (and 24 spaces are required), then they are more than accommodated by this development in the 39 onsite spaces provided: six (6) at Justin Street and 33 at Stein Lane. The applicant submitted that the Note to Table 1 specifically includes the 50/50 split for a place of public worship and when applied in this case, the application offers 15 surplus onsite car spaces. (The applicant also submitted that even applying the 1.3 DCP occupancy rate to the 66% of people who drove, then the demand for parking would be 0.5 cars/persons (66%/1.3 per car = 54 parking spaces (with a requirement for 27 spaces to be provided onsite)). The applicant submitted that ultimately the adequacy of the onsite parking is dependent upon 50% of the minimum parking being provided onsite, with the balance in the street parking. Mr Milston’s survey of the available street parking between 12-2pm on a Friday within the 400m of the site found 154-157 vacant parking spaces of the 377 available, which the applicant submitted achieves the objective of clause 12.1.1 of the DCP (Ex D Tab 3, p 28). There are still 41% parking spaces available on the street, according to that survey.

  5. In making its case, the applicant emphasised that the development is set up for a maximum capacity of 105 attendees at the site. The attendee numbers will be controlled at the entry to the Mosque, and accepting that the POM picks up the TMP the agreed evidence is that collectively these plans will ensure that the booking service is used for the car park in Stein Lane, leaving the staff to use the five (5) onsite spaces and the one (1) accessible space being available as required (Ex 5, pp 5 and 11). And, while there is no evidence about the mode of travel during the night-time prayers for Ramadan (7pm till 9pm), and other evening special events, the applicant submits that I should get the same comfort from the 66% survey finding – that it would not be necessarily significantly different (Tcpt, 22 February 2024, p 68(28-31)).

  6. Ultimately, the applicant submitted that the applicant’s parking study, invited by the DCP, is reliable and that no more onerous standard ought (or can) be applied: s 4.15(3A)(a) of the EPA Act.

Vehicular access/queuing

  1. The applicant relied on the traffic evidence and survey data collated by Mr Milston to address the Council’s contention about safe and efficient access to the Stein Lane car park.

  2. Clause 12.2.4 of the DCP seeks a design that minimises on-street queuing through the creation of adequate on site “waiting areas”. In addressing this clause Mr Milston focussed on the development’s acceptable queuing of vehicles into Justin Street. Relying on his survey results and SIDRA modelling for the “shuttle flow operation”, he gave evidence that the average queue will be 5m and the maximum queue will be 13m – which is within the available queuing area. During his evidence, Mr Milston emphasised that his survey was conducted on 10 February when the Mosque was in operation for midday prayer and the Stein Lane car park was open to attendees. Mr Steal carried out his own survey however in Court he conceded that he did not appreciate that the survey results of Mr Milston included the use of the car park for the Mosque on 10 February Friday midday prayer service. He accepted in concurrent evidence this resulted in a double count in his tabled results. Given that Mr Steal’s evidence was based on a misunderstanding, the applicant submitted that I should prefer the evidence of Mr Milston and accept that there is no unacceptable queuing with the use of the Stein Lane car park.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I)

  1. Accepting that Horsley Road is a classified road and Justin Street connects to it, the development is caught by SEPP T&I. It is technically a traffic generating development pursuant to Ch 2 of the SEPP. As such, the applicant must demonstrate that the proposal will not cause unacceptable impacts on the surrounding traffic network; or traffic delays and that the traffic safety road congestion and parking implications of the development are acceptable. The relevant section of the SEPP is reproduced below:

2.122 Traffic-generating development

(1) This section applies to development specified in Column 1 of the Table to Schedule 3 that involves—

(a) new premises of the relevant size or capacity, or

(b) an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity.

(2) In this section, relevant size or capacity means—

(a) in relation to development on a site that has direct vehicular or pedestrian access to any road (except as provided by paragraph (b))—the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or

(b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection—the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3.

(3) A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies that this Chapter provides may be carried out without consent unless the authority or person has—

(a) given written notice of the intention to carry out the development to TfNSW in relation to the development, and

(b) taken into consideration any response to the notice that is received from TfNSW within 21 days after the notice is given.

(4) Before determining a development application for development to which this section applies, the consent authority must—

(a) give written notice of the application to TfNSW within 7 days after the application is made, and

(b) take into consideration—

(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including—

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

(5) The consent authority must give TfNSW a copy of the determination of the application within 7 days after the determination is made.

  1. As it happened, the DA was referred to TfNSW as required by s 2.122(4)(a) and no issue has been raised by TfNSW. As such, the applicant submits that the proposal is consistent with the matters outlined in subs (4)(b) of the SEPP (Applicant’s written submissions par 45). Although, it needs to be appreciated that the application’s compliance with SEPP T&I is based on the applicant’s traffic assessment that the development is expected to generate no more than 50 vehicles, and thereby less than the threshold referenced in Column 2 or 3 of the SEPP.

  2. As the Stein Lane car park does not have access to a classified road, or access to a road that connects to a classified road (i.e. Justin Street) in accordance with Column 3 of Sch 3 of the SEPP, the applicant contends that the development is not ‘traffic generating development’ for the purpose of s 2.122.

Shared zone and pedestrian safety

  1. The applicant relies on the agreement of the planners (Ex 5 p 5 at pars 8-16) and the traffic experts (Ex 6 p 7 at 3.1.7 and p 14) to submit that pedestrian safety can be safely managed between the Justin Street site and the Stein Lane car park. It accepts the Council’s proposed conditions of consent that require relevant approvals from the Local Traffic Committee and TfNSW; and completion of the approved works prior to the issue of an Occupation Certificate for events up to 105 people.

The Council’s final position

Car parking demand

  1. The Council rejects the applicant’s assurances that the parking demand is accurately reflected in the one-day survey carried out by Mr Milston. It submits on the evidence of Mr Steal (Ex 6 p 6) that a one-day traffic survey for the Friday midday prayer is simply not enough to calculate a reliable parking demand for this development which seeks approval for a maximum capacity of 105 attendees at the Friday midday service; and during the evening special events of Eid service (held twice a year); and at the evening prayer service held for the month of Ramadan in accordance with Islamic Jurisprudence.

  2. Rather, the Council submits on the evidence of Mr Steal that “…at a minimum a three-day survey is necessary to come to some average or average in terms of the numbers of people who are likely to travel by car” (Tcpt, 22 February 2024, pp 80(48)-81(6)).

  3. That said, in accepting that Mr Milston conducted an independent survey, the Council remains critical that there is no specific evidence of the precise nature of the survey questions put to the attendees. It submits that Mr Milston was a little unclear as to exactly what he asked these people. He did say "When people walked, I asked them another question", that question being "Where did you walk from?". However, this question could be answered in a number of ways. This might relevantly be followed by "Did you park further away and walk from that location?" but there is no evidence of that type of interrogation. As there are many possible answers to that question, the Council submitted that it remains a little unclear as to exactly what was asked and what answers were given by each person (Tcpt, 22 February 2024, p 81(8-19)). The Council invites me to accept these criticisms raised by Mr Steal about the survey, as valid criticisms of the method in which the data for travel mode has been obtained and the reliability of the results tabled (Tcpt, 22 February 2024, pp 81(48)-82(1)).

  4. The other fundamental problem with the survey, identified by Mr Steal, is the fact that we have no information whatsoever as to what occurs in terms of travel mode during the Ramadan night-time prayer that occurs every night for 30 days of the year. It is sometimes described as a special event, but it is a special event that goes for a long time and has potential impacts in terms of other businesses in the area that are operating during that time, in the evening hours, in terms of availability of parking, the use of the laneway, and matters of that particular nature (Tcpt, 22 February 2024, p 82(3-11)).

  5. With no evidence to understand the parking demand generated by the development after dark – when the industrial workplaces have closed and those that may have walked in the morning may well now need to travel by car, the Council contends that the Court simply has insufficient evidence to grant consent to 105 attendees.

  6. While acknowledging that there has to be flexibility in the application of development controls, the Council submits nonetheless that you must look at the objective of those controls. Relevantly, the objective is to ensure that adequate off-street parking is provided to serve the needs of development (clause 12.1.1 of the DCP). It is a very broad and generic objective because it relates to all of the uses that are identified in the Table 1.

  7. The Council submits that the starting point is to understand what are the off-street parking needs of this particular development (Tcpt, 22 February 2024, p 83(4-10)). Mr Seton summarised the Council’s position in opening in the following terms:

“This DCP makes provision for the circumstances where no seating is provided that has an alternative rate and specifically would apply to this particular type of place of worship. Commissioner, in terms of the council’s position on this particular matter, if it’s one space per two square metres of worship floor area, the calculation is 193.95 square metres of floor area for the worship area, so that’s the area you observed upstairs, and there are some numbers that are on the architectural plans that come to that figure of 193.95, and you divide that by two and that gives you a figure of 96.97 spaces.

So that’s a floor area calculation and then, if one then goes to the parking study that’s required to determine the appropriateness of the rate, the calculation again, using the worship hall capacity, is 193.95 square metres and it’s 75 square metres per person, so that gives you a figure of 258 people who might be accommodated with the floor space, but then there’s 1.3 people per car, which gives us 198 cars, but you then allow to discount that by 50% for the purposes of the parking study, which gives you a figure of 99 spaces. So, the parking study would show 99 spaces. The actual calculation shows 96.97 spaces having regard to the floor area calculation.

The alternative is the council would say even if you, at the highest, and did the calculation on the basis of the applicant’s information in its own report - the applicant says we have 105 people coming to this site as a maximum. They say 66% of those people travel by vehicle. That gives you a figure of 69.3 vehicles coming to the site, divided by the 1.47 that they use, rather than the 1.3 people per vehicle, it gives a figure of 47.14 car parking spaces being required and the council says that’s a shortfall and the applicant providing a total of 39 space in this particular case.

So, we say it doesn’t matter which way you slice it, you don’t have enough car parking spaces, even adopting the applicant’s own information, which we don’t accept. The main thing we don’t accept in that calculation is that only 66% of people arrive by vehicle and that’s the dispute which Mr Steele and Mr Milston have dealt with in their joint report.”

(Tcpt, 21 February 2024, pp 19(47)-20(32))

  1. Importantly, in contending that 47 spaces will be required for this development the Council emphasised that that number does not get discounted. That is what this development needs to provide for its off-site car parking. And, as only 39 spaces will be provided there will be a shortfall of eight (8) spaces on the most favourable case to the applicant (Tcpt, 22 February 2024, p 83(12-19)).

  2. The Council contends that a better survey, along the lines suggested by Mr Steal is necessary to understanding whether there is a change in modal shift between night and day, whether there is a change to the number of people in cars. Such figures may change. In the case of Architecture Design Studio Pty Ltd v Fairfield City Council [2019] NSWLEC 1253, relied upon by the applicant, the figure accepted by both experts as the appropriate occupancy rate was 1.3. Had that figure been used in this case, 53 spaces would be required leading to an even greater shortfall (Tcpt, 22 February 2024, p 83(21-29)).

  3. The Council accepted that a booking system, if it is implemented correctly, can work for the car park, as the Court has recognised that in a number of decisions in more recent times. However, the Council was very critical of the management of car parking in the laneway, and in that context, the adequacy of the plan of management. Unfortunately, it was left to cross-examination of the traffic experts to find the deficiencies in the documents that the planners did not otherwise understand in the context of traffic management. In that evidence, it became clear that the TMP (Ex D) is not a sufficient document to instruct those who are going to be controlling the use of the parking facility in Stein Lane if the development is allowed to accommodate the 105 people (Tcpt, 22 February 2024, p 84(4-12)).

  4. At p 7 of that document, the Table sets out specifications for the traffic controllers. Where there is going to be more than 27 people, and for any number between 27 and 105 attendees, four traffic controllers are required.

  5. The first one is to be placed at the entrance to the car park at 20 Justin Street controlling entry into the internal car park. The second one is to be placed at the entrance to the car park in Stein Lane, and the responsibilities of that person are identified in the Table namely “Monitoring the availability of the car park.” Although, it was unclear exactly where they were to do that. The evidence suggested that they were on the road on p 10, and in Court it was confirmed by Mr Milston as being “on the road”. That is, the TMP directed this traffic controller to carry out the four jobs identified in the bullet points of the schedule on the road. The applicant conceded this needed to be revised. The Council was also critical of the fact that the TMP sought to control pedestrian and vehicle entry and exit to the laneway in circumstances where they have no legal power to stop or direct anybody on the roadway (Tcpt, 22 February 2024, p 84(22-33)).

  6. Having regard to the significant deficiencies in the way that this plan can operate, the Council submitted that the Court cannot be satisfied that an approval of the Stein Lane car park will ensure the efficient operation of the laneway and intersection irrespective of any SIDRA analysis. In making that submission, the Council emphasised that the SIDRA analysis does not take into account these practical difficulties. The evidence is that the proposal adds more vehicles to the laneway at a peak time when you have the potential for combined uses to result in conflict with no satisfactory management arrangement in place.

  7. The other controller, controller 3 in the Table, is a person who is stationed at the intersection of Justin Street and Stein Lane, and the job of that person is to direct pedestrians walking from the Stein Lane car park towards the signalised pedestrian crossing at the intersection. As we did on the Court view, we walked up to the signals crossed and then went over. Again, the controller at this point is marshalled to direct pedestrians and cars entering Stein Lane without any legal authority to do so.

  8. The Council points out that other difficulties arise regarding controlling the traffic activity on Justin Street in the vicinity of the site ensuring worshippers obey the relevant road rules and do not park illegally. They can observe, but they have no power to move people on or enforce legal parking.

  9. There are significant deficiencies in what is an unusual situation where we have a remote car park. Remote car parks need to be convenient and efficient to use, otherwise, as Mr Steal in the joint report stated, people will be tempted to use the other private car parking facilities that are in closer proximity and are open and serve other businesses in the locality. That is where the complaints have come from, as was seen in the complaint letter in the bundle tendered (Tcpt, 22 February 2024, p 85(12-18)). The lay evidence is that parking in the area at night is already at a premium. Ms Candelori, the owner of a restaurant at the end of Stein Lane told the Court that her private restaurant car park is always full. She said that she intends to install a boom gate at the entry of her private car park to control parking access for her business which operates as both a restaurant and a function centre until midnight. It was apparent at the Court view that parking along the laneway and in the area of Justin Street near the site was nearly impossible at 9.30am. I also observed various businesses on Justin Street and the laneway had erected signage to prohibit parking by anyone other than customers. Ms Candelori complained about the parking congestion generated by the Crepe restaurant which operates until 1pm and said that if this DA is approved then the existing parking problems that she and other business owners experience will be exacerbated.

  10. In terms of the SIDRA analysis, the Council adopts Mr Steal’s concern that it does not answer completely whether there is queuing into the car park and into Justin Street (Tcpt, 22 February 2024, p 86(20-23)). It submits that the evidence that tries to bolster the SIDRA analysis and specified in the yellow pages in the traffic report is not conclusive. There is no satisfactory evidence to assure whether the laneway can be managed to co-ordinate vehicles entering and leaving.

  11. Ultimately, the Council submits that this car park is not the solution in the location that is proposed on this laneway.

  12. That said, the Council submitted that if I came to the conclusion that the site cannot accommodate anything more than 27, then conditions would need to be recast; and a direction given to the parties to provide a set of conditions to accommodate a maximum capacity of 27 people including staff at any one time (Tcpt, 22 February 2024, p 87(11-16)).

SEPP T&I

  1. With respect to the application of the SEPP T&I, the Council submits that if the parking demand generated is, as it suspects, greater than 50 cars then this is a ‘traffic generating development’ and a new application to TfNSW would be required on that basis.

Findings

  1. For the reasons articulated by the Council, as summarised above, I am not satisfied on the evidence that the development can operate with a capacity beyond 27 attendees including staff as proposed.

  2. I find that the applicable parking rate for this development is, as the Council submits, that prescribed in Table 1 to clause 12 of the DCP – where no seating is provided. Based on that rate, the parking demand for this development with 105 attendees is 47 car spaces however, the evidence is that the development only provides 39 spaces. Therefore, there is a short fall of eight (8) car spaces.

  3. While the Note to the Table refers to a parking survey, I am not satisfied that the parking survey relied upon by the applicant is representative of parking demand for the development with an attendance above 27 people in the daytime and there is no evidence of demand during the night, particularly for special events such as Ramadan. I accept Mr Steal’s evidence that the results of a single day of surveys is inadequate to reflect average or long-term travel behaviour, generated by this development particularly if open at night till 10pm with a maximum capacity of 105 people as proposed.

  4. Therefore, without representative survey data, the only reliable parking demand is that calculated by reference to the rates in Table 1 where no seats are provided and the 50% split is not engaged. The words in the Note are clear in that the 50% is employed to calibrate survey results. The only time that you apply the 50% discount is in relation to the parking study, a check methodology as the Note states.

  5. Furthermore, it is clear from the evidence that other businesses along Justin Street and those accessed via the laneway have associated parking demands which also rely on off-street parking (e.g. Ms Candelori restaurant and the Crepe business). I accept the evidence that there is an existing parking issue in this area and the laneway particularly in the evening. In that circumstance, without any evidence about the parking demand generated by this development at night, I am not satisfied that an approval of this DA with a shortfall of eight (8) spaces will “…ensure that adequate off-street parking is provided to serve the needs of development” which is an objective in clause 12.1.1 of the DCP.

  6. The traffic experts are agreed that there is no need to manage the pedestrians attending daily prayer activities where there are no more than 27 people attending (Ex 6 p 7). For that reason, the Council is content to allow the Mosque to continue to operate with a maximum number of 27 attendees, inclusive of staff and subject to conditions. Obviously, the Mosque building has a greater capacity for more attendees – the exact number however ultimately depends upon further investigations including traffic surveys undertaken in the day and the evening and relevant approvals.

Directions

  1. For those reasons, I intend to approve the Mosque with a maximum capacity of 27 persons including staff and direct the parties by 12 noon on 26 April 2024 to confer and settle conditions of consent in accordance with my reasons for judgment.

  2. Upon receipt of the agreed conditions after review if they are acceptable, I will make final orders.

………………….

S Dixon

Senior Commissioner of the Court

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Decision last updated: 22 April 2024

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Cases Citing This Decision

1

Islamic Sheikh Albani Incorporated v Fairfield City Council (No 2) [2024] NSWLEC 1238
Cases Cited

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Statutory Material Cited

2

Architecture Design Studio Pty Ltd v Fairfield City Council [2019] NSWLEC 1253