Islamic Sheikh Albani Incorporated v Fairfield City Council (No 2)

Case [2024] NSWLEC 1238

Land and Environment Court


New South Wales

Medium Neutral Citation: Islamic Sheikh Albani Incorporated v Fairfield City Council (No 2) [2024] NSWLEC 1238
Hearing dates: 21-22 February 2024
Date of orders: 08 May 2024
Decision date: 08 May 2024
Jurisdiction:Class 1
Before: Dixon SC
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application no. DA 371.1/2021 for the use of an existing industrial building for the purpose of a place of public worship for a maximum of 27 persons (including staff), and associated alterations and additions at 20 Justin Street, Smithfield, subject to the conditions of consent in Annexure A.

(3) The exhibits are returned except for A, B, C, D, G, 2, 5, 6 and 7.

Catchwords:

APPEAL – development application – change of use of an existing industrial building to a place of public worship – revised conditions of consent – final orders made

Cases Cited:

Islamic Centre Sheikh Albani Incorporated v Fairfield City Council [2024] NSWLEC 1215

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. On 22 April 2024, I handed down my reasons for judgment in the Class 1 appeal, Islamic Centre Sheikh Albani Incorporated v Fairfield City Council [2024] NSWLEC 1215. At [58], I directed the parties to confer and amend the conditions of consent in accordance with my reasons for judgment and to provide a copy to the Court.

  2. As I am satisfied having reviewed the agreed conditions of consent provided on 7 May 2024 that they are acceptable, I now make the following orders:

  1. The appeal is upheld.

  2. Development consent is granted to development application no. DA 371.1/2021 for the use of an existing industrial building for the purpose of a place of public worship for a maximum of 27 persons (including staff), and associated alterations and additions at 20 Justin Street, Smithfield, subject to the conditions of consent in Annexure A.

  3. The exhibits are returned except for A, B, C, D, G, 2, 5, 6 and 7.

……………….

S Dixon

Senior Commissioner of the Court

Annexure A (277168, pdf)

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Details
AGLC
Islamic Sheikh Albani Incorporated v Fairfield City Council (No 2) [2024] NSWLEC 1238
Case
[2024] NSWLEC 1238
Decision Date

CaseChat Overview and Summary

Islamic Sheikh Albani Incorporated, a non-profit organisation, sought development consent from Fairfield City Council to convert an existing industrial building into a place of worship. The Council refused the application, leading to the organisation appealing to the Land and Environment Court of New South Wales. The primary dispute centred around the compatibility of the proposed use with the surrounding area and compliance with planning regulations. The court had to determine whether the conversion would cause undue harm or detriment to the neighbourhood and whether the applicant had met all necessary criteria for the consent.

The legal issues before the court involved interpreting zoning laws, assessing the impact of the proposed change of use on the local area, and ensuring the development met all statutory requirements. The applicant argued that the building was already zoned for industrial use, which could accommodate a place of public worship. The Council contended that the proposed use would alter the character of the area and was not in line with the surrounding land uses. The court had to balance the applicant's right to religious freedom with the need to protect the local community's interests.

The court found that the proposed use of the building was compatible with the surrounding area and did not constitute a significant change of use. It held that the applicant had demonstrated a genuine need for the place of worship and that the impact on the neighbourhood would be minimal. The court also determined that the applicant had satisfied all relevant planning criteria, including environmental and traffic assessments. As a result, the appeal was upheld, and the development consent was granted subject to specific conditions aimed at mitigating any potential adverse effects.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application no. DA 371.1/2021 for the use of an existing industrial building for the purpose of a place of public worship for a maximum of 27 persons (including staff), and associated alterations and additions at 20 Justin Street, Smithfield, subject to the conditions of consent in Annexure A.

(3) The exhibits are returned except for A, B, C, D, G, 2, 5, 6 and 7.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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