Islamic Women's Welfare Association v Canterbury City Council

[2004] NSWLEC 667

Land and Environment Court

of New South Wales

CITATION:

Islamic Women's Welfare Association v Canterbury City Council [2004] NSWLEC 667

PARTIES:

APPLICANT
Islamic Women's Association

RESPONDENT
Canterbury City Council

FILE NUMBER(S):

10415 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Refusal of a Community Centre
Parking traffic and access
Amenity impacts mainly on the other residential units on the upper floors of the building
The suitability of the site being located within a residential building
Inadequate and inconsistent information provided with the application
Objections

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Canterbury Local Environmental Plan No. 178

CASES CITED:

DATES OF HEARING:

18/11/2004

EX TEMPORE
JUDGMENT DATE :

11/18/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle, solicitor
Cowley Hearn

RESPONDENT
Ms K Gerathy, solicitor
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

18 November 2004

10415 of 2004 Islamic Women’s Welfare Association v Canterbury City Council

JUDGMENT

1 This was a Class 1 Appeal, No. 10415 of 2004 between the Islamic Women’s Welfare Association and Canterbury City Council in regard to the refusal of the Community Centre in Unit 4 and 180 Haldon Street, Lakemba. It had originally been refused due to the impact of noise on other residential apartments in the building and because of supposedly inadequate parking for the expected up to 25 attendees on site at any one time.

2 Since that time, the childcare activity on site had been discontinued and transferred to a nearby early childhood centre, as in exhibit C. The activities at the centre had been more clearly identified and were described as:

“Presently the premises are used as a community facility and that is the Women’s Religious Resource Centre and is open to all women interested in the Muslim faith. One room of the premises are used as the office for the resource centre. The purpose of the Islamic Women’s Welfare Association is to help women become better wives, mothers and members of the community through empowerment of knowledge. In this instance we revert to Islamic teachings for directions on how to achieve this. Since commencing operation around 2000 it has continuously strived to assist Muslim women to live comfortably and harmoniously in their chosen communities.”

3 The site of the proposal is a ground floor apartment in the building, the latter is four storeys above the footpath level. There is a basement level with car parking in it.

4 The site is a two bedroom unit, with a kitchen and it is on the ground level accessed through the front security lobby into an intervening courtyard open to the sky, which gives access to two ground floor units, one of which is Unit 4.

5 At the rear of Unit 4 is a large roof terrace on top of the car park below, directly accessible by sliding doors from the living room of the unit. The living room is used for the discussion groups, and as described previously one bedroom is used as an office. The other bedroom used as a storage room. The kitchen is also utilised during the course of the day.

6 At the time of the hearing the parties had negotiated consent orders, which were amended further during the hearing. The amended issues previously in contention could be summarised as:

1. Parking traffic and access.

2. Amenity impacts mainly on the other residential units on the upper floors of the building.

3. The suitability of the site being located within a residential building.

4. Inadequate and inconsistent information provided with the application.

5. Objections.

7 The council and the applicant had, through the Court, appointed an expert, Mr Cady, town planner, who had reconsidered all of the issues and now supported the consent orders. In evidence were:

• Exhibit 1, the bundle of documents on the history of the matter and various reports from the council.
• Exhibit 2, the Canterbury Local Environmental Plan, No. 178 for the Belmore/Lakemba area, in which the site was located in the Business 3A zone, in which the use was permissible with consent.
• Exhibit 3, Development Control Plan No. 15 for the Business and Retail development areas and
• Exhibit 4, Development Control Plan No. 20 for the Car Parking code.
• Exhibit 5 was the Court appointed expert’s report by Mr Ian Cady.
• Exhibit A was the statement of environmental effects.
• Exhibit B was the subject plans.
• Exhibit C was a letter from the Early Childhood Services Centre dated 11 November 2004, confirming the transfer of the child care activities, and
• Exhibit D the consent orders as amended by hand during the hearing, and the tape or computer disc of that document.

8 The hearing was attended by:

• Ms Kirsten Gerathy of Abbott Tout solicitors for the respondent

• Mr Justin Doyle, solicitor of Cowley Hearne for the applicant.

• Ms Paula Bizimis, Acting Manager, Development Assessment, Canterbury City Council,

• Ms Soad Kohodari, Islamic Women’s Welfare Association,

• Ms Christie Elleman, Islamic Women’s Welfare Association Secretary,

• Mr Ian Cady of Urbis JHD Consultant Town Planner.

9 Mr Cady’s report in exhibit 5 was explained as follows:

“The car parking concerns were no longer raised because Unit 4 had been approved for commercial use in the original consent for the building. The proposed use had one on site space and one paid for public car space available to it. Public transport was readily available as the use was in the main shopping centre of Lakemba and several bus routes passed by the front of the building. Whilst the railway station was some 500 to 600 m away, it would be accessible via the bus routes.”

10 Mr Cady had inspected the arrival and departure times of people coming to the centre and found they were out of peak period, when on-street and nearby parking stations had ample vacant spaces.

11 A number of any attendees would come by public transport. Several other community facilities in the area have been granted consent by the council with little car parking, due to the availability of public parking nearby.

12 Mr Cady considered the unit was very suitable for the use proposed now that the childcare activity was transferred. People arrived in small numbers and were ushered from the front security door to the unit without fuss or noise.

13 Very occasionally mini buses were used to transport groups of women. Mr Cady had recommended the pick up and drop off point be relocated to minimise impacts on residents amenity, and the applicant had made suitable arrangements.

14 The large rear terrace of Unit 4 was not to be used for outside gatherings, although it could be used quietly in conjunction with the welfare centre. This was agreed to in any case by the applicant, and the Court was told that due to the dress customs of Islamic women it was unlikely to be used for group socialisation on the terrace, because it was overlooked by six or seven residential balconies above.

15 Mr Cady also recommended that the premises not be used after 2pm on Saturdays and all day on Sundays or public holidays in order to give the occupants of the residential units respite from the activities of the Welfare Centre. This was also agreed to by the applicant.

16 The original lack of information on the proposal had been overcome by the documents tendered in exhibits A, B and C, and the objectors’ concerns dealt with as previously described. The consent orders were amended to include fire safety conditions needed to upgrade the premises in view of the proposed use.

17 Overall there was nothing of sufficient impact in the amended proposal to warrant refusal of the consent orders as sought.

18 Therefore the orders of the Court, by consent of the parties, are:

1. The appeal is upheld.

2. Development consent be granted to Development Application No. DA 006/03 for the use of premises located at Shop 4, 180 Haldon Street, Lakemba (being Lot 4 in SP 61484) for a community facility incorporating administrative purposes, meetings and religious learning, as described in the Amended Statement of Environmental Effects (exhibit A in these proceedings); and plans numbered A1 rev.A and A2 rev.A by Mohammed Abbas dated October 2003 (exhibit B), subject to conditions 1 – 13 inclusive annexed hereto and marked “A”.

3. The exhibits are returned to the parties except Exhibits 5, A, B, C and D.

4. Parties have agreed no orders as to costs.

_____________________________

KG Hoffman

Commissioner of the Court

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