Misra v Campbelltown City Council

Case •

[2025] NSWLEC 1744

•

14 October 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Misra v Campbelltown City Council [2025] NSWLEC 1744
Hearing dates: 25-28 March and 5-6 June 2025; respondent submissions received 17 June 2025
Date of orders: 14 October 2025
Decision date: 14 October 2025
Jurisdiction:Class 1
Before: Dixon SC
Decision:

The Court directs:

(1) The parties are to confer and settle the conditions in accordance with my reasons for judgment and to provide a copy to the Court by 28 October 2025. In the event of disagreement, the parties are to provide competing conditions and a short reason in support and I will determine the final terms.

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

Catchwords:

DEVELOPMENT APPLICATION – community facility – alteration of the existing dwelling house use in part – areas of shared use – characterisation

Legislation Cited:

Australian Charities and Not-for-profits Commission Act 2012 (Cth), Ch 2, Div 25

Biodiversity Conservation Act 2016 (NSW)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.17, 4.19, 4.27, 4.55, 6.6

Campbelltown Local Environmental Plan 2015, cll 2.3, 7.10, Dictionary

Environmental Planning and Assessment Regulation 2021, regs 14, 19, 64

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021

Explanatory Memorandum for the Charities Bill 2013

Cases Cited:

Barron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61

Botany Bay City Council v Pet Carriers International Pty Ltd [2010] NSWLEC 147; (2013) 201 LGERA 116

Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253

Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41

Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Council of the City of Ryde v Haddad [2018] NSWCA 35

Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155

Elimatta Pty Ltd v Read [2021] NSWLEC 75

Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 32 LGRA 157

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Gordon and Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; (2006) 144 LGERA 408

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Monaltrie Area Community Association Incorporated v Santin [2025] NSWLEC 38

Peden v Lake Macquarie City Council [2024] NSWLEC 2

Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd (2008) 160 LGERA 20; [2008] NSWLEC 185

UMA Centre Limited v Canterbury-Bankstown Council [2018] NSWLEC 1591

Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180

Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50

Texts Cited:

Campbelltown (Sustainable City) Development Control Plan 2015

Campbelltown Local Infrastructure Contributions Plan 2018

Comprehensive Koala Plan of Management 2018, prepared by Biolink

Planning for Bushfire Protection 2019

Category:Principal judgment
Parties: Prem Misra (Applicant)
Campbelltown City Council (Respondent)
Representation:

Counsel:
R White with N Nadj (Solicitor) (Applicant)
J Reid with J P Zorzetto (Solicitor) (Respondent)

Solicitors:
Bick and Steele (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2024/00174000
Publication restriction: Nil

JUDGMENT

Introduction

  1. In 1996, the Campbelltown City Council granted development consent DA/367/1995 for the erection of a dwelling, a tennis court and storage dam (1996 Consent) on land at Lot 23 Deposited Plan 535651, also known as 203 Eagleview Road, Minto (Site). The design of the dwelling is unusual in that it is largely subterranean.

  2. The applicant, Mr Prem Misa, now seeks development consent to his DA No 783/2022/DA-C (DA) for use of the land and parts of the existing dwelling (Residential Building), as a community facility with shared areas between the two uses and associated works (Proposed Development).

  3. The proposal is that the community facility will be operated and used by the Mukti-Gupteshwar Mandir Society (the Society). The Society is identified by the Australian Government Charities and Not for Profits Commission website as a “charity”, whose purpose is identified as “advancing religion”. The Society’s website identifies the Site as housing the Thirteenth Jyotirlinga, being a stone linga and a consecrated Icon representing the Hindu god Shiva. The facts, as agreed, record that the Icon was consecrated on 14 February 1999 under the instruction of the Jagadguru.

  4. The Thirteenth Jyotirlinga is located within the prayer room of the dwelling and called the “Jyotirlinga Room”. This room is not part of the proposed community facility and is identified on the development plans as being for “residential use”. The use of this room in the dwelling as a private prayer room was approved by the Court in Misra v Campbelltown City Council [2001] NSWLEC 256 as per Cowdroy J.

  5. The use of the land for a “community facility” is permissible with consent in the E4 zone under the Campbelltown Local Environmental Plan 2015 (CLEP), however, the Council contends that the Proposed Development does not satisfy the definition under the LEP.

  6. The applicant contends that the Council has misunderstood the definition of “community facility” and asserts that the Council’s characterisation of the Proposed Development is misconceived.

  7. The proper characterization of the Proposed Development, being a threshold jurisdictional issue, is central to the resolution of this Class 1 appeal proceedings.

The Proposal

  1. As amended, the Proposed Development comprises:

  1. the ongoing use of the Site (and part of the existing dwelling on the Site) for residential purposes;

  2. part of the existing dwelling to be used exclusively for the community facility purpose, and some parts of the existing dwelling to be used exclusively for the residential accommodation purpose, and other parts shared, that is, used to serve both the use of the building for the purpose of a community facility and for its use for the purpose of “residential accommodation” (as defined in the Dictionary to the CLEP) in the form of a dwelling house;

  3. the use of the community facility for the carrying out of regular weekly activities, including religious education, singing/choral classes, meditation and yoga classes, counselling sessions, Sanskrit language classes, life education, discourses and study of scriptures;

  4. a meeting and event room (on a periodic basis) for events, with a larger event to be permitted every weekday, and two larger events permitted on weekends;

  5. meetings and events to be limited to a maximum of 120 people, with a maximum capacity at the Site at any one time of up to 178 persons; and

  6. the carrying out of activities between 9am and 9pm, Monday to Sunday, with Site gates to be open from 8am-10pm daily.

  1. The development application is also supported by a Plan of Management which is proposed to form part of the development consent (Ex A).

  2. The physical works to the existing dwelling include:

  1. construction of stairwells, landings and other internal features to enable access to and within the existing building;

  2. installation of signage, windows, sliding doors and other internal and external features;

  3. installation of a mechanical ventilation system, with ventilation stacks located externally, at ground level;

  4. earthworks to enable the works described above; and

  5. demolition works to accommodate new works within the existing building.

  1. The physical works around the grounds of the Site include:

  1. earthworks, comprising the placement of approximately 180m3 of fill around the wall of an existing dam;

  2. erection of a new 2.4-metre-high acoustic barrier wall along the Site's southern boundary, from the Site's western boundary to a point located 30 metres east of the dwelling located immediately south of the Site, the design of the acoustic fence to be the subject of a condition (T3:41);

  3. construction of a 25-space car park in the south-western corner of the Site, using “GrassProtecta Mesh” finishing; and

  4. alterations to existing hardstand car and pedestrian access and parking works (constructed without consent), including construction of concrete paths and ramps, driveway widening works and the construction of speed humps.

  1. A more detailed schedule of the physical works is attached as Annexure A to the judgment (from Tab 64, Ex A plans dated 26 March 2025).

  2. The development application was accompanied by various expert reports dealing with arboriculture, transport, ecology, acoustics, stormwater and engineering. After the joint conferencing of the experts, the application was supplemented with additional information and there were further amendments to the plans which has resolved many of the Council’s and the objectors’ concerns with the proposal (AWS at [13]).

  3. For example, the contentions raised by the Council about traffic and parking have now been satisfactorily addressed by the rearrangement of the parking layout, travel path, signage and the incorporation of a traffic management plan.

  4. The contention about acoustic amenity is satisfactorily addressed by the introduction of an acoustic 2.4m-high barrier or fence along the existing boundary as shown on the survey (Ex A, Tab 49); (T31:20-23). The design of which is dealt with by a condition of consent (T31:41).

  5. Before dealing with the contentions still pressed by the Council, I need to give some further details about the Site and its context.

The Site and its environs

  1. The Site is of an irregular shape with a 138.5 metre frontage to Eagleview Road and a total land area of 2.03 hectares.

  2. It is located within the C4 Environmental Living zone under the CLEP.

  3. The land immediately adjoining to the west is zoned R2 Low Density Residential, and the land located further to the east is zoned variously; C3 Environmental Management and RE1 Public Recreation.

  4. The adjoining property immediately north of the Site, at 201 Eagle View Road, is an approved place of public worship for which development consent was granted in February 1991 pursuant to the statutory framework at that time. The use of the subject Site for the purpose of a place of public worship is an innominate prohibited use under its current C4 Environmental Living land use zoning.

  5. The aerial photo shown in Figure 1 of the ASOFC reproduced below shows the Site in context.

  1. The existing dwelling is located roughly in the centre of the Site and, as already identified, is predominantly below ground. The other existing site works include:

  1. a car park area, driveways and two vehicle crossovers to Eagleview Road;

  2. an amenity building, incorporating a common room and roofed pergola, which is located adjacent to the northern boundary;

  3. a decorative fountain, surrounded by a hardstand area;

  4. a dam located near to the western edge of the Site, with a small built structure, having a distinctive double-tiered roof, erected on a strip of land protruding into the centre of the dam; and

  5. various landscaping, several statues and other external embellishments, including a retaining wall located in the south-east corner of the Site.

Statutory Framework

  1. The ASOFC sets out the relevant statutory framework.

  1. Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)

  2. Biodiversity Conservation Act 2016 (NSW)

  3. Environment Protection and Biodiversity Conservation Act 1999 (Cth)

  4. Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

  5. State Environmental Planning Policy (Resilience and Hazards) 2021

  6. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

  7. Campbelltown Local Environmental Plan 2015 (CLEP)

  8. Campbelltown (Sustainable City) Development Control Plan 2015 (Campbelltown DCP)

  9. Comprehensive Koala Plan of Management 2018, prepared by Biolink

  10. Planning for Bushfire Protection 2019

  11. Campbelltown Local Infrastructure Contributions Plan 2018

Expert Evidence

  1. The following experts gave oral and written evidence in the proceedings:

Expertise

Applicant

Respondent

Joint Expert Report

Building Code of Australia

Michael Wynn-Jones

Tony Nunn

Proposed ‘altered building’ (Ex 7)

Town Planning

James Lovell

Aaron Essenhigh

Town Planning Joint Report (Ex 4)

Traffic

Anton Reisch

Tom Steal

Joint Report of Traffic Experts (Ex 6)

Acoustic

Stephen Gauld

Steven Cooper

Joint Expert Acoustic Report (Ex 5)

Contentions

  1. By the conclusion of the evidence, the contentions raised with respect to waste management (contention 9), traffic and parking (contention 12), and noise (contentions 13 and 14), were resolved subject to the imposition of suitable conditions.

  2. The Part B2 contentions – preconditions to the grant of development consent – were also resolved. The development does not require a BDAR certificate under the Biodiversity Conservation Act, and a bushfire prone land certificate has been issued under s 4.14 of the EPA Act (T92:20-35).

  3. The Council also now accepts that the proposed upgrades to the building (physical works) are capable of compliance with the Building Code of Australia (BCA) as the final amended plans are sufficiently detailed and certain to be capable of approval (CWS at [43] under the heading “Matters Resolved”).

  4. In their final submissions the parties identified the following legal issues between them to be:

  1. whether the proper characterisation of the proposed development is a “community facility” and,

  2. whether the proposed use of the Site for the purpose of a community facility is lawfully capable of co-existing with the approved and continuing dwelling house use under the 1996 Consent (ASOFC filed 12 March 2025) (RWOS).

  1. In addition, the following merit issues remain to be resolved. Broadly they relate to: orderly development of the Site (contention 2), site suitability (contention 4), failure to comply with the Campbelltown DCP (contention 5), BASIX and Sustainability (contention 7), building form and character (contention 8), inadequate Plan of Management (contention 10), and public interest (only in relation to traffic as raised by the objectors).

Contention 1 – Characterisation – consideration

  1. The Council contends that the applicant’s description of the development has pivoted slightly during the hearing, and that this had led to some confusion as to the final development sought.

  2. It submits the Court will infer from the AS [16]-[17], [21], [27], [37], [51] that the effect of the grant of development consent will be to authorise the use of the dwelling as well as the community facility, consistent with s 4.19 of the EPA Act, just as the residential use is shown on the plans in Ex A, Tab 64.

  3. However, the difficulty with that approach, is that the DA has always been assessed by the Council “…as a use for the purpose of a community facility on the basis that the applicant had always maintained that the use for the purpose of the ‘dwelling’ does not form part of the application, and the 1996 Consent is relied upon for its continued use” (see: AS [45], Ex A, Tab 43, p12; T25:41-49; T26-28; T194:28-34). The Council’s draft conditions of consent describe the development as the continued use of the dwelling and a new community facility with condition 2 limiting the use to a community facility (Ex 10).

  4. And, while the Council accepts that land may benefit from more than one development consent, and that those development consents can be inconsistent – it submits that they are not to be engaged or utilised at the same time (CWS at [4]; AS [50]).

  5. Given this confusion, the Council addresses both scenarios (CWS at [6]) however, ultimately it submits that whether the application is for a community facility and the continued use of the dwelling under the 1996 Consent; or the approval of two separate and independent uses or a community facility that includes an ancillary dwelling use as a dwelling, the Court the will not be satisfied that the proposed development is properly characterised as a “community facility”, being a use permissible in the C4 zone under the CLEP.

  6. Firstly, the Council identifies that the CLEP is in the standard instrument form under the EPA Act.

  7. Clause 2.3(1) of the CLEP specifies for each zone in the land use table: the objectives for development, being development that may be carried out without development consent, development that may be carried out only with development consent and development that is prohibited.

  8. In the C4 zone, development that may be carried out without development consent is limited to home occupations. Development that is permitted with development consent is limited to a list of 26 nominate uses. Development that is prohibited is identified as 4 nominate uses together with any use that is not identified in the land use table for the C4 zone as being permissible with or without development consent.

  9. Accepting that both dwelling houses and community facilities are permissible uses with development consent, the Council argues that unlike the facts of Botany Bay City Council v Pet Carriers International Pty Ltd [2010] NSWLEC 147; (2013) 201 LGERA 116, the nominate permissible use of a community facility is defined as specifically excluding use that could be characterised as a use for the purpose of “educational establishment, hospital, retail premises, place of public worship or residential accommodation”.

  10. The CLEP relevantly defines “community facility” as:

community facility means a building or place—

(a) owned or controlled by a public authority or non-profit community organisation, and

(b) used for the physical, social, cultural or intellectual development or welfare of the community,

but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.

  1. After noting that the definition of “community facility” is broad, the Council submits in their opening submissions at [19]:

“…The breadth of the defined use is narrowed by the express exclusions from the use ‘for the physical, social, cultural or intellectual development or welfare of the community’. The ‘excluded uses’ are not species of the genus of a community facility that are ‘carved out’ in the definition, they are separate and distinct uses.”

  1. Put simply, the Council contends that the definition of “community facility” requires the concluding paragraph to be read with the chapeau and paras (a) and (b) in accord with the Court’s reasoning in Council of the City of Ryde v Haddad [2018] NSWCA 35 (Haddad) at [20] and [28].

  2. Therefore, the definition of “community facility” requires an inquiry as to whether the proposed use includes any of the defined (and prohibited) uses.

  3. The Dictionary to the CLEP defines the relevant terms as follows:

place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

dwelling house means a building containing only one dwelling.

Dwelling houses are a type of residential accommodation—see the definition of that term in this Dictionary.

residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following—

(a) attached dwellings,

(b) boarding houses,

(baa) co-living housing,

(c) dual occupancies,

(d) dwelling houses,

(e) group homes,

(f) hostels,

(faa) (Repealed)

(g) multi dwelling housing,

(h) residential flat buildings,

(i) rural workers’ dwellings,

(j) secondary dwellings,

(k) semi-detached dwellings,

(l) seniors housing,

(m) shop top housing,

but does not include tourist and visitor accommodation or caravan parks.

(CWS at [19-21]).

  1. As the definition of “community facility” does not include residential accommodation or a place of public worship, the Council submits as a precondition to characterizing the Proposed Development application as a “community facility” the Court must be satisfied that the Proposed Development does not include (a) residential accommodation and (b) place of public worship.

  2. After interrogation of the definition of “community facility” and “place of public worship”, the Council contends, on the evidence, that the Court will find significant overlap between these two uses and characterise the Proposed Development use as being for the purpose of a place of public worship with an ancillary residence (T71:3-5). The distinction between the two uses being that a “place of public worship” requires the building or place to be used for the purpose of religious worship and a “community facility” does not (CWS at [11]).

  3. The Council accepts that development consent is concerned with the acts done or to be done by the user and not the identity of the user (Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; (2006) 144 LGERA 408). However, it submits that the permanent installation of the Icon on this consecrated site is relevant to the characterisation of the Proposed Development use because when “worship” is viewed through the lens of Hinduism (as explained in the documentation lodged with the original DA) it includes the types of activities proposed in the community facility. Thereby, the building or place will be used for the purpose of religious worship.

  4. Working through the definition of “community facility”, the Council accepts that the proposed development will be controlled by a non-profit organisation because the Society is registered as a charity pursuant to Ch 2 Div 25 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act) (Ex A Tabs 17, 27, and 28; Ex 3 Tabs 17-19), and entitled to charity tax concessions. Furthermore, that the applicant’s achievement of non-profit status for the purpose of paragraph (a) of the definition of “community facility” is the Society’s connection to “advancing religion”. A concept, albeit not defined in the ACNC Act but discussed in the Explanatory Memorandum for the Charities Bill 2013 and said to involve: “the promotion of spiritual teaching and observances that act to promote and manifest it.”

  5. To be “charitable” under the legislation, the Council contends that the purpose of the Society “must be directly and immediately religious and involve ways of advancing religion, including providing and maintaining facilities for worship; supporting religious clergy; missionary bodies; and religious associations”. It submits “[i]t is insufficient to be classified as an organisation “advancing religion” if a purpose only arises out of or has a connection with a faith, church or denomination. If the purpose is not immediately or directly religious, it is not charitable” (CWS at [16]-[17]).

  6. While the Council acknowledges that a use for a “community facility” could fall within the ambit of “advancing religion” it contends that after an inquiry into the activities and broader operation of the Society, in order to properly understand the connection to “advancing religion”, the Court cannot be satisfied that the community facility will not be used for a place of public worship (CWS at [18]).

  7. Despite the applicant’s persuasive burden, it has not tendered the Society’s constitution or any evidence on how the Hindu faith undertakes religious worship to assist to characterise the use: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 as per McColl JA. It opposed the Council calling evidence and academic material on worship in the Hindu faith – previously proposed as part of Ex 2 Vol 2 Tab 20.

  8. The Council submits that the constitution (Ex 3 Tab 19) and the summary of activities of the Society on its website suggests that its purpose squarely incudes public worship. The Society has not adduced any evidence that the Society operates from any other location other than the subject site such as to satisfy the Court that the “community facility” will not be used for public worship particularly when the activities nominated in the Amended Statement of Environmental Effects bear “… a close resemblance or relationship with the activities of worship in the Hindu faith” (Council’s Supplementary bundle at Ex T3, tabs 12 and 13 [CWS at 20]. In that regard, the following matters were referred to in the Council’s opening submissions:

  1. The Maha Shivrati festival is attended by “devotees from the World over” that “visit the Mukti-Gupteshwar temple on the occasion of Maha-Shivratri festival and make their lives contented by paying obeisance to the Lord of the lords”;

  2. Most Hindu temples are dedicated to one particular god or goddess [1] .

    1. Ex 2, Vol 2, Tab 13, p 7

  3. The 13th Jyotirlinga is dedicated to the worship of Lord Shiva. Shiva is one of the three supreme gods of the Hindu religion and the principal god of creation and destruction [2] .

    2. Ex 2, Vol 2, Tab 13, pp 7, 14

  4. Worship of Shiva dates from 300BC [3] ;

    3. Ex 2, Vol 2, Tab 13, p 7

  5. Shiva is often worshipped through the linga noting that “it is not the linga that is worshipped, but the one whose symbol it is” [4] ;

  6. In Hindu scriptures, there are 13 Jyotirlingas [5] ;

  7. As a consecrated icon the 13th Jyotirlinga is dressed with beads, a chain and robe, it is painted with colourful pastes, adorned with flowers and surrounded with offerings and items associated with worship [6] ;

  8. The Brahmin priest conducts the ritual sustenance of the Icon and is the intermediary between the worshipper and the god. At the beginning of worship, or puja, the Priest summons the presence of Shiva in the temple through prayer or mantra. While chanting in Sanskrit from the Scriptures the Priest begins the ritual bathing of the icon [7] ; and

  9. Viewing and being in the presence of the Icon are central to worship [8] .

    4. Ex 2, Vol 2, Tab 13, p 8

    5. Ex 2, Vol 2, Tab 13, p 8

    6. Ex 2, Vol 2, Tab 13, p 14

    7. Ex 2, Vol 2, Tab 13, p 15

    8. Ex 2, Vol 2, Tab 13, p 15

  1. The Plan of Management for the community facility identifies the staffing will include the Priest and two attendants who will reside at the property on a permanent basis.

  2. Given the way the Hindu worship is practised, the Council submits that it is near impossible to determine whether an activity is a form of worship or legitimate component of a community facility. The non-exhaustive list of activities that are nominated by the applicant as forming the use for the purpose of a community facility (as identified at pp 60-13 Amended Statement of Environmental Effects) overlap with the use for the purpose of a place of public worship (CWS at [25]):

“a. Library – quiet reading

b. Life education: discourses and study of scriptures

c. Singing/choral class

d. Meditation

e. Yoga class

f. Counselling and support sessions for people in need

g. Sanskrit language classes

h. Hindu weddings (amended at the hearing to remove Hindi wedding and read just “weddings” (T239:35) and limited to 20 persons (T189:1-5)

i. Events such as celebrating birthdays and other important milestones in family life

j. Community performances

k. Cultural activities

l. Workshops

m. Conferences

n. Seminars”

  1. The Council rejects the applicant’s imposition of conditions to require that no worship be undertaken on the land and submits that the task of characterisation must be completed prior to the grant of consent and not be deferred to a condition. The Council also contends that such a condition would be inconsistent with the Society’s registration as a charity (CWS at [23]).

Shared areas

  1. The Council also argues that the community use is intertwined both physically and in management with the residential accommodation such that the development cannot be characterised as community facility.

  2. The physical connection is identified on the plans, especially DA 08-3B.

  1. As the plan shows, the community facility use physically separates the residential use into two separate northern and southern elements. The two uses then share an office area, a library, bathroom amenities and courtyard entry. The co-mingling is facilitated by doors opening between the two uses and in some instances shared emergency exit paths.

  2. On both arguments the Council submits that the development is not a community facility and is a prohibited use.

Applicant’s position

  1. The applicant takes issue with the Council’s submission that it had difficulty in understanding the nature of the proposed DA.

  2. It refers the Court to the Council’s notice of determination refusing the DA issued on 22 November 2023 wherein the Council described the development as:

“…the continued use of part of the existing main building as a dwelling, use of part of the existing main building as a community facility, retention of a detached building, demolition works, construction of stairwells, concrete paths, ramps, speed humps, car parking and flow paths, widening of existing driveways, installation of signage, windows, sliding doors and mechanical ventilation units.”

  1. It was in response to that application (as amended with leave) that the Council drafted the ASOFC. The development has always relied upon the existing development consent for the dwelling house.

  2. The applicant also takes issue with the Council’s interpretation of the definition of “community facility” in the CLEP. It submits that it is incorrect and contrary to the construction endorsed by the decision of the Court of Appeal in Haddad at [27]-[29] which dealt with a similar definition albeit addressing “business premises”. At [27]-[29] the Court said:

“27 The definition of “business premises” identifies in subpars (a) and (b) buildings or places at or in which certain activities are carried on. Subject to the concluding paragraph of the definition, it is necessary for a building or place to satisfy only one of the two sub-paragraphs in order to be “business premises”. In the absence of the concluding paragraph, use of the Premises as a doctor's surgery would clearly satisfy both sub-par (a) and sub-par (b).

28 The concluding paragraph of the definition of “business premises” serves two purposes. First, the paragraph makes it clear that a building or place at which certain activities are carried on is within the definition. Secondly, the paragraph excludes from the definition a building or place on which specified activities take place, including use as a medical centre. The exclusion applies notwithstanding that the specified activity otherwise would be within sub-par (a) or sub-par (b) (or both).

29 The ordinary meaning of the language in the definition is that a building or place used for any of the activities specified in the concluding paragraph is not to be regarded as “business premises”. There is no textual reason to construe the exclusion as limiting the operation subpar (b) of the definition would otherwise have, but as having no application to sub-par (a). (Equally there is no textual reason to construe the concluding paragraph as limiting the operation sub-par (a) of the definition would otherwise have, but as having no application to sub-par (b).) As the Council submitted, it would make little sense to exclude a medical centre from subpar (b) (a service provided directly to the public) when in any event it would be within subpar (a) (a place at which a profession is carried on for the provision of services directly to members of the public). The same can be said about most, if not all of the other excluded activities identified in the concluding paragraph of the definition.”

  1. Put simply, the applicant submits that the definition does not preclude the approval of a community facility if part of the building also includes residential accommodation. Rather, when the text is read in context it means no more than a building or place used for any of the activities specified in the concluding paragraph of the definition, including, relevantly place of public worship or residential accommodation, is not to be regarded as a community facility. In short, a building or place used, relevantly for residential accommodation cannot be a community facility.

  2. The applicant submits, consistent with the definition in the CLEP, the subject plans differentiate and delineate between those parts of the building that are used for a dwelling house purpose and those sought to be used for the community facility.

  3. Furthermore, there is no evident purpose which supports a legislative intention that the consent authority should lack power to grant consent for use of a building for a community facility by reason of the mere fact that another part of the building contains residential accommodation in the form of an approved dwelling house : Elimatta Pty Ltd v Read [2021] NSWLEC 75 at [43].

“43 The object of statutory construction is to construe the relevant statutory provision, so it is consistent with the language and purpose of the statue when considered as a whole. As a result, the statutory provision may, in certain (limited) circumstances, not be read in a way that reflects the literal or grammatical meaning of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.””

(citations omitted)

  1. In support of its interpretation, the applicant referred to decisions where the Court had approved two uses in a building including a prayer room as a place of public worship in a community facility (UMA Centre Limited v Canterbury-Bankstown Council [2018] NSWLEC 1591), and submitted that if the Council’s interpretation is correct then a community facility and a dwelling house (both permissible in the C4 zone), could never co-exist in the same building, notwithstanding permissibility.

  2. The applicant submits that the Court must consider the application that has been made as described in the application: Peden v Lake Macquarie City Council [2024] NSWLEC 2 at [88]; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147; Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41 at [17]-[18]; Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737; considering the excerpt in Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 at [14]:

“A development consent thus hinged upon the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought.”

  1. The applicant relies on the evidence of its planner Mr Lovell who described the proposed community facility as “…enabling a meeting of community in various ways, sharing company in various way” (T185:7-9).

  2. Mr Lovell’s evidence is that the meditation and yoga sought to be practised at the community facility is not proposed to be worship but rather as sought in the development application, an activity or undertaking. Activities which he described as expected in a community facility (T179:36-41).

  3. The applicant submits further, on the evidence of Mr Lovell, that even if an individual undertaking the proposed activity, perceives themselves as “worshipping” during the activity, this does not make it a “place of public worship” as defined. It is irrelevant because the process of the characterisation of the use of land must be objective.

  4. Also, the fact that the people using the community facility for the activities as proposed are part of a community, any community, does not mean that they are necessarily worshipping. The definition of “a place of public worship” distinguishes between the purpose of religious worship by a congregation or religious group and use of counselling, social events etc. The proposal is the latter. Mr Lovall did not regard yoga or meditation necessarily as any type of religious worship but rather they were an activity or undertaking (T179:36-41) and (T180:19-21).

  5. The applicant submits that the process of characterizing use of land is entirely objective.

  6. The main purpose of the use of the building as described in the application is appropriately characterised as a “community facility”. The Society may well be “advancing religion” through the proposed activities but that does not mean that the development will be used as a place of public worship based on the development application before the Court.

Contention 1 – consideration and findings

  1. The Society is registered as a charity pursuant to Ch 2, Div 25 of the ACNC Act and on that basis, I am satisfied that the proposed community facility will be owned or controlled by a non-profit association in accordance with the definition.

  2. The applicant does not seek development consent for a place of public worship on the Site. Rather, the development application states that it seeks consent for the continued use of part of the existing main building as a dwelling house and a new use of part of the building as a community facility with some shared areas (Ex A plan, Tab 64, DA02A).

  3. Both these uses are permissible with consent in the C4 zone and in the present application are proposed as discrete uses within the existing dwelling as identified in the plans (above at [18]).

  4. As the applicant identifies, the Court has previously approved the use of the Jyotirlinga room in the existing dwelling for private prayer being ancillary to the dwelling house use. However, the Jyotirlinga room is not part of this application and the presence of the Icon on the Site does not change the development as described in the development application which, as the High Court determined, “…marks the boundaries of the consent sought”.

  5. The consideration and determination of a development application seeking consent to carry out development hinges on the development the subject of the application.

  6. While a development application cannot be made solely to amend a development consent: Gordon and Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [16], a development application can be made to carry out development which is dependent on pre-existing development or a pre-existing development consent: Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180. Albeit, as the Court has identified, complications can arise when the proposed development relates to part only of a development for which consent has already been granted and not the whole of the development that is the subject of the existing consent: Barron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 at [5]-[13], [91]-[92].

  7. This is the present scenario.

  8. As the applicant’s Counsel submitted:

“This is a development application for a community facility, together with the retention of the existing residence, which changes in a physical way (in the sense that physical works are carried out to that building) and it’s an application for a change of use from the existing building which has a lawful use approved by a development consent for a residential building to a mix of residential and community facility purposes: alterations and additions which involve physical work to the existing buildings and alteration and additions to the car park areas and the dam.” (T219:41, T220:1-10)

  1. The making, assessment and considerations of a development application requires identification and description of the development for which consent is sought.

  2. As there can be no development consent for development that is prohibited – I need to address the Council’s argument that the shared areas or co-mingling of the uses in certain parts of the existing building results in a development application for a use that falls fowl of the definition of “community facility” because that use contains residential accommodation.

  3. Accepting that the purpose of the use of land is “…the end to which the development of land is seen to serve”: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27], [33], and [35], I find on the evidence including my observations of the shared areas at the Site view that they will provide access to the two discrete uses.

  4. Therefore, I find that the purpose of the shared areas, as identified on plan DA01A, is for the purpose of serving the two separate lawful uses.

  5. That is, when the building is being used for residential accommodation in the shared areas identified you cannot be using it for a community facility. Similarly, when you are using it for the community facility use you cannot be using it for the residential accommodation.

  6. To my thinking the present circumstances are not dissimilar to a building with basement car parking, with ground floor premises occupied on one side of a common entry foyer by retail premises and on the other side of the foyer by space leased by the local council as an information centre and meeting facility for community groups. Assume also that the first and second floors of that building are occupied by residential units or dwellings. Within the foyer there is a lift that provides access to the carpark intended for use by occupants of the first and second floor units, the customers of the retail premises as well as those seeking to use the council premises.

  7. That combination of uses would, for example, be permissible with consent in the RU5 Village zone under the CLEP, comprising “shop top housing” and a “community facility” each of which is expressly permissible development in that zone. It would defy reason to suggest that the community facility was not permissible because access to it was shared with two other forms of permissible development. The common use of the car park, the lift and common access foyer to all three uses does not deny their identity as separate purposes of use within the building. Likewise in the present case, there are identifiable spaces within the altered building, as proposed, that identify areas that are intended for the discrete conduct of those activities intended by the charitable institution and those identified for dwelling use, each being a separately identified permissible use in the C4 zone.

  8. I agree with the applicant’s interpretation of the definition of “community facility” under the CLEP at [55]-[63] AWS. When the text is read in context, it means no more than a building or place where any of the activities specified in the concluding paragraph of the definition, including, relevantly place of public worship or residential accommodation, is not to be regarded as a community facility. While a building or place used, relevantly, for residential accommodation cannot be a community facility the definition does not preclude the approval of a community facility if part of the building also includes residential accommodation.

  9. The applicant submits, consistent with the definition in the CLEP, that the subject plans differentiate and delineate between those parts of the building that are used for a dwelling house purpose and those sought to be used for the community facility. I accept that to be the fact. Therefore, consistent with the definition of “community facility” in the CLEP, I find that the approved dwelling house is separate from and will not form part of the community facility.

  10. The purpose of the proposed use is for a community facility and not residential accommodation for the reasons submitted by the applicant and summarised at [59] .The Council’s contention that the definition of community facility precludes approval for a building’s use as a community facility if part of the building also includes residential accommodation is based on an interpretation of the clause which is contrary to the Court of Appeal interpretation in Haddad above. As the applicant submits, there is no evident purpose which supports a legislative intention that the consent authority should lack power to grant consent for use of a building for a community facility by reason of the mere fact that another part of the building contains, relevantly, residential accommodation.

  11. I am also satisfied that the proposed use is not for a place of public worship again for the reasons advanced by the applicant as summarised above. Simply because a corporate entity achieves a charitable status because its primary function is the promotion of particular religious beliefs does not have the consequence that whenever and wherever the entity meets will involve that venue being characterised as a “place of public worship”. Halls or venues used by some Christian religions for conventions, synods or “general assemblies” are not “converted” to places of public worship simply because each such meeting is attended by a concentration of the faithful. What is necessary is to examine the activities involved to determine whether the purpose is to undertake “public worship” as distinct from activities that promote the social well-being and cohesion of members.

  12. I reject the Council’s submission that the development application needs to make it clear that worship does not form part of the community facility use when there is no application made for a place of public worship.  In that circumstance it is unsurprising that Mr Lovell did not undertake interrogation of the form of worship in the Hindu faith when assessing this application.

  13. I do not accept that the Society’s reliance on “advancing religion” for its charitable status under the ACNC Act requires this development to include worship. As the Council identifies the Explanatory Memorandum for the Charities Bill 2013 provides that “advancing religion” involves “the promotion of spiritual teaching and the observances that act to promote and manifest it”: the proposed activities may well do just that but that does not mean that the development is for a place of public worship. Moreover, modern principles of statutory interpretation speak against the use an explanatory memorandum of a proposed amending provision of the Commonwealth Charities legislation to interpret the term “community facility” as defined in the CLEP and made under this State’s EPA Act.

  14. I accept Mr Lovell’s evidence that the community facility enables a meeting of community in various ways and yoga or meditation (and the other activities identified in the application and the POM) have no relationship to worship as proposed in this application (T185:39-44).

  15. There may well be similarities between the social or recreational activities proposed in this application by the Society with practices in the Hindu faith but that does not mean that the proposed community facility will be used as a place of public worship.

  16. The Court must assume in the event of an approval that the Society will abide by the terms of any development consent which includes the POM.

  17. There is no need to inquire into the activities and the broader operation of the Society to properly understand the connection to advancing religion for the purposes of this application. The application is made by a registered charity and that fulfils the definition under the CLEP for community facility.

  18. The Council also relies on the Society’s Constitution (Ex 2 Tab 12 p 147) and the summary of activities therein to submit “…that its purpose squarely includes public worship”. That may well be the fact but that does not mean that the present appreciation involves a place of public worship.

  19. The Council submits that the applicant has not discharged its onus to provide information to the Court to permit the task of characterisation to be undertaken. I disagree and am satisfied on the evidence before me that the development meets the definition of community facility under the CLEP and is permissible with consent.

Contention 2 – the orderly development of the Site

Council’s position

  1. The Council contends that if this DA is approved, the previously approved residential accommodation will cease to meet the characteristics of a dwelling house and will result in the remaining portion of the building being characterised as a “dwelling” which is a prohibited use in the C4 zone.

  2. To make good that submission the Council refers me to the C4 zone under the CLEP which identifies development for the purpose of a dwelling house as a nominate use that is permissible with consent, and a development for the purpose of a dwelling as an innominate prohibited use.

  3. Dwelling house is defined in the Dictionary of the CLEP as “a building containing only one dwelling” which is consistent with the definition at the time of the grant of the 1996 Consent under the Campbelltown Interim Development Order No24 (IDO24) when the Site was zoned 7(c) Scenic Protection.

  4. Dwelling is defined in the Dictionary to the CLEP as “a suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile”.

  5. The Council notes that the applicant has not sought to modify the 1996 Consent and the residential accommodation does not form part of the application before the Court. It assumes that the applicant will seek a condition of consent pursuant to s 4.17(1) (b) and/or (c) of the Act to facilitate the necessary changes (CWS at 39). However, as a condition under s 4.27(1)(b) or (c) is not constrained by the test in s 4.55 of the Act, that requires a modification of a development consent to be substantially the same development as that for which the consent was originally granted, it is concerned that the original dwelling approved will not be substantially the same development after approval of this DA (CWS at [40]-[41]). Instead of the approved single dwelling on a large portion of land, the dwelling will share space with a community facility including its grounds. The previously approved tennis court will be removed from the 1996 Consent and substantial parking areas for members of the community will be located on the grounds in lieu of the approved landscaping.

Applicant’s position

  1. The applicant rejects any suggestion that an approval of this DA will mean that the previously approved residential building will cease to meet the characteristics of a “dwelling house” or that it will result in the remaining portion of the building being characterised as a “dwelling” and thereby prohibited development in the C4 zone.

  2. In making that submission the applicant emphasises that development consent is not sought for a second dwelling within the building (which would take it out of the definition of a “dwelling house” under the CLEP). As it stands the land has the benefit of the 1996 Consent for a dwelling house and the proposed use of the building as a dwelling remains unchanged, save that various parts of the existing building are now sought to be used as a community facility. Therefore, the Court can be satisfied that the residential accommodation within the building continues to satisfy the definition of “dwelling house” being a building containing only one dwelling. It further submits that this is evident from the plans which identify that the residential accommodation is capable of being used as a separate domicile distinct from the community facility containing relevantly, bathroom, kitchen, laundry and bedrooms.

Contention 2 – consideration and findings

  1. I accept the applicant’s submission that if approved there will be a building containing one dwelling in accordance with the definition of dwelling house under the CLEP. The residential accommodation as shown on the plans supports this finding as the building is capable of being occupied or used as a separate domicile, its use being separate from that component of the building to be used for the purpose of community facility as identified in the amended plans.

  2. I accept that this application to make alterations to the existing dwelling is one that is lawfully available: Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180; Gordon and Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [17]; Peden v Lake Macquarie City Council [2024] NSWLEC 2 at [92]. There is nothing unorthodox in lodging a DA to amend an existing development.

  3. There is no application made under s 4.55 of the EPA Act for a modification of the 1996 Consent before the Court. Therefore, the test of substantially the same development is not raised on the facts. It is open to the Court to approve the DA which will in effect amend the earlier approved development as built but based on the evidence before me it will remain a dwelling house as defined under the CLEP.

Contention 4 – Site suitability, reliance on unauthorised structures and the BCA report

Council’s position

  1. The Council contends that the DA should be refused because it relies on “…structures and works which do not appear to be the subject of approval or environmental assessment such that their safety and adequacy for use in the manner proposed is unknown” (ASOFC pp 24-26). A particular complaint was initially made about the sufficiency of the BCA assessment report dated 23 January 2025 lodged in support of the application and prior to receipt of evidence that is currently before me.

  2. While the extent of the unauthorised works has been clarified through the provision of further evidence provided at the hearing of the proceedings, the Council remains concerned as to whether the Court can be satisfied on the evidence that the requirements of the BCA are or are capable of being met in relation to all matters. It contends that further investigations need be made prior to the grant of development consent to better understand the integrity of some parts of the building structure. It opposes the deferral of these investigations to the Construction Certificate (CC) stage, as proposed by the applicant.

Applicant’s position

  1. The applicant submits that because of various amendments to the plans and the provision of detailed BCA assessment, together with arboriculture, transport, ecological, acoustic, stormwater and engineering assessment reports, the Court can be satisfied after merit assessment that the Site is suitable.

  2. With respect to the proposed works’ reliance on the unauthorised structures, the applicant invites me to accept the agreed written and oral evidence of the BCA experts (Micheal Wynn-Jones, Tony Nunn, James Lovell and Aaron Essenhigh) that these structures can be made BCA compliant such as to support the new development.

  3. Consistent with the Court’s reasoning in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral) at [51]-[55], the applicant further submits that development consent can be granted to the development as proposed, to carry out works for the upgrade of the building, to use the stormwater works and to upgrade the hardstand parking layout within the premises then to be used in the future. As the Court stated at [53]:

“The Council's argument is misguided. There is no legal principle that development consent cannot be sought to carry out development to erect a building (which includes a structure) or to carry out works that would amend a building or works that are unlawful, and then to use in the future the new or amended building or works. That was recognised in Ralph Lauren at [128]. Contrary to the Council's contention, development consent can be granted to the development proposed by Goldcoral to carry out works to upgrade the stretch of internal road through the littoral rainforest, to revegetate and use for conservation purposes the existing drainage channel in the littoral rainforest and to upgrade and use the road, bridge and infrastructure on Iron Gates Drive.”

  1. The applicant does not concede that all parts of the building are unauthorised and submits that the onus is on the Council to displace the legal presumption in the EPA Act that a building once erected is sufficient to authorise the use of the building for the purpose for which it was erected: s 4.19 of the EPA Act.

  2. It also asks the Court to accept the evidence of Mr Terry Hams in his Civil Engineering Report dated 24 January 2025 that although not the subject of approval the following structures are suitable for use as proposed:

  1. Hardstand driveways on the Site;

  2. Hardstand car parking areas on the Site, constructed of either concrete or bitumen;

  3. The retaining wall located in the south-eastern corner of the Site; and

  4. The southernmost vehicular crossing connecting the Site to Eagleview Road.

  1. I note that the Council has accepted this evidence.

  2. As to the constructed works that were not the subject of an approval and the use of those works in the current application, the applicant invites the Court to accept the evidence in the joint report between Michael Wynn-Jones and Tony Nunn, both of whom are highly experienced building surveyors to find that the building will be suitable for occupation and use pursuant the to the BCA, if this DA is granted (Ex 7 at [1.12]). By reference to those reports together with the oral evidence of those witnesses, the applicant submits that the Court can be satisfied that the requirements of the BCA are capable of being met. Furthermore, that if all of the items in [1.12] in their joint report were completed, this would lead to the conclusion at [4.17] of their joint report that the altered building will be ‘fit for purpose’ and thereby suitable for occupation in accordance with its classification under the Building Code (T166:21-34) and (T166:46-50; T167:1).

Considerations and Findings: Site suitability, reliance on unauthorised structures and the BCA report

  1. The evidence is that the existing building has been modified over time, and that some of the building works may have been undertaken without the benefit of a development consent or other approval. However, as the applicant submits, that fact is irrelevant to my merit assessment of this DA: Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253 at [63]; and Goldcoral at [51]-[53].

  2. I am satisfied on the basis of the BCA agreed evidence that development consent can be granted to the development to carry out the upgrade of the existing and the new works as proposed in the expert evidence and in the application now before the Court. Mr Nunn gave evidence on behalf of the Council and said that there was no disagreement between him and Mr Wynn-Jones (T142:15-19) in respect to BCA matters. At [4.16] of their joint report the BCA experts developed an upgrading strategy that they agreed would allow alteration of the building to a standard that would be fit for purpose (T142:49). Following completion of that work, Mr Nunn gave evidence that he was confident the building would be suitable for occupation and use for both a dwelling house and for a community facility (T143:23-29 and T143:43-46). I accept that expert assessment.

  1. The evidence is that the altered building, if approved, will comprise repairs to existing works and new works which the applicant submits will be assessed at the CC stage and before issue of an Occupation Certificate. Mr Murphy’s report, as allowed together with “the works as executed drawings” dated October 2021 give some detail of the post construction works and an insight into the works undertaken that depart from the approved 1995 structural engineering plans. They explain some detail about the main courtyard cover and drainage works and provides a benchmark for the further investigations that the experts agree need be undertaken before CC (T267:21-T268:25).

Fire safety

  1. Both BCA experts gave evidence that a fire hydrant system would be required to accommodate the new use involving a larger number of people within a public building to satisfy the requirements of the Development Certification and Fire Safety Regulation. The applicant submits the Court can be satisfied, on the agreed expert evidence (Ex 7 at [14]) and Mr Wynn-Jones’ original 2021 report, and Mr Murphy’s evidence in respect to the executed plans of Oct 2021, (Ex B Appendix A 5, 5A, 6, 7, 8, and 9 as allowed), that before the CC is able to be obtained, the certifier will need to be satisfied that a relevant fire safety system (which includes a fire hydrant system) is in place and plans showing the layout, extent and location of the key components will be known.

  2. Accepting that the measures currently in the building are inadequate, the applicant submits that I should approve the DA subject to a condition compliance with the BCA to bring the existing building into total or partial conformity with the BCA for the purpose of fire, structural certification. The requirement will include the fire rating of walls as well as the, removal of mould, being directed to both the proposed new work as well as previously constructed building work. I accept that submission and, based on the evidence, require such a condition be imposed on the consent in accord with reg 64 of the EPA Regulation.

  3. In short and after careful consideration of all the evidence, including the significant weight I attach to the expert assessments of Mr Nunn and Mr Wynn-Jones, I am convinced that the existing building should be brought into conformity with the BCA (reg 64 of the EPA Regulation). In being so persuaded, I am satisfied that there is sufficient evidence before the Court to justify the imposition of such a condition in that its object is reasonably achievable.

Water/pump room

  1. Fire safety is of particular concern given the subterranean design of the building and the possibility of 178 people on the Site at any one time. I have had careful regard to the evidence of Mr Nunn and Mr Wynn-Jones about fire safety in sections 8-10 of their joint report and their oral evidence as summarised in the applicant’s final submissions at paras [68]-[69]. The actual design of the pump room, normally considered at the DA stage (T158;10-16 and T159:30-32), needs to be finalised and in accord with the BCA experts’ evidence; a hydraulic engineer needs to design the pump room and show how the water will be supplied – including enquiries about water pressure in the reticulated water system that is supplied to the street (T135:45-50).

  2. That said, I accept that there is water supply in the street (T157:26) and there is water available to be connected to the Site (T157:30-34). However, flow pressure is still to be further investigated by obtaining a report from Sydney Water. Confirmation of appropriate water flow to the Site from Sydney Water must be obtained before the consent is operative and a deferred condition is to be imposed to address this matter.

  3. The Council accepts that it does not have an essential services clause in the CLEP. Clause 7.10 only refers to the supply of water to a site which is acknowledged by the Council to apply in this case. Accordingly, subject to the deferred condition as outlined, I am satisfied that there is likely sufficient water available and hydrants can be located on the Site to ensure that the property and surrounds can be protected in the event of fire.

Waterproofing

  1. I am also satisfied on the evidence of the BCA experts that a waterproofing design solution can be implemented to address mould present in the building walls and that this is a matter under the BCA. At the time of the hearing, the final design for waterproofing had not been decided because it was agreed that there would need to be further investigation and the design could take many forms (T125:26-35). Mr Nunn gave evidence that the inspection/investigation could take place at the CC stage (T170:0-5) and be resolved through the construction process. This would include the waterproofing of the new roof – again at the CC stage and relevant conditions need to be imposed.

Structural stability of the building

  1. The DA has always proposed a new roof on the central courtyard (T124:35-36).

  2. The BCA experts are agreed that certification of the structural stability of the building would be required for the altered building (T123:16-40) including the new roof. Mr Nunn gave evidence that a condition should be imposed requiring the existing building be inspected by a professional engineer prior to CC to assess the structural adequacy of the building and the design process for the new roof (T167:39-44). I accept his expert evidence and require such a condition.

Natural light and ventilation

  1. The evidence is that the existing and proposed internal height complies with the relevant performance requirements, and no structural work is needed (T163:1) Mr Nunn gave evidence that matters such as natural light and ventilation are subject to performance solutions and are to be dealt with in the CC stage after consent. I accept his evidence and a condition to that effect should be imposed.

Stormwater

  1. Contentions 6(c) and 5(b) and (v) of the original SOFC raised issue about a stormwater plan for the piped drainage.

  2. The evidence is that Mr Hams’ report satisfactorily answered the Council’s contentions. He was not asked to deal with internal drainage or stormwater arrangement as no contention was raised by the Council. Nonetheless, at the hearing Mr Hams gave evidence about the external stormwater arrangements and said that a green line plan was a better solution than what was approved. Mr Nunn accepted his expert assessment (T118:10-15). Council also accepted Mr Hams’ reports and plans for external works in relation to stormwater to be addressed at the CC stage (T65:14). It was further agreed that these works for upgraded internal stormwater or drainage arrangements (including for the hand basin) need to be designed by an appropriate stormwater expert so as to ensure water disposal at the Site is appropriate for the proposed uses (T128:25-29). A condition of consent to this effect is required.

  3. Consistent with the decision of Preston CJ in Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd (2008) 160 LGERA 20; [2008] NSWLEC 185 (Ulan) at [78], I am satisfied on the evidence of the experts that the altered building will be suitable, the evidence has provided a defined way forward to address particular matters through the conditions of consent as and in that circumstance the imposition of appropriate conditions – some requiring further investigation in respect of a very limited number of matters – is permissible and desirable.

  4. This path aligns with the Court’s reasoning in Ulan at [49]-[50] and more recently by Robson J in Monaltrie Area Community Association Incorporated v Santin [2025] NSWLEC 38 at [71] where it was accepted that “leaving some matters of detail for later determination, and delegation of supervision of some stage or aspect of a development are…appropriate.” This is such a case. That said, no work will be allowed to commence under the consent until a construction certificate is issued s 6.6(1) of the EPA Act. This will ensure that matters of fire protection and the structural capacity of building will be appropriately addressed and assessed by the certifier before that authorisation of the change of use. Importantly, the certifier cannot issue a CC unless the building will comply with the relevant requirements of the BCA and other relevant regulation.

  5. Based on the evidence as it landed at the conclusion of the hearing, I accept that it is unnecessary for the structural integrity of the existing columns or the weather conditioning of the walls, or the fire integrity of existing walls to be determined at the DA stage – subject to the conditions they can be left to the certifier at the CC.

  6. I do not accept that a conditional approval of this DA – which requires some further investigation and design – before issue of CC leaves an essential or fundamental part of the development unresolved or that a proposed conditions defer consideration of an essential matter as the Council submits. After careful consideration of the evidence in the joint report by Mr Wynn-Jones and Mr Nunn I am satisfied that the altered building and its consequent future use will be fit for purpose.

Contention 5 – Campbelltown DCP

  1. At the hearing, the Council accepted that this contention was resolved – having been dealt with in the planner’s joint report (Ex 4).

  2. Council maintains that the proposed landscaping should be included on the landscape plan and these matters determined prior to the determination of this appeal.

  3. However, I am satisfied that the seven category Z trees which are to be removed have been sufficiently identified in Ex A at Tab 57 – the Arboriculture Report dated March 2025 by Axiom Arbor and compensatory planting is required. There is no other landscaping proposed by the application.

  4. As the applicant submits, this is not an undeveloped site and based on my observations has established planting which is not intended to be changed if this DA is approved. The ecological and arboriculture reports before the Court identify plant species occurring on the Site and describe measures to avoid, mitigate and manage impacts on the current landscaping. Those measures are sufficient for the Court to be satisfied both as to tree retention as well as clearing, being measures about which satisfaction is required by cl 2.5(e) of the Campbelltown DCP.

  5. In relation to Council contention 5(b), I accept that the architectural plans are now sufficiently detailed and a hazards report and dilapidation report should be required and a condition imposed to that end.

BASIX

  1. The BASIX certificate and Section J report attached to the report is accepted (Ex 4). The Council’s objection to that report is not sustained in light of the evidence.

Building form and character

  1. The planners have addressed contention 8 at p 19 of their joint report (Ex 4).

  2. An agreed schedule of finishes that would satisfy the Campbelltown DCP is to be provided, including fencing details. The objectives of the C4 zone have been considered and I am satisfied that they are achieved by the amended proposal. I found my satisfaction as to the form and character of what is proposed on the evidence of Mr Lovell.

Waste management

  1. A Waste Management Plan is provided prepared by Dickens Solutions (Ex A Tab 58). A condition of consent should address waste.

POM

  1. The planners have agreed recommended changes to the POM, being the amendments listed at par 18 of the ASOFC. Those amendments should be made and the amended POM provided with the proposed conditions.

  2. The POM should also address weddings and limitations to 20 persons.   

Traffic and parking

  1. This contention is addressed and resolved by the expert report prepared by Anton Reisch and Tom Steal (Ex 6) with its provision of the redesigned car park layout.

  2. That proposed car parking layout and number of cars is accepted by the Council (DA01B).

  3. The vehicles will enter the Site only from the northern entrance and exit the Site from the southern exit. A road safety audit should be conditioned (T99:29).

Acoustic impacts

  1. At the hearing, the Council accepted the expert assessment of Mr Gauld and Mr Cooper (Ex 5). The acoustic impacts have been resolved by the proposed conditions.

Conclusion and Directions

  1. I have considered the parties’ submissions in respect of jurisdiction – including the annexure prepared by the Council and I am satisfied there is no legal impediment to the grant of development consent.

  2. For the reasons stated, I am satisfied after a merit assessment that the DA should be approved subject to conditions. The Council’s draft conditions need to be amended to reflect my reasons for judgment.

  3. The Court directs:

  1. The parties are to confer and settle the conditions in accordance with my reasons for judgment and to provide a copy to the Court by 28 October 2025. In the event of disagreement, the parties are to provide competing conditions and a short reason in support and I will determine the final terms.

  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

174000.24 Annexure A

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Endnotes

Decision last updated: 14 October 2025

Cases Citing This Decision

0

Cases Cited

26

Statutory Material Cited

9

Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147
Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253