Nasser Hussein v Georges River Council

[2016] NSWLEC 1548

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nasser Hussein v Georges River Council [2016] NSWLEC 1548
Hearing dates:	22–25 August 2016
Date of orders:	21 November 2016
Decision date:	21 November 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed. 2. DA234/2015 for a mosque at 849 King Georges Road, South Hurstville is refused. 3. The Applicant is to pay the Respondent’s reasonable costs under s.97B of the Environmental Planning and Assessment Act 1979 for assessment of the amendments to the application, as agreed or assessed. 4. The exhibits, except Exhibits L and 3, are returned.
Catchwords:	DEVELOPMENT APPLICATION – mosque; place of public worship in residential area; substantial community opposition; amenity impacts, car park operation; plan of management
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Kogarah Local Environmental Plan 2012
Cases Cited:	Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC315 The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC1218 Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC1247 Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC1056
Category:	Principal judgment
Parties:	Nasser Hussein (Applicant) Georges River Council (Respondent)
Representation:	Counsel: Mr Clay (Applicant) Ms Duggan (Respondent)   Solicitors: Mr Conomos, Conomos Legal (Applicant) Ms Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	16/157514
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by then Kogarah City Council, now Georges River Council (the Council), of a development application for a mosque at 849 King Georges Road, South Hurstville (the site).

2. The application received substantial community opposition with experts engaged by two community associations to prepare submissions raising concerns with the proposal. The key objections related to a range of potential adverse amenity impacts on the residential area in which the mosque is proposed, in particular associated with the proposed hours of operation, number of worshippers, and associated parking.

Background to the application

3. Development Application No. DA234/2015 (the application) was lodged with the Council in November, 2015 proposing the demolition of an existing single storey dwelling on the site and the construction of a two storey Place of Public Worship (PPW) being a mosque. The development comprised a domed building over a 3 level basement car park accessed off Tavistock Road and containing 31 spaces with separate mens’ and womens’ prayer rooms and classrooms for religious instructions.

4. The basement car park proposed to operate as a one way system with the lowest levels required to be occupied first to avoid queuing and an electronic system comprising electronic beams and illuminated signage on entry and on each level. The system directs drivers where to park and advises when spaces or the car park are full, with a reversal of direction then required and red/green lights used to control entry and exit.

5. The operation of the car park was one of the components of the development of most concern to the Council and the community who argued it would be inefficient and inadequate and result in worshippers parking in surrounding residential streets.

6. The application was publicly notified and over 6,000 pages of objections lodged evidencing strong local community opposition to the development.

7. On 3 December 2015 the Council referred the application to Roads and Maritime Services and on 14 December 2015 resolved to extend the period of public exhibition until 29 February 2016 receiving further substantial opposition by way of objections.

8. On 21 December 2015 the Applicant appealed to the Land and Environment Court against the deemed refusal of the application.

9. The appeal was the subject of conciliation under s34 of the Land and Environment Court Act 1979. Amended plans were prepared in response to issues raised by the Council prior to and during the conciliation process.

10. On May 6, 2016 the Applicant was granted Leave by the Court to amend the application and rely on amended plans and documentation which sought to address a number of issues raised by the Council and/or objectors (the Revision C plans). The amendments to the application reflected in the Revision C plans in substance were as follows:

1. Prayer rooms were relocated from the upper level to the ground level. The upper level area was reduced in size, setback 15.3m from the rear (south western) boundary, reduced in the length of the elevation to the north eastern boundary, and confined in use to classrooms and amenities;

2. A total of 76 prayer mats were proposed; being 52 mats for men and 24 mats for women;

3. A caretaker’s room was provided;

4. A pedestrian entry proposed from Tavistock Road was removed with entry confined to King Georges Road or through the car park;

5. The building’s articulation was increased and obscure window treatments provided;

6. The mosque was set back an additional 1.5m from the north western boundary achieving varied setbacks to this boundary of between 3.5m and 4.3m. Setbacks to Tavistock Road (the south western boundary) were accordingly reduced to be between 5.054m and 5.585m; and

7. Additional landscaping was provided comprising 53% of the site area to provide improved interfaces with neighbours.

11. Leave was also granted for the Applicant to rely on a Supplementary Planning Statement describing the amendments and providing additional information on the operation of the mosque in response to several of the contentions raised. This included advising that:

1. Other than during Ramadan, all services ran for only 10-15 minutes other than the Friday lunch prayer which ran between 30-45 minutes

2. During Ramadan (essentially 1 month of the year) the Isha (evening) prayer ran for 45 minutes

3. The prayer rooms had been reduced in size with a condition of consent expected requiring the maximum capacity of worshippers to be 76. No praying would be permitted in the lobby or outside the prayer rooms

4. The lobby replaced external areas for congregation of worshippers

5. The Eid event would not be held at the mosque

6. Classes would be for religious instructions of all ages to a maximum of 12 attendees and would only be held outside prayer times and conclude 1 hour before prayer times

7. Other than for Ramadan, the numbers for the Fajr (dawn) and Zuhr (roughly midday) prayers would be limited to 15 people other than on Fridays when this would increase for the Zuhr prayer to up to 76 people. The numbers for the other prayer times of Asr, Maghrib (sunset) and Isha (evening) would be limited to 30 people other than during Ramadan when up to 76 worshippers could be expected particularly for the Isha prayer.

12. A letter was also provided advising how the electronic monitoring system for the car park would operate.

13. Prior to the hearing, the experts for the parties prepared joint expert reports on acoustics, traffic and planning/design aspects of the application. Several individual expert reports were also prepared.

14. Further amendments to the proposal were prepared in response to the conferral and the revised Council contentions. Revised plans were provided at the commencement to the hearing (the Revision D plans) proposing design changes in the car park, adjustments to fire stairs, provision of a fire exit onto King Georges Road, additional amenities, and upgraded landscaping.

15. During the hearing, further amendments to the plans were undertaken in response to errors found with levels, omissions of detail, and issues raised by residents and at the site view (the Revision E plans). In substance, the revisions reflected in the Revision E plan included a marginal increase in the landscaped area, albeit there was a small reduction in the amount of deep soil planting, and the designation of the landscaped area in the north western corner as non-trafficable to reduce overlooking of neighbours. The height of the fence on the south western boundary was also increased, the location and detail of onsite detention tanks and RL’s shown, and the grades for the basement ramp provided to the Council’s satisfaction. A draft Plan of Management (PoM) was also provided.

16. At the hearing, Leave was sought for the Applicant to rely on the Revision E plans as now comprising the application.

17. The Council did not object to the granting of Leave but on the basis of the Applicant paying further section 97B costs noting the lateness of the amendments, the requirement to consider them expeditiously in order for the hearing to continue and the iteration of changes between the Revision C and E plans. The Applicant accepted that the changes between the plans were not minor and agreed to pay s.97B costs accordingly.

18. Should the Court grant consent to the application, the Council provided a draft set of proposed conditions. The Applicant objected to a number of the proposed conditions on the basis that they had been addressed by the amended plans or were covered by the proposed PoM. The Applicant also objected to conditions precluding drop off and pick up from the adjoining streets or worshippers parking in the street.

19. During the hearing, the Applicant also offered that the Fajr (dawn) prayer operate for a trial period of 12 months and, if issues arose, operation of the mosque could be restricted thereafter to commencement of any day’s prayer no earlier than 7am.

The site and surrounds

20. The site is legally described as Lot 17 in DP262438. It is located on the north western corner of King Georges Road and Tavistock Road, some 300m south of the signalised intersection of King Georges and Connells Point Road.

21. The site has a primary frontage of some 36m to Tavistock Road and a secondary frontage of some 20.4m to King Georges Road. There is no existing or proposed vehicular access to King Georges Road.

22. The site has a total area of 914m² and a fall of 1.9m from its rear to King Georges Road. It is elevated about 1.8m above King Georges Road with a retaining wall along this frontage and currently contains a single storey dwelling accessed off Tavistock Road.

23. The immediate locality is characterised by low to medium density residential development. Commercial land uses front the south eastern side of King Georges Road.

24. Adjoining the site to the south west at 53 Tavistock Road is a single storey dwelling house with a garden and swimming pool at the rear.

25. Adjoining to the north west is a medium density development containing 7 two storey townhouses and 2 single storey villas at 46A Grosvenor Street. This development is serviced by an internal access road from Grosvenor Street with the dwellings closest to the site being Villa 6, fronting King Georges Road, and Townhouse 7 adjacent to the north western corner which overlooks the site with views to Botany Bay from a first floor bedroom balcony. The levels of No.46A are comparable to the existing levels of the site with the development also being located above the King Georges Road footpath. There is no direct access to King Georges Road from this development.

26. Opposite the site on Tavistock Road is the Mary Andrews (Anglican) Retirement Village whose dwellings front King Georges Road but whose access is opposite the site in Tavistock Road.

27. Development to the north, west and south generally consists of single and two storey dwelling houses. St Mark's Church, and its related preschool/ kindergarten, are located some 30m from the site fronting The Mall and Grosvenor Street. There is no onsite parking associated with these uses.

28. The site is located approximately 150m to the south of the South Hurstville Local Centre. Located within the zoned B2 Local Centre north of Grosvenor Road, and fronting The Mall, is the South Hurstville Kindergarten (about 240m from the site), with no on-site parking. Further north, fronting Connells Point Road, is the South Hurstville RSL which has some onsite parking.

29. King Georges Road is a primary arterial road of 3 lanes in each direction, with a central median. There is a bus stop just north of the site serving the northbound lanes, and bus stops on the eastern side of the road serving southbound lanes. The closest pedestrian crossing point across King Georges Road is at its intersection with Connells Point Road. There are no safety measures restricting the potential for pedestrian movement across King Georges Road in proximity to the site. Tavistock Road is a primarily residential street.

Statutory Controls

30. The site is subject to the provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) namely at Section 101-Development with frontage to classified road. The Council contended that Section 104 also applied. Section 104 refers to Traffic Generating Development (place of public worship - 50 or more motor vehicles).

31. The site is zoned R3 Medium Density Residential under the Kogarah Local Environmental Plan 2012 (the LEP). The objectives of the R3 zone are:

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

• To provide a variety of housing types within a medium density residential environment.

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

32. 'Places of Public Worship' are permissible with consent in the R3 zone and defined in the LEP 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."

33. Properties opposite the site in King Georges Road and Tavistock Road (to its intersection with The Mall), as well as the villa/townhouse development adjoining to the north west, are all zoned Medium Density R3. The adjoining property to the south west, being 53 Tavistock Road, and its neighbours and dwellings in Tavistock Road west of The Mall, are all zoned Low Density Residential R2. The LEP, at Clause 2.5 Schedule 1 Item 14, permits 53 Tavistock Road to be developed for multi-unit housing but only subject to consolidation with its 3 neighbouring lots at 12-16 The Mall.

34. Other than specifying required bicycle and parking provision in Part B: General Controls, there are no controls in the Kogarah Development Control Plan 2013 (the DCP) particular to a PPW. The parking provision requires 1 parking space per 5 seats, or 5m² of public seating, within a PPW, whichever is greater; and bicycle parking at 1 space per 5 parking spaces.

Objections by the public

35. As has already been indicated, there was substantial opposition to the development from the local community lead by two resident action groups, the South Hurstville Residents Association (SHRA) and South Hurstville Action Group (SHAG). Both organisations engaged experts in a range of fields to assist in preparing submissions opposed to the development.

36. In response to the original development application, over 2,000 individual and some 800 form letters were lodged in opposition, mostly from South Hurstville and the surrounding area. SHAG assisted with the preparation of some of the form letters. Whilst individual submissions raised a variety of issues, all submissions focused on: adverse impacts from increased traffic and inadequate onstreet and onsite parking; noise impacts associated with hours of operation from as early as 3.30am to as late as 10.30pm daily; visual impact of the development associated with the height, scale, bulk and appearance of the mosque (argued to be out of character with the residential area); overdevelopment of the site; and potential safety issues. The letters also queried to what degree the mosque would service the day to day needs of local residents and claimed the overwhelming opposition to it showed it was not in the public interest.

37. Specific areas of concern raised were: the adverse impacts from extensive hours of operation, particularly the evening and dawn prayers, on the surrounding residential area; that the mosque would accommodate more worshippers than the limit suggested by the Applicant and generate far more parking demand than could be accommodated on the site, which, along with an unworkable car park and close proximity of other PPWs, would have impacts for the surrounding streets and residents; that the height, bulk, scale and appearance of the development would be inconsistent with the existing and desired future character of the area; and that there was a lack of an adequate or enforceable management regime for future operations to minimise or avoid impacts, including the lack of a PoM.

38. Close to 20 experts were engaged by the Council or the residents’ associations to deal with planning, traffic and noise impacts. Detailed submissions by these experts were provided to the Court and to the Applicant. They included a submission by Daintry Associates (Daintry) summarising traffic, parking and noise impacts and informed by technical reports prepared by the Transport Planning Partnership (TPP) on traffic and parking and by The Acoustic Group on noise impacts. Mott McDonald were also engaged to peer review the Traffic Impact Assessment (TIA) prepared by the Applicant’s expert and prepared a report on their findings. They concluded that “there are clear implications associated with trip generation, residential amenity, network capacity, safety, parking and access to this site, which have not been identified, considered and addressed as part of this TIA”. In particular they were critical of the assumptions made about the mosque’s operations which had the potential to understate and inadequately manage the impacts.

39. Daintry also undertook an analysis of likely worshipper numbers and mosque capacity based on the design of the mosque which concluded that the mosque, as it was originally proposed, could accommodate over 650 worshippers in, or waiting to enter, the mosque based on design guidance provided by Mosque Development Regulations, studies and architectural prototypes developed in Abu Dhabi. Daintry argued that, based on this analysis alone, the precautionary principle should apply and the application should be refused because of the impacts such a facility would generate.

40. In response to advertising of the amended plans, several hundred individual and form letters were received raising similar objections to those raised on the original application. The submissions claimed that the amended proposal did not negate any of the major issues nor reduce impacts on the local residents and community and re-iterated that the proposed site amidst a residential area was not suitable for a PPW with such extensive operating hours.

41. SHAG also responded to the amended proposal questioning the ability to enforce the proposed maximum of 76 worshippers, or to manage additional worshippers who may seek to attend, claiming that only 28% of the GFA of the proposed mosque was dedicated to worship areas, and that, even with the amended design, capacity could still exceed 300. SHAG continued to argue that there would be inadequate onsite parking, queuing to access the basement, unacceptable noise impacts, insufficient available onstreet parking in surrounding streets, and that the development remained out of character with the area’s desired future character and did not meet zone objectives.

42. At the commencement of the hearing, the Court viewed the site and development in the vicinity and heard from a number of objectors with many people in attendance. Speakers included the adjoining neighbours to the south west at 53 Tavistock Road, speakers on behalf of adjoining neighbours to the north west in the townhouse/villa development at 46A Grosvenor Street, and residents of The Mall. Mr Daintry, on behalf of SHAG, also spoke.

35. The experts agreed that the most directly affected residents were those living at 53 Tavistock Road who raised concerns at the ‘severe’ impacts on their amenity if the development proceeded. Their concerns included:

1. Loss of privacy including to the rear year and pool area, and of outlook

2. Impacts from excavating 3 levels

3. Exhaust and noise from the car park operation

4. Sleep disturbance given the proposed hours of worship 365 days a year. This disturbance was associated with the arrival of cars and people as well as the light and noise from the mosque’s operation with prayers held both in the late evening and predawn

5. St Marks Anglican Church, only 30m away, also runs a kindergarten with no offstreet parking

6. Onstreet parking in the area is already heavily utilised

7. The close proximity of the intersection with King Georges Road and the access to Mary Andrews Retirement Village with its entry directly opposite

8. Safety and use of the surrounding local road network

9. The inadequacy of the car park design particularly the one way system.

44. Residents of two dwellings at 46A Grosvenor Street raised concern that their residential neighbour was being replaced with a facility operating 7 days a week for up to 20 hours per day. This would generate unacceptable noise impacts with the arrival and departure of worshippers particularly at night when residents would be sleeping and there was also a concern with traffic impacts on local streets. Specific impacts on their dwellings were in terms of privacy/overlooking and fumes.

Key issues in contention

45. Ms Duggan, counsel, in opening submissions, advised the Court that the Council took no issue with the development being a mosque. It was the size and location that was of concern, the hours of operation which commenced as early as 3.45am for prayer preparation every day and with prayers until up to 9.45pm every night, and with periods of intensity in operation including Friday lunchtime and during Ramadan. The property is bounded on two sides by dwellings and there will be amenity impacts on these dwellings as well as overall amenity impacts on the area. In this regard, the Council was not persuaded that the attendance of the mosque would be limited to 76, that the car park would satisfactorily operate, or that amenity impacts could be managed.

46. The two key issues for this appeal, which are inter-related, can therefore be summarised as:

1. Inadequacy of proposed parking and of the car park; and

2. Amenity impacts.

Inadequacy of proposed parking and car park

47. The Council contended that the proposed development did not provide adequate car parking. They believed the figures relied on by the Applicant in the submitted Traffic Impact Assessment (TIA) prepared by Traffix Consultants (the Traffix Report) were inaccurate and insufficient.

48. Mr Pindar, the author of the Traffix Report, gave expert traffic evidence on behalf of the Applicant whilst Mr McLaren gave expert traffic evidence on behalf of the Council.

49. The DCP parking requirements for PPWs are based on the number of ‘seats’ or the area of public seating. Mosques do not have seats but provide mats for worshippers. Prior to plan amendments, the number of proposed mats/worshippers was not stipulated. Given the capacity and internal layout of the mosque, the Council had calculated that, if all the available areas were used for prayer mats, and based on other mosque designs, up to 266 mats could be accommodated (based on 0.9m² per person/mat). The Council sought an analysis based on surveys of other mosques to accurately determine likely patronage levels and therefore likely parking demand.

50. The amended proposal showed a prayer hall layout with 76 mats and the classrooms accommodating a maximum of 24 students. The Applicant advised that the maximum worshipper numbers would only ever be likely during Friday lunchtime prayers and Ramadan, and offered to limit the number of worshippers to 76 at capacity.

51. The Applicant also contended that, if the parking calculation was based on 1 per 5 seats and seats equated to mats, only 15 bays need to be provided. If it was 1 per 5m² of the prayer room areas totaling 140m², it would be only 28 bays. 31 bays were provided so the intent of the DCP was met and in fact exceeded. Furthermore, a ‘common sense’ approach to provision was required and the DCP parking requirement for PPWs must envisage some onstreet parking during peak periods.

52. The Council argued that it would be difficult to restrict attendance to 76 persons during special events such as Ramadan, a month long event which should be the design period, particularly if 78 peak days (48 Fridays plus 30 ‘Ramadan’ days) occur per year.

53. Irrespective of capacity, the Council also expressed concern in terms of the design and operation of the proposed basement car park. Details provided of the proposed operating system by ADG Systems P/L did not convince the Council that the system would work in the context proposed. Particular concerns were:

1. The circular ramp system proposed is effectively single lane only, given only one vehicle can circulate at a time. It is controlled by ramp signals and reliant on drivers complying with an operational requirement to park on the lowest level first. The design may be acceptable for a large car park, such as a shopping centre, but was considered unworkable for a small 3 level car park with only 31 bays, dead end aisles, and only one turning bay on the lowest level.

2. Vehicles will be required to circulate the entire system (all 3 basement levels) before turning around if the car park is full requiring multiple manoeuvres. Exit is then only possible when the direction is reversed.

3. All parkers, except those using disabled bays, must reverse park.

4. Swept paths were not provided showing how vehicles manoeuvre on each basement level.

5. The presence of "dead-end" aisles on levels B3 and B2 results in an extremely poor vehicular circulation pattern wherein congestion and parker confusion is expected to occur on a regular occasion.

6. No vehicular queuing analysis has been conducted for peak arrival of vehicles that are intended to access the car park. The entry driveway from Tavistock Road only allows for one standing vehicle. Therefore, any increase beyond one arriving vehicle will result in peak time queuing back onto Tavistock Road within close proximity to King Georges Road, a classified main road.

7. No provision is made for caretaker parking with the caretaker being on-site throughout the day and likely more than one person given the proposed operating hours and management regime.

8. The proposed classes will result in a number of drop-off and pick-up activities. The car park design does not provide any short term parking, nor is it conducive to short term parking. As a result, it is likely that drop-off and pick-up activities will occur on-street.

9. Due to the practicality, workability and enforceability issues associated with the use of the car park, even with a PoM, it is unlikely that the car park will be utilised by all worshippers who will instead park in local residential streets. This will result in unacceptable amenity impacts on residents.

54. Ultimately, there was disagreement between the parties about the adequacy of and difficulty with using the car park and how long it would take to park in it, fill it and for worshippers to arrive, park, undertake ablutions (if required) and get to prayer, or to leave the car park after prayers or if it was full. Mr Pindar argued that the car park design was compliant with Australian Standards and worshippers would be regulars who would know how the car park operated and how to park. The Council argued however, that the internal maneuverability would be poor and confusing for drivers who had time constraints to get to prayer, that there was no ability to adequately manage the 77th arrival or visitors or late comers, and that it was reliant on the behavior of worshippers, management by volunteer worshippers and an electronic system to function as intended and/or adequately.

55. Mr Clay, counsel for the Applicant, disputed that there should be any concern even during the peak Friday lunchtime prayer as to availability of parking in the area even if worshippers chose to park outside the car park or that anyone walking to the mosque or waiting to enter or exit the car park at Friday lunchtime would impact the amenity of the neighbourhood. He advised that the estimated numbers of worshippers was based on likely attendance levels and, in any event, a proposed condition of consent limited numbers for each prayer time which the mosque proposed and accepted.

56. Mr Clay also argued that both the frequency of the use and patronage levels of the mosque would be modest by comparison with other PPWs and that the Council had the ability to impose operational requirements and capacity limits, which was not unusual for PPW consents, as the Applicant had in fact proposed. He also noted that volunteers being used to manage peak useage times for PPWs was not unusual.

57. Mr McLaren argued that mosques are typically in town centre locations where there is adequate onsite parking. He believed there would be parking in local streets because of the location of the mosque and the design of the car park and the surrounding residential streets were narrow averaging only 9m in width. Mr McLaren indicated he had visited other mosques and he believed the prayer rooms would accommodate more mats than shown, with the enforcement of attendance numbers both unlikely and unworkable. However, he did accept that the mosque operators were legally required to comply with their conditions of consent.

58. The evidence then turned to onstreet parking availability in the area.

59. Survey work undertaken by Traffix identified availability of some 280 onstreet car parking spaces located within 200m of the site. In evidence, it was confirmed that the 200m radius included streets on the eastern side of King Georges Road which Mr Pindar accepted should not be included given there are no existing pedestrian crossing facilities on King Georges Road close to the subject site. The experts agreed it was therefore unlikely (and unwise) that visitors to the mosque cross King Georges Road to access the mosque given the road is 6 lanes carrying over 40,000 vehicles per day with a speed limit of 70km/hour.

60. Mr Pindar nevertheless maintained that his surveys indicated extensive unused street parking in the area on Fridays at midday. In any event, his evidence was that “no reliance is made on this parking as the development will accommodate the once weekly peak demand at all times” and that, in terms of parking for mosque use, “the expected demand is fully provided and available onsite”.

61. Mr Pindar’s analysis was based on a modal split survey of car occupancy of 5 other Sydney mosques and a review of census data on Islamic faith population and density. It assumed a car occupancy averaging 1.5 people per car for mosque worshippers and that up to 35% of worshippers would walk.

62. Whilst Mr McLaren accepted the 1.5 people average car occupancy overall, he believed that, for the Friday midday prayer, the rate would be lower. Mr McLaren advised that a survey over 3-4 Fridays of the Cabramatta West mosque, and his knowledge of other mosques, such as the one in Hurstville, suggested car usage for attendees to Friday midday prayers was as high as 95% single occupancy with few walking. Even if only 60% drove, there would be a demand for this prayer time for 46 car bays.

63. In oral evidence, the traffic experts agreed that, for the peak Friday midday prayer, most worshippers would be men who would drive from work and therefore need to park. There were only 31 bays in the car park but 52 mats in the men’s prayer rooms. The Applicant also advised that men could use the additional 24 mats in the women’s prayer room if they were available, meaning there could be 76 worshippers at any time.

64. In oral evidence, Mr Pindar accepted that, for night prayers, worshippers would be less likely to walk or share, and that, as with Friday’s peak midday prayer, car sharing might be unlikely. Also that, if using the car park was difficult, people would look to park elsewhere and that it was human behavior that some parkers may park on higher levels of the car park rather than go to lower levels first. However, he saw the surrounding streets as a public resource for parking and noted that worshippers of other PPWs used it as did other non-residential uses like the nearby child care/kindergarten.

65. Mr Pindar believed it was not unreasonable for a worshipper to walk 200m to worship. His survey showed vacant spaces within a 200m radius even discounting those east of King Georges Road but he did accept that he had only done surveys on one Friday and one Saturday. Mr McLaren considered this was not enough to demonstrate availability.

66. TPP, on behalf of SHAG, undertook their own survey of the amount of onstreet parking within 200m of the site, as well as east and west of, and on, King Georges Road. The results were provided to the parties and to the Court. Their survey indicated that a maximum of 36 car spaces were available on Friday lunchtime within 200m of the site west of King Georges Road. Those within King Georges Road were subject to time and clearway restrictions. This included a 6am clearway requirement for northbound traffic being the side immediately adjacent to the site precluding parking in this location after 6am.

67. TPP’s conclusion was that less than 10 spaces were available in peak periods for residents on streets in the vicinity. There was also less than 10% of onstreet parking unoccupied in Tavistock Road, The Mall and Grosvenor Parade on Saturday evenings.

68. In summary, there was a large variability in the survey results of available onstreet parking undertaken by Traffix and TPP with surveys undertaken on different dates. Occupancy rates for Friday lunchtime recorded by TPP were between 60% and 93% but by Traffix only 46% to 66%.

69. Mr Pindar maintained his argument that all of the demand for parking should generally be able to be accommodated on site except for the dawn prayer where the car park would not be available and worshippers would be required by the mosque to park in King Georges Road to minimise noise impacts on neighbours. He estimated that there were 10-12 car spaces available on the western side of King Georges Road which would be available for parking for this prayer time and which could be vacated prior to the clearway taking effect. He also believed that there would be a high level of compliance from worshippers to a mosque/Imam requirement to park only in King Georges Road for dawn prayers and in the mosque car park at other times.

70. Mr Pindar also accepted that in the evenings and early mornings, more worshippers would drive and that, during Ramadan evening prayers, the mosque would likely be at capacity. However, he argued that the limits on worshipper numbers offered by the Applicant for any consent would still apply.

71. Ultimately, the traffic experts did agree that there may be parking in the street associated with the mosque and worshippers could walk or use public transport but this was only likely at certain times. Further that the DCP required provision would assume an element of on street parking but this depended on the location.

72. In summary, Mr McLaren believed at least 46 car parking bays should be provided for the mosque to satisfy demand, Mr Pindar, 31. If he was wrong and Mr McLaren was correct, Mr Pindar argued that this would mean only 15 spaces in the surrounding streets would be needed and that there would be adequate capacity even with the existing child care centre in The Mall and activities associated with the other PPWs.

Amenity impacts

73. Expert planning evidence on the amenity impacts was given by Mr Turrisi on behalf of the Applicant and Mr Rowan on behalf of the Council. Mr Turrisi also assisted the Court with understanding how the mosque would operate and be managed.

74. Mr Rowan accepted that changes to the proposal had addressed the Council’s concerns with the overlooking impacts on adjoining dwellings and had also addressed overshadowing concerns. In terms of visual impacts, changes to the height, bulk, landscaping, materials and articulation had also improved the visual setting and appearance of the mosque such that these aspects of the development were now acceptable to the Council.

75. Mr Rowan and the Council remained concerned however, with the proposed operation and management of the mosque in terms of the potential to adversely impact the amenity of neighbours.

76. All of the experts agreed that compliance with an adequate PoM was essential to minimise adverse impacts. Consequently, during the hearing changes to the proposed PoM were offered by the Applicant to take on board issues raised in evidence.

77. Key elements of the PoM were:

1. To limit hours of operation and maximum number of attendees to those agreed to in the proposed conditions of consent with the longest hours being in summer where the earliest commencement time for prayers would be around 4am and the last prayer finished by 9.35pm. However, the Applicant acknowledged the mosque would be open earlier and later than these times to allow time for staff to prepare the prayer rooms and close up. For the 30 consecutive days of Ramadan, the last prayer could be as late as 10pm in summer but the time of Ramadan varied year to year.

2. To advise on the duties of caretakers including ensuring worshippers enter and leave the mosque and cars quickly and quietly. During the Friday lunchtime prayer and the evening Ramadan prayers, duties would extend to overseeing the operation of the car park and patrolling the streets to ensure compliance with conditions of consent.

3. Keeping worshippers informed about their obligations to respect neighbours and use the mosque in a quiet manner and providing a set of rules to ensure this. These rules included: not speaking outside the mosque for all Fajr (dawn) prayers when the car park will be closed and worshippers must park in King Georges Road; going to another mosque to prayer when the car park signage says the mosque is full; confining prayers to the prayer rooms only; always parking in the car park except for Fajr prayers; and always obeying the Imam and the caretakers.

4. Advising that Fajr prays are limited to 15 people who must register to attend and the process if more than 15 arrive

5. Outlining the use of the classrooms

6. Maintaining and acting on a complaints register.

78. The PoM also proposed that, other than the Fajr prayer, a mosque volunteer would be placed at the entrance to the car park to turn away worshippers once the capacity of the car park was reached. However, the Council considered this would be unworkable and, in any event, the amenity impact of their arrival had already occurred, particularly for any evening prayers. The same would occur if more than 76 worshippers arrived by car or by foot in terms of not mitigating the impact. This would be complicated by the separate capacity and designation of the men’s and the women’s prayer areas meaning each gender must be counted. The Applicant agreed that, if the women’s prayer rooms were not full, the women’s mats could be used by men, and the women in attendance simply screened by moveable screens from the men.

79. At the request of the Court, advice was provided to confirm likely daily prayer times, given these varied at different times of the year, and attendance numbers. The advice confirmed that the mosque could be opened as early as 3.45am for the Fajr prayer (closing around 4.30am) and close as late as 9.50pm or 10pm for the Isha prayer in summer. Shorter hours would apply in winter. Numbers would likely be only a maximum of 15 worshippers for the Fajr prayer and 30 for the Isha prayer. However for every day of the month of Ramadan, up to 76 people could attend the Isha prayer which could go as late as 10.30pm. Ramadan and the Dhuhr prayer at Friday lunchtime would be the busiest prayer times for the mosque where the maximum capacity of 76 worshippers could be expected. No ceremonies or non-prayer activities would be held at the mosque and classrooms would only be used between 9am and 7pm with classes for a maximum of 12 people and held outside prayer times.

78. An acoustic report had been filed with the development application. For the hearing, expert acoustic evidence was provided by way of written joint and individual expert acoustics reports prepared by acoustic experts from both parties; Mr Gauld for the Council and Mr Dang for the Applicant.

79. For noise impact assessment, in terms of meeting acceptable noise criteria, day time was considered to be 7am to 6pm, evenings between 6pm and 10pm and night time between 10pm and 7am.

80. The experts agreed that, for at least part of the year, the mosque will be accessed daily between 7am and 10pm if not beyond those hours by the Imam and caretakers.

81. Prior to amendments to the application, Mr Gauld had concluded that, for the Fajr (dawn) prayer, the noise impacts of 15 worshippers and 2 staff on the site using the car park would not meet the noise criteria. However, the acoustics experts did agree that, if a 2.3m wall was erected along the front of the common boundary with 53 Tavistock Road extending up to 2.84m above natural ground level for the balance of the boundary, and worshippers parked in King Georges Road for the dawn prayer, both of which were proposed by the Applicant in the amended proposal, noise impacts would be acceptable.

82. Most of the amendments to the application were in an attempt to address acoustic concerns. In addition to the wall on the south western boundary, these included restricting pedestrian access onto King Georges Road (other than for fire stairs), fixing windows so they could not be opened, and not allowing use of the car park for dawn prayers but instead directing worshippers to park on King Georges Road away from local streets.

83. There was however, disagreement between Mr Gauld and Mr Dang as to whether or not exceedences to specified noise limits would result in sleep disturbance for adjacent residents but agreement that research on the triggers for and effects of sleep disturbance was not conclusive.

84. Whilst Mr Dang did not consider sleep disturbance likely given, amongst other things, the background noise from King Georges Road, Mr Gauld’s evidence was that, if a car parked outside 53 Tavistock Road at night and the residents of that property were sleeping, he could not conclude that sleep disturbance was unlikely, stating ‘this is in part due to the level of noise but also due to the different characteristic of sound that stands out from the background noise and is also more likely to awaken one from sleep’.

85. Expert evidence on amenity impacts was also given by the planning experts who agreed that:

1. the adequate functioning of the car park was paramount to determining the suitability of the site for the development.

2. the operation of a non-residential use in a residential area outside the hours of 7am to 7pm would need to demonstrate that there were no unreasonable impacts arising as a consequence, in particular relating to noise, anti social and/or traffic impacts.

3. the morning period was the most sensitive time of the day in terms of amenity concerns with any disturbance to residential amenity, primarily being sleep, prior to 7am being unreasonable.

4. It would be unreasonable to expect the Council to have to undertake continuous monitoring of the operations of the premises to ensure compliance, and accordingly compliance with a PoM would be required to effectively monitor and control the development to ensure compliance in particular in terms of: operation of the car park, the number of persons per prayer event and in the classrooms; the timing of prayers and classes; and general behavior.

88. Mr Turrisi considered that the level of proposed traffic movements associated with the mosque was reasonable and would have no impact on the amenity of adjoining properties, given the acoustic treatments proposed and restrictions on access to the car park for the Fajr prayer. Mr Rowan disagreed. He considered that the traffic movements at high intensity and frequency for peak prayer events were unreasonable particularly when on a daily basis, and were likely to undermine the residential character of the area. He stated that the development will not provide any relief throughout the week for the entire year for neighbouring residents in terms of traffic movement to and from the site.

89. Mr Rowan was also not convinced that the 6am clearway restriction in King Georges Road would be able to cater for early morning prayers given dawn was not until 7am in mid winter. Mr Turrisi clarified that the Fajr prayer could be up to 1.5 hours before dawn meaning that, in mid winter, if the prayer started at 5.30am there would be 15 minutes available before the clearway came into effect for worshippers to move their cars.

90. Mr Turrisi noted that the use was permissible in the zone and there were other non-residential uses in the area. He argued that the use of the mosque would be managed and, other than during Ramadan and the Friday midday prayer, prayer numbers would be low, likely being between 10 and 30 worshippers. Furthermore, the site is in a medium density zone and also adjoined by King Georges Road which is a classified road and in close proximity to commercial uses, including the South Hurstville shops, not in the centre of a residential area. Pedestrian access to the mosque would be confined to King Georges Road or via the car park, with acoustic treatments and generous landscaped or non-trafficable setbacks of the mosque to adjoining residential properties.

91. However, the Council remained concerned as to how noise could be managed even with a detailed PoM arguing that cars could drive past houses in Tavistock Road in the early hours of the morning to access King Georges Road or if they were visitors unaware of the mosque’s parking restrictions. Cars would also be leaving the car park after 10pm, at least in summer, causing unacceptable sleep disturbances particularly to the residents of 53 Tavistock Road. This property has main bedroom windows at the front of the house adjoining Tavistock Road and the car park ramp.

92. Ms Duggan outlined to the Court a number of hypothetical but potential scenarios to demonstrate that, with the best of intent and the best PoM, breaches could not be precluded nor could the PoM cover all scenarios. The consequence of such breaches would be untenable adverse amenity impacts for neighbours. This was particularly the case if the breaches were associated with late week night or pre-dawn use of the mosque when sleep disturbance for adjoining residents would be a likely real and unacceptable outcome. She argued that the consequences of PoM non-compliance were also not adequately canvassed.

93. Mr Rowan was also concerned that self regulation to avoid adverse amenity impacts was not a good planning approach or outcome. He indicated that each time the Council raised a potential issue, the Applicant’s response had been to suggest a modification to the PoM but that such a Plan could not cover all potential impacts.

94. The Applicant argued that PoM’s were conventional and accepted planning tools to manage impacts and both the PoM and the consent would restrict numbers with Council having legal avenues for consent breaches.

95. Mr Clay provided the Court with documentation for St Marks Church proximal in The Mall which showed services as early as 8am on a Sunday and weekday evening events commencing as late as 8pm. The church hall is also available to hire day and night for functions of up to 260 people.

96. The Court was also provided with copies of 3 consents issued by then Hurstville and Kogarah Councils for PPWs being: the Church of the Living God in Carrington Street, Hurstville; the Sydney South Alliance Church in Penshurst Street, Beverly Hills; and the Sydney Mandarin Christian Church in Woniora Road, Hurstville. In each consent, hours of operation are prescribed and worshipping capacity overall and/or at various times restricted, and there are operational conditions aimed at minimising adverse impacts on the amenity of surrounding neighbourhoods.

97. Mr Rowan argued that the difference was the activities and operation of the mosque would be constant extended hours every day and every night of the year in a residential area.

98. Mr Clay referenced the purpose of a PoM in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC315 at para 54 which states:

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

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?6. Is the Management Plan to be enforced as a condition of consent?7. Does the Management Plan contain complaint management procedures?8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

99. Mr Clay argued that the answers to all the questions other than 8 was yes, and with 8 this could be conditioned in the consent. Therefore the proposed PoM, along with the conditions of consent, would be an appropriate mechanism to manage impacts.

100. In summary the Applicant’s position was that this was not a large PPW where large numbers could result in adverse external impacts. At peak, on Friday lunchtimes and for the month of Ramadan, there would be a maximum of 76 worshippers attending. The Applicant had gone to significant lengths to propose measures to manage the impacts when they are most likely, being pre dawn and late evenings. Furthermore, there was no concern raised by the noise emanating from the mosque itself. The whole impact debate was about the parking and the car park and there was an option to trial the mosque for a year to see if any impacts actually arose.

101. In essence Mr Clay argued that:

1. A PPW is permissible and expected in residential areas and this is a medium density residential area where a range of activities are permitted. The mosque was not proposing the full range of social and festival activities that typify PPWs instead a minimalist approach was proposed of prayers and teaching.

2. The parking complied with the DCP intent and the car park with the Australian Standard. Whilst, inevitably some worshippers may park on residential streets, the DCP numbers assume that, there is ample parking available, and it will be managed by the mosque during sensitive periods.

3. Finally, closing the mosque is an option available to the Council for non-compliance and the Applicant clearly wouldn’t want that to occur.

102. In response, the Council argued that the site is too small for the proposed use and is adjoined by low to medium density dwellings. It relies on an unusual car park of questionable utility meaning worshippers will likely park in the street, causing adverse impacts particularly for late evening or dawn prayers which occur every day of the year. Other PPWs referenced did not operate the hours proposed by this one. Ms Duggan was critical that the Applicant diminished the consequences of breaches to the PoM, like a slamming door, but these breaches could and would have unacceptable impacts for local residents in terms of sleep disturbance.

103. Ms Duggan referred to a number of authorities to demonstrate that human behavior can not be controlled even with the best intent of management or systems of control in place, and that preventative approach was needed in light of potential consequences: see; The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC1218 at 165, Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC1272 at 81, and Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC1247. She argued that the mosque will often have no means to identify and no means to enforce or control breaches of its PoM.

104. As quoted by Ms Duggan from Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC1056 at para 100: “the POM cannot control how many people attempt to enter the site, it can only restrict the number of persons who can access the site”.

Findings

105. The primary issue with this application is, notwithstanding secondary frontage to a major road, the proposed Place of Public Worship, being a mosque, adjoins, and is accessed from, a residential area. The nature of the worship requires it to operate every day from before dawn until into the night. Despite the best of intent and strict management proposed by the Applicant, for the reasons which follow, I have formed the view that the ability to operate the mosque without unreasonably adversely impacting neighbours can not be guaranteed and this necessitates refusal.

106. In summary, the site is simply too small, too close to residential dwellings and therefore too constrained, to be able to satisfactorily operate for its intended purpose, both for future worshippers using it and those who reside near it.

107. In essence, the mosque seeks approval to operate particularly in summer between around 3.45am and 10.30pm daily. There are no conditions of consent which could ‘fail safe’ the impacts from worshippers or staff attending at those hours in this location and any breach of any condition of the Plan of Management, unintentional as it may be, associated with operating during those hours, would likely have unreasonable impacts.

108. The application was continually amended to try and address the amenity impact concerns. The result was a 2.3 to 2.8 metre high wall for the entirety of the boundary with the dwelling at 53 Tavistock Road, restrictions on numbers for all prayers and on hours, and a detailed PoM including requiring dawn prayer worshippers to park only in King Georges Road and walk to the mosque, and volunteers to oversee the car park operation and effectively patrol the streets. In my view, all of this is symptomatic of the fact that the development is not appropriate in this location.

109. Firstly, in terms of parking associated with the proposal, I was not convinced by Mr Pindar’s evidence on modal split as to how many worshippers would park, share cars or walk. On the one hand, Mr Pindar said that 100% of the parking demand would be accommodated on site because he assumed that a number of worshippers would share cars or walk. However, he did acknowledge that, on Friday midday prayers when the mosque is at capacity with 76 worshippers, most worshippers would likely come from work and were therefore likely to drive. The mosque car park only has 31 bays.

110. During capacity and if worshippers don’t park in surrounding streets and don’t share a car, it would rely on 45 worshippers arriving by foot or by other means, which was not considered likely and was not supported by the evidence provided.

111. Mr Pindar also accepted that human behaviour was such that, on occasions, worshippers might park in the streets. He then argued that this would not adversely impact the streets in question.

112. I accept the impact of some mosque worshippers parking in the street would likely be acceptable during daylight prayer times and some parking in streets is not unreasonable for a PPW irrespective of location.

113. I therefore accept Mr Clay’s contention that, even though it may cause some capacity issues for onstreet parking in the area, this are unlikely to be major amenity impacts from worshippers accessing the car park or using the mosque and surrounding streets for most of the time. However, my concern is the potential impact from the evening prayers during Ramadan and the first and last prayers at the times of the year which have worshippers at the mosque from before dawn to late evening every day. The evidence of the impact of the Friday midday prayers when the mosque would also be at capacity was also not conclusive.

114. Determining an appropriate level of parking demand is essential to determine the quantum of offsite parking required before then determining its useability. The mosque design doesn’t necessarily restrict worshipper capacity so I accept there is potential for more worshippers to be accommodated than proposed which will require enforcement by Council – even Mr Clay conceded no-one is likely to count for most of the prayer times and the Imam can’t see how many are in the women’s prayer room.

115. If, at least for the capacity times of the Friday midday prayer and the Ramadan evening prayer, the majority of worshippers did drive as the evidence suggested, then there would clearly be more cars seeking to access the mosque than car parking spaces available on site. Even if only half of the worshippers drove there would be insufficient onsite parking. If 95% drove, as Mr McLaren argued was likely at least on Fridays, and assuming the Imam had a car parking space onsite, less than half of the required parking could be accommodated on site, meaning over 30 cars would be looking for parking in a location in close proximity to the mosque, which would invariably mean predominantly in the surrounding residential streets.

116. Secondly, the evidence was not conclusive on the adequacy of the proposed mosque car park design. However, what is clear is that, as with the operation of the mosque, the car park would rely for its successful operation on the behaviour of the worshippers and the implementation of a successful system of operation and management. Even assuming that occurs, which is arguable, I have already indicated that it is unlikely to be able to cater for capacity during Ramadan if the majority of worshippers seek to drive.

117. It is imperative that any onsite car park provided for the mosque is used to capacity to reduce impacts on surrounding streets which means it must be of a design which functions efficiently, particularly for the brief intense periods when the mosque is at capacity. At best, there is doubt that this would occur.

118. For this reason, I do not accept that the application adequately demonstrates that the expected parking demand for the mosque is fully provided for and adequately accommodated onsite I am also not satisfied that the associated issues of queuing to enter in peak periods and short term parking for people attending classes were adequately addressed in the application.

119. Thirdly, in terms of parking, the mosque would be at least 200m from the furtherest car parking spot available in King Georges Road for the dawn prayer with worshippers needing to walk to the mosque and back again. I was not satisfied on the evidence provided that in fact there would be sufficient car parking on the western side of this road within 200m of the site for 15 cars if 15 driving worshippers attended the dawn prayer. Indeed Mr Pindar thought there may only be 10-12 car spaces in this location.

120. Furthermore, the Imam and caretaker/s would still access the car park before the dawn service and would need to try and stop anyone else from doing so. This access would be via the driveway off Tavistock Road adjoining the bedroom of the dwelling next door.

121. It is also relevant to note that this section of King Georges Road is a clearway at 6am which, for at least part of the year, would be before dawn. I find it difficult to accept that it is reasonable, as the Applicant argued, that the dawn prayer in winter could therefore start one and a half hours before dawn to then give all worshippers sufficient time, being a maximum of 15 minutes, to finish praying, walk to and remove their cars before the clearway came into effect. This in itself would be a deterrent to parking there.

122. Finally, in terms of parking, having volunteer worshippers patrolling the local residential streets every night during Ramadan to ensure worshippers don’t park there is not only onerous but is unlikely to make local residents any happier than if worshippers park there. Nor can I envisage how this could work with only 1 or 2 caretakers proposed who are also, as Ms Duggan pointed out, trying to oversee the operation of the car park and the behaviour of arriving attendees.

105. The impacts are not about internal noise generated by the use of the mosque but how worshippers get there and back, particularly outside daylight hours. They must either drive (the agreed majority) or walk from home or public transport (and for the Fajr prayer from cars parked in King Georges Road) and that must result in some noise in the streets and around the mosque even if the intent is to be as quiet as possible.

106. There would inevitably be occasions of noise disturbance even if not intended and the greater the number of attendees, and the quieter the time of night, the greater the likelihood of sleep disturbance to an otherwise generally quiet neighbourhood albeit I accept there will always be some background traffic noise along King Georges Road. However, there are no other likely noise sources in the immediate vicinity which comprises either low to medium density dwellings, a retirement village or other places of PPWs which may occasionally have night time activities but not dawn ones and not every day and night. The fact remains that, for a least 30 consecutive days of the year, there would likely be 76 people every night leaving up until around 10pm and every morning of the year up to 16 people attending for dawn prayers (including the Imam).

107. I agree with Mr Rowan’s conclusion that too much reliance is placed on the PoM and compliance with it to maintain residential amenity for neighbours. By example, reliance is placed on volunteer caretakers and all worshippers to enforce all that is required in the PoM to ensure impacts are acceptable. For the majority of the prayers and the majority of the days, I accept those impacts are likely to be acceptable. Unfortunately, the mosque’s operation can not reasonably be, and is not proposed to be, restricted to those times.

108. Whilst I accept there may be strong management and good intent, compliance with management’s requirements and intent for operation is essential for amenity impacts to be minimised as I don’t believe they can be removed. I accept that the mosque is relatively small and have no reason to doubt that the vast majority of worshippers would do the right thing in being good neighbours and abide with the mosque and Imam instructions. Unfortunately the circumstances of the location are such that even small breaches or occasional transgressions, as could be expected of attendees for any PPW, could be intolerable to residents who have to live, that is to sleep, in close proximity to the mosque or where its worshippers park and walk from. For that reason, I can not approve a development, even on a trial basis, which would allow this situation to arise. I believe to do so would not be in the interests of the public or, ultimately, of the Applicant.

109. Mr Clay argued that this is a modest facility with a proposed PoM more stringent than most. Whilst I don’t know the context of the other consents Mr Clay referred to, I do note none of the approved PPWs referred to operate at dawn or after 9pm.

110. In Renoldo, Commissioner Brown found at para 62 that “For a Management Plan to be effective, a single breach or small number of breaches should not create a situation where there is unacceptable impact …” and at para 67 he noted that, for the circumstances of that development, “absolute compliance with the requirements of the Operation Management Plan is not necessary to achieve an acceptable noise environment for local residents”.

111. Mr Clay formed the same view for this application. That is, that absolute compliance with the PoM is not necessary. I cannot come to the same conclusion. In my view, absolute compliance with the PoM in the late evening and early mornings (particularly predawn), as a minimum would be necessary to try to achieve an acceptable noise environment for local residents. Furthermore, any breach, however occasional could have unacceptable impacts for residential neighbours. There may be low risk of breaches but there are high consequences during core night time sleeping hours for surrounding residents.

112. I also cannot see how the proposed PoM can be enforced in practice as it would place an unrealistic operational regime on the mosque further calling into doubt its ongoing and unwaivering implementation.

113. Even with the PoM in place, I cannot accept that, at times, cars and people would not arrive at or leave the mosque in the late evening or early hours of the morning. By doing so their arrival or departure must on occasions be heard. If you are sleeping, as would reasonably be expected at 10pm on a week night or between 4am and 8am any morning, the possible resultant sleep disruption would be unreasonable.

114. With the best of endeavours, including with substantial modifications to their proposed development and method of operation to try and minimise impacts, the Applicant simply cannot control the potential adverse impacts on the neighbourhood in which the PPW is proposed.

115. Allowing the mosque to be built and then run for a trial period would not remove the fact that worshippers need to be able to pray at required times at their PPW which of necessity requires it to be open predawn and, in summer and during Ramadan, into the late evening every day. A site where such hours of operation are necessary is not one immediately adjacent to single and medium density dwellings where people sleep. Such uses simply cannot happily co-exist at least not in the context of this site.

116. Finally, an offer was made by the Applicant to limit the opening of the mosque to 7am if issues arose but by then the adverse impacts have already occurred, and even 7am every morning including Saturdays and Sundays is not, in my view, reasonable in a residential area.

117. In terms of public interest, my decision is not based on the quantum of opposition to this development but rather the merits of the concerns raised in terms of the unsuitability of this site for the use proposed.

118. Finally, I do not consider that building a wall with a height of between 2.3m and 2.84m for the entire length of the property boundary of 53 Tavistock Road to mitigate adverse noise impacts is an acceptable visual or outlook impact for the occupants of 53 Tavistock Road.

119. In summary, I am of the view that there is nothing the Applicant can reasonably do which would make the proposed development approvable in terms of reasonable impacts on its neighbours and still enable the mosque to operate as would be intended for its worshippers.

120. Given my findings that the application is refused, it is not necessary for me to deal with the other issues raised by the many public submissions lodged in opposition to this application or with the conditions in dispute.

Orders

139. The orders of the Court are:

1. The appeal is dismissed

2. DA234/2015 for a mosque at 849 King Georges Road, South Hurstville is refused.

3. The Applicant is to pay the Respondent’s reasonable costs under s.97B of the Environmental Planning and Assessment Act 1979 for assessment of the amendments to the application, as agreed or assessed.

4. The exhibits, except Exhibits L and 3, are returned.

_________________________

Jenny Smithson

Commissioner of the Court

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Decision last updated: 22 November 2016