New Century Developments Pty Limited v Baulkham Hills Shire Council

[2008] NSWLEC 1324

Land and Environment Court

of New South Wales

CITATION:

New Century Developments Pty Limited v Baulkham Hills Shire Council [2008] NSWLEC 1324

PARTIES:

APPLICANT
New Century Developments Pty Limited

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

10442 of 2008

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Change the hours of operation and the number of people attending a Place of Public Worship.
Impact on residential amenity.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

New Century Developments v Baulkham Hils Shire Council [2003] NSWLEC 154

DATES OF HEARING:

06/08/2008

EX TEMPORE JUDGMENT DATE:

6 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Rigg, solicitor
of Deacons Lawyers

RESPONDENT
Mr M. Pearce
of Baulkham Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

6 August 2008

10442 of 2008 New Century Developments Pty Limited v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal against the refusal by Baulkham Hills Shire Council of a development application under the Environmental Planning and Assessment Act 1979. The application seeks to change the hours of operation, the number of people and the use of lighting imposed as conditions of consent for a Place of Public Worship at 165 Annangrove Road, Annangrove. The application was approved by the Court on 30 July 2003 in Appeal No 11083 of 2002 (New Century Developments v Baulkham Hils Shire Council [2003] NSWLEC 154).

2 The applicant is seeking to increase the hours of operation essentially from 9.45 pm to 10.30 pm. Prayer services would cease by 10 pm and only a maximum of 30 people could remain on the premises till 10.30 pm for private prayer or cleaning activities.

3 The applicant is also seeking to increase the number of occasions that 250 persons can attend services from 3 occasions per year to 10 occasions per year and to increase the maximum number of people from 120 to 150 who can attend services at other times of the year. The other main change is that on 3 of these 10 occasions a maximum of 30 people could remain for private prayer until 1.00 am.

4 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.

5 The Court visited the site and heard evidence from residents who were concerned about the current operation of the centre and that the changes sought could impact on their amenity, principally the noise that may result from people using and leaving the centre at night.

6 Mr Richard Smyth and Mr Chris King provided expert planning evidence. The only issue in dispute between these experts related to the prayer hall being open on the 3 occasions until 1.00am for private prayer for a maximum of 30 people.

7 Mr King was concerned about the potential impact on residential amenity. He sated that these concerns would be alleviated through a condition requiring the preparation of a Plan of Management and a Code of Conduct which would deal with the behaviour of people using the centre after 10 pm.

8 Mr King suggested matters that the Plan of Management and Code of Conduct should address. Mr Smyth considered that the preparation of a separate Plan of Management and Code of Conduct to be unreasonable and that relevant matters could be dealt with through conditions. I accept this position.

9 Rather than a Plan of Management and a Code of Conduct the requirements have been incorporated into additional conditions of consent which deal with issues such as the use of the front and rear car parks, turning off security lighting, the use of the rear of the allotment for over flow parking, and the conduct of attendees when leaving the premises.

10 I am satisfied that the proposed changes, with the imposition of the proposed conditions of consent, are not likely to result in adverse impacts on the amenity of the area and that the changes sought by the applicant can be approved.

11 The Orders of the Court are therefore:

1. The appeal is upheld.
2. Development Application to amend the hours of operation and number of persons using the Place of Public Worship at 165 Annangrove Road, Annangrove is approved subject to the conditions in Annexure ‘A’.
3. The exhibits except Exhibits 2, 3 and A may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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