Newcastle Muslim Association v Newcastle City Council

Case •

[2012] NSWLEC 1056

•

15 March 2012

Land and Environment Court


New South Wales

Medium Neutral Citation: Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 1056
Hearing dates:23-24 February 2012
Decision date: 15 March 2012
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION: place of worship, plan of management, traffic, parking, amenity, character, weight to be given to draft local environmental plan
Legislation Cited: Newcastle Local Environmental Plan 2003
Environmental Planning and Assessment Act 1979
Roads Act 1993
Texts Cited: Newcastle Development Control Plan 2005
Newcastle Draft LEP 2011
Newcastle Draft DCP 2011
Category:Principal judgment
Parties:

Newcastle Muslim Association (Applicant)

Newcastle City Council (Respondent)
Representation:

Counsel
Mr A Galasso SC (Applicant)

Mr P Larkin SC (Respondent)
Solicitors
Mr M Sonter
Gadens Lawyers (Applicant)

Mr M Ball
Newcastle City Council (Respondent)
File Number(s):10854 of 2011

Judgment

  1. On 9 August 2010, the Newcastle Muslim Association lodged a development application to Newcastle City Council that proposed the demolition of an existing dwelling, construction of a place of worship and associated community facilities including a dwelling house and ceremonial funeral room and boundary adjustment. Ultimately that development application was determined by the Hunter and Central Coast Joint Regional Planning Panel (JRPP) by refusal. The Association is now appealing that decision.

  1. The main issues in the case are whether the application is consistent with the current and future planning controls for the site and the desired future character of locality, its scale is appropriate, the traffic and parking demands of the site would be satisfied and whether the development would have an unreasonable impact on the amenity of the surrounding neighbourhood, in particular in relation to noise. The Council did not press its contentions in relation to the adequacy of the provision for the disposal of stormwater as additional information was provided to address its concerns. The applicant had resolved the necessary consent of an owner of one of the allotments prior to the hearing addressing that contention.

Background and the proposal

  1. The Council notified the original development application in August and September 2010 and over 1000 submissions were received in response. Of those 1022 individual submissions objected to the proposed development, including six petitions. Those petitions contained a total of 1463 signatures. 32 submissions in support including two petitions containing 360 signatures in the total were also received.

  1. On 5 May 2011 the JRPP considered an assessment report prepared by the council's planning staff in respect of the application. That report recommended approval of the application subject to conditions. The Panel deferred determination of the application to enable further assessment of traffic and parking matters and noise impacts. On the 22 August 2011, the JRPP considered an addendum assessment report prepared by the Council staff. That report recommended refusal and its recommendation was adopted by the Panel. The Council issued a notice of determination to the applicant on 25 August 2011. The reasons for the refusal of the development application are:

1. Proposal will unreasonably detract from the amenity of the neighbourhood and therefore does not satisfy the relevant objectives of the 2(b) Urban Core zone applying to the site under Newcastle Local Environmental Plan 2003.
2. Insufficient parking spaces are proposed on site to satisfy the likely demand and the proposal would therefore give rise to an increased incidence of kerbside parking, to the detriment of the efficiency of the local road network and the existing amenity of the neighbourhood.
3. The likely peak traffic generation from the site would result in traffic congestion at the particular access to the site, to the detriment of road safety.
4. The application has not satisfactorily demonstrated that the likely acoustic impacts of the proposed development will not have an unreasonable impact on the amenity of the neighbourhood.
5. Having regard to the above mentioned circumstances of the case, approval of the application would not be in the public interest.

  1. The appeal against the JRPP refusal was filed in this Court on 20 September 2011 and on 18 November 2011 the Court granted leave to the applicant to amend the development application. The amended plans include the whole of the allotment at the southern extent of the site (Lot 4) to provide separate ingress and egress to the development, additional on-site car parking (was 162 spaces, now 167), a cap on attendances at the site of 250 persons whereas the original proposal contemplated 400, amended building design, particularly the mosque through a change to the design and height of its roof and the deletion of its mezzanine floor and the introduction of acoustic walls around the entire perimeter of the site excluding street frontages.

  1. The original plans were to subdivide Lot 4 so as to retain the existing dwelling at the front and incorporate the rear section into the development area. All ingress and egress was to be from a handle that currently provides access to Lot 2 and, an adjoining lot to the north due to a right-of way in favour of that site, No 158 Croudace Road.

  1. The amended application was notified in accordance with the Court's direction from 28 November 2011 to 19 December 2011. 1415 individual submissions objecting to the proposed development, as amended, were received as at 9 January 2012. A large number of those submissions were " form" submissions. One petition objecting to the amended proposal containing 33 signatures, all from occupants of No 153/161 Croudace Road was also received. The Council did not receive any submissions in support of the amended proposal during the re-notification period. The main issues raised in the objections are summarised as:

  • noise and hours of use;
  • traffic, parking, safety and bus stop relocation;
  • visual impact, character, size and scale of the development;
  • tree loss, ecology;
  • height, location and impact of acoustic walls;
  • concerns regarding the ability of the applicant to limit attendances;
  • stormwater drainage, over land flowpath;
  • funeral facility;
  • planning controls and future planning intent for the area;

  1. The proposed development involves the following:

  • Demolition of all existing buildings on the site;
  • Preparatory earthworks and site preparation including removal of the majority of trees from the site (8 may be retained);
  • The erection of a place of worship (mosque), with associated ancillary buildings, including a 3-bedroom Imam dwelling house, community hall (including a library, study rooms, canteen with outdoor eating area and associated amenities) and funeral ceremony building;
  • Two level decked car park and additional at grade car parking;
  • The provision of landscaped open spaces, separate ingress and egress driveways, acoustic boundary fencing, associated utility services, drainage infrastructure and civil engineering work.

  1. The proposed building to be used as the place of worship would be sited in the northern extremity of the site and is an L-shaped building, focused around a central courtyard. The Imam house would be attached to the northern facade of the mosque. A small plant room and toilet block is proposed adjacent to the eastern side of that building.

  1. The proposed community hall would be located in the centre and to the east of the site, 5 m from the eastern boundary and cut into the land at the lower level. The proposed ground floor comprises a community hall, kitchen and toilet facilities, administration and reception area, common room, plant room and storage facilities. A covered walkway would connect that level via ramps and stairs to the first floor and also facilitate access across the site to the mosque. The first floor of the community building would contain a library, series of study rooms, meeting rooms, office space, further toilet facilities, storage areas and canteen with an adjacent outdoor eating area on a deck to the north of the building.

  1. Ground floor finished level of the community building is RL25, first floor at RL29 and roof falling from RL33.08 at the front or west to RL32.05 at the rear (east). A skylight is proposed along approximately 2/3rds of the building and, whilst not detailed on the plans, is at approximately RL33.4 at its peak. The existing ground levels at the boundary with adjacent residential sites in the vicinity of the building vary from approximately RL29 - RL29.44.

  1. The proposed funeral ceremony building would be constructed in the eastern corner of the site, on a similar level to the upper-deck car park level. That building comprises a small courtyard area, preparation area, laundry, toilet facilities and waiting room. It is also to be erected approximately 5m from the eastern property boundary and would be setback 10 m from the southern boundary. Existing ground levels in the vicinity of the ceremony building and at the common boundary with the adjacent residential properties to the immediate east are between RL29.41- RL29.67. The floor level of the building would be constructed at RL28.1 and its roof sloping from RL31.6 on the western façade to RL30.7 on the eastern façade, being the section closest to the common boundary.

  1. The decked car park would be located to the west of the building to within 10 m of the rear boundary of Nos. 160-162 Croudace Road. Its lower ground level would be at RL25 and upper level RL28.

  1. All vehicular entry to the site would be via a driveway to be constructed along the front portion of No 164. Vehicles would then either proceed into the at-grade car park or up a ramp to access the upper level decked carpark. That ramp would be constructed adjacent to the southern face of the deck and set back approximately 3 m from the southern property boundary.

  1. The plans before the Court make provision for a total of 167 car parking spaces. All vehicular egress from the site would be through the existing battleaxe handle that also services No 158A. Arrangements have been made to provide a separate access driveway to No 158 in plans developed by the applicant's traffic expert and identified as part of Exhibit E. That plan provides a 3 m wide driveway, maintaining access at the current entry point and suggests the modification of the existing easement. No details of that modification are provided. All vehicular egress from the site would be from a 6 m wide driveway, 1 m from the southern boundary of the handle and separated from the proposed driveway to service No 158A by 4.2m strip.

  1. The applicant states that the use of the community hall would be in accordance with and ancillary to the definition of a place of public worship. Worshippers would use the facilities for administration, youth clubs, counselling, social events and religious training when they are not attending prayer sessions.

  1. The applicant relies on a Plan of Management (POM) to address traffic, parking and site operations and this proposes to limit the attendance at the mosque to a maximum of 250 people including any staff and require that traffic controllers ensure that access to the site is monitored so that this number is not exceeded.

  1. The plan also includes limitations on attendances at the community centre to 100 persons and those restrictions are incorporated within the draft, without prejudice, conditions of consent. Those conditions provide for further restrictions of attendances at certain prayer sessions early morning and late evening. That condition states:

The proposal being operated at all times in accordance with the Attendance Management Plan which limits the number of people in attendance as follows:
Fajr prayer (every day)
Time: 4:15 to 4:30 am (summer), 5:00 to 5:15 am (winter)
Attendance: 20 people
Dhuhr prayer (every day)
Time: 1:30 to 1:45 pm (summer), 1:00 to 1:15 pm (winter)
Attendance: 25 people
Asr prayer (every day)
Time: 5:00 to 5:15 pm (summer), 4:00 to 4:15 pm (winter)
Attendance: 20 people
Maghrib prayer (every day)
Time: 7:45 to 8:00 pm (summer), 5:30 to 5:45 pm (winter)
Attendance: 30 people
Isha prayer (every day)
Time: 9:00 to 9:30 pm (summer), 8:00 to 8:30 pm (winter)
Attendance: 40 people
Jumaa prayer (every Friday replacing Dhuhr)
Time: 1:00 to 2:00 pm (same for summer and winter)
Attendance: 250 people (including staff)

  1. A range of other conditions to address noise, patron behaviour, prohibit the use of sound amplification equipment and containing all activities within buildings is also proposed.

  1. Details of the use of the funeral ceremony building have also been provided. The applicant advises that it is not a mortuary for the storage of bodies and would be used to allow family members to attend the site for prayers and preparation for the funeral service. At all times the deceased would be within a coffin and that would be walked from the ceremonial building to the front of the prayer hall in the mosque at the commencement of one of the designated daytime prayer sessions. Following completion of the prayers the coffin is again placed on the shoulders of relatives and friends and walked to be awaiting hearse and driven to the cemetery for immediate burial.

The site and its context

  1. The site comprises two allotments, Lot 2 DP 209466 (No 158A) and Lot 4 DP108654 (No 164) Croudace Road, Elermore Vale. Lot 2 is an irregular shaped battle-axe allotment with a frontage of approximately 15m to Croudace Road. That access handle also provides access by a right of way to land to the immediate north of the site (No 158) and is approximately 50 m in length. According to the evidence provided during the hearing, the right-of-way extends across the entire length and width of the handle.

  1. Lot 4 is a long narrow lot with an approximate frontage of 14 m and depth of around 103m. Total area of the site is 8898.48sqm. The combined sites enclose two residential allotments, Nos 160 and 162 Croudace Road and the main development area is at the rear with the front of Lot 4 also acting as an access handle.

  1. Both lots are occupied by an existing dwelling house and associated outbuildings that would be demolished to facilitate redevelopment of the site. Existing vegetation covers a substantial part of the site, comprising a total of 210 trees, being a combination of native and introduced species.

  1. The site falls from its rear (east) towards Croudace Road with a level change of approximately 8 m from the high point of the site to its low point in the north eastern corner of No 158A

  1. Development surrounding the site comprises a mix of single dwelling houses and medium density development. All development to the immediate north and east of the site comprises single dwellings and a multi-unit development adjoins the southern boundary of Lot 4. The two sites located between the proposed access handles also contain single dwelling houses with associated outbuildings, one of which is a self-contained studio located in the south-eastern corner of No 162.

  1. A local shopping centre is located opposite the site. It contains a supermarket, tavern and range of specialty shops with at grade carparking. Its exit driveway is located on the opposite side of the road approximately 15m to the north of the battle-axe handle of No 158A. A driveway that services a multi-unit development is located directly opposite that handle and a bus stop is currently located adjacent to No 164. Cambronne Parade Reserve, a local park, is located to the immediate north of the site.

The planning controls

  1. The site is zoned Urban Core 2(b) under Newcastle Local Environmental Plan 2003 (the LEP). A place of worship is permitted which consent in that zone. Clause 8 of the LEP states that the consent authority must have regard to the following particular matters before granting consent to proposed development:

(a) the relevant aims and general objectives of this plan,
(b) the relevant zone objectives nominated by this plan for the particular zone in which the land concerned is situated as shown on the zoning map,
(c) any other relevant provision of this plan.

  1. The objectives of the plans are set out at clause 5 and of the Urban Core zone are:

(a) To provide for a diversity of housing types that respect the amenity, heritage and character of surrounding development and the quality of the environment.
(b) To accommodate a mix of home-based employment-generating activities that are compatible in scale and character with a predominantly residential environment.
(c) To accommodate a limited range of non-residential development of a scale and intensity compatible with a predominantly residential environment which does not unreasonably detract from the amenity or character of the neighbourhood or the quality of the environment.
(d) To require the retention of existing housing stock where appropriate, having regard to ESD principles.

  1. Newcastle Development Control Plan 2005 (the DCP) also applies to the site and provisions relevant to the application are: Elements 3.1 - Public Participation; 4.1 - Parking and Access; 4.4 - Landscaping; 4.5 - Water Management; 4.6 - Waste Management and 4.10 - Tree Management.

  1. The Council has prepared and exhibited Newcastle Draft LEP 2011 (DLEP) and an associated development control plan, Newcastle Draft DCP 2011 (DDCP) . The Council resolved on 21 June 2011 to forward DLEP to the Minister to make. That plan had been assessed by Parliamentary Counsel and returned to the Council for further consideration. The evidence provided during the hearing was that those considerations will not alter the zoning nor range of permissible uses within the proposed R2 zone that would apply to the site under the DLEP.

  1. The DLEP contains a savings clause relating to pending development approvals. That clause (1.8A) states:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited at has not commenced.

  1. The application is integrated development in accordance the provisions of the Environmental Planning and Assessment Act 1979 (EPAAct) and was referred to the Mine Subsidence Board. General Terms of Approval were issued by the Board, which are subject to conditions requiring further detailed geotechnical and engineering investigation and design. The requirements of the Board have been included in the draft conditions of consent.

The issues

  1. The contentions in the matter are whether:

  • the development is consistent with the zone objectives under the LEP;
  • its scale and intensity is consistent with the desired future character of the locality and represents an overdevelopment of the site;
  • provision for sufficient car parking spaces on site has been made to satisfy the likely demand or whether it would lead to an increase in the incidence of a kerbside parking to the detriment of the local road network;
  • the likely peak traffic generation of the proposal will result in traffic congestion at the vehicular access to and exit from the site and at other locations to the detriment of road safety;
  • the likely noise from the proposed development would have an unreasonable impact on the surrounding neighbourhood and measures to ameliorate this impact will have separate unreasonable impacts.

  1. In addition, the Council contends that the proposal will be prohibited by the DLEP when that plan is made.

The evidence

  1. The hearing commenced on site with the Court hearing evidence from the owner of No 158 in relation to her concerns regarding the retention of her full and unrestricted right to use the right of way, which applies to the entire battle axe handle, and the need to retain access at the current location. She also had concerns in relation to the height of the proposed acoustic fence to be erected at the rear of her property, which she said would devalue and make the property like a prison.

  1. As a large number of residents had attended the site view, the Court addressed them in the adjacent park, advising of the inspection that would be conducted that day, and that regard would be had to the submissions that had been received in relation to the proposed development.

  1. The Court, in the company of the parties and their experts, then inspected a number of properties to be rear or east of the site and heard from the owners of those properties regarding their concerns. Those properties are in Andretta Avenue and immediately adjoin the site. All owners objected to the application. Matters raised related to the height and construction of the acoustic wall along the rear boundary, its affect on the flow of stormwater across the site and on the sustainability of trees in proximity to that wall due to the excavation required to construct it and the buildings as proposed, the loss of a significant number of the trees from the site, noise from persons and vehicles using the site including the outdoor eating area, loss of privacy, the visual impact of the development and in particular, its bulk and scale and the height and proximity of the buildings in relation to the boundaries and the change in character of the area from a quiet residential area and loss of privacy.

  1. A resident of Elermore Parade addressed the Court stating his objection to the proposal and in particular, how it would impact on the amenity of residents upslope of the site who currently enjoyed the amenity provided by the vegetation on the site, traffic and safety concerns that currently exist and particularly with the impact of the Hunter Expressway when it opens and he is concerned that the Association will not limit attendances to 250 persons.

  1. A representative of a local community group, EVCares also addressed the court in relation to the detailed submission made by that group. The concerns were in relation to traffic, social impact, suitability of the site, a view that the development was not needed to meet the needs of the immediate locality, noise, impact and change to the character of the area, loss of trees and the overdevelopment of the site.

  1. The view continued to the two properties that would be enclosed between the areas to be used for ingress and egress of the site. Those residents were particularly concerned about the height and scale of the proposed acoustic fence to be built along their side and rear property boundaries which they say would have a detrimental impact on their amenity and enjoyment of their backyard, block sunlight and breezes and increase heat "ringing in their yard", the traffic and parking impact of the proposed development, which they say will exacerbate the existing issues, noise, loss of value the development would cause to the property by isolating it between the driveways, overlooking/loss of privacy, particularly from the carpark deck, loss of trees and birdlife, proximity of the funeral facility to their property, stormwater and hours of use. The owner of No 162 was also concerned about the impact of the acoustic wall on the studio apartment at the rear of that property saying that it would block natural light and ventilation to that dwelling which is within 900mm of the common boundary.

  1. Expert evidence was heard from Mr Paolino (applicant), and Ms Teyhan (respondent) on acoustics, Mr Hendicott (applicant) and Mr McLaren (respondent) on traffic and parking and Mr Harding (applicant), Mr Shiels and Ms McCarthy (respondent) on planning matters.

  1. In addition, expert reports in relation to the trees on the site and proposal to remove the majority of them, were tendered. Those experts were not required for cross-examination. They agreed that, based on the design as shown on the revised plans, at least 202 trees will be removed from the site. They also agreed that of the eight trees nominated on those plans for retention, they would require further investigation and evidence to prove that the long term retention is viable due to the major encroachments into the tree protection zone of those trees and the fact that insufficient information regarding level and hydrological changes to assess the impact of these factors on the trees were not available. Whilst they agreed on the number of trees to be removed, they disputed the condition of a number of those trees and accordingly, whether or not it was appropriate that they be removed.

Acoustics

  1. The experts agree that provided acoustic barriers were constructed around the entire perimeter of the site and along all faces of the upper carpark deck, the noise from vehicles and person attending site would satisfy the appropriate noise standards. They confirmed this does not mean that the noise would not be heard from the adjoining properties, just that the noise that would be heard would be within the levels deemed acceptable under those standards. When asked whether there would be any sleep disturbance to those residents, Mr Paolino advised that the barrier heights are just within the accepted criteria for the hours of 5am and 7am and at that time the maximum noise criteria is 50dBa. Ms Teyhan said that because the model shows the requirement would be met, sleep disturbance is not likely.

  1. The construction of the acoustic walls around the perimeter of the site was seen as a possible conflict to the free-flow of water down slope from the residential properties to the east of the site. The evidence of those residents is that, in heavy rains, there is a large volume of water that flows across their properties onto the site following the natural fall of the land. They were concerned that the construction of the necessary footings and acoustic wall would obstruct that natural runoff.

  1. The acoustic experts were asked whether an opening could be left to facilitate the overland flow of water and they agree that a 5cm gap at the bottom of the wall could be provided in any location except the areas adjacent to any driveways.

  1. A plan had been prepared on behalf of the applicant that indicates the location and height of the agreed acoustic walls (Exhibit G). A 2.1m high wall is required around the upper carpark deck including the majority of the ramp that provides access to that deck on its southern side. The top of that wall would be at RL30.1 which, according to the levels shown on the plans which form Exhibit B, is approximately 1.6m above existing ground level at its lowest point and 3.6m at the highpoint adjacent to the up-ramp.

  1. 2.3m high walls would be required around the perimeter of the main development area, that is, to the whole of the eastern and northern boundaries, all of the western boundary where it adjoins residential properties and the eastern half of the southern boundary. The height of that fence would increase to 2.35m along both access handles where the driveways are located including the common boundaries with Nos 160 and 162 Croudace Road.

  1. The wall would be constructed using Hebel block/panel construction from the ground level to a height of 1.8m and the remaining section above that would be in a transparent material, similar to that used on highway noise barriers. That form of construction would facilitate the provision of the 5cm gap referred to by the Acoustic experts however, no analysis of whether that gap would provide for the overland flowpath was provided.

Traffic and parking

  1. The experts agree that sufficient information has now been provided to allow an accurate determination of the likely parking demand, based on an average vehicle occupancy of 1.5 persons per vehicle, which has been established through surveys of similar facilities as proposed.

  1. They agree that the parking impacts associated with a practical operational capacity of the mosque of 250 persons can be catered for on-site and that this is expected to occur at a frequency of one instance weekly (Friday, midday). They also agree that, should additional attendees beyond this capacity attend the site, parking and traffic impacts would be unacceptable. Mr McLaren says it would be difficult to manage the area to ensure the cap of 250 persons is not exceeded.

  1. Should the capacity of the site exceed the practical operational capacity of 250 persons, it is agreed that the use of the offstreet car parking in the surrounding area and within the Elermore Vale Shopping Centre by mosque patrons would result. Should this happen, they concur that this will have an unacceptable negative impact on residential amenity, road network capacity and pedestrian safety. Further, that the use of on-street car parking in the surrounding area and of the shopping centre parking by mosque patrons is an unacceptable planning outcome.

  1. Mr Hendicott, for the applicant, refers to the POM that outlines measures to attempt to ensure that capacity of the mosque will not exceed 250 persons and therefore parking demand satisfied on-site with no overspill. He explains that the POM outlined a strategy to monitor the car park and building capacity with a procedure to turn patrons away as the capacity is reached. The intent of the strategy is to turn patrons away prior to attempting to enter the site (either by walking, or by driving). Islam recognises that a patron that intends to attend a worship service but is turned away has fulfilled their religious obligation, and therefore has no obligation to continue to attempt to enter the mosque.

  1. The draft POM prepared as part of the amended application outlines some key strategies to help manage potential impacts and importantly, according to Mr Hendicott, manage the capacity. He said, any management plan that is in place needs to incorporate the following:

  • Measures to monitor and inform potential users of the mosque capacity.
  • Measures to monitor and inform potential users of the car park facility.
  • Measures to warn attendees in advance of when the population of either component is approaching capacity.
  • Measures to prohibit potential users attempting to enter the site once it reaches the capacity.
  • Measures to prohibit potential users attempting to park off site (on surrounding streets or adjacent development).

  1. He accepts that the draft POM incorporates only some of these measures however, with further minor amendments, says all of the key issues could be addressed.

  1. Mr Hendicott says that the council has its usual enforcement methods at its disposal to ensure that the licensed capacity of a premises is not breached and cites other types of development with a cap on capacity (hotels and licensed premises, etc) that provide tangible, reportable and enforceable measures to ensure that capacity is limited to that proposed and not in breach of any approval condition. He also says that through the reduction in floor area of the proposed mosque, the building itself can only physically cater for 302 worshippers (at 1.2 square metres space per worshipper) without making allowance for any access or circulation space, and assuming a reduction of approximately 15% capacity to cater for this, says, this reduces the actual physical capacity of to 256 patrons, a level more consistent with the operational capacity limit proposed by the applicant.

  1. Mr McLaren does not understand the assumption of the 15% reduction in capacity and notes that the POM lacks adequate detail, such that its implementation is reasonable, practical, workable and enforceable. He therefore questions whether the plan would be reasonable; as it requires persons arriving after the 250th population limit has been reached to accept that they cannot into the property for a prayer service, enforceable; as breaches of the total on-site population limit of 250 persons will be difficult for council to ascertain, practical; as it requires absolute compliance to achieve the acceptable outcome or workable, given the above listed difficulties.

  1. Access to the site is proposed from the southern handle, (No 164). The entry intersection layout proposed involves the construction of a right-turn bay within Croudace Road for vehicles traveling north. The egress arrangements are described at [15].

  1. The experts disagree as to the appropriateness of the design of both the entry point and egress arrangements, particularly when it is considered in relation to the expected increased traffic volumes in the vicinity of the site as a result of the completion of the Hunter Expressway and Newcastle Link Road.

  1. Mr Hendicott says that they will initially operate on a satisfactory basis and that there is sufficient separation between the egress point and the egress driveway from the shopping centre carpark opposite. He also notes that during peak times of the operation of the shopping centre, only minor events are intended to occur at the site and therefore the resultant right turning traffic volumes are consistent with what would be expected should the site be developed with its intended zoning under the DLEP.

  1. He has also considered a ten year design horizon which indicated that the development only impacts on existing intersections at the Croudace Road/Garsdale Road intersection where operation worsens from Level of Service (LOS) D to LOS E in the PM peak hour but notes that in this scenario, development traffic volumes from the site comprise only 54 trips out of 2311 trips using the intersection. His assessment of the ten year horizon indicates that the development egress intersection cannot operate satisfactorily unless it is configured as a left-out only intersection.

  1. Notwithstanding this, he says a preferable treatment to avoid any potential right turn conflicts is to restrict egress from the mosque, shopping centre and No 158 Croudace Road to left-out only, enforced by a central median as shown in Appendix D of the Joint Expert Report (Exhibit 3).

  1. Mr McLaren disagrees that the performance of the crossings on completion of the development if approved at 2013 would be satisfactory and says that the actual offset achieved between the egress driveways of the shopping centre and site is less than 20m and has a further undesirable conflict with the provision of a separate driveway serving No 158. He says these offsets create three closely spaced driveways which is not ideal and that high turning volume driveways are required to be offset at a maximum extent possible for traffic flow efficiency and road safety reasons, saying a minimum offset of 30m should be provided. He is also of the opinion that the proposed egress from the site creates a significant hazard with the egress from the Elermore Vale Shopping Centre diagonally opposite. He says that where driveways are close together or opposite one another they are usually controlled by median treatments to remove/control potential traffic hazards or alternate treatments such as traffic signals or roundabouts would be considered.

  1. Mr McLaren aggress that the implementation of a median treatment as proposed by Mr Hendicott, would remove the direct safety concern however raises other matters with respect to the effects of displaced right-turn traffic in terms of:

  • The potential impacts on surrounding roads (including residential streets) if exit traffic diverts "around the nearest block".
  • Potential "U" or "3-point" turning traffic along Croudace Road.
  • Displaced shopping centre service traffic (including 19 m long semi-trailers) impacts in terms of driveway widening and other impacts within the local precinct. Any proposed roundabout treatment for Croudace Road/Garsdale Avenue may need to accommodate U-turning semi-trailers.

  1. Mr McLaren further states that a median or any other traffic control measure (including the proposed right turn bay for entry plus the displaced bus stop suggestions as shown in Mr Hendicott's Statement of Evidence (exhibit E)) will need Local Traffic Committee approval, as well as detailed consultation with bus operators and Elermore Vale shopping centre owners. For those reasons, Mr McLaren maintains that the development application ought to be rejected as the proposed access arrangements are unsafe and that if the application is approved, then a deferred commencement condition should cover the need for resolution of the vehicular access arrangements including consultation with affected stakeholders and impact assessment of any displaced traffic effects.

  1. Mr Hendicott considers that mid block capacity on Croudace Road at the development frontage is not unduly affected by traffic associated with the major and minor event scenarios and their respective capacities of 250 and 40 persons. Mr McLaren requires resolution of the identified road safety issue associated with the closely spaced/offset exit driveways and assessment of displaced right turning traffic if a median is identified as the appropriate treatment.

  1. The experts agree that mid block capacity on Croudace Road and the intersections on the external road networks are likely to be negatively impacted (in particular, the shopping centre exit intersection) by any event with a capacity above the major event scenario of 250 attendees.

  1. Mr Hendicott considers that the intersections on the external road network can accommodate the traffic demands associated with the major and minor event scenario without a significant and unacceptable worsening of existing conditions.

  1. The experts agree that restricting egress on the section of Croudace Road to left-out only via a central median will resolve potential conflicts with right turn. However, to accommodate the swept paths of service vehicles exiting the shopping centre, minor realignment of that driveway is required. They also agree that the CHR(S) treatment proposed for the site egress achieves appropriate levels of road safety at the site entry, provided the Local Traffic Committee accepts this option, as well as the applicant obtains a Section 138 approval from the Roads Authority under the Roads Act 1993 . Mr McLaren notes however that this right turn bay is likely to result in traffic associated with No 166 (medium density residential), being restricted by a median to left out only, otherwise right turn entry traffic into that property is likely to create 'rear-end', and 'lane-change' accident potential.

  1. The experts agreed that the treatment requires relocation of the bus stop adjacent to the site by 85 m for the south-east bound bus stop and 36 m for the north-west bound bus stops. Mr Hendicott considers that its relocation will not have a significant impact on bus services in the area given the limited routes, and generally hourly service that currently exists and the alternate provisions of stops adjacent to the Garsdale/Croudace Road intersection (the primary stop that purpose the shopping centre at the main pedestrian access). Mr McLaren considers that the additional walking distance may not be adverse, however, the full details of the displaced location need to be more thoroughly examined.

  1. The experts agree that implementing the proposed a median treatment will also necessitate implementing parking bans on this section of Croudace Road.

  1. The applicant developed further plans to address the concerns of Mr McLaren in relation to the egress driveway. Those plans, tendered as exhibit H in the proceedings, provide for a 3m wide, left-only egress driveway for users of the site. That driveway would be separated by a distance of 6.2m to a second driveway that would provide ingress and egress to No 158. A 15 m long median would be constructed adjacent to the proposed left turn egress driveway to prevent right turn at this point. That median would also prevent the owners of No 160 from carrying out a right turn from their property, a turn that they can currently undertake without restriction. The effect of that plan would also be to prevent legal right-hand turns from all of those properties adjacent to the proposed Chevron markings. That involves at least seven other driveways including the multi unit development at No 166.

  1. Mr McLaren said that this alternate plan would address his concerns in relation to road safety provided that cars only leave the shopping centre at a speed of 15 km per hour and don't "gun" it. Mr Galasso, for the applicant, advises that it is not relying on exhibit H plans however, they are provided to the Court as an option that may be acceptable subject to Traffic Committee approval.

  1. The experts considered varying scenarios associated with traffic growth in the area with Mr Hendicott saying that the Council would do other things to squeeze capacity along Croudace Road such as removing current on street car parking. He also points to the fact that varying intersections along that road are already at a poor level of service and anticipated to worsen in the future and does not consider that the impacts of the proposed development are such as to warrant refusal of the application. Mr McLaren disagreed and says that because there is an existing problem you should not place another driveway where that is and cautions the need to bring forward works to address those problems as a result of this development.

  1. During cross-examination, Mr Hendicott confirmed that the traffic modeling had been undertaken on the basis of the 250 person cap and the 167 parking spaces. He accepted that more than 250 persons may attempt to enter the site and in that event there may be an impact on safety and level of service at various intersections and driveways in the vicinity of the site.

Planning

  1. The council's contention relate to the current planning controls and those to be incorporated in the exhibited DLEP. Expert evidence was heard from Ms McCarthy, the Co-ordinator of Urban Planning in the council's Strategic Planning section and Mr Harding for the applicant on both statutory and strategic issues. Mr Shiels provided statutory planning evidence for the council.

The DLEP

  1. Ms McCarthy provided background to the preparation of the DLEP which is to be a plan that converts the council's current local environmental plans to one plan in accordance with the template prescribed in the Standard Instrument-Principal Local Environmental Plan. She confirmed that some of the land currently zone 2(b) under the LEP was included in the R2 zone and other land in the R3 medium density zone, all land currently zoned 2(a) is included in the R2 zone, and, under that DLEP, the site will be zoned R2 low density residential. Currently, places of worship are permitted with consent in both the 2(a) and 2(b) zones however would be prohibited in the R2 zone and permitted in the R3 zone.

  1. The change to where places of worship can be located when DLEP is made was considered by the council in adopting the plan and Ms McCarthy confirms that it may be a matter that is considered by the council at some later stage when the council reviews its plan however that would not occur until the new plan has been in operation for a period of time. She maintains that the making of DLEP is both imminent and certain and that when made, places of worship will be prohibited in the R2 zone and that the site will be within that zone. At the time of preparing the joint report with Mr Harding, she anticipated the plan would be made within 4-8 weeks. That would be by the end of April 2012.

  1. Mr Harding did not accept that the making of DLEP was certain however, he did accept that it was imminent. He said that it was not certain because last minute changes to the plan were inevitable, that changes to the Standard Instrument could be made which could have the effect of dictating where a place of worship could be located and that, at some future stage the council may permit a place of worship in the R2 zone however, he accepts the opinion of Ms McCarthy that such a decision is unlikely in the near future. Mr Harding says that the DLEP does not have any greater weight than the savings clause grants, that is, the weight of an exhibited draft.

Statutory planning

  1. Mr Shiels and Mr Harding considered the issue of whether the proposed development will be consistent with the objectives of the proposed R2 zone. The objectives of the R2 zone contained within DLEP are:

· To provide for the housing needs of the community within a low density residential environment.
· To enable other land uses that provide facilities or services to meet the day to day needs of residents.
· To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.

  1. Mr Harding says that the proposed development is not contrary to the objectives, that it will meet day to day needs of residents by making available a place of prayer and associated facilities to those persons who have a day to day need for those facilities, even if those persons are from a larger catchment than within the immediate area zoned R2, and that because the zone contemplates a range of non-residential uses, says that the use will respect the amenity and character of surrounding development. He says that the surrounding development, including the medium density development to the south of the site, show large footprints with minimal setbacks or vegetation and that they form part of the character of the area. He considers the proposal has the added benefit of being setback 50m from the public domain.

  1. Mr Shiels disagrees and says that the proposal does not provide for the housing needs of the community, nor facilities for the day to day needs of residents because he says that the objective is referring to the immediate locality. He says the proposal does not provide for a diversity of housing forms and its scale, scope and intensity will not respect the amenity and character of surrounding development.

  1. The Court must have regard to the objectives of the 2(b) zone before granting consent to proposed development. Those objectives are at [28].

Objective (a)

  1. Mr Harding reiterates his views in relation to similar objectives contained in the DLEP as set out above. He also says that the development of adjoining sites, for medium density housing, demonstrates the outcomes likely in terms of clearing of land, the overall level of built form and hardstand areas that would result and says the site is capable of development for similar purpose, has adequate setbacks with retention of perimeter planting and embellishment with proposed landscaping so that the outcome will exceed planting and vegetation achieved on adjoining and nearby land.

  1. Mr Shiels says that the proposal does not provide for a diversity of housing types that respect the amenity and character of the surrounding development and that the removal of a considerable amount of vegetation from the site and the provision of an extensive amount of hard standing area and built form will reduce the quality of the environment in this locality so that the objective is not satisfied.

Objective (b)

  1. The proposal is not a home-based activity and therefore, this objective is not relevant to the application.

Objective (c)

  1. Mr Harding says the use has varying levels of intensity, the lowest use time coinciding with the potentially sensitive times and the busier periods at times with least potential impacts and therefore consistent with the range of non-residential uses envisaged. He says the amenity impacts are controlled (acoustics and traffic) and that the character is acceptable.

  1. Mr Shiels is of the opinion that a proposal that operates from 5am before dawn to 10pm for prayers and related activities, providing 167 car spaces for people arriving and departing during those hours with a peak usage that maximises the number of persons and vehicles on site is not of a scale or intensity that is compatible with a predominantly residential character. He considers that the amenity and/or character of the neighbourhood and quality of the environment would be diminished by the proposal.

Objective (d)

  1. Mr Harding says that the redevelopment of the existing house and its replacement is not contrary to this objective. Mr Shiels says the objective is not satisfied.

Scale and intensity of proposal and desired future character

  1. Mr Harding says the clearing of the site is inevitable no matter which land use was pursued and that medium density housing or even subdivision for conventional housing would have the same outcome and this is evident from the built developments that surround the site with the built form outcomes consistent to that development. He says that the use will have a significant variation in attendance during prayer times, with a maximum of 250 persons attending the site so is not an intense, 7 day per week proposal and that, other than on Friday, noon prayers, there will be little traffic generated. He advised that the Association would not hold Ramadan prayers at the site and says the amenity of neighbouring properties has been considered with appropriate setbacks provided and the POM provided to address the various controls required to manage the use so he is unclear where the amenity impacts arise as he does not consider the character will be eroded to an unsatisfactory level.

  1. Mr Shiels has a contrary view and says that the scale and intensity of the proposal with the removal of numerous trees will change the residential character of the site and have an unreasonable impact of the locality. He says this is demonstrated by the number of carparking spaces, daily hours of operation and number of vehicles arriving and departing from the site, which he says represents an overdevelopment of the site and would have unacceptable impacts on the amenity of neighbouring residential properties. He accepts that the site could be developed for medium density housing under both the LEP and DLEP with a floor space ratio of 0.75:1, maximum height of 8.5m and landscaped area of 25% and that the development would comply with these controls other than the latter, which had not been calculated. Mr Harding said that he thought the amount of landscaping would be close to the 25% however, Mr Shiels highlighted other controls in the DCP that require tree assessment and the like that would affect how the site could be developed.

Conclusion and findings

  1. The JRPP refused the previous proposal primarily on the grounds of traffic, parking and acoustic impacts affecting the amenity of the neighbourhood which led to the conclusion that the proposal would not be consistent with the aims and objectives of the LEP.

  1. The applicant has attempted to address those concerns through the amended plans and additional details provided in both the traffic/parking and acoustic reports prepared on its behalf and the POM prepared to address any potential conflicts that may arise from the operation of the site.

  1. Having regard to the evidence and had the benefit of the site view including the immediate locality, it is apparent that there are a number of factors that must be considered in determining this application. They are the impacts of traffic/parking and noise, the mitigation measures proposed to address these and how they impact on the amenity of residents of adjoining properties. Visual impact, scale and design of the development and whether it would be consistent with the objectives of the existing 2(b) zone are important considerations, as is the weight that is to be given to the DLEP.

  1. It is clear that the peak traffic and parking demands of the development do not coincide with the peak traffic flows on the adjoining road network, with the peak at the site being Fridays around noon. It is also apparent that the efficiency of some of the intersections in the vicinity of the site are already at a less than desirable LOS and that this situation is likely to worsen in the future. I accept Mr Hendicott's evidence that the peak demands of the site will not have such an impact as to require remedial works to those intersections in the future.

  1. The impacts of the traffic associated with the application are more localised and in particular relate to the efficiency and effectiveness of the proposed ingress and egress driveways. It is apparent, from the evidence provided that without limiting attendances at the site to 250 persons there will be a traffic conflict, that is agreed between the experts. The POM is intended to address this cap however, it cannot control the number of persons attempting to attend the site. I accept the evidence that persons could see signage placed ahead of the entrance advising them the site is full and they would proceed away from the site having met their religious obligation however, there is no quantitative or qualitative information that would indicate the impact of those additional vehicles on the road network as Mr Hendicott advises all modelling has been conducted on the basis of 250 persons maximum.

  1. Mr McLaren remains concerned about the safety implications of the egress driveway due to its proximity to the shopping centre exit. Whilst Mr Hendicott says that the performance of this driveway will be acceptable if the mosque opens in 2013, he agrees that within 10 years, the performance will require restricting its use to left out only and therefore require the installation of a median. This is a matter that must be considered by the Court in assessing the impact of the development as it is not possible for the council to impose additional requirements at a later stage if that work is found necessary after consent is to be granted.

  1. The experts agree that the installation of the median would also restrict the movement of vehicles from the shopping centre and adjacent residential properties to left-out only and that the alternate route involves travelling an additional 1-1.3 kilometres. I am not satisfied that this is an acceptable impact and the travel distance involved may, as suggested by Mr McLaren, lead to unsafe or illegal turning movements along Croudace Road. Further, the loss of on-street parking as a result of the median and turning bays is another undesirable impact of that work.

  1. I accept the evidence of the experts that the site would provide for the parking demands of the development under the 250 person cap provided it is managed in a way that ensures all attendees heed the signage and directions of traffic control persons. The POM is an important consideration and requires a high level of detail to ensure that all potential impacts are met including patrolling streets within the vicinity of the site to ensure no on-street parking occurs, limiting numbers, turning people away from the site at the entry to the site, ensuring signs are erected at appropriate times, windows and doors are closed, plant and equipment is operated at specified times etc.

  1. A POM is a recognised planning tool used to address potential conflicts as described in: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315:

53 Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law ( Transport Action Group Against Motorways Inc v Roads & Traffic Authority [ 1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused.

  1. Whilst I accept that POMs can successfully be applied to manage a range of issues, I am not satisfied on the evidence before me, that the potential impacts of the application, particularly those that relate to traffic attending the site can be controlled to ensure there will be no adverse impacts, particularly in regard to road safety along Croudace Road. 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.

  1. I accept the evidence of the acoustic experts that the use of the site would comply with the appropriate noise standards however consider that the proposed acoustic wall to be constructed around the entire perimeter of the site where it adjoins residential development would have a detrimental impact on the amenity of those dwellings, particularly those at Nos 160 and 162. This is due to the height of the wall and, despite the use of clear material above 1.8m, it would still affect the enjoyment of the yard areas of those properties and, as stated by the owner of No 162, limits air flow to the studio apartment at the rear of that site. Any landscaping proposed would not mitigate that impact. The wall is not characteristic to the area.

  1. The isolation of those two properties between the proposed entry and exit driveways is an undesirable effect of the development, particularly when combined with the high fence that would surround those properties.

  1. The attempt to reduce the height and scale of the development by cutting into the site has resulted in the need to remove the majority of trees and this has an unacceptable impact on the amenity of the area. I do not consider that the extent of planting proposed, which is limited to the perimeter of the site and the area adjacent to the proposed mosque building, would compensate sufficiently for the loss of that advance vegetation.

  1. Whilst I am satisfied that the size, height and scale of the buildings proposed are appropriate in the context of the site, I am not satisfied that the external impacts, particularly those of the acoustic walls and traffic management maintain the amenity and character of the area.

  1. The Court must have regard to the objectives of the LEP and the 2(b) zone. I do not accept Mr Shiels' proposition that it is necessary for the development to satisfy all of those objectives, however, it is important to ensure that the development is not antipathetic to those objectives. In particular, objective (b) anticipates non-residential development within that zone however, it contemplates that only a limited range of non-residential development will occur and that the scale and intensity of that development will be compatible with the predominantly residential environment. A further consideration is to ensure that the development does not unreasonably detract from the amenity or character of the neighbourhood or the quality of the environment.

  1. For the reasons outlined above, I do not consider that the objective relating to non-residential development in the 2(b) zone is met as the mitigation measures necessary to address the impacts of the development would detract from the amenity and character of the neighbourhood and the tree removal would adversely affect the quality of the environment. Failure to satisfy the objectives is not a precondition to the grant of consent however, there is an obligation for the Court to have regard to the objectives.

  1. The planning experts agree that the making of DLEP is imminent however, Mr Harding does not accept that it is certain as he says that changes to the plan at any stage until it is made are inevitable. Whilst it is apparent that further changes are required, I accept the evidence of Ms McCarthy that the plan, when made, would prohibit development of a place of worship in the R2 zone.

  1. In determining the weight to be given to the draft environmental planning instrument, Spigelman CJ in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 states:

6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

  1. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:

30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]):
...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.

  1. The objectives of the R2 zone are similar to those of the 2(b) zone however, in regard to non-residential development, more broad. Again, I do not accept the evidence of Mr Shiels that all of these objectives must be met and prefer the opinion of Mr Harding that the proposed development is not antipathetic to those objectives. For that reason, I do not give the draft plan determinative weight however, the fact that the development would be prohibited when the plan is made and that I have found that it is unsatisfactory in general terms for the reasons outlined above, means that I will give the draft plan some weight in determining the merits of the application.

  1. In view of the above findings and having regard to the evidence and the council's planning controls, it is apparent that there are many factors that, when considered individually, would not be of sufficient weight to refuse the application. However, when considered cumulatively, they go to the council's contention that the application, if approved, would have an adverse impact on the amenity of adjoining residents and the adjacent locality which confirms that the site is not suitable for the proposed development. Accordingly, the application should be refused.

Orders

  1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development application No 10/1049 that proposed the demolition of an existing dwelling, construction of a place of worship and associated community facilities including a dwelling house and ceremonial funeral room at Nos 158A and 164 Croudace Road, Elermore Vale is refused consent.

(3)   The exhibits, other than Exhibits A, B, G, H and 1, are returned.

Sue Morris

Commissioner of the Court

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Decision last updated: 15 March 2012

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Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279