Prajna Monastery Australia Incorporated v Georges River Council

[2018] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:	Prajna Monastery Australia Incorporated v Georges River Council [2018] NSWLEC 1258
Hearing dates:	21-22 May 2018
Date of orders:	01 June 2018
Decision date:	01 June 2018
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application DA2017/0384 for demolition of existing structures and construction of a place of worship being meditation hall and monastery and associated parking at 14 Wright Street Hurstville is refused consent. (3) The exhibits are returned except for Exhibits B, C and 3.
Catchwords:	DEVELOPMENT APPLICATION: place of public worship, traffic, amenity, plan of management
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hurstville Development Control Plan No 1 (Amendment No 5) Hurstville Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index): BASIX 2004 State Environmental Planning Policy No 55 – Remediation of Land 2004
Cases Cited:	Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC 1272
Category:	Principal judgment
Parties:	Prajna Monastery Australia Incorporated (Applicant) Georges River Council (Respondent)
Representation:	Counsel: L Saw, Barrister (Applicant) H Irish, Barrister (Respondent)   Solicitors: Shaw McDonald Pty Ltd (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	17/353101
Publication restriction:	No

Judgment

1. Prajna Monastery Australia Incorporated lodged Development Application DA2017/0384 with Georges River Council on 1 September 2017 seeking consent for demolition of existing structures and construction of a place of worship being meditation hall and monastery and associated parking at 14 Wright Street Hurstville.

2. The council had not determined the application within the prescribed period and Prajna is appealing its deemed refusal pursuant to the provisions of s8.10 of the Environmental Planning and Assessment Act 1979 (EP&AAct).

The site and its context

3. The site is a rectangular allotment located on the north-eastern side of Wright Street between Forest Road and Orange Lane. It has a frontage of 15.24m, depth of 76.175m/77.015m and area of 1167.4m2.

4. A single storey dwelling house is sited towards the front of the site and is elevated above the roadway reflecting the slope of the land from rear to the street.

5. Villa home developments border the south-eastern and northern sides of the site with a two-storey dwelling house immediately to its west. Three storey residential flat buildings are located opposite the site reflecting a higher density zone on that side of the street. Hurstville Public School, an item of environmental heritage is to the rear of the site with its gymnasium building located in close proximity to the rear boundary. Pedestrian access to that school is available from Orange Lane and a footpath crossing in the vicinity of that lane links to Woodville Park.

6. A child care centre and a private primary school and church are located further to the north-west of the site on the same side of the road. Further to the south east are a mix of commercial and industrial uses reflecting the local centre zoning with higher density development beyond those buildings within the Commercial Core of the Hurstville Town Centre.

Background and the proposal.

7. A previous development application for a monastery and meditation hall at the site was the subject of proceedings in this Court with consent refused. See Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC 1272 (Prajna). That application proposed an inverse layout of the current application with the meditation hall at the rear of the site and retention of the existing house.

8. The current application proposes demolition of all existing structures and construction of two new buildings, both of which would be above a basement carpark. That carpark makes provision for 19 carparking spaces, one of which is an accessible space.

9. The basement carpark extends across the majority of the site with a setback of 900mm from the site’s north-western boundary, between 900mm and 2.04m from the south-eastern boundary and a minimum of 3.0m from the rear boundary. It would be accessed from a 5.5m wide driveway in the location of the existing narrower driveway that provides access to the existing dwelling house.

10. A series of ramps, stairs, retaining walls, garden beds and a lift would be located within the area forward of the proposed building. The stairways and lift are below a roof structure that would be setback approximately 7m from the front property boundary. That is forward of the adjoining two storey dwelling to the north west but behind the single storey villa homes to the south-east.

11. The proposed front building would be used as a meditation hall and, in accordance with the application and the accompanying Plan of Management (POM), would be restricted to use by a maximum of 52 persons including three nuns and one Abbot. The nuns and abbot form a collective group referred to as the sangha. All attend the services with the POM providing for up to 48 devotees.

12. The building incorporates a counsel room with internal dimensions of 3.3m x 3.5m. That would be used by the abbot or nuns in association with their community work and involves persons other than members of the Incorporated group attending the site.

13. A metal deck links the tiled roofed stair cover and the proposed meditation hall, also acting as the roof to the counsel room. The floor level of the proposed hall is generally consistent with the existing ground level however its 35 degree roof pitch provides for a large internal space with the ridge height approximately 6.75m above existing ground.

14. The hall has internal dimensions of 15.5m x 9.3m and the plans lodged show a layout of mats that would be used by devotees during the services within the hall. Eight chairs are shown at the rear of the hall for use by less able persons. Two doors provide ingress/egress to the hall, one at the front and one on the north-western side. The latter is shielded by acoustic walls and a door the purpose of which is for securing the site.

15. The rear building takes the form of a two-storey dwelling house that would be used as the monastery. That building would be setback 2m from the south-eastern boundary and around 3m from the north western boundary. The setback to the rear is a minimum of 8.1m. A 5m wide courtyard is proposed to the rear of the dwelling which is set into the site due to its slope. A landscaped area is proposed between the courtyard and the rear boundary which is the area in proximity to the school gymnasium. A drying area, bin storage area and pathway are proposed to the northwest of the building with 900mm and 2m wide landscaped gardens adjacent to the boundary fence.

16. The ground floor area incorporates two bedrooms, one of which has an ensuite, a bathroom accessible from the guest bedroom and also the hallway, a separate WC, store room, laundry, kitchen and living/dining area. The upper floor provides two bedrooms and a bathroom. The closest window to the rear boundary is the window to bedroom 3. It is located 14.9m from the boundary of the site. Whilst not dimensioned, the school building appears to be around 2.2m from the common boundary which result in a separation distance of around 17.1m.

17. The area between the two buildings includes pathways, a raised planter box, toilets and plantroom.

18. The meditation hall would operate on weekends only. On Saturday devotees would arrive between 8am to 9am with the hall used for chanting and dharma talk service from 9am to 1.30pm. The service starts with chanting to the Buddhas with meditation mats used and takes from 30 to 45 minutes. This is followed by silent meditation from between 30 to 45 minutes following which the Abbot gives a dharma talk. The session is closed with chanting for between 10 to 14 minutes so that the entire proceedings take in the order of 2-3 hours. The service is followed by a vegetarian lunch that would be offered inside the proposed dwelling, according to the evidence in the living/dining room. During the session one joss stick is lit. Devotees are not allowed to burn their own joss stick.

19. On Sundays the session would start at 9am with devotees turning up between 8am and 9am. Before the service commences, they prepare themselves by practicing meditation in the hall with “noble silence” observed during this time. The entire sangha attend and the session that starts with chanting to the Buddha (30 to 45 minutes) followed by silent meditation (30 minutes), reciting the sutra (15 minutes) followed by silent meditation (30 minutes) with the reciting and meditation repeated until 11.30am. There is then a lunch break and rest period. The service resumes around 12.30pm, starting with chanting to the Buddha (30-45 minutes) silent meditation (30 minutes), reciting the sutra (15 minutes) silent meditation (30 minutes) with meditation and reciting repeated until around 3pm. Around 10 minutes of chanting closes the session with an analysis of the participants’ meditation practice by the Abbot. Participants start to disperse around 3.45pm and the POM suggests this would be spread over a period of half an hour.

20. According to the POM only one joss stick will be lit and chanting is accompanied by musical instruments, namely tingsha (a small bell), drum, cymbal and the wooden fish.

21. No celebrations in association with special days will be held on site. On any Saturday that Chinese New Year’s Day falls a special talk would be given by the Abbot as part of the usual Saturday Practice and Teaching of Buddhism session. The order of events and number of attendees during these Saturday sessions will otherwise remain the same.

22. The counselling room would operate on an appointment basis between the hours of 9am to 5pm Monday to Friday. According to the POM, counselling services would also be offered in the monastery during those times by appointment.

The planning controls

23. The site is zoned R2 Low Density Residential under the provisions of Hurstville Local Environmental Plan 2012 (LEP). Places of public worship are permissible in the zone with development consent.

24. The aims of the plan are set out in clause 1.2 with the council contending clauses 1.2(2) (e) and (m) are not met. Those clauses are in the following form:

(e) to maintain and enhance the existing amenity and quality of life of the Hurstville community,

(m) to concentrate intensive land uses and trip-generating activities in locations most accessible to transport and centres,

25. The objectives of the R2 zone 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 encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

• To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.

26. The site adjoins an item of environmental heritage (Hurstville Public School) so the provisions of clause 5.10 are relevant however the council advises its assessment of the Heritage Impact Statement that accompanied the development application raises no issues of concern.

27. Hurstville Development Control Plan No 1 (Amendment No 5) (DCP) applies with Sections 1 – Introduction, 2 – Application Process and 3 – General Planning Considerations relevant considerations.

28. State Environmental Planning Policy No 55 – Remediation of Land 2004 and State Environmental Planning Policy (Building Sustainability Index: BASIX 2004 are also relevant to determination of the application however are not contentions in the case.

The issues

29. The contentions in the case are whether the application is consistent with the objectives of the aims of the LEP and the R2 zone; whether the development will result in acceptable traffic and parking impacts on the local road system and whether the application is in the public interest having regard to traffic impacts, non-compliance with the draft Guidelines for Places of Public Worship, security concerns from disharmony in the area due to residents objecting to the application and privacy and noise impacts due to the number of vehicles and people on the site particularly on weekends.

30. The council also contends that inadequate information had been provided to allow assessment of access, security and safety and overshadowing. The issue of overshadowing was resolved through the joint conference process with the planning experts agreeing that the impacts of the proposed building did not result in loss of sunlight below that anticipated in the DCP. The applicant argues a review of safety and security was included in the Statement of Environmental Effects (SEE) lodged with the application.

31. A draft amendment to the DCP (Guidelines) to include specific provisions that relate to places of public worship is also a matter which the council says is relevant to the case. An original draft had been exhibited between May and October 2017. The current council has resolved to engage a consultant to address concerns of both the elected council and persons who made submissions in relation to the original exhibition. That work has not been completed and it is agreed that for the amendment to take effect it would require adoption by the council to place a draft on exhibition, consideration of submissions received in response to that exhibition, the possibility of further amendments and final adoption.

32. Ms Irish, for the council, contends the draft plan, particularly the provision that requires a minimum site width of 20m, should be given some weight by the Court. Ms Saw, for the applicant, contends it should be given little or no weight.

The evidence

33. The hearing commenced on site with evidence heard from a number of objectors to the proposal including the Principal of Hurstville Public School and President of the school’s P&C, neighbours, local residents and a local politician. The issues raised are summarised as follows:

• The council and Court has already rejected an application for a similar but smaller development;

• Adverse traffic and parking impacts in an area already experiencing stress due to the range of uses in the street, proximity to schools and the Hurstville town centre;

• Questions the validity of the parking survey;

• Site is too small for the proposal;

• Safety issues from underground parking due to inadequate sight lines;

• Area already has a bad history of traffic and pedestrian incidents;

• Not needed in the community;

• Unauthorised use of the site has already resulted in adverse amenity impacts;

• Concern about student safety in terms of road safety and overlooking of students, particularly in the gymnasium which includes changerooms;

• The commercial kitchen will result in noise and smell;

• School is a listed heritage item;

• Concern the POM would not address the issues raised by residents;

• Security concerns;

• Noise;

• Loss of sunlight, privacy and amenity;

• Out of character;

• No complaints procedure;

• Adverse visual and odour impacts of chimney stack;

• Use of site on weekend means no rest due to impacts of area during the week.

34. Expert evidence was provided by:

Traffic

35. Mr Higgins says that the vehicle generation for the site when operating at capacity equates to 27 vehicle movements in the morning and afternoon on Saturday and Sunday with a negligible generation for the rest of the week. This moderate peak generation is a rate of less than one vehicle every 2 minutes on average, occurring outside of the network peak period, with no noticeable impacts on the operation of Wright Street. Regarding public transport, he notes the site is located within 400m of 8 bus stops and within 800m of two railway stations.

36. Mr Rogers agrees that if the capacity of the proposed prayer centre is capped at a maximum of 52 attendees at any one time the traffic impacts would be minimal and not detrimentally impact on the residential amenity of the area. He agrees the site has good accessibility by public transport. He notes that should the number of attendees significantly exceed 52, the traffic effects could have a detrimental impact on the residential amenity of the area.

37. The experts agree that the proposed provision of 19 parking spaces (17 for the prayer centre and 2 for the residential dwelling) satisfies the requirement for parking as set out in the DCP based on the maximum of 52 persons at the site and would also satisfy the parking demand with 49 persons arriving to join the three nuns on site.

38. Mr Rogers notes that no provision has been made for pick up/set down of devotees within the site and Mr Higgins says that the DCP does not require any area to be set aside for this purpose with such activity taking place on the roadway. He says that there is adequate area available within the street for this to occur.

39. It was common ground that the layout of the carpark as proposed did not meet the requirements of Class 2 carpark under AS2890.1-2004 and that this issue could be resolved through an amended design included as Annexure B to the Joint Report, Exhibit 5. The applicant was granted leave to rely on those amended plan, Exhibit D and the amendments were considered minor and no order under s8.15(3) as to costs was made.

40. Mr Rogers raised a concern that the key to parking is capping the numbers of people who attend the site and queried how this could be done in terms of the POM. If numbers were not capped he said additional devotees attending the site would result in the car park not being able to accommodate all parking on-site with parking spilling out on the surrounding streets and considered the issue had not been satisfactorily addressed in the POM. The issue of the adequacy of the POM and whether strict compliance is necessary is a common theme amongst experts and is discussed later in this judgment.

41. Mr Higgins said the capacity of the centre is largely dictated by the nature of worship at the Buddhist Temple, rather than requiring an imposed restriction in order for compliance with any POM. He says that this is because the meditation requires a larger area of free space per devotee when compared with Christian, Jewish or Muslim denominations, in order for the devotee to be free of distraction during the meditation process and this is borne out in surveys of similar Buddhist temples. Temples surveyed in Campsie and Belfield show an area used by each devotee when using a worship mat was 3.27m2 and 3.04m2 respectively. With an area of 170m2 the proposed capacity of 52 people is reached (1 per 3.27m2).

42. Mr Higgins compares the DCP parking rate of 1 space per10 seats or 1 space per 10m2 GFA (whichever is the greater) and says it would permit a capacity of up to 173 devotees (i.e. 10 worshippers per visitor space and the three live in nuns) and says that this reflects the nature of services that occur on weekends during off peak period and that on-street parking is an inherent assumption that underpins the DCP. He concludes the parking provision meets the expected demand.

43. With regard to the suggestion made by residents in their evidence that the survey of available on street parking was flawed both experts assessed the plans provided and agree that some of the spaces in the applicant’s survey were time restricted on Saturdays up until 12.30pm. Mr Rogers said that whilst there were differences in the survey the number of spaces available was similar with 216 at 11.30am on Saturday and 203 at 12.30pm. Mr Higgins agreed that there were timed spaces in Forest Road however did not consider that attendees would us those spaces on a Saturday.

35. Both experts agree that the site would only be suitable for the proposed development if used on Saturday and Sunday for meditation and in the event that any weekday use of the hall for meditation was proposed the likely traffic and parking impacts would be unacceptable.

36. The means of controlling the number of cars attending the site was shown on the plans, Exhibit C as a “door control console”. The experts agreed that this would only count cars entering the site and that it would not stop more cars from entering once the carpark was full. They agreed that supplementary signage linked to a unidirectional magnetic loop on the ramp and a boom gate would address the capacity issue within the basement and stop any additional car before it got to the basement. An intercom would also be required to allow access to the basement by persons attending counselling.

Acoustics

46. The experts agreed that further acoustic treatment to the building and its windows was required to address noise impacts. These works are included in the draft conditions of consent and agreed by the applicant.

47. They agree the predicted noise level from the operation of the mechanical plant at the closest residential receptors is: 42 dBA at 10-12 Wright Street, 43 dBA at 16 Wright Street and 44 dBA at 18 Wright Street.

48. In addition to the acoustic treatment the experts agree, that for compliance with relevant standards all windows to the Meditation Hall must be closed during a service, access doors on the northwest façade should not be used except in an emergency, access doors on the southwest façade of the Meditation Hall should be fitted with automatic door closer and kept closed except within use (assuming there is no egress from the hall during proceedings).

49. Based on a traffic generation of up to 10 vehicle trips travelling up the ramp in any 15-minute period (as agreed by the traffic experts), the acoustic experts agree that the result noise emissions would comply with the appropriate noise criteria.

50. It is agreed that if vocal noise impacts from the site are to comply with noise emission goals, management of the site must ensure that outdoor areas (at the front of the hall, side passages or at the monastery) are not used by groups, before or after a service. The outdoor area at the rear of the monastery is to be used only by occupants of the monastery (capacity of 5 people) and not by groups, before or after a service. It was agreed that it is critical to ensure that there is a smooth transition of people moving through the site. If more than 48 people attended the impact would depend on the duration of noise with twice as many people addition 3dBA. Similarly, Mr Taylor says, if the duration of noise is only for 15 seconds there would be no issue but if it extends to two minutes the impact jumps significantly.

51. In response to cross examination as to whether only weekend noise levels should have been used to assess impacts due to the high activity levels that occur in the locality during the week, both experts agree that there would be negligible difference based on the surveys undertaken.

52. At times when the monastery is used by members of the congregation for a meal service, all doors and windows to the monastery are to remain closed. Those windows also require acoustic treatments to ensure compliance.

53. In summary the experts agree, subject to the matters listed in Part 4.0 of their expert report, Exhibit 6, that the proposal can meet the noise criteria. These matters require revision of the POM to address closure of doors and windows and restriction of use of outdoor areas as detailed above.

Planning

54. The planning experts prepared two reports, Exhibit 7, their report in Chief and a supplementary report, Exhibit 8. The latter addressed the issue of overshadowing impacts on the adjoining villa development at 10-12 Wright Street. They agree that the overshadowing impacts are compliant with the DCP provision and are no greater than the impact of the existing boundary fence.

55. In regard to the objectives of the R2 zone, in particular, the objective of enabling other land uses that provide facilities or services to meet the day to day needs of residents the experts agree that in terms of demographics, the 2016 Census information of the Hurstville suburb, the Hurstville City Centre alone and the LGA indicates that there is a high number and a high proportion of residents who identify as Buddhist in terms of Religion and a very high number and proportion of residents who are of Chinese Ancestry. For that reason they agree that a Buddhist Place of Public Worship is appropriate in the locality.

56. There is no agreement in terms of the other objective said to be relevant to determination of the application that is, to ensure that a high level of residential amenity is maintained.

57. Mr Nash says places of public worship are permitted with consent in the R2 zone in recognition that the use is a compatible activity in a residential suburb and cites the range of non-residential uses surrounding the site. He says the proximity of the site to the Hurstville CBD and the extent of non-residential uses adjoining and proximate to the site, moderates the quality of the existing amenity environment of this part of an R2 zone and differentiates it from other low density residential settings. For that reason he says the proposed development satisfies the zone objective.

58. Ms Warton agrees the use is permissible but says the issue of compatibility must be assessed on its merits.

59. In relation to amenity impacts Ms Warton says that the development will adversely affect the amenity of the area. She is also concerned the capacity of the hall is such that, with a different mat arrangement from that shown on the plans attached to the POM, a higher number of devotees could attend the premises thereby further detrimentally impacting on that amenity. She prepared a plan, Exhibit 12, that was based on a plan refused by the council and the Court in Prajna and by reference to photos of other similar halls also included in the POM which suggest the mats could be more closely located. Her alternate plan, Exhibit 12, suggests the hall could accommodate a total of 72 persons on 12 chairs, 56 mats for devotees and 4 for the sangha.

60. Ms Warton remains concerned at the lack of detailed controls within the POM to address the range of matters that potentially impact on the amenity of the area and the level of attention those controls require to be successfully implemented. She says the heart of the issue is the capacity in terms of number of attendees at the temple. There are no measures proposed to ensure that the number of attendees will be as stated. In terms of “Capacity Management”, the proposed POM refers to the number of attendees that the temple “only contains space for 44 meditation mats”. She suggests that a more appropriate means of ensuring the capacity of the hall is limited is to reduce its size so that internally and structurally, the use is limited to the proposed attendee numbers. Alternatively, the impacts in terms of acoustics and parking need to be assessed based on the actual capacity of the building, which has not been done and which would be a different development proposal.

61. Ms Warton also raises concerns in relation to the number of persons attending the lunch and the capacity of the room to accommodate 40 persons, saying that lunch attendance should not exceed 20. Mr Nash disagrees and says only 0.5m2 floor area would be required for each attendee and, allowing for the likely furniture within the lounge and dining room adequate area is available.

62. Privacy is another contention and Ms Warton suggests the side door be relocated so as not to open directly opposite the verandah of No 16 Wright Street. To improve amenity and privacy she also suggests that the lift should be relocated to within the building to internalise the impacts of people gathering; the width of the verandah reduced by half or, preferably the entry space to be fully enclosed and toilets redesigned so as to be directly accessed from inside the building.

63. Mr Nash says the design of the development is modest in scale and bulk, its architectural treatment and scale satisfactorily address the streetscape and character of the area and all relevant development standards are met with the building smaller than provided for under those standards in terms of both height and floor space ratio. He considers the proposed landscape treatment of the setback to be a significant improvement in the visual amenity of the site in the Wright Street streetscape and concludes the development will not detract from the existing amenity of the locality and the modest scale of the development will ensure that there will be no adverse amenity impacts on adjoining residential properties in terms of overlooking and overshadowing. In terms of noise, he relies on the evidence of the acoustic experts.

64. Both experts agree that the only window that provides a line of sight towards the school gymnasium building is the upper rear bedroom window of the monastery. That window is some 18m from the building, a distance that they say provides for appropriate separation. Ms Warton says the school is quite remote from a single occupancy bedroom window and does not consider it to be necessary to install any privacy treatments. She says that if the school has any changerooms that face onto residential properties it is a matter for the school to ensure privacy. Mr Nash says there would be no need for any CCTV cameras to be installed at the rear of the premises however was unable to assist the Court in understanding where cameras would be installed saying it would be a matter for experts in security. He agrees a condition of consent could be imposed to ensure no cameras were directed towards the school.

65. Mr Nash says there are no privacy issues associated with the adjoining developments whereas Ms Warton says there are with persons moving along the pathway between the hall and monastery able to observe persons on the balcony of the adjacent dwelling house, No 16.

66. Ms Warton expresses security concerns from disharmony of residents not wanting a place of public worship and the fear of change. Because she contends the development fails to comply with the zone objective of ensuring a high level of residential amenity is achieved and maintained consent should not be granted as it would not be in the public interest.

67. Mr Nash disagrees and says the proposal will satisfy the spiritual needs of locals of Buddhist faith. He undertook an assessment of the Crime Prevention through Environmental Design and Security and Operational Management in the Statement of Environmental Effects and says the issue of security can be satisfactorily addressed through the POM.

68. The experts disagreed on a number of other matters, principally whether design changes were required and whether a deferred commencement consent was necessary. In addition, their disagreement included consent conditions relating to number of garbage bins, use of doors, matters to be included in the POM, the need for an access report, the need for an acoustic assessment of the proposed kitchen exhaust, the extent of dilapidation reports relating to adjoining properties and how many people will fit within the lunch area.

69. The council also requires the applicant to extend a 375mm drainage line 110m along Wright Street to service the site. The applicant opposes that condition and says it should be permitted to discharge direct to the street.

70. The majority of matters raised by objectors have been discussed above. The issue of the exhaust stack from the basement car park had not been the subject of consideration by anyone. That stack is located in close proximity to the adjacent dwelling house. The council propose a deferred commencement consent condition that requires provision of a carbon monitoring system that activates the supply and exhaust fans in the car park only when necessary.

Conclusion and findings

71. It is apparent from the evidence that under no circumstances should consent be granted for the proposed use in the event that the Meditation Hall operated during the week.

72. For it to operate during the weekend, it is clear that the application is heavily reliant on how the site functions in terms of attendance and management of persons whilst on the site. In this regard the applicant relies on the POM to ensure that no adverse amenity impacts arise. The council opposes this path contending that there are too many matters not addressed in the plan and that anything other than a slight variation must result in adverse impacts.

73. The approach to consider whether a POM is appropriate for a particular use and situation is in the form of the questions raised in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54], as revised in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72]:

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 incorporated in the conditions of consent, and 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?

74. These questions were considered by Pearson C in the original Prajna decision. It is apparent that this application suffers from the same deficiencies that had been identified in that case, in particular the failure to demonstrate how the intended cap on attendances can be managed, how noise can be controlled when people move through the site and how breaches would be managed.

75. The plan is silent on these important procedures and while I accept that it is the responsibility of a consent holder to ensure compliance with all consent conditions I find that the views of Mr Rogers and Ms Warton are substantiated. There are no means of addressing breaches or ensuring the noise of persons on site is minimised. The acoustic experts agree that noise from persons moving between buildings becomes an issue if it takes over two minutes. I also accept Ms Warton’s evidence that the proposed hall is capable of accommodating more than 52 persons. This is supported by the photographs included in the draft POM. That fact has implications for ongoing monitoring of the site to ensure attendance limits are not exceeded. I have not been persuaded that the source of any breach could be readily identified which is contrary to the test in Renaldo at 3.

76. Whilst Ms Saw went to great length during the hearing to determine whether minor breaches of the POM would result in unacceptable outcomes, I note that the evidence suggests that there is little leeway between absolute compliance with the POM and causal amenity impacts (Renaldo 4).

77. The POM is silent of behavioural practices required to ensure that noise levels do not exceed criteria and therefore persons subject to the plan could not be reasonably expected to know of its requirements (Renaldo 5). The acoustic experts agree that management of the site must ensure that outdoor areas (at the front of the hall, side passages or at the monastery) are not used by groups, before or after a service. Such requirement is difficult to enforce, particularly as the proposal involves people moving between the hall and monastery.

78. The POM addresses the other requirements of Renaldo except for the last requirement for updating and changing it. That would not be fatal to the application and could be addressed through amendment to the plan.

79. The objectives of the R2 zone are to ensure that a high level of residential amenity is achieved and maintained. Whilst I accept Mr Nash’s view that the area, due to the range of non-residential uses is not an area that enjoys a high level of amenity, the area at the weekend does not suffer from the intrusion of commuter carparking or school and childcare centre activities that is not a reason to introduce other developments that would contribute to loss of amenity. The proposal would introduce a non-residential use with its primary activity on a Sunday, the only day that residents enjoy some relief from the intrusion of those other uses as the nearby church has its worship activities on a Saturday.

80. Because of my findings in relation to the POM, the fact that the hall can cater for more persons than proposed and therefore requires stringent management measures and monitoring, I am not satisfied that the objectives of the zone are met or that the site is suitable for the proposed development.

81. For that reason, I do not deal with the disputed conditions of consent. I would give no weight to draft guidelines due to the fact that there is no certainty that they would be adopted in the form that was exhibited.

82. I am not satisfied that sufficient information has been provided to address emissions from the basement carpark and although I anticipate this could be addressed in some form, the potential amenity impacts remain.

83. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA2017/0384 for demolition of existing structures and construction of a place of worship being meditation hall and monastery and associated parking at 14 Wright Street Hurstville is refused consent.

3. The exhibits are returned except for Exhibits B, C and 3.

__________________

Sue Morris

Acting Commissioner

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Decision last updated: 01 June 2018