Rahma Islamic Assoc of Australia Inc v Fairfield City Council

[2011] NSWLEC 1362

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rahma Islamic Assoc of Australia Inc v Fairfield City Council [2011] NSWLEC 1362

Hearing dates:

9, 10 November 2011

Decision date:

16 December 2011

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

Preliminary findings

Catchwords:

Development application: Place of worship - consistency with zone objectives, integration into neighbourhood, noise, traffic/parking, visual impact.

Legislation Cited:

Fairfield Local Environmental Plan 1994
Fairfield Development Control Plan 2006

Cases Cited:

Dipper v Pittwater Council [2006] NSWLEC 273
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Futurespace Pty Ltd v Ku - Ring - Gai Council [2009 NSWLEC 153

Category:

Procedural and other rulings

Parties:

Rahma Islamic Association of Australia Inc (Applicant)

Fairfield City Council (Respondent)

Representation:

Counsel
Mr A Galasso SC (Applicant)

Mr A Pickles (Respondent)
Solicitors
Mr M Sonter (Applicant)

Ms P Hudson (Respondent)

File Number(s):

10589 of 2011

Judgment

Background

1. This appeal was lodged against council's refusal of a development application for the use of an existing structure as a place of worship (mosque) and residence on a consolidated battleaxe lot at Railway Street and Kay Streets, Old Guildford. These uses have been operating for a period and the council has identified the following contentions:

• Noise impacts
• Adequacy of onsite car parking
• Consistency with zone objectives, particularly integration with the neighbourhood
• Visual impacts

The site

1. The site is of irregular shape and comprises following four lots known as 2A and 2B Kay Street, and 3 Railway Street Old Guildford with a total area of approximately 4049 sq m.

• 2A Kay Street consists of Lots 3 and 5, DP 565900. These lots have a combined area of approximately 1876 sq m and are accessible from Kay Street via a "battleaxe" style access handle. Erected upon Lot 3 is a single storey building previously approved as a dwelling house but since converted for use as a prayer hall. Also located upon this lot, is a concrete slab previously proposed as part of an outdoor recreation area and an additional single storey structure, which contains accommodation and ablution facilities. There are no buildings erected upon Lot 5.
• 2B Kay Street consists of Lot 4 DP 565900. This lot is a battleaxe lot with access from Kay Street, and has an approximate area of 952 sq m. Erected upon this lot is a two storey brick dwelling house with attached garage and an in ground concrete swimming pool. These buildings are proposed to be retained and used for residential related purposes.
• The combined width of the access handle, which forms a part of Lots 4 and 5 DP 565900 is approximately 6 m.
• 3 Railway Street consists of Lot 2, DP 160428. This lot is rectangular in shape with an approximate 14.37 m frontage to Railway Street and an area of approximately 1221 sq m. Erected upon this lot is a single storey brick dwelling house. There is no rear fence which separates this property from the 2A Kay Street property at the rear.
• The site contains a number of trees and shrubs. One large tree located on 3 Railway Street, adjoining the common boundary with 2 Railway Street, a Camphor Laurel is shown on the landscape plans as proposed to be removed.

1. The site is located in close proximity to the northern most boundary of the City of Fairfield, adjacent to the land which contains the Sydney Water Supply pipeline. The land to the north of the water supply pipeline is located within the City of Parramatta and is characterised as predominantly containing medium density residential development, typically town houses and residential flat buildings, together with dwelling houses. The Guildford Shopping Centre is located approximately 500 m to the north of the site.

1. The land on the southern side of the pipeline and on the eastern side of the railway line is located within the City of Fairfield is characterised as containing predominately single and two storey dwelling houses together with isolated examples of infill development, such as villas and town houses.

1. Adjoining 3 Railway Street along its northern boundary is No 2 Railway Street, upon which is erected a single storey detached fibro-clad dwelling house. The rear of 2 Railway Street also adjoins the northern end of 2A Kay Street, which forms a part of the subject site. To the south of 3 Railway Street and to the west of 2A and 2B Kay Street are residential properties, which are accessed directly off Railway Street (4 Railway Street) or off battleaxe driveways from Railway Street. These lots contain, in the case of 4 Railway Street, a single storey brick dwelling house and garage, and in the case of 4A Railway Street, which also adjoins part of the western boundary of 2A Kay Street, a two-storey brick dwelling house and garages. Located further towards the south, and still accessed off a battleaxe driveway from Railway Street, is a town house and villa development consisting of eight dwellings.

1. The eastern boundary of 2A Kay Street adjoins 2C Kay Street, which consists of Lots 11 and 13 DP 570691. These lots contain a dwelling house (Lot 13) and a detached garage (Lot 11) and are accessed off a battleaxe driveway, which adjoins the driveway providing access to 2A and 2B Kay Street, part of the subject site.

1. Adjoining 2B Kay Street along its southern most boundary are three residential lots accessed off a common driveway from Kay Street. Two of the lots contain dwelling houses, whereas the third lot located furthest from Kay Street is vacant land.

The proposal

1. This proposal involves the following details in order to access and use the existing building as a mosque, together with the existing dwelling as a caretaker's residence:

• Demolition of the single storey brick dwelling house and detached garage at 3 Railway Street, and demolition of the partially constructed outdoor activity area (concrete slab) and single storey accommodation facility located on 2A Kay Street, Old Guildford. This is to facilitate access and parking for the mosque.
• Use of the building erected on 2A Kay Street, Old Guildford, previously used as a dwelling house, as a congregation hall (Mosque - Place of Worship) for prayer services and a broad range of counselling services for youth.
• Construction of a 2.5 m wide and 10 m long ablution/toilet block to the west of the congregation hall, adjoining the eastern most boundary of 4 A Railway Street, Old Guildford.
• Construction of covered walkways linking the ablution block for males and females with the congregation hall. The walkway includes shoe storage facilities. The walkway also extends to the north through a female designated courtyard to link with the pedestrian pathway serving the car park.
• Construction of separate male (25 sq m) and female (35 sq m) courtyards to the west of the congregation hall.
• Construction of acoustically treated and partially enclosed carports parallel to the 3 Railway Street southern boundary, the eastern boundary of 2A and 2B Kay Street and a portion of the southern boundary of 2B Kay Street, Old Guildford.
• Construction of a pedestrian access way along the access handle linking the site with Kay Street.
• Alterations and additions to the congregation hall building including a retractive internal wall, replacement of south facing windows with frosted windows, new doors and ramps.
• Construction of driveways and off-street car parking for 60 spaces.
• Site landscape works incorporating tree removal and a pedestrian pathway to Kay Street.

Planning controls

1. The following planning controls are relevant in this matter:

(1)   Fairfield LEP (FLEP 1994); under which the subject land is within the 2(a) - Residential A zone wherein a "place of worship" is permissible. A place of worship is defined as:

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

(2)   Fairfield DCP 2006 . Of relevance in the matter, chapter 12 deals car parking, vehicle and access management and chapter 10 miscellaneous development.

The evidence

1. Detailed evidence in this matter was presented by:

Mr K Kerzinger; Senior strategic planner for council

Mr S Harding; Consulting planner for applicant

Mr S Gauld; Acoustic consultant for council

Mr A Paolino; Acoustic consultant for the applicant

Mr M Bridgman; Traffic consultant for the council

Mr K Hendicott; Traffic consultant for the applicant

Mr S Elriche; President of the Rahma Corporation

1. The proposal was advertised and attracted a number of objections and petition, which are included in the council bundle of documents, which have been considered along with the oral evidence given at the site.

1. The main issues raised concern the suitability of the site for the proposed mosque due to the likely noise from internal activities and associated parking arrangements. It was initially explained to the court that the initial proposal had been reviewed with the use being limited to a maximum number of 130 people and that the various prayer services would involve:

• The sunrise services not commencing before 7am
• The evening services being finished by 10pm
• The main prayer service being midday on Fridays conducted over a 2 hour period.

Noise

1. The noise issue was raised in terms of sleep disturbance from the various services and also from pedestrian and vehicle usage adjacent to the neighbouring residential properties.

1. In response to this issue, Mr Paolino undertook acoustic modelling, based on the existing background noise circumstances and found that with the erection of sections of acoustic fencing and with the enclosed, acoustically treated carports being offset from the common boundaries and having a maximum height of 3.30 m, then the noise environment would be maintained to a reasonable level.

1. Apart from this, concerns were raised about possible noise nuisance from the youth group activities, where there is an anticipated attendance of about 20 on Saturdays from 1-2 pm. But as these activities are to be undertaken inside with the doors closed, I rely on the acoustic experts agreement that a satisfactory noise environment for the neighbourhood will be maintained, subject to the compliance with the conditions of consent.

Traffic/parking

1. The parking issue is a significant concern for council and the neighbours, particularly those near the Kay Street frontage because it is apparently subject to constant traffic flows along its relatively narrow carriageway of, which limits on-street parking and presents a safety risks for pedestrians. There is also a concern that regular use of the 6 m entry pathway will result in a poor amenity outcome, particularly when two vehicles are passing.

1. From the joint conferencing, the experts agreed that the original proposal contained a number of deficiencies, including insufficient on-site parking, poor parking layout due to the inclusion of stacked spaces and non-compliances with the provisions of AS 2890.1.

1. Whilst the on-site parking complies with the DCP provisions, nevertheless in response to the contentions, Mr Bridgman arranged parking surveys at other similar mosques in the area to assess the adequacy of the parking proposal. He found that there was a parking demand in the order of 1 space/1.3 people. On this basis, the proposed 60 car spaces are deficient because 100 spaces would be required. However, the surveys also found that there are a significant number of on-street spaces available near the site, particularly along Railway Street, adjacent to the Southern Rail Line.

1. Considering the attendance pattern for the various prayer sessions, where the Friday midday prayer session will be the main activity and traffic period, I am inclined to accept the traffic experts opinion if there is full attendance, then the possible overflow of about 40 cars can be readily accommodated on-street during the day. Although in this regard, I note Mr Bridgman's opinion that parking and entry from Kay Street should be limited.

Planning issues

1. The planners reviewed the expert acoustic and traffic outcomes in order to assess the overall suitability of the site for the development and in particular its integration into the immediate locality. They also considered other possible adverse impacts, including the visual impacts. Consequently, Mr Harding is satisfied the overall impacts of the revised proposal will be acceptable and supports the conditional approval of the development, including that the use is to operate under the provisions of a plan of management (POM).

1. Whilst acknowledging the acoustic and traffic experts opinions that the amenity impacts for these matters can be controlled by way of conditions, nevertheless Mr Kerzinger expresses a number of reservations, including the reliance on the POM.

1. In particular, Mr Kerzinger is concerned about the proposed limitation of 130 worshippers at the proposal. He surveyed a number of other similar operating mosques and found that the area per worshipper was in the order of 0.5 - 0.6 person per sq m. On this basis, the existing floor space within the worship hall would allow some 280 - 336 people. In the event of this type of attendance, he considers there would be an unsatisfactory amenity outcome, particularly noise, access and parking.

1. Insofar as the POM is to include parking controls to limit entry to the property when the 60 vehicle and 130 maximum person limit is reached, he says there would likely be difficulties in refusing people entry, which would then probably contribute to a poor amenity outcome.

1. Apart from this, Mr Kerzinger initially expressed concerns about the visual impact of the scale of proposed enclosed carports along the southern boundary and also their streetscape presentation. However during the course of the appeal the following amendments were undertaken:

• the height of the carport roofs were reduced to approximately 3.3 m above ground level,
• the side setback to the southern boundary was increased to 1m to allow a landscaping strip adjacent to the boundary,
• the front setback presentation was revised to incorporate a larger soft planting area and revised pedestrian entry to the site.
• the acoustic barrier on the northern side of the driveway was reduced in height so as to taper from 1m at the street to 3m at the building line adjacent to the dwelling at No 2 Railway Street.

1. In these circumstances then, Mr Kerzinger agreed that these amendments improve the visual impacts of the proposal but he maintained his objection to the relatively long (40 m), 3 m high acoustic screen, adjacent to No 2 Railway Street, which he says creates a "tunnel effect" that is not a normal feature in this neighbourhood.

1. In an overall assessment, Mr Kerzinger does not consider that the development is capable of reasonable integration with immediate locality, due to vehicle noise and visual impacts associated with the noise mitigation measures (i.e. barriers and carports). Accordingly, he does not consider it satisfies the requirements of cl 8(2) of the FLEP.

1. Another contention raised concerns the proposal imposing unreasonable constraints on any future development of No 2 Railway Street because of its location adjacent to the Girl Guides hall and near the main water pipeline reservation.

1. In response and in support of the proposal, Mr Harding says this land has been developed for the predominant use in the zone as a dwelling and the proposal does not affect the ability to achieve the predominant outcome envisaged by the controls. He says that the site is narrow and has minimal interruption in the streetscape in terms of a "residential character".

1. Furthermore, he says that it is not unusual to have non-residential uses such as schools, places of worship and the like adjacent to residential properties. In any case he says that it could be possible to erect a two-storey house at No 2 Railway Street and in these circumstances, it would have a more significant visual presence than the proposed acoustic fence.

1. Against this, Mr Kerzinger says that because this property has a relatively narrow 13.45 m frontage, it is apparent the lot will be isolated from other residential lots, which does not represent economic or orderly development.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view I am satisfied this application has merit.

1. The property is within the 2a - Residential A zone under FLEP 1994 where a place of worship is permissible with consent. Clause 8 contains the zone objectives and development control tables. Clause 8(2) states:

(2) The Council must not grant consent to development on land within a zone unless it is of the opinion that the carrying out of the development would be consistent with one or more of the objectives of that zone .

1. The objectives for the Residential A zone relevantly include:

(e) to allow a range of non-residential uses that:

(i) are capable of integration with the immediate locality,

(ii) serve the demands of the surrounding population, and

(iii) do not place demands on services beyond the level reasonably required for residential use.

1. I am satisfied from the evidence that the proposal serves the demands of the surrounding population and it does not place unreasonable demands on services for the proposed use. The remaining hurdle concerns the ability to integrate with the immediate neighbourhood.

1. As previously noted, Mr Kerzinger did not consider the proposal would satisfactorily integrate with the immediate neighbourhood for a number of reasons, including the battleaxe lot shape and proximity to other dwellings. However, based on the design amendments undertaken during the course of the hearing, I am satisfied that the proposal should now result in a satisfactory visual impact in the neighbourhood, subject to some "scaling down" of the Railway Street presentation.

1. In this regard, I have considered the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, where the Senior Commissioner set the following:

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

• Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
• Is the proposal's appearance in harmony with the buildings around it and the character of the street?

1. Applying these principles to the present case, I think that the revised carport dimensions and increased side setbacks with landscaping, should integrate with neighbours. Whilst the extended carport is not a common element, nevertheless it is adjacent to other substantial sheds along this boundary, which provide substantial screening of the physical impacts of the structure.

1. In terms of possible development constraints on 2 Railway Street, I am inclined to accept Mr Harding's opinion that it is currently developed in accordance with the residential zoning it would not be restricted from increasing its development by way of a larger two storey dwelling. Whilst there could be some constraint in terms of the adjoining driveway, I do not consider this of such magnitude to warrant refusal.

1. With reference to the second question on compatibility, I think better integration could be achieved for the Railway Street presentation by setting the entry gates back from the road boundary and that they should also be reduced in height. The setback should be closer to the carport to provide better consistency with the adjoining setbacks of the neighbouring dwellings. The revision could also consider the inclusion of a pier at the end of the carport to differentiate the pedestrian area.

1. Whilst I accept that the proposed 3 m high acoustic fence along the northern boundary is not a common feature, nevertheless the specification for the lower portion to be solid masonry and the upper section to be clear, transparent material will assist in the integration. Whilst it is a negative aspect, I do not consider it of such magnitude to warrant refusal of the development.

1. Insofar as the row of carports is also an uncommon element in the neighbourhood, nevertheless it is adjacent to the southern boundary along which are a number of existing larger sheds and higher walls. From my observations at the view, I think the proposal will reasonably integrate within the subject context.

1. The other aspects of the proposal that concerns the integration of the proposal are the acoustic and traffic impacts. I am satisfied to rely on the agreed position of the acoustic experts that with provision of the perimeter boundary fencing and compliance with the conditions, then the acoustic outcome should be satisfactory.

1. With regard to the traffic issue, I have carefully considered the evidence regarding the intensity of use of the mosque. From this I note that the main weekly service is around midday on Fridays, where a limit of a maximum of 130 attendees it be allowed. Also during the Ramadan period a maximum attendance could occur over the 30-day period. But this attendance is only likely to be for about 1 hour after sunset.

1. Consequently, it is possible some 100 car spaces will be required but only 60 are provided on-site for these events. Considering the attendance circumstances, I rely on the traffic expert's agreement that there is sufficient on-street car space to adequately accommodate any short term overflow parking. It was apparent from the view that there is considerable on - street parking available along the western side of Railway Street, adjacent to the Southern Rail Line.

1. Notwithstanding this, it is apparent to me that the parking and pedestrian arrangements need careful control. I understand that a traffic warden at the gate will control the Railway Street entry. However this will also have to involve some control of attendee numbers both in the cars and those who walk to the premises. These operational measures are to be covered by the POM controls.

1. One of the difficulties in achieving effective integration concerns the proposed access from Kay Street. In this regard, I give substantive weight to the residents' objections that parking spaces are limited near the subject site and that Kay Street is a busy north - south feeder road. My observations at the view indicated that the footpath along the southern side of Kay Street near the subject site is somewhat unattractive for pedestrians, particularly for some members of the public with limited mobility.

1. Therefore I do not consider the public interest is well served by encouraging more vehicles to use this street seeking the limited parking spaces that then is likely to encourage pedestrian use of the road carriageway near the existing road crest over the water pipeline.

1. Furthermore, I think due weight should be given to the other concerns of the neighbours that the use of the pathway by significant numbers of pedestrians is likely to reduce the amenity of those properties, particularly at night. Accordingly, I consider that in the first instance pedestrian access from Kay Street should not be permitted and this is consistent with Mr Bridgman's opinion that mosque traffic should be discouraged from using Kay Street.

1. Bearing in mind Mr Kerzinger's concerns about the likely difficulty in turning away worshippers when the maximum 130 people is reached, I think that the restriction on entry from Kay Street facilitates this outcome, thereby ensuring that the entry control systems can be effectively maintained from Railway Street.

1. In summary then, I am satisfied that this proposal is a permissible type of use within the residential neighbourhood. Insofar as a number of objections were raised, I consider they have been reasonably addressed by the amended plans and also the requirement for the mosque to operate in compliance with the conditions of consent, including the Plan of Management. From reference then to the revised plans and perspective, whilst acknowledging this proposal is different, nevertheless I consider it possible for the proposal to operate in harmony with neighbourhood, subject to the aforementioned Railway Street revisions and thereby satisfy the cl 8(2) requirements of the LEP.

Trial period

1. Insofar as concerns were raised about the difficulty in self-regulation of the conditions, particularly the enforcement of the maximum numbers, I note Mr Elriche's evidence that the imposition of limited entry is not uncommon and this regularly occurs at the Guildford mosque. The turning away of people apparently does not cause significant problems because the person has made their intentions to attend apparent. In response to the concerns, he said there would be no objection to the approval being granted subject to a trial period.

1. The imposition of a trial period then seems reasonable in the circumstances, to allow the management of the property to implement adequate traffic control systems to ensure that the use does satisfactorily integrate into this neighbourhood. Also, it would allow for the other on-site activities to be reviewed to ensure the acoustic amenity is maintained. Further submissions are invited from the parties on appropriate conditions for the trial period to enable the following orders to be made.

1. In reaching this conclusion, I have considered the various submissions regarding other authorities. With regard to self- regulation, Mr Pickles referred to Dipper v Pittwater Council [2006] NSWLEC 273 wherein Preston CJ at paras 32 and 33 made findings regarding practical measures to obtain compliance with conditions of consent. I accept that careful attention is required for the subject attendee and traffic controls and consider such control mechanism should be in the POM. I also consider that the POM should included provisions for revision after the trial period.

Costs

1. Submissions were made regarding costs arising from the modified plans. The council submits that modified plans were in response to matters raised initially about inadequate details and re -assessment resources were expended. The main authority for s97B cost is Futurespace Pty Ltd v Ku- Ring-Gai Council [2009 NSWLEC 153, where Pepper J identified the following principles to assist in determining whether amendments are "minor":

42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA:

(a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]);

(b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);

(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);

(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);

(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);

(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;

(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and

(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).

1. Having considered these principles, I note that there were a number of detailing amendments that have been responsive to the contentions and resulted in a more acceptable development. This includes revisions of the carport designs to incorporate acoustic recommendations. There are also the amendments to the Railway Street presentation in terms of the front facade, entry arrangements and the landscaping. In the context of the subject development, my assessment is that the amendments are minor and the reassessment was comfortably undertaken within the appeal timetable. Therefore I do not consider it reasonable that a s 97B cost order be made.

1. In accordance with the aforementioned reasons, I am satisfied the proposal has merit for the granting of conditional consent. However, I consider it appropriate that further consideration be given to minor amendments to Railway Street entrance as mentioned. Also, details of an appropriate "trial period" are invited so that final consideration can be given to the granting of conditional consent for the development.

R Hussey

Commissioner of the Court

Decision last updated: 16 December 2011