St Mary & St Sidholm Bishay Coptic, Orthodox Church, Dural v Hornsby Shire Council

[2009] NSWLEC 1052

Land and Environment Court

of New South Wales

CITATION:

St Mary & St Sidholm Bishay Coptic, Orthodox Church, Dural v Hornsby Shire Council [2009] NSWLEC 1052

PARTIES:

APPLICANT
St Mary & St Sidholm Bishay Coptic, Orthodox Church, Dural

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10956 of 2008

CORAM:

Bly C

KEY ISSUES:

SECTION 96 MODIFICATION :- Final Orders

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

 
DATE OF JUDGMENT: 

24 February 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannaford Lawyers

RESPONDENT
Mr T. Howard, barrister
Instructed by Wilshire Webb Staunton beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

24 February 2009

10956 of 2008 St Mary & St Sidholm Bishay Coptic, Orthodox Church, Dural v Hornsby Shire Council
JUDGMENT

1 On 3 December 2008 I gave judgment in this matter indicating that (at par 19) I had decided to uphold an appeal against the Hornsby Shire Council's decision to refuse an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 for the modification of the development consent granted by the Hornsby Shire Council on 17 March 2004 involving a church at 444 Galston Rd Dural. I also decided that the conditions of consent should be variously amended for reasons explained in my judgment.

2 In my judgment I directed that that the parties confer and provide a schedule of changes incorporating the agreed conditions and the amended conditions reflecting my decision. These have now been provided and I make the following orders.

1. The appeal is upheld.
2. The section 96 modification application submitted to the Council on 14 December 2007 be approved in accordance with the respondent Council’s resolution dated 6 August 2008 and subject to the following modification:
(a) Replace condition 64 with a new condition 64 and per attachment ‘A’.
(b) Delete Council’s conditions 64A, 65A and the Land and Environment Court imposed condition 71A (30 August 2007) and replace with new conditions 64A, 64B and 65A in accordance with attachment ‘A’.
(c) Insert new conditions 91 and 67G in accordance with attachment ‘B’.
(d) Amend existing condition 80 to read as follows:-
A timer control mechanism shall be installed to ensure that lighting of both the crucifix and the lighting bollards will automatically switch off 30 minutes after permitted hours of use on weekdays and Saturdays as referred to in condition 64A. No illumination of the crucifix or the lighting bollards shall occur on Sundays.

3. Exhibits to be returned except Exhibits 7, B and F.

___________________

T A Bly
Commissioner of the Court
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ATTACHMENT “A”

Saint Mary & Saint Sidholm Bishmay Coptic Orthodox Church Dural

v Hornsby Shire Council

64. The use approved under this consent is to use the land known as 444 Galston Road Dural for the purposes of a Church and a residence.

64A. Subject to the restrictions provided in Condition 64B the approved hours of use of the land, including the earliest arrivals and the latest departures of the congregation and their families are restricted to the following times:

(i) Weekdays from 8.30 am to 9.30pm;
(ii) Saturdays from 8.30 am to 9.30pm;
(iii) Sundays and Public Holidays from 8.30am to 6.30pm;
(iv) Midnight Mass on 6 January being the Christmas Eve for the Coptic Church; and
(v) Midnight Mass on Easter Eve.

The above times in items (i), (ii) and (iii) are also subject to the limitations under Condition 64B below and include the feast day anniversary of the Galston Church Patron Saint Sidholm Bishay depending on which day it occurs.

Midnight Mass referred to in (iv) and (v) above is to commence at 7.00pm and the service is to conclude at 12.00am. Hours of approval for Midnight Mass are extended to accommodate all departures from the land of the congregation and their families attending the service and all such departures are required to have taken place by no later than 12.30am.

64B. The consent to use the land for the purposes described in Condition 64 includes consent to use the land for the socialising by members of the congregation and their families including the breaking of fast and feasting and, the use of the land by the members of the congregation and their families for after Church service activities including, but not limited to, Sunday School, bible studies, and the playing of outdoor games and/or sports during the approved hours of operation. This condition is subject to the following restrictions to the approved hours specified in Condition 64A:

(i) the activities of breaking of fast, feasting and socialising are to be confined to the area hatched and marked in red on the plan Sheet 1 – DA/1021/2003/C: Site Plan, dated 14 December 2007 being Exhibit B ;
(ii) there shall be no playing of outdoor games and/or sports after 7.30pm on weekdays and Saturdays;
(iii) there shall be no playing of outdoor games and/or sports after 3.00pm on Sundays with the exception that informal childrens play may continue in the front and rear yards of the property; and
(iv) all outside activities relating to the breaking of fast, feasting and socialising within the area hatched and marked red on the plan are to cease by no later than 5.00pm on Sundays and any further activities, save for informal childrens play, shall take place indoors after that time.

65A In order to provide certainty as to the maximum permissible numbers able to use the site for the approved purposes, the number of persons permissible in the chapel for formal services and the like (the congregation) is restricted to 150 persons. No increase in the congregation attending the chapel shall occur without the obtaining of further consent.

_______________________

T A Bly
Commissioner of the Court

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ATTACHMENT “B”

Saint Mary & Saint Sidholm Bishmay Coptic Orthodox Church Dural v Hornsby Shire Council

91. The following works and requirements of this consent must be carried out within 12 months from the date of these orders:

(a) construction of 71 sealed carparking spaces in accordance with condition 67 and increase the width of the internal circulation road way in accordance with condition 67E and any other associated conditions;
(b) the implementation of the landscaping works shown on the approved landscaping plan;
(c) the works required on Galston Road in accordance with conditions 67C, 67D and any other associated conditions;
(d) the removal of the Angophra Constata (Sydney Red Gum) referred to in condition 67F and the planting of 6 new Angophra Constata trees in accordance with condition 84;
(e) construction of onsite detention works in accordance with condition 60 and any other associated conditions; and
(f) sewerage upgrade works in accordance with conditions 43, 45B, 45C, 45E and any other associated conditions.

67G. Prior to the carrying out of any works within the road reserve of Galston Road in accordance with the consent, an approval pursuant to section 138 of the Roads Act must be obtained from Council. The works required within the road reserve are to be carried out in accordance with the requirements of both this consent and the approval obtained under the Roads Act.

_________________________

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