The Lebanese Moslem Association v Fairfield City Council

[2015] NSWLEC 1570

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Lebanese Moslem Association v Fairfield City Council [2015] NSWLEC 1570

Hearing dates:

8-9 September 2015. Final conditions based on Building Code of Australia report filed on 7 December 2015.

Date of orders:

29 January 2016

Decision date:

29 January 2016

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

See paragraph 64

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions for place of public worship. Intensification of use, adequacy of parking, impact of noise on residential amenity and compatibility with zone objectives.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Fairfield Local Environmental Plan 2013

Cases Cited:

Ashfield Municipal Council v Armstrong [2002] NSWLEC 269
Heathcote Gospel Trust v Sutherland Shire Council [2013] NSWLEC 1051
Minister for Natural Resources v New South Wales Aboriginal Land Council & Ors (1987) 9 NSWLR 154
Rahma Islamic Assoc of Australia Inc v Fairfield City Council [2011] NSWLEC 1362)

Category:

Principal judgment

Parties:

Lebanese Moslem Association (Applicant)

Fairfield City Council (Respondent)

Representation:

Counsel:
Mr M Staunton (Applicant)

Solicitors:
Mr M Sonter of Gadens (Applicant)

Mr A Seton of Marsdens Law Group (Respondent)

File Number(s):

10025 of 2015

Judgment

1. The Lebanese Moslem Association (applicant) is appealing, under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by Fairfield Council (council) of development application DA 581.1/2013 (Development Application) for alterations and additions to an existing building used as a place of public worship (mosque) at 20-22 Water Street, Cabramatta West (site).

2. The key issues in dispute between the parties are whether the proposal:

1. is an intensification of the use of the site;

2. provides adequate parking;

3. will result in noise that will impact on residential amenity; and

4. is compatible with a low density residential environment.

Site and locality

3. The site comprises four lots, which together are regular in shape with a combined frontage of 30.48m to Water Street and an area of 1226sqm.

4. 20 Water Street (lots 131 and 130, Section B DP 1553) is developed with a single storey dwelling with a metal clad shed at the rear, which has been partially enclosed without consent.

5. 22 Water Street (Lots 128 and 129, Section 6 DP 1553) is developed with a single storey fibro building that is used as a Mosque.

6. Detached dwellings adjoin the site to the north (18 Water Street), south (24 Water Street) and east (19 and 21 High Street). Land to the west, on the opposite side of Water Street, and in the surrounding area is residential development.

Planning controls

7. The site is in Zone R2-Low Density Residential under Fairfield Local Environmental Plan 2013 (the LEP). A place of public worship is permissible with consent. Clause 2.3(2) of the LEP provides that regard must be had to the objectives for development in the zone. 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.

8. Fairfield City Wide Development Control Plan 2013 (DCP) is relevant, including Chapter 12 Car parking, Vehicle and Access Management. Clause 12.1.1 and 12.1.2 provide:

12.1.1 Car Parking Rates

Objective

To ensure that adequate off-street parking is provided to serve the needs of development

Controls

a) The car parking rate for development types are outlined in Table 1.

b) Development types not listed in the Table 1 would be subject to a merit based assessment based on the provisions set out in the Roads and Traffic Authority – Guide to Traffic Generating Developments. Council may require a detailed Parking Study to be prepared for such development types.

c) In calculating your total parking requirement you may find you arrive at a fractional answer, eg, 5.4 spaces. In such a case, the rule used by Council is to “round up” any requirement of 0.5 or more and “round down” any requirement below 0.5. For example, a calculated requirement of 5.49 spaces would be rounded down to a requirement of 5 spaces on-site whereas a calculated requirement of 5.5 spaces would be rounded up to 6 spaces.

It should be noted that the parking spaces required by this DCP are minimum numbers. Some uses, due to the nature of their operation, may warrant additional parking spaces and these may be required by Council.

12.1.2 Car Parking “Credits”

When determining how many car spaces your development may require it is important to remember that you may be eligible for parking “credits”. A parking credit is available when you are developing a site already occupied by a building. Provided your development retains the structure of the existing building you will be exempted from the parking requirements for the existing floor space. For example, if you wish to develop an existing 300m² shop building into a 600m² shop building, the parking requirement would only be for the additional 300m², even if the existing building has no parking whatsoever. Alternatively, if you are changing the use of the existing building and the new use requires more parking than the old use, your “credit” is for the original use, even though the floor space may not be increasing. For example, converting a warehouse with no parking into a shop, with no increase in floor space would still be required to provide extra parking but this will be for the shop requirement minus the warehouse requirement.

9. Table 1 specifies the car parking rate for a place of public worship as:

Use /Activity

Minimum Number of Car Spaces Required

Place of Public Worship

eg Church, Mosque, Temple

The appropriateness of these rates shall be confirmed by way of a

Parking Study.

Where seating is provided

1 space per 6 seats or 1 space per 5m² of gross leasable area

(whichever is the greater).

Where no seating provided

1 space per 2.m2 of worship floor area or 1 space per 3m² of gross leasable area (whichever is the greater).

Note: For the purpose of the Parking Study worship hall capacity shall be estimated based on 1 person per 0.75m² of worship area floor space. Traffic generation shall be based on a vehicle occupancy rate of 1.3 persons per vehicle. A minimum of 50% of the estimated parking demand must be provided on site. On street parking capacity must be available for remaining spaces within a 400metre radius of the place of public worship otherwise additional off street parking will be required.

10. Gross Leasable Area (GLA) is defined in the DCP as:

Gross Leasable Area means the total floor area contained within the outer faces of the external walls of the building, excluding stairs, lifts, public arcades, public foyers, public toilets, plants rooms, loading areas and car parking.

11. There is no definition of worship floor area. The parties disagree on whether the proposal will increase the GLA or worship floor area of the building and consequently whether there would be an increase in the intensity of use and the demand for parking, which is discussed later in this judgement.

Background and proposal

12. The parties agree that the site was used by the Salvation Army as a place of public worship since at least 1974. However, council has not been able to locate a record of any development consent or approval for this use. During the hearing, the applicant provided a copy of Building Certificate plan for “proposed addition to place of public worship at 22 Water Street Cabramatta” approved by council on 12 September 1979 (1979 Building Approval), as well as supporting letters from the Salvation Army. The approved plan includes a site plan showing both 20 and 22 Water Street and an addition at the rear (east) of the “existing place of worship”. Neither the council nor the applicant was able to locate the conditions referred to in the approval stamp on the plan.

13. The site was purchased by the applicant in 1994 and has been used since then as a Place of Public Worship without any enforcement action. Although there is correspondence in evidence that describes the times that the property was used for worship or other church activities by the Salvation Army and from council requiring formal approval should the applicant wish to vary these hours.

14. Development Consent No. 2696/99 (Consent) was determined by council on 25 January 2000. The Consent approved “alterations and additions to an existing place of public worship”. The works included the addition of toilets and storage rooms to the southern side of the existing building and the addition of a kitchen and dining area with pergola to the rear. Council approved a s 96 modification on 10 August 2005 to roof and enclose the east and north elevations of the approved pergola. Condition 14 of the Consent required the lodgement of a separate application for use of the place of worship prior to the occupation of the premises. The parties disagree on the operation of Condition 14, which is discussed later in this judgement.

15. On 25 May 2012, council approved development application No. 311.1/2012 for the demolition of an existing out building at 20 Water Street. The outbuilding was used as an office with an area of 30.5sqm.

16. A Complying Development Certificate No. 046/15 (CDC) was approved on 2 February 2015. The CDC approved changes to the kitchen/dining area to be used as a toilets and Wudu area (ritual cleansing).

17. The Development Application was lodged with council on 30 August 2013 and was amended on 25 August 2014. The applicant lodged an appeal against council’s deemed refusal of the Development Application on 13 January 2015. A conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) was held but no agreement was reached and the conference was terminated. The applicant subsequently sought and was granted leave to rely on amended plans (Exhibit A) on 14 July 2015 (Amended Application): The Amended Statement of Facts and Contentions describes the Amended Application as:

•   Consolidation of four lots into one allotment, proposed alterations and additions to an existing building being used as a place of worship (mosque) and the retention of an existing dwelling house (priest's residence) and existing rear storage shed on the land at 20-22 Water Street, Cabramatta West.

•   The proposed alterations and additions to the existing building involve changes to the internal layout of the building to provide a separate prayer area for males and females, Wudu Area, Imam’s Office, library/admin room, entry, shoe shelving area, and relocation of toilet facilities for worshippers. The building is to be widened along the north, west and south elevations in order to accommodate these alterations.

•   The proposed alterations and additions will enlarge the floor area of the building

•   Construction of a large porch area and disabled access ramp to the north of the building as well as the addition of stairs to the porch and privacy screen.

•   Modifications to the front façade of the building.

•   Replacement of the existing hipped and gabled roofs with flat parapet walls and the addition of vertical slot windows top the façade of the building.

•   Continued use of the existing cottage as a place of residence for the Imam (priest)

•   Retention of the existing metal shed at the rear of the site that extends along the eastern property boundary.

18. The Amended Application is accompanied by an Operational Plan of Management (PoM) and a Noise Management Plan (NMP). The POM provides information on the worship activities, including the following prayer times and numbers of worshipers:

Prayer times

There are five daily prayers. The top values reflect winter scheduled times, whilst the bottom row is indicative of summer timings.

5am      12.30pm   3.30pm   5.30pm   7.30pm

5.30am   1.30pm   4pm      6.30pm   9.30pm

The duration of each prayer is never in excess of 20 minutes.

Additionally there is a weekly communal Friday prayer. It typically lasts for 30 minutes. In summer it is usually scheduled for 1.15pm start and in winter for 12.15pm start.

Attendee's and Worshipper Numbers and Age (based on recent statistics)

Prayer

Age of worshippers:            16 years plus.

Numbers of worshippers at 5 daily prayers:   a range of 25 to 30 (except Ramadan)

Number of worshippers at Friday Prayer:   approximately 300.

Ramadan

The holy month of Ramadan is an annual event which occurs every year, the timing of this changes every year as it is based on a lunar month calendar.

During this month worshipper's increase in attending the mosque for the evening prayer between 7 and 8pm, the number of attendees vary up to 200 attendees.

A special event (Eid) is held after the end of Ramadan once a year, this entails a morning prayer and sermon with an increased number of attendees, and this will be up to 300 attendees.

19. During the hearing the applicant agreed to a limit on the number of people attending the morning prayers to 12, however, council maintained its concern that the daily morning prayer should not be held. The applicant has also agreed to a condition which limits the number of worshipers attending Friday Prayer (Dhuhr), Ramadan and Eid to 232.

Evidence

20. The Court visited the site and surrounding area and heard from objectors. The written submissions in response to the notification of the application, and its amendments, were tendered. The concerns of the objectors generally reflect the contentions raised by Council, principally that the existing use already impacts on their residential amenity and that the proposal would exacerbate these impacts. They stated that people using the Mosque and its outside areas, particularly, in the early morning, results in unacceptable noise impacts, including sleep disturbance from cars. They also stated that the current use results in significant numbers of cars parking in the area and sometimes across driveways or close to corners and they considered the traffic generated by the existing development raised safety concerns. The objectors considered that increasing the size and improving the facilities at the Mosque would attract more people and cars and would further impact on their amenity. In their opinion, the facility was not appropriate in a residential area.

21. The Court heard expert evidence from:

For the applicant

• Mr S Harding, planner

• Mr P Trethewey, traffic engineer

• Mr B White, acoustic consultant

For the council

• Mr N Mu, planner

• Mr C McLaren, traffic engineer

• Mr S Gauld, acoustic consultant

Will the proposal result in an intensification of the use of the site?

22. The parties agree that the site has been used as a place of public worship for over 40 years but they disagree on whether the proposal would result in an intensification of the use of the site. This difference in opinion centres on what use has previously been approved for the site and the conditions of that use. In particular, any restrictions imposed by Condition 14 of the Consent.

23. Mr Staunton, for the applicant, submits that Condition 14 could not prevent the use of the premises for the purpose of a place of public worship for the following reasons:

….condition 14 is a condition imposed on the Consent. Section 76A of the Environmental Planning and Assessment Act 1979 has the effect of requiring consent to be obtained and requiring development to be carried out in accordance with any such consent.

Section 76A of the EP&A Act is located in Division 1 of Part 3A of the EP&A Act. Section 76C provides:

"This Division is subject to the other provisions of this Act, unless express provision is made to the contrary."

Section 81A(1) of the EP&A Act provides that:

"A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M."

Section 4(2) of the EP&A Act provides:

"(2) A reference in this Act to:

(a)    

(b) the erection of a building includes a reference to:

(i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or"

Section 81A(1) is found in Division 2 of Part 4 of the EP&A Act. Section 77 is

the first section in Division 2 of Part 4 and provides that:

"This Division:

(a) applies to development that may not be carried out except with development consent, but

(b) does not apply to complying development."

There is nothing in Division 2 of Part 4 of the EP&A Act which expressly provides that it is subject to Division 1 of Part 3. Accordingly section 81A(1) is an "other" provision of the Act to which s76A is subject. This has the consequence that s81A(1) prevails over s76A of the EP&A Act.

It is uncontroversial that the plans approved by the Consent formed part of the development application. Those plans specified the use of the premises as being "existing place of worship". The plans identify the additional works as a "proposed extension" and included internal alterations to the existing building. The Consent describes the approved development as "Alterations and Additions to Existing Place of Worship". It follows that the development application the subject of the Consent specified the use of the building as a

place of worship and therefore pursuant to s81A(1) of the EP&A Act that is sufficient to authorise the use notwithstanding condition 14. Because of s76C

and s81A(1) condition 14 has no work to do.

Section 109B applies to the Consent and provides that:

"Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force."

The effect of clause 109B is to protect the use of the existing premises in accordance with the Consent.

This means that the premises could continue to be used as a place of worship at the intensity permitted by the Consent. A review of the Consent indicates that there are no controls whatsoever on the level of intensity of the use and its associated impacts.

24. In the alternative, Mr Staunton submits that a “presumption of regularity” also applies to the use of the premises as a place of public worship (see Minister for Natural Resources v New South Wales Aboriginal Land Council & Ors (1987) 9 NSWLR 154 at [164] and Ashfield Municipal Council v Armstrong [2002] NSWLEC 269 at [40]). He submits that:

In the present case the Court has evidence that the respondent has issued at least two approvals being the Consent and the 1979 Building Approval. There is also evidence that the premises was being used as a place of worship since at least 1974 including use by the current owners since 1994 without any allegation of unlawfulness or enforcement action.

The plans in respect of each of the two approvals indicate that at the time of the grant of each approval there was in existence on the land a place of worship.

The respondent would not and could not have lawfully issued the 1979 building approval or the 2000 Consent unless either (a) a development consent had been granted for the use of the existing building (in the form in which it existed at the time) as a place of worship or (b) no such development consent was required.

We know that as at 1979 the land was subject to the County of Cumberland Planning Scheme and the use of the land as a place of public worship was permissible with consent and under the relevant LEP at the time of the 2000 consent the use of the land as a place of public worship was permissible with Consent.

The fact that the respondent cannot locate the relevant development consents is dealt with by the presumption of regularity. The Court would presume on the evidence that any necessary consent for the use of the land had been granted. That consent would also have the benefit of s109B and would permit the continued use of the premises in accordance with that consent.

In the absence of the consent document the Court would construe the consent against the Council and accept that it authorised use without any limitation on intensity.

25. Mr Staunton submits that the application will not increase the intensity of the use beyond what the current approvals permit and approval of the application subject to conditions including operating in accordance with a PoM and NMP will regulate the intensity of the use, for the first time.

26. Mr Seton, for the council, submits that the validity of the Consent has not been challenged by the applicant and that under Condition 14 the use of the additions has not been approved. He acknowledges the “approved” use of the existing areas as a Place of Public Worship but submits that the terms of any consent are not available and the intensity of any approved use has not been established. In his submission, the current use of the premises by the applicant results in adverse impacts on the amenity of the residential area beyond that which occurred when the premises were used by the Salvation Army. Any increase in the floor area of the worship area or improvement of facilities will result in an intensification of use and a resultant increase in impacts.

27. The planning experts agree that “the area upon which the parking is calculated remains unchanged” ie the worship area. Although Mr Mu, in oral evidence, considered the Wudu and shoe area should also be included as worship area (about 50sqm). Mr Harding considered these areas are not used for worshiping and are ancillary to this use and therefore should not be included as either worship area or GLA.

28. The planners also disagree on whether the porch due to its size (3.4m x 25m) would be an area that people will congregate in and consequently add to the intensity of use on the site. Mr Harding considers the porch needs to be the width proposed to enable people to efficiently exit or enter the building and to pass people who are putting on/off shoes. He notes that the acoustic experts require all prayer to be within the building and that the PoM does not permit people to congregate in outside areas and there will be wardens supervising. Mr Mu considers that the width of the porch is greater than what is required for these activities to occur and that it should be reduced to a maximum of 1.5m wide.

Findings

29. The site has been used as a place of public worship since at least 1974. The activities and intensity of use by the Salvation Army were different to the use of the site by the applicant. Nonetheless the applicant has used the site as a place of public worship since 1994 and no enforcement action has been taken by council to limit this use or to contend that it is not lawful. Furthermore, there have been at least two approvals which authorise alterations and additions to an existing place of public worship.

30. I accept Mr Staunton’s submission in relation to Condition 14 of the Consent. As the Consent specified the use of the building as a place of public worship then under s81A(1) of the EPA Act this is sufficient to authorise the use despite Condition 14. Even if I were to accept Mr Seton’s submission, Condition 14 could only relate to the alterations and additions that were the subject of the application and not the areas that were already used as a place of public worship and were not changed as part of the application.

31. The Consent did not place any conditions on the operation of the use and to date it has been carried out without restriction. There is evidence that numbers attending the Mosque have exceeded 300, that worship has occurred in the outside areas and that the building has been used early in the morning and at night. In the absence of any conditions of consent, the use of the site in such a manner is not precluded and, as stated above, council has not sought to restrict the use of the site through enforcement action.

32. The Amended Application proposes alterations and additions to the building, which will result in an increase in the building area from 282.82sqm to 338.99sqm (an increase of 56.17sqm). However, the proposed worship area (174.60sqm) will be similar to that of the existing worship area (177.60sqm). The shoe area and Wudu area should not be included as part of the worship area as these will not be used as separate or additional worship areas. While these areas may be an integral part of the worshiping process they are areas that people pass through on the way to the prayer areas. The limit on the number of people to 232 is based on these prayer areas and consequently the Wudu and shoe areas would not add to the number of worshipers permitted to use the site. The shoe area forms part of the foyer and its separation from the prayer areas should be reinforced by the provision of a floor to ceiling wall rather than the shelves that are currently proposed.

33. The porch width is beyond what is required for efficient entry and exit of the building given that there is also a ramp and its size (109sqm) would encourage people to congregate before or after prayer and increase the level of supervision required from the wardens. The “Mosque Rules” in the PoM require worshipers to put on/off shoes on the porch rather than in the shoe storage area/lobby area, except for the 5am prayer. Given the acoustic experts concerns about noise impacts if the porch is used for outdoor activities, the area of the porch behind the acoustic screen should only be used for taking on/off shoes, except for the larger services where more room may be required. The width of the porch is to be reduced to a maximum of 2.2m (and the ramp moved accordingly), which together with the ramp will be sufficient to provide access and egress to the building. People will tend to be arriving or leaving at the same time and should therefore be walking along the porch in the same direction. The entry stairs to the porch are only one metre wide, which may impede efficient access. The stairs could be increased to correspond to the amended width of the porch and brought forward to maintain access to the front porch.

34. Subject to the above changes and a trial period for the 5am morning prayer, I accept Mr Staunton’s submission that the proposal will not increase the intensity of use on the site. On the contrary, the proposal, if implemented in accordance with the proposed conditions, PoM and NPM will better regulate the use of the site by limiting hours of operation, number of worshippers and areas that can be used for worshipping.

Adequacy of parking

35. Mr McLaren raised concerns about the increase in worship area and GLA based on his understanding of the previous use of the site and the approvals. Although he accepted that if worshipping occurred only in the designated areas, there would be no increase in parking demand. However, he was concerned that the restrictions on the use of certain areas may not be enforced. He acknowledged that based on the GLA of the existing building the maximum number of worshipers would be 236 and that the parking demand is met off site.

36. In Mr Trethewey’s opinion, the proposed development does not increase the existing worship area or GLA and consequently there would be no additional demand for parking. Under s 12.1.2 a ”parking credit” is available for the existing building and there is no requirement for additional parking. The existing demand for parking is accommodated within the street system and this will remain the case. The surveys demonstrate that there are adequate spaces available to meet the demand generated by the services and special events.

Findings

37. As discussed above, there is no increase in worship area or GLA that would result in an increased demand for parking beyond that which currently exists. Consequently there is a “parking credit” under cl 12.1.2 DCP and no requirement for additional parking. The parking generated by the existing development is accommodated on the street and, while it may be preferable that this was not the case as large services can utilise available on street parking, it can continue to occur without restriction. The maximum number of people based on the GLA of the existing building would be 236, but as there is no restriction greater numbers have attended the site on occasion. The proposed conditions will limit the maximum number of people on site to 232 for Friday Dhurh and special events of Ramadan and Eid. At other times, the limit will be 30 or less. The PoM also includes requirements for traffic wardens to be present in the front car park and in the street to better supervise parking. There is no reason to assume that the conditions of consent will not be complied with or cannot be enforced.

Noise

38. The acoustic experts agree on appropriate noise criterion for the development. They recognised that the current use of the site has adverse acoustic impacts and recommended measures and a NMP to mitigate these impacts to comply with the criterion, including upgrading the building fabric, an acoustic screen on the northern side of the proposed ramp, keeping windows and doors closed when the premises are in use, other than the entry door behind the screen, restricting use of the site to within the building, other than for access and limiting the number of people.

39. However, the experts agree that the use of car spaces 3 and 4 during the 5am service would not comply with the intrusive noise criteria but could be improved by either construction of a carport; no 5am service or no use of those car spaces during the 5am service.

40. The experts agree that the Industrial Noise Policy (INP) does not apply to the car parking on the street. However, Mr Gauld considered that this has the potential for sleep disturbance from cars starting, turning in the driveway and doors closing. In his opinion, it is preferable that the premises not be used before 7am. Mr White considered the impact is mitigated as the number of people attending the 5am service is limited to 12 and not everybody would use a car. Furthermore, there is no limitation on the current use of the site and the proposal would be an improvement on the current situation where there is no limitation on the current use of the site by either number of worshippers or hours of operation.

41. The applicant will accept a condition to either erect a carport or not use spaces 3 and 4 during the 5am service and will limit the number of people attending the service to 12 with a supervising warden.

42. The planners held different opinions about the reasonableness of the 5am service and the proposed management measures. Mr Mu considered that the Mosque should not be used before 7am and that it would be difficult to implement and enforce a requirement that no more than 12 people attend the 5am service and that this had not been addressed in the PoM. If more people arrive, even if they are turned away, there is the potential to result in noise disturbance. He referred to the approval by the Court of a mosque in Fairfield that commences at 7am (see Rahma Islamic Assoc of Australia Inc v Fairfield City Council [2011] NSWLEC 1362).

43. Mr Harding considers that the matter can be addressed in the PoM through measures such as social media, requiring prior approval to attend the 5am service and an attendance register. Furthermore, for devout Muslims, attending the morning prayer at a mosque is an important requirement and the site has operated on this basis for a number of years without serious objections, with greater numbers than are now proposed. There are other examples of mosques in the municipality that operate at 5am and places of public worship of other denominations approved by the Court which conduct services before 7am (see Heathcote Gospel Trust v Sutherland Shire Council [2013] NSWLEC 1051).

Findings

44. The agreed position of the acoustic experts is that with the implementation of the recommended noise measures the proposed development will result in an improvement in terms of noise impacts on surrounding residential amenity.

45. The only residual issues relate to the 5am service and the noise impacts from the use of car spaces 3 and 4 and the potential for noise impacts from people parking on the street. The draft conditions include a requirement that car spaces 3 and 4 not be used before 7am, in accordance with the recommendations of the acoustic experts. There is evidence from neighbours that there are noise impacts from people parking on the street early in the morning from the existing operation of the Mosque. The potential for these impacts to continue is acknowledged by Mr Gauld, even with the limitation on people attending.

46. The site is located in a low density residential street with no other uses that operate from 5am and there are impacts resulting from the current operation of the Mosque at around 5am every day of the week. The INP does not apply and there is no restriction on residents parking on the street who may arrive or depart early in the morning. However, this is different to a situation where the use of the building as a place of public worship would attract people to the site, some of whom may drive, at around 5am every day of the year, with the potential for resultant impacts on residential amenity, which have occurred in the past. In these circumstances, it is reasonable to monitor whether the proposed limitation on numbers to 12 worshipers and management measures will result in acceptable amenity impacts. A one year trial period should therefore be imposed on any approval of the 5am service. The PoM should also be amended to clearly address how the limitation on numbers is to be achieved.

47. Although the one year trial was not discussed during the hearing it is less restrictive than the alternative of imposing the condition sought by the council to not permit the Mosque to operate before 7am.

Consistency with zone objectives

48. The planners agree that the only relevant zone objective is:

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

49. Mr Mu recognised that a place of public worship would provide a service but considered that the scale and intensity of the proposal was beyond that required to meet the needs of local residents. Although, he acknowledged that, if there were no significant impacts on the amenity of the area, the proposal would be consistent with this objective. Mr Harding considered the proposal operating in accordance with the conditions, PoM and NMP would reduce the current impacts and better meet the objective of the zone.

Findings

50. The proposal is for alterations and additions to an existing place of public worship with no increase in the intensity of the use. As discussed above, the proposed conditions, PoM and NMP, together with the amendments required by this judgment will mitigate the impacts of the proposal to an acceptable level such that it is consistent with the objectives of the R2 Low Density Residential zone.

Other matters

51. The experts have agreed that the overshadowing of the proposal on the ground floor north facing windows of 24 Walter Street can be reduced by raking the ceiling down towards at the boundary which would maintain the solar access to the living and kitchen areas (Exhibit H).

52. The other matters and the issues raised by objectors would not be reasons to refuse the application

Conditions

53. The conditions filed on 7 December 2015 were agreed with the exception of the following conditions:

Operation times: conditions - 52(e), 52(f), 53(iv), 53(vi), 53(a)(i)

54. Reason for dispute: The applicant seeks to hold a prayer service at 5.00am and five prayer services per day. Whereas council requires that prayers should not be held on the site or any use of the site before 7.00am which would limit the number of prayer services to four each day.

Findings

55. This dispute has been discussed above and is dealt with by placing a one year trial on the 5am service to monitor whether the proposed limitation on numbers and management measures achieve an acceptable level of residential amenity. In the event that the 5am service were not to continue, this would not prevent five prayer services occurring, but with a later morning service.

Duration of prayer - condition - 53(vi), 53(b)(ii)

56. Reason for dispute: the applicant proposes 45 minutes maximum for Friday Dhuhr, whereas council requires 30 minute prayer maximum.

Findings

57. The Amended SEE states that the Friday Dhurh “typically lasts for 30 minutes” consequently, it may occasionally exceed 30 minutes. Given the time of day that the prayer is held there would be no material impact from the additional 15 minutes. It is unclear from Condition 53 whether the duration is for the service only and the condition should specify a period before and after the service for people to arrive and depart.

Occurrence of Eid Morning Prayer - condition - 53(d)(ii)

58. Reason for dispute: the applicant seeks the Morning Prayer to occur twice per year. Whereas council requires this to occur once per year.

Findings

59. The Amended SEE states that Eid “is held after the end of Ramadan once a year...” No further information is provided as to why the applicant is seeking that this be held twice per year. The service commences between 7.30am and 8.30am with a maximum of 232 people in attendance, which has the potential to impact on amenity. Consequently, in the absence of information as to why two services would be required, I accept the limitation that it be held once per year.

Final plans and conditions

60. For the reasons in this judgment, I have found that the appeal can be upheld and the development application approved, subject to the amendments discussed above. While the changes could be imposed as a condition of consent, for certainty it is preferable that they are incorporated into final plans before consent is issued.

61. The final plans should incorporate:

1. an acoustic wall along the northern side of the of the ramp in accordance with the recommendations of the acoustic experts (Exhibit 5);

2. a reduction in the width of the porch to a maximum of 2.2m;

3. floor to ceiling height walls to separate the shoe storage/lobby area from the worship area;

4. changes to the roof to reduce overshadowing to 24 Water Street (Exhibit H).

62. Final conditions are to be prepared which reflect this decision. The conditions should include a one year trial period for the daily 5am morning service.

63. The PoM and NMP are to be updated to reflect this decision and be consistent with the final plans and conditions. The PoM should include a procedure to limit the number of people attending the 5am service and the use of the porch for putting on/off shoes.

Directions

64. The Directions of the Court are:

1. The applicant is to file and serve final plans which address the matters in paragraph 62 by 12 February 2016;

2. The parties are to file agreed conditions, Plan of Management and Noise Plan of Management by 26 February 2016;

3. The parties have liberty to restore on two days notice;

4. Upon receipt of satisfactory final plans, agreed conditions, Plan of Management and Noise Management Plan, I will issue Orders in chambers which uphold the appeal and approve the development application, subject to conditions.

Annelise Tuor

Commissioner of the Court

10025 of 2015 Tuor (C) (244 KB, pdf)

10025 of 2015 Tuor Noise PoM (116 KB, pdf)

10025 of 2015 Tuor PoM (346 KB, pdf)

Amendments

05 April 2016 - Conditions and plans uploaded

Decision last updated: 05 April 2016