Tsang Hui v Council of the Municipality of Strathfield

[1989] NSWLEC 200

Land and Environment Court

of New South Wales

CITATION:	Tsang Hui v Council of the Municipality of Strathfield [1989] NSWLEC 200
PARTIES:	APPLICANT Tsang Hui RESPONDENT Council of the Municipality of Strathfield
FILE NUMBER(S):	10548 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	06/01/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: On 26 July 1988, a development application was lodged with the Strathfield Municipal Council for consent to use premises, No 29 MacKenzie Street, Homebush as a Buddhist monastery having the function of a place of religious worship and meditation and a place of education and training for lay persons and monks.

Adjoining residents were notified of the proposal by Council by letter on 4 August 1988. In response to Council's letters, approximately 25 letters of objection were received against the proposal, two in favour. Approximately 25 householders did not respond. Mr and Mrs Heath, the owners of No 27 MacKenzie Street, the property immediately to the north of the subject site, organised a petition and obtained 273 signatures from people living in 215 different properties within the municipality. The Council also received about 890 individual letters from people within the municipality who were in favour of the proposal and received a petition in favour of the proposal containing approximately 840 signatures of persons said to be within the municipality and 64 outside.

The application was investigated and assessed by Mr Smith, Chief Town Planner, who recommended refusal for the following reasons:

1. The proposal is an intrusion on the landscape and scenic quality of the area.

2. It is out of character with the adjoining development by virtue of its location, setting, bulk, scale, shape, size, design and external appearance.

3. The size and shape of the land is unsuited to this form of development.

4. The entrance and exit from the proposal will have a detrimental effect on the adjoining residents.

5. It is not in the public interest, as indicated by resident objection to the proposal.

6. The use of the premises for schooling will detrimentally effect the existing and likely future amenity of the neighbourhood.

On 25 October 1988, the applicant appealed to the Land and Environment Court against the deemed refusal of the Council. On 13 December 1988, the Council refused the application and adopted the grounds forwarded by the Chief Town Planner in his recommendation referred to above and added a further ground viz. that the proposal would be "likely to cause increased traffic and carparking in MacKenzie Street and as such is likely to have a detrimental effect on the area".

The subject land is zoned residential (a) under the Strathfield Planning Scheme Ordinance (the deemed local environmental plan). The subject development is permissible with consent of Council. No legal issues arose in the proceedings and the matter is to be determined by reference to planning merit alone.

The proposal includes:

(a) Erection of a temple approximately 8.6m high to accommodate up to 56 people.

(b) A new storey amenities building comprising a kitchen, dining hall, library, stores and toilet facilities.

(c) A new single storey accommodation building to contain four bedrooms and a common room.

(d) The demolition of some existing buildings on the site but the retention of a dwelling house at the front for use as accommodation for lay persons and caretakers.

(e) The erection of a 7m high gateway within the site referred to as the Pai-Lou Gate.

(f) The provision of 11 offstreet carparking spaces within the site.

(g) Schooling for approximately 30 children between 4.30 and 8.30 each evening excluding Saturday.

The subject land is fan-shaped, has an area of 2015m2 and a 13.715m frontage to MacKenzie Street. It has a depth of approximately 80m and the rear boundary is 30m. The rear boundary of the land adjoins the rear boundary of other residential lots. Mr and Mrs Heath live on the northern side in No 27 and their property extends along the northern boundary of the subject site. Mr Cathro owns two properties on the southern side and conducts commercial tennis courts on the rear of the land which abuts the subject site. He occupies No 33. No 31, the house immediately to the south of the subject land, is rented by Mr Cathro to tenants who support the application.

The Council has prepared a Draft Development Control Plan to control development "Within and Adjoining Residential Zones". The DCP has been exhibited for public comment and has been revised in the light of submissions. It has been adopted by the Council but has not yet come into force. It is not, therefore, a DCP within the meaning of s 90(1)(a)(iv). However, because it is most likely it will come into force, it is of relevance to development applications in areas to which it applies and I propose to have regard to it pursuant to the provisions of s 90(1)(q) when assessing the subject application.

The subject land is in a precinct bounded by Bridge Road, Arthur Street, Bates Street and The Crescent. The general area is dominated by Homebush Boys' High School. There is a large Lutheran church in close proximity and immediately next door to the subject land there are, as I have said, two commercial tennis courts which operate until 10.30 pm. The streets are tree lined, the houses, with some exceptions, are single storey and most are set back from the street.

It is intended that the temple will be used for religious ceremonies only. There will be no funerals or weddings although wedding couples may attend the temple to be blessed. There will be approximately 18 temple ceremonies held each year on Sundays being that Sunday nearest to the event for the ceremony. The ceremonies will commence at about 9.00 am and although the length may vary, they must conclude before 12 noon. People may, and usually do, come and go throughout the ceremony. Buddhists do not proselytise as many Christian churches do. They do not seek out converts. Their approach is, as expressed by Dr Saw, one of "come and see". The ceremonies are characterised by chanting to the accompaniment of tapping on a wooden fish gong, the tinkling of a bell and the striking of a bowl bell. The chanting is not loud and I doubt whether the accompanying instruments would be heard outside the building. At the present time, religious ceremonies are held at the cottage and no complaint has been made by neighbours co

ncerning noise. Religious ceremonies are followed by a vegetarian lunch. No alcohol is allowed.

Buddhists believe that teaching and learning earn merits. It is believed that learning will lead to wisdom and toleration. It is part of the function of the monastery to educate and classes are proposed to be held in mathematics, chemistry, physics, English, Mandarin Chinese and Buddhism. Presently, these classes are held for Years 7 to 12 between 4.30 pm and 8.30 pm at the adjoining High School. It is proposed to transfer some of the students to the subject site and to hold classes between 4.30 pm and 8.30 p.m. provided that no more than 30 students will attend for instruction on any one night and, in any event, no more than 15 in the session between 6.30 and 8.30 pm.

The Council opposes the application for the reasons referred to above. It believes, as I have said, that it will be an over-development of the site, that it will be out of character by reasons of its size and bulk etc, and that the traffic generated by the evening classes will adversely affect adjoining residents. The Council attaches considerable significance to its proposed Development Control Plan.

The Development Control Plan, so far as is relevant for present purposes, sets standards with respect to height, setback and site coverage, among others, for development for within and adjoining residential zones. To prevent overshadowing and overlooking, buildings are not to be erected to a greater height than two storeys and, in any event, not to exceed 8.5m in height from natural ground level to the ridge of the roof. I should add that buildings associated with educational establishments and churches are regarded as possible exceptions. It is provided that all buildings, other than dwelling houses, shall be set back not less than 4.5m from the side and rear boundaries and that buildings in excess of two storeys or more shall be set back 6m from the side and rear boundaries. Although not stated in the Code, there is provision otherwise for dwelling houses to be 900mm from side and rear boundaries. The Code provides that site coverage for single storey buildings other than dwelling houses shall not be greate

r than 30% and for dwelling houses not greater than 65%. It is provided the site coverage for two storey buildings other than dwelling houses, shall not be greater than 25% and for a dwelling house not greater than 50%.

It would seem to me, with respect to people who think otherwise, that the spirit of the Development Control Plan is not offended by the subject proposal. The temple will not be any higher than the limit of 8.5m above ground level. Strictly, it is not a two storey building as defined, although for the purpose of the Development Control Plan and in Council's favour, I have so regarded it. It is true the temple is not set back 6m from the side boundary. At its closest, ie its the north eastern corner, it is a little less than 4.5m from the property to the north. However, the north western corner is well in excess of 8m from the boundary. The library and dining room building and the monks' quarters at the rear are both approximately 900mm from the boundary. However, the monks' quarters ought, it seems to me, to be characterised as a dwelling house. That being so, it is not unreasonable that it should be only 900mm from the rear of Mr Saidi's land immediately to the west. The library and dining room building is no

t, of course, a dwelling house and is 900mm from the boundary. But the library and dining room building faces the the commercial tennis courts. Although the site coverage of the buildings including the house presently on site and intended to remain, is approximately 38% (ie in excess of what is said to be the 30% site cover for non-residential buildings), it must be remembered that many of the buildings on the site ought, for planning purposes, be regarded as dwelling houses, for example, the present dwelling house and the proposed monks' quarters. I am of the opinion therefore that, accepting as I do, the Development Control Plan will probably come into force, the provisions of that plan do not of themselves require that the application should be refused.

On behalf of the Council, Mr George also advanced a planning argument that there are now too many churches and schools in the Strathfield area and that the municipality should not be required to accept any increase. This ground was not explored in detail in evidence and it is not one upon which I place a great deal of reliance in the present case. I accept that the Council may have a legitimate concern about the number of educational establishments and places of public worship within the municipality because of rate exemptions for churches and schools. But in the present case, the matter was mentioned en passant, as it were, and, in any event, it was not a ground relied on by the Council when it refused consent. Furthermore, I should have thought that the general question referred to by Mr George would be better dealt with on a zoning and plan making basis rather than on an ad hoc basis such as in a development application of the type presently before the Court.

The subject site is peculiarly suited for the purpose for which it is proposed. It has an extremely narrow frontage. It is proposed to retain the existing cottage at the front. The application of the street frontage setback standards means that because the front boundary is about one third the length of the rear boundary, more land is available for development. The subject land is large enough to accommodate, in Mr Donges' opinion, approximately six individual dwellings if the provisions of REP No 12 and SEPP No 1 were applied in favour of a developer or four dwellings if Mr Smith's view is to be preferred. Furthermore, a large two storey building could be erected on the subject land. I mention these matters because it appeared to be assumed by the resident objectors (but not, of course, the Council) that if this development application were refused, there would be no increase in residential density and no increase in height and bulk of any building over and above that which is presently there.

As I have said, a number of local residents have objected to the development. The intensity of opposition is directly proportional to proximity to the proposed development. I accept, in the case of each resident who gave evidence, that the views expressed were sincerely held. They complain that the proposed development will be an overdevelopment of the site, it will encourage greater use of MacKenzie Street by motor cars, it will create more noise than is presently there and that children walking along MacKenzie Street to an from the station will deposit litter in their front yards. As I have said, Mr and Mrs Heath live in the property to the north of the development and the temple will be closer to their house than any other dwelling and it will be approximately 8.5m at its highest point. The Pai-Lou gate will be next to Mr and Mrs Heath's property. Cars entering and leaving the monastery will travel along the drive immediately to the south of Mr and Mrs Heath's property. Mr Webster, who lives opposite, is c

oncerned that headlights of cars leaving the monastery at night will shine into his children's' bedrooms. Mr Cathro, the owner of the commercial tennis courts, owns the house immediately to the south of the subject property. No 31 MacKenzie Street is presently rented to people who support the application. Mr Cathro is worried that future tenants in the house may take a different view and object to the size of the temple and the noise of children in the school area. Mr Howe, Mr Sutton, Mrs Tulloch and Ms Symington also oppose the development. Ms Symington lives at No 25 MacKenzie Street and Mr Sutton at No 23 MacKenzie Street. I do not think, however, that the building will unduly intrude upon Ms Symington's, Mr Sutton's, Mr Saidi's, Mr Howe's or Mrs Tulloch's properties although most will be aware of its existence. So far as Mr Saidi is concerned, his property runs to the rear of the boundary of the subject land and to the tennis courts. He says he wishes, eventually, to build a granny flat for his father. It

would seem to me, with respect, that a granny flat could be built well back from the boundary on Mr Saidi's land and, in any event, upon the assumption that Mr Saidi's father wishes to be isolated from human activity, the tennis court noise will be far more intrusive than the noise that which might emanate from the monks' quarters.

It was made clear from the evidence that all residents opposed any form of development on the subject land other than a single storey residence. As I have said earlier, the assumption that the land could be used for no purpose other than a single storey dwelling situated where the present dwelling is situated is not well founded. All residents expressed opposition to the site being used for any religious or educational establishment on a scale comparable to that presently proposed. It became plain that the intensity of the opposition to the subject development was, in some instances, influenced by the circumstance that the religious institution was a Buddhist monastery. All residents were at pains to volunteer that their views were not "racist" and I accept their assessment of their objections. The question of what does or does not qualify as "racism" was not explored in the proceedings but because the word was bandied about during the course of the hearing, I feel bound to express my opinion that I do not th

ink any objector is a "racist" just because he or she objects to a Buddhist temple functioning next door or in the near vicinity. It was stated explicitly by some and was implicit in the evidence of others that the opposition would not have been so intense had a comparable Christian establishment been proposed. By way of illustration, none of the residents seems to be unduly concerned about the activities of the Lutheran church.

On behalf of the Developer, Mr McEwan has submitted that I should pay no attention to the attitudes of local residents, such as, for example, Ms Tulloch, who believes that Buddhist children would do well to attend traditional institutions instead of being "segregated within their own community" and Mr Sutton, who was of the opinion that if the proposal were granted, it would affect the quality of his life "by people from all over Sydney and Asian countries, and would be another ghetto - it would do nothing to assimilate people" and that Buddhist children should be encouraged to have contact with children of all nations. In my opinion, the views of Mrs Tulloch and Mr Sutton should not be disregarded simply because they do not reflect what is said to be the "correct" view. If it were otherwise, the Court would be compelled to ignore the views of local residents if those views happened to conflict with the Government's expressed view with respect to urban consolidation. In my opinion, the views of Mr Sutton and

Mrs Tulloch are relevant and should be taken into account. Accordingly, I reject Mr McEwan's submission. However, as I have said, the general amenity of people other than Mr and Mrs Heath, Mr Webster and, possibly, future tenants of Mr Cathro, will not be unduly affected by the bulk and size of the temple or the activities proposed to be carried out on the land. To the extent that they do not approve of people of other cultures having places of religious worship in their area, that is a circumstance I take into account but I do not think that, on balance, it requires that this application should be refused.

I accept that Mr and Mrs Heath will be adversely affected by the proximity of the temple and that they would prefer to look upon the subject land and not see a large structure. But I do not think their amenity will be unduly affected by car noise, particularly if a brick fence is built separating their land from the subject land up to the level of the temple. I think Mr Webster will not be effected by the bulk of the building but his children may be effected by cars leaving the driveway whose headlights shine towards the bedrooms.

It is made clear by the evidence, there is a need for the monastery in the sense that there are many people who wish to have a place to congregate as Buddhists. The subject land is zoned residential but churches and educational establishments are permissible in residential areas. There are many churches in residential areas in Sydney, some of which have functions and undertake activities more intrusive than the subject proposal. It is, of course, not possible to speculate on the attitude Mr and Mrs Heath will have to the development if it proceeds. I am, however, confident that most other people who have expressed hostility to the concept will, with the passage of time, accept the monastery in the same way they presently accept the Lutheran church. I have already mentioned that the precinct is dominated by the Homebush Boys High School; there is a large Lutheran church in the vicinity and the monastery is proposed to be erected right next door to commercial tennis courts. In my opinion, development consent sh

ould be granted subject to conditions which I annex to this judgment.

I grant development consent to development application No 8898 for the erection and use of buildings on 29 MacKenzie Street, Homebush in accordance with the plans lodged with the Council as amended by the plans lodged in Court. The consent is subject to the conditions in annexure '8' of Exhibit 'D' in the proceedings subject to the following alterations.

Condition 4 is deleted and in lieu thereof the following condition:

(a) The after hours tuition shall be restricted to 4.30 pm to 8.30 pm Sundays to Fridays inclusive and shall not be carried out outside those times.

(b) A maximum of 30 students shall be permitted to attend the premises for education on any one day but that no more than 15 children shall attend the premises for education between 6.30 pm and 8.30 pm.

Condition 11 as proposed requires a provision of an amount of money for frontage works as may be assessed by the Municipal Engineer when the building application is lodged. In my opinion, that condition is beyond power and cannot be imposed. Accordingly, it is deleted.

Condition 12 is amended by deleting the words "by means of a gravity induced system to an adequate Council drainage system" and substituting thereof the words "to the satisfaction of the Municipal Engineer of the Council".

Condition 18 is, by consent, to be deleted.

I do not impose the conditions under the heading "Building Notes". These are matters more properly dealt with at the building application stage. If Mr and Mrs Heath wish a brick fence to be erected along the northern boundary of the site from the street to a point closest to the temple it will be a condition of consent - otherwise there will be no condition concerning the erection of a fence.

I direct the parties to bring in Short Minutes of Order.