Al Ali v Bankstown City Council

Background and the proposal

1. The application proposes the change of use of the industrial building at No 19 to a multipurpose community facility. The facility would be run by a not for profit organisation (UMA Centre Ltd) with the following activities to be undertaken

• courses and seminars for youth;
• courses and seminars for women (for example English speaking skills and computer skills);
• provision of information and explanation of immigration matters and community grants and funding opportunities;
• provision of information relating to obtaining housing for new arrivals;
• provision of advice in relation to refugee issues;
• information sharing/learning Centre; and
• Arabic services (language skills).

1. In addition the facility would be available to facilitate and broaden the opportunity for some members of the community to better connect with other community organisations within the area.
2. Within the building it is proposed to extend the existing mezzanine and divide the area into a number of different functional spaces. These include a gymnasium, multipurpose sports court, prayer area, storage room, office area and classrooms. The basement carpark would be reconfigured to provide parking for 13 cars with an additional five spaces provided at grade. The proposal includes the demolition of the existing sheds within the car parks at No 15 and the provision of an additional 53 parking spaces in that area. A further eight spaces are available adjacent to the warehouse building. The application does not involve the use of the warehouse at No 15 for any purpose and it was agreed during the hearing that it was appropriate that the consensus that apply to that land be surrendered to ensure that no conflict occurs from the use of the building and the parking for the proposed use.
3. A café was mentioned in some of the documentation lodged with the application however it was not shown on the plans before the Court. Mr Clay, for the applicant confirmed that the application was not to include a café.

The planning controls

1. The site is zoned IN2 - Light Industrial under the provisions of Bankstown Local Environmental Plan 2015. Clause 2.3 (two) of the LEP requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the IN2 zone are : To provide a wide range of light industrial, warehouse and related land uses. • To encourage employment opportunities and to support the viability of centres. • To minimise any adverse effect of industry on other land uses. • To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. • To support and protect industrial land for industrial uses.
2. The dictionary to that plan defines a community facility as: community facility means a building or place: (a) owned or controlled by a public authority or non-profit community organisation, and (b) used for the physical, social, cultural or intellectual development or welfare of the community, but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.
3. A community facility is not listed within those uses that are permissible with consent nor prohibited in the IN2 zone so is an innominate use and therefore permitted with consent.
4. Bankstown Development Control Plan 2015 applies to the site with Part B3 - Industrial Precincts and B5 - Parking particularly relevant to the application.
5. The desired character objectives for the industrial precincts are: (a) To have general industrial precincts in the City of Bankstown that accommodates a wide range of contemporary industries, warehouses and other compatible land uses within a generous landscape setting, and protects the industrial land for industrial uses. (b) To have light industrial precincts in the City of Bankstown that accommodates a range of contemporary light industries and warehouses within a landscaped setting, and will not cause nuisance or adversely affect the surrounding amenity for example by way of noise or emissions.
6. There are no specific provisions that apply to community facilities in industrial areas. Similarly, the Off-street parking requirements table in Part B5 does not include community facility and therefore pursuant to clause 2.2 in section 2, development not included in that schedule must submit a parking study prepared by a qualified traffic consultant for Council's consideration with a development application. The remainder of that section relates to the method of providing parking and it is not a contention that the layout of the car parking areas does not accord to those requirements.

The issues

1. The Council's contentions are that the proposed use is inconsistent with or does not promote the achievement of the objectives of the light industrial zone, will have an impact on the road network, road safety and parking and is not in the public interest

The evidence

1. The hearing commenced on site with evidence heard from a number of objectors to the proposal. It became apparent on review of the submissions received by the council in response to it notifying the application and during the site view that the concerns of the residents had been heightened because of online advertising by UMA Centre that it has plans to build a large mosque for over 5000 worshippers. Evidence of that advertising, obtained from web searches, is included in the bundle of submissions, Exhibit 3.
2. The application before the Court is not for a mosque, it is for the change of use of an existing warehouse building to a community facility. Whilst the plans include an area that would be used by persons attending the facility for prayer if they were present when they would be required to pray, that fact does not mean that the application is for a mosque of place of public worship. That area nominated as the prayer area has dimensions of 12.021m x 16.5m and area of approximately 200sqm. That total forms a small part of the total area to be used, an area of 1935.86sqm. During the hearing the council agreed, that subject to imposition of agreed conditions regarding the use of the area, the prayer area would be an ancillary use to the community facility.
3. The issues raised by objectors are summarised as follows:

• Adverse traffic and parking impacts;
• Noise impacts, particularly to the adjoining school and dwellings in Watson Road;
• Excessive hours of use for a light industrial zone;
• Use is an education centre and place of public worship so the DCP provisions for those uses should apply;
• Traffic survey did not assess peak hours, i.e. 7.30am to 9.30am and 2.30pm to 6pm;
• No need for another gym as there are already two in the street;
• Safety concerns;
• Contrary to the public interest given the number of submissions received by the council.

1. The council did not rely on any expert evidence. The applicant provided expert traffic evidence by Mr P Corbett and planning evidence by Mr A Byrnes.
2. Mr Corbett prepared the parking study required by clause 2.2 of Part B5 of the DCP. That study concludes that the maximum number of people expected on-site at any one time would be as follows:

• Monday to Friday 132 people which will occur between 6pm to 10pm
• Saturday 139 people which will occur between 6pm to 10pm
• Sunday 86 people which will occur between 10am to 3pm.

1. In determining parking demand, he adopted the following rates:

• Gymnasium/Recreational Activities 1 space/1.5 persons
• Educational Classrooms 1 space/2 persons
• Employees 1 space/employee.

1. Applying those rates he determined the following peak parking demands:

• Monday to Friday 72 spaces between 6pm and 10pm
• Saturday 77 spaces between 6pm and 10pm
• Sunday 49 spaces between 10am and 3pm.

1. The proposal provides for a total of 79 parking spaces and according to Mr Corbett's assessment, this exceeds the maximum parking demand that would be generated by the proposed use. For that reason he concludes there would be no reliance on on-street parking at any time.
2. In cross examination he conceded he did not undertake a review of the parking availability prior to 10am. That was because he says the peak demand occurs much later than that and that prior to 10am there would only be up to 52 persons attending the site. Adequate parking would be available to cater for that number of persons and, in the event that there was an overlap of attendance, this could be addressed through a Plan of Management (POM). He recommended that the applicant should be required to prepare such a document with consent conditions reflecting the need to prepare and enforce such a plan.
3. In terms of traffic generation, Mr Corbett says the maximum traffic generation would be on Saturday evenings however he says the weekday evening peak is the critical period for assessment because it would coincide with the typical commuter on-street peak period of 4-6pm. Applying the parking assessment referred to above, he says that at 6pm on weekdays, the peak parking demand will increase from 9 spaces to 72 spaces which corresponds to a traffic generation of 63 vehicle trips per hour. He has adopted a more conservative traffic generation of 80 vehicle trips per hour (in/out combined) to provide a safety margin and a more conservative assessment for sensitivity testing purposes.
4. His assessment shows that the current level of service at the Watson Road/Enterprise Avenue roundabout would be maintained during peak times and he says this key intersection will continue to operate satisfactorily and with minimal delays as a result of the development. That level of service is Service A, the highest/best level of service.
5. The results of the SIDRA modelling show that the development will result in two-way traffic volumes along Enterprise Avenue increasing to 180 vehicles per hour during the weekday PM peak. Mr Corbett says that Enterprise Avenue itself would continue to operate with a Level of Service A, having regard for the mid-block thresholds outlined in Table 4.4 of the Road and Maritime Services Guide to Traffic Generating Developments. He concludes that Enterprise Avenue would continue to operate satisfactorily and will readily accommodate the increased traffic volumes resulting from the development.
6. Mr Corbett says the increased traffic volumes arising from the development will be readily accommodated by the Watson Road/Enterprise Avenue intersection, as well as Enterprise Avenue itself and hence, would have no impact on the safety of drivers or pedestrians. The proposed access arrangements comply with the requirements of AS 2890.1(2004) and will operate safely and efficiently. He concludes the proposed parking provision for the development is more than the expected demand; that even in the unlikely event that the demand for parking were to be higher than expected, thought he does not expect this to occur, there is extensive available on-street parking to accommodate this demand with no adverse impacts on the local area and there are no safety concerns associated with the proposed access arrangements. The expected increase in traffic volumes can be readily accommodated.

Conclusion and findings

1. Having regard to the evidence, which was not contradicted by the council, I am satisfied, having regard to the objectives of the IN2 zone that the use would be consistent with those objectives. In note the council has found this previously, by the grant of consent to the other gymnasiums that operate within Enterprise Avenue. The fact that there are already like uses within the vicinity of the site is not a reason to refuse consent.
2. The proposed change of use of an existing building to a community facility as detailed in the Supplementary Statement of Environmental Effects, Exhibit B, and supported by a Plan of Management and the conditions of consent is one that can be readily accommodated on the site. According to the evidence of the traffic expert, all of the parking needs of the facility can be accommodated on site and therefore there will be no impacts to the existing on street parking in either the vicinity of the site or the drop off/pick up parking associated with the adjoining public school. That evidence also demonstrates that the traffic generation will be capable of being absorbed into the local road network. Whilst I accept the resident's evidence that Fairford Road operates at a poor level of service, I do not accept that the impact of the small amount of traffic that may use that road at peak times to access the site would be a reason to refuse consent. There is no evidence that the use will be unsafe.
3. In relation to the issues raised by the objectors to the proposal, I am satisfied that the proposed use is not a place of worship and would, subject to compliance with the draft conditions of consent and supplemented by those additional conditions agreed during the hearing, (the imposition of a requirement for the POM; to limit attendances to accord to the table within exhibit B and require surrender of the consents that apply to No 15) that the use can operate in a satisfactory manner without any adverse impacts on the amenity of adjacent properties including the school.
4. I accept the concerns of the residents that this application may be the first application for the site however that is all that is before the Court. Any use of any other part of the site would require the submission of further applications to the council and would be assessed against its planning controls. It is not appropriate that I pre-empt any consideration of any future application that may or may not arise. That is a matter for another day, if at all.
5. During the hearing I asked the applicant of its intentions in relation to the use of the remainder of the site and it was agreed at this time no use was proposed and due to the reliance on parking on the site that adjoins the building that is the subject to the change of use application, it was agreed that it is appropriate that the applicant surrender any consents that apply to that land. At the time of completing this judgment, the parties had not provided the Court with final conditions that include the requirements for the POM, the limitation on numbers within the facility or the surrender of consent.
6. The council did not oppose the proposed hours of operation. I was not taken to any control in the council's planning instruments that restricts the hours of operation within the light industrial zone and, there is no contention that the noise that would be generated by the use is unacceptable. The use is not a place of public worship or an educational establishment as defined in the LEP and accordingly, it is not appropriate to apply those controls to the assessment of the application.
7. Having determined that the use is consistent with the objectives of the IN2 zone, that the traffic and parking generated by the development can be satisfactorily accommodated on site and in the road network and that the use is not, having regard to the objections received, contrary to the public interest, there is no reason why consent should not be granted.
8. The parties are directed to file agreed conditions of consent that reflect these findings within 14 days of this judgment and final orders will be made in Chambers.

Addendum made on 13 January 2016

1. In accordance with the terms of the directions in paragraph 43 of my judgment of 5 January 2016, on 12 January 2016 the parties provided me with the agreed conditions of consent. I am satisfied that the conditions of consent accord with my findings and accordingly I made orders in chambers on 13 January 2016 as follows: 1. The appeal is upheld. 2. Development Application DA 552/2015 for the change of use of an existing industrial development including internal fit out works to a multipurpose community facility at 15 and 19 Enterprise Avenue Padstow is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B and 2, are returned.

Sue Morris Commissioner of the Court 10603 of 2015 Morris (C) (140 KB, pdf)

Amendments 10 May 2016 - Addendum made on 13 January 2016 in accordance with the agreed conditions of consent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2016