Burwood Council v Iglesia Ni Cristo

Background

1. The background facts are relatively uncontentious and may be summarised as follows.
2. The present improvements on the premises comprise a church building for which a foundation stone was laid in or about December 1935 and a small attached wing or church hall which was constructed in 1952. The Church, originally known as St Nicholas Church (Church of England) was opened by the then Anglican Archbishop of Sydney, Dr D H Mowll in May 1936. It was the "daughter church" of the larger St Thomas Church at Enfield. There appears to have been an earlier church or school building on the premises from the 1920s.
3. From 6 April 1979, the premises were zoned R2(a) Residential under the BPSO. Relevantly, under the BPSO, the use of the premises (and buildings) as a place of public worship was prohibited. This is the relevant date for the purpose of characterising the use of the premises.
4. The premises are presently zoned R2 Low Density Residential under the Burwood Local Environmental Plan 2012 ('BLEP') which came into effect on 9 November 2012. Pursuant to the BLEP, the use of the premises (and buildings) as a place of public worship is prohibited.
5. From on or about 5 May 1924 and as at 5 April 1979 (being the date immediately before the date on which the BPSO came into force), the premises (and buildings) were used as a place of public worship by St Nicholas Church, being a church of the Anglican Church.
6. While there remains some dispute in relation to the precise nature and extent of the religious activities conducted at the premises over this period, it is clear that at least by 1979, the use of the premises (in the sense of the conduct of church-related activities and the number of attendees) declined and was relatively modest.
7. As at 3 February 1986, the date on which s 4.66(2) of the EPA Act was enacted (the relevant date for the purpose of determining whether the use has been enlarged, expanded or intensified), the premises (and buildings) continued to be used as a place of public worship by St Nicholas Church.
8. Despite the detailed evidence marshalled by both parties, there is little, if any, discernible difference between the nature and extent of the use of the premises as at April 1979 and as at February 1986.
9. In or about 1998, after the Anglican Church ceased occupying the premises, the premises (and buildings) began to be used as a place of public worship on Sundays by a religious group initially calling itself "the Children of God" and later, "the Brethren".
10. On 4 November 2008, Council granted development consent (subject to conditions) to a development application seeking an extension to the existing place of public worship and the demolition of the existing hall. Council records indicate that this consent was not acted upon and has lapsed.
11. On 25 March 2011, Iglesia purchased the premises and thereafter, it commenced using the premises as a place of public worship.
12. Council has received complaints from a number of local residents expressing concerns regarding the amenity impacts resulting from the nature and extent of the religious services and activities conducted by Iglesia at the premises.
13. On 20 March 2019, presumably as a response to these proceedings and the concerns expressed by local residents, Iglesia lodged DA 2019/28 with Council for the continued use of the land, church building and ancillary buildings for the purpose of a place of public worship ('DA').
14. On 3 May 2019, Iglesia filed a Class 1 appeal in relation to Council's deemed refusal of the DA and a notice of motion seeking orders that the hearing dates set down for these Class 4 proceedings be vacated. Iglesia maintained that the DA sought to regularise the use of the premises and that it would take steps to address the amenity impacts until the Class 1 appeal, which was likely to proceed to hearing in early 2020, had been determined. On 29 May 2019, I gave orders dismissing the motion: see Burwood Council v Iglesia Ni Cristo [2019] NSWLEC 75. The Court was later informed that the Class 1 appeal proceedings had been set down for hearing in late October 2019.

Evidence

1. The Court received extensive documentary and affidavit evidence detailing, inter alia, the historical use of the premises; the observations of local residents and Council officers relating to the earlier and more recent use of the premises; and residents' concerns in relation to amenity impacts arising from Iglesia's activities.
2. Council read: 1. two affidavits of Brian Olsen, Council's Acting Director, Planning and Environmental Services, dated 19 June 2018 and 27 May 2019; 2. the affidavit of Nicholas Maher Williams, resident of 12 Daisy Street, Croydon Park, dated 26 June 2018; 3. three affidavits of Paul Charbel Boutros, resident of 9 Daisy Street, Croydon Park, dated 27 June 2018, 21 May 2019 and 27 May 2019; 4. the affidavit of Lusha Zhang, investigator, dated 3 July 2018; 5. the affidavit of Amir Soreh, investigator, dated 3 July 2018; 6. two affidavits of Michael Borosdevi, resident of 20 Violet Street, Croydon Park, dated 17 July 2018 and 7 May 2019; 7. the affidavit of Roberto Di Federico, Council's Manager of Traffic and Transport, dated 19 July 2018; 8. the affidavit of Martin Jenner, Council's Senior Manager of Compliance, dated 19 July 2018; 9. the affidavit of Karen McInerney (nee D'Aprile), resident of 1 Daisy Street, Croydon Park, dated 25 July 2018; and 10. the affidavit of Clare Anne Reaiche, resident of 3 Daisy Street, Croydon Park, dated 26 July 2018.
3. Most, if not all, of the evidence regarding activities on the premises relied upon by Council was uncontested. Council's evidence may be summarised as follows: 1. Both in April 1979 and February 1986: 1. religious services were conducted by the Anglican Church primarily on Sundays, in the morning and evening, with further services at Christmas and Easter. The Church was not used at all during the week, other than for the "rare" funeral or wedding. 2. while the evidence varied, there were usually 20 or so attendees at the various services; 3. the worshippers were predominantly local residents and as such, only limited car parking was required on surrounding streets; and 4. although there were other activities undertaken at the premises, including Sunday school, no meals were provided to worshippers, and worshippers did not stay overnight at the premises. 1. Both at the date of commencement of these proceedings and at the date of the hearing: 1. the premises were used by Iglesia on most days of the week with two services on Sundays, and there was use throughout the day on Sundays "because worshippers arrive early". There is limited evidence that there are two services on Saturdays, as well as services on weekday evenings (usually between 6.30pm and 9.30pm); 2. there were 100 attendees at Iglesia's services, and on occasion, up to 120 attendees; 3. due to the parking requirements of worshippers attending Iglesia's services, it can be inferred that the worshippers are not local residents; and 4. on occasion, there was service of food in the attached church hall at the premises, and, at least on Sunday 25 March 2018 at 4pm, there were "three tables with hot food and desserts" on display.
4. There was extensive uncontested evidence from local residents (and Council officers) recording complaints in relation to the conduct and frequency of services by Iglesia. These concerns related to noise, parking, and the behaviour of worshippers due to the hours of operation of the Church.
5. Council's evidence in relation to the history of the use of the premises includes the evidence of Ms McInerney, who has resided in the area for approximately 45 years; Mr Williams, who has resided in the area for 41 years; and Mr Olsen, who "grew up" in the area. Mr Olsen deposes that the use of the premises as an Anglican Church was "fairly limited" and that the Church was rarely used except for "basic Sunday worship by the locals".
6. Iglesia read the affidavit of Brian Anthony Kirk, dated 21 November 2018. Mr Kirk is a nearby resident and town planner who undertook research in relation to the conduct at the premises over many years.
7. Mr Kirk's evidence includes extensive background material and archival records published by and in relation to St Nicholas Church, including further material from the Sydney Diocesan Archives, which in 2004 was used to create a chronology of activities at St Nicholas Church. These records indicate that St Nicholas Church was the "daughter church" of St Thomas Church at Enfield, and in 1955, St Nicholas Church became a separate parish from St Thomas Church (known as the Parish of St Nicholas), and in or about April 1988, the Parish of St Nicholas was amalgamated with the Parish of St Thomas. Mr Kirk considered detailed material from 1912 through to 1974 and conducted various interviews with senior members of the Anglican Church, as well as undertaking inspections of records discretely relating to St Nicholas Church (including marriage registers, attendance and takings registers, confirmation registers, marriage certificate registers and the like).
8. Mr Kirk also considered extracts from a book entitled "Parish Messenger" (for the period 1940 to 1968) which detailed the various activities of St Nicholas Church, noting that Divine services, Holy Communion services, Sunday school, choir practice, and Bible classes were scheduled activities in "most weeks from 1940 to 1953". Other matters recorded in extracts of the "Parish Messenger" for that timeframe included church activities involving teachers' preparation classes, young people's unions and societies, women's Bible reading groups, weddings, funerals, baptisms, and commemorative services on Sundays and on some weeknights. Mr Kirk further deposed that according to extracts from the "Parish Messenger", between 1940 and 1953, there were between 33 to 256 "communicants" at St Nicholas' Sunday services.
9. In addition to the historical material, Mr Kirk gave evidence in relation to his inspection of the seating arrangements at the Church. In his opinion, the (pew) seating could accommodate approximately 120 people and the Church could "fit approximately 160 people plus choir and minister for a large service".

Legislative framework

1. The relevant existing use provisions are set out below.
2. Sections 4.65 and 4.66 of the EPA Act relevantly provide: 4.65 Definition of "existing use" (cf previous s 106) In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 4.66 Continuance of and limitations on existing use (cf previous s 107) (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17 (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
3. Section 4.67(1)(c) of the EPA Act provides: 4.67 Regulations respecting existing use (cf previous s 108) (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: … (c) the enlargement or expansion or intensification of an existing use. …
4. Clause 42 of the Environmental Planning and Assessment Regulation 2000 (NSW) ('EPA Regulation') further provides: 42 Development consent required for enlargement, expansion and intensification of existing uses (cf clause 40 of EP&A Regulation 1994) (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.
5. Council seeks remedial orders under s 9.46 of the EPA Act, requiring the use of the premises to be restrained to the scope of use it contends was in existence prior to Iglesia's occupation of the premises. Section 9.46 of the Act relevantly provides: 9.46 Orders of the Court (cf previous s 124) (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. …

Council's submissions

1. Council accepts that the premises (and buildings) are used as a place of public worship by Iglesia. Council says that the buildings comprise a church and an associated hall, and that no development consent exists for the use of the premises as a place of public worship.
2. Council submits that there was a limited existing use at the relevant date, being 5 April 1979, and contends that that use has been unlawfully expanded in breach of the EPA Act. Council does not suggest that there has been abandonment. Nevertheless, Council submits that Iglesia's breach of the EPA Act has serious and continuing implications for the amenity of local residents and neighbours.
3. To invoke s 4.66(1) of the EPA Act in relation to the BLEP, Council submits that Iglesia must establish that immediately before the provision came into force, the premises were being used (as a place of public worship) for a "lawful purpose". As the lawful purpose relied upon by Iglesia at that time was itself based on existing use rights said to exist immediately before the BPSO came into force, Council submits that Iglesia must in turn establish that prior to the BPSO coming into force on 6 April 1979, the premises were being used as a place of public worship which was itself lawful by reason of an existing use and that leaving aside any question of onus, the use was continued and not abandoned prior to the introduction of the BLEP.
4. If an established use is made out, Council submits that the issue then becomes whether the present use of the premises by Iglesia is of the same genus as that existing use.
5. Council submits that the first and most critical step in determining whether there is an existing use is to appropriately characterise or describe the purpose for which land was being used as at the date of commencement of the planning instrument which prohibited the use. In this case, Council says that the relevant planning instrument is the BPSO which commenced on 6 April 1979. The next step is to identify whether a later use of the land that is challenged "is really and substantially a use for the designated purpose": Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 ('O'Keefe') at 535.
6. Council submits that the proper characterisation of the relevant use as at 5 April 1979 is a place of public worship by St Nicholas Church, being a church of the Anglican Church. Council contends that that use was for worship on Sundays and Christian holy days, typically with a congregation of local people, together with the occasional wedding and funeral. Council says that that use is consistent with the historic use, dating back to 1924 when the premises were first used by St Nicholas Church.
7. Having regard to the impact of the use on the neighbourhood, Council submits that the use of the premises by Iglesia is different and is not "really and substantially" a use for that historic purpose. Council relies in part on affidavits of local residents, some of whom remember the use by St Nicholas Church. Council says that that evidence, which was unchallenged, demonstrates: 1. the land and buildings are used by Iglesia seven days a week for worship; 2. from Mondays to Fridays, a service runs from approximately 7.30pm until 10.30pm; 3. there are two services on Saturdays, the first from approximately 7.30am to approximately 9.45am or 10.30am; and the second from approximately 5pm until approximately 9.30pm; 4. there are more frequent services on Sundays, with the first service starting from approximately 7am, and further services running throughout the day until approximately 11pm; 5. on each of these occasions, worshippers arrive in Daisy Street up to approximately one hour before a service starts and congregate in Daisy Street (and other streets in the neighbourhood) after the services have finished; 6. up to approximately 120 people attend each service; 7. on some occasions, more worshippers attend than can fit within the church building. The overflow are seated in the hall and television monitors are set up so they can follow the service; 8. many of the congregation arrive by car from Ashfield, Belfield, Burwood, Campsie, Canterbury, Croydon, Strathfield and other surrounding areas; 9. worshippers park in Daisy Street and in neighbouring streets; 10. worshippers sometimes sleep at the premises; and 11. Iglesia holds other events at the premises, with up to 300 people attending for such occasions, and some of those events are catered.
8. In light of the above, Council submits that the current use of the premises has a very different impact on the neighbourhood and is of a different genus from the historic use which was in existence in April 1979, being a local parish church catering for residents from the immediate neighbourhood and offering services primarily on Sunday mornings.
9. Council contends that the breach is ongoing and there is obvious ongoing irreparable harm to the environment caused by Igelsia's prohibited use of the premises: Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 ('Tegra'). Council further submits that there is a public interest in the enforcement of the law and the reliable and predictable public administration of the law: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ('Sedevcic') at 339-340 and Tegra at [54]-[56].

Iglesia's submissions

1. In the absence of any relevant approval or development consent issued in respect of the premises, Iglesia accepts that the "genus test" is relevant to characterise the existing use, and submits that the evidence establishes that the use of the premises for the purpose of a place of public worship has been carried out since 1924, with such use including at least the following activities: church services, Bible study and Bible readings, choir practice, Sunday school, weddings and funerals. Iglesia says that each of these activities is part of and included within the genus of a place of public worship.
2. Iglesia contends that the (existing) use of the premises as at 5 April 1979 is properly characterised as a use for the purpose of a place of public worship and that the current use is also "really and substantially" a use for that purpose. Iglesia says that Council's contended characterisation of the use as "a place of public worship by St Nicholas Church, being a church of the Anglican Church" or a "local parish church catering for residents from the immediate neighbourhood" restricted to certain hours is contrary to established principles.
3. Iglesia submits that Council seeks to determine the species and not the genus. Iglesia contends that Council's characterisation is much narrower than a "level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date": Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 ('Royal Agricultural Society') at 310. Further, Iglesia says that Council does not construe the use broadly or liberally and confines the user to precise activity.
4. Iglesia submits that Council's approach ignores three matters: first, the fact that similar to a development consent, existing use rights are independent from the identity of the user and "run with the land"; second, the Court's recognition that a use can naturally evolve over a period and changes in the method of operation of a particular category of use will not deny existing use rights; and, third, the possibility of the premises being used as a place of public worship for a different religion.
5. Iglesia submits, relying upon Norman v Gosford Shire Council (1975) 132 CLR 83; [1975] HCA 15 ('Norman') at 86, that the definition of "existing use" (in s 4.65 of the EPA Act) is independent from the magnitude of the use, that is, any variation in the magnitude of the use does not affect the existing use, nor does any variation in its impact. In particular, Iglesia contends that such variations do not affect the purpose of that use, noting that an increase or decrease in the number of patrons at a particular church by reason of the popularity of a particular Minister remains a use for the purpose of a place of public worship; an increase or decrease in the number of patrons at a restaurant by reason of a new chef or menu remains a use for the purpose of a restaurant or café; and an increase or decrease in the number of occupants or the frequency of actual occupation in a dwelling house remains a use for the purpose of a dwelling house.
6. While impact may have an effect on the characterisation of the genus of the purpose of the existing use, Iglesia submits that seeking to characterise the current use at such a level of particularity ignores the difference between genus and species.
7. Iglesia submits that Council's evidence regarding impact can be placed into the following categories: impact arising from hours of use of the premises; noise impacts emanating from the premises as a result of that use; and impact in the streets due to parking, driving and neighbour communication issues. Iglesia says that Kirby P's statements in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 ('Boyts') at 59-60 accommodate all the categories of impact here, noting that the existing use is without conditions limiting hours of use or number of patrons.
8. Iglesia contends that the impacts in the street are separate from the existing use and may be dealt with by other legislation. Despite this, Iglesia submits that the traffic generation is commensurate with the existing use enjoyed by the premises. Further, Iglesia notes that the parking survey carried out by Council from 16 to 22 December 2017 and referred to in a document styled 'Memorandum to the Mayor', did not raise any significant concerns and found that "parking associated with the Church can be considered to be reasonable".
9. In relation to noise, the Memorandum to the Mayor notes, inter alia, that (at p 44): Other than general blanket statements about noise, Council has not been able to obtain any evidence of measurable noise to date. No evidence has been provided by residents and no noise concerns have been observed by Officers while conducting night parking patrols.
10. Iglesia submits that inherent in a place of public worship is the fact that it is a destination where people go to congregate. Iglesia contends that any impacts that may arise from that use would vary from time to time depending on the current level of activity, just as in the case of a suburban oval (especially when hosting a "big game") or a residential house (at which a large birthday party might take place).

Consideration

1. Pursuant to s 4.65 of the EPA Act "existing use" arises in two circumstances - where the use of a building, work or land was permitted without consent before an environmental planning instrument prohibited that use (s 4.65(a)); and where the use of a building, work or land was only permitted with consent in circumstances where consent was granted before a provision in an environmental planning instrument prohibited that use and that has been carried out within one year after the date on which that provision commenced in accordance with the terms of the consent and to such an extent as to ensure that the consent would not lapse (s 4.65(b)). This case falls into the former category as there is no evidence of any permit, approval or consent before the Court to assist in determining the use of the premises.
2. While Iglesia referred to House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 ('House of Peace'), a case that considered whether the use of the land was development in accordance with a consent that had been granted and was in force (for a "church") pursuant to s 109B (now s 4.70) of the EPA Act, I am conscious of the fact that that case was not an existing use case: see House of Peace at [34]-[36]. In those circumstances, the Court did not need to consider whether there had been an increase in the use within the meaning of s 109(2) (now s 4.68(2)) of the EPA Act. Nevertheless, in considering the detailed evidence and submissions of the parties, I am mindful of Mason P's comments at [22], [51] in House of Peace and I am cognisant of the fact that issues of nuance arise in relation to characterising places of worship: [22] This dispute arises in a context, planning law. Several matters follow. Planning law "is concerned with the use of land - not with the identity of the user" (per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82). This means that it is no part of the Court's function to seek as such to ensure that the pattern of worship adopted by the Presbyterians in 1954 continues. Nor is it open to favour or disfavour any pattern of religious expression. Equality before the law requires judicial agnosticism in this area… … [51] There is also recognition in the American cases that "the concept of what constitutes a church has changed from a place of worship alone, used once or twice a week, to a church used during the entire week, nights as well as days, for various parochial and community functions" (Unitarian Universalist Church of Central Nassau v Shorten 314 NYS 2d 66, 71 (1970)). The same can be said of modern Australian church life. What is encompassed in the modern idea of "church" is not boundless, but it is broad and protean. It has been ever thus, as any study of the history of Christianity would reveal. Some branches of the Christian Church celebrate the sabbath on Saturday. Practices, liturgies and "church activities" have changed and developed. It is an invidious but necessary judicial task to draw lines, but this is a field where a liberal attitude should prevail, especially one that recognises that things change and develop.
3. As noted by Council, Iglesia must establish that prior to the BPSO coming into force on 6 April 1979, the premises were being used as a place of public worship which was lawful, and the use was continued and not abandoned prior to the introduction of the BLEP.
4. In characterising or describing whether there is an existing use, it is necessary to appropriately characterise or describe the purpose for which land was being used as at the date of commencement of the planning instrument which prohibited the use: Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 ('Wilson') at [175]. In this case, the relevant planning instrument is the BPSO which commenced on 6 April 1979. If an existing use is made out, the issue then becomes whether the use of the premises by Iglesia "is really and substantially a use for the designated purpose": O'Keefe at 535 and Wilson at [175].
5. As Basten JA observed in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 ('Hunter Industrial Rental Equipment') at [27]: … existing use rights may generally be taken to have been frozen at two dates, namely as to the nature of the use, when planning controls first prohibited such activities on the land, either absolutely or subject to consent; and, as to scope and intensity of the use, in February 1986 when the Planning Act was amended to require consent with respect to the extension or enlargement of such rights.
6. I am conscious of the fact that while the relevant date for characterisation of the use is 6 April 1979 and the relevant date from which to determine whether there has been enlargement, expansion or intensification of the use (which, as considered below, is an alternative argument made by Council) is 3 February 1986 (the date on which s 4.66(2) of the EPA Act was enacted), on the evidence, I am unable to discern any material difference in the use of the premises on each of these dates (Tcpt, 18 June 2019, p 6(37-41)). My consideration and findings that follow proceed on this basis.
7. The principles in relation to characterisation are well established. In O'Keefe at 534-535, Kitto J stated: … it is necessary to observe that the" existing use" by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. …
8. Further, in Boyts at 59-60, Kirby P stated: Earlier in his judgment [in Royal Agricultural Society], McHugh JA recorded the dilemma which courts face in giving effect to provisions such as s 106 and s 107 of the Act (at 309-310): "… Because 'existing use' provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an 'existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land." From these authorities the following matters of approach emerge: 1. Defining the "existing use" depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the "use" broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided. One might argue that these approaches to the identification of the "existing use" that is protected are too solicitous of private property rights. One might criticise them as being insufficiently attentive to social rights and the gradual development of the environment in a harmonious way to the benefit of the neighbourhood…Neighbourhoods change. I can well understand that the neighbours in the vicinity of this rather unpleasing building in what is primarily now a residential area might feel affronted by it. In turn, they apply pressure to their local government authority which then asserts that the use has changed or has been abandoned in order to bring the building within the currently applicable land use requirements…
9. As noted above, as at 5 April 1979 (being the date immediately before the date on which the BPSO came into effect), while it is agreed that the premises (and buildings) were lawfully used in a general sense as a place of public worship by St Nicholas Church, the parties disagree as to the manner and scope of the use.
10. At the hearing, although Mr White noted that from the documentary evidence, it appeared that there was limited use of the premises in the late 1990s, he confirmed that Council did not press abandonment (Tcpt, 18 June 2019, p 7(13-17)).
11. While Dr Berveling directed the Court to various historical documents relating to the use of the premises prior to 1979, including activities performed thereon in the 1940s and 1950s, those documents are not indicative of the purpose for which the premises were being used as at the relevant date.
12. I consider that much of the historical evidence relied upon by Iglesia is of little assistance in this regard. For example, although the exhibits to Mr Kirk's affidavit comprised detailed historical records reflecting the times of services and meetings at St Nicholas Anglican Church, for example, referring to Sunday services (Sunday school, junior church, morning prayer, family service (1st Sunday), Holy Communion (4th Sunday) and evening prayer (2nd Sunday Holy Communion)), Wednesday Bible study and prayer meetings, monthly prayer meetings, women's fellowship (4th Monday) and adventure club (alternate Fridays), the material does not indicate that these activities were being conducted in 1979. Conversely, as summarised above, the Court has the evidence of a number of the residents' observations of the manner in which the premises were being used as at 1979 and 1986.
13. In essence, Council proposes a characterisation of the use by St Nicholas Anglican Church that was limited to worship on Sundays (during the morning and evening) and Christian holy days for residents from the immediate neighbourhood, with the occasional wedding and funeral. Iglesia adopts a broader approach and contends for a characterisation of the premises as a place of public worship, rather than "a place of public worship by St Nicholas Church, being a church of the Anglican Church" or a "local parish church catering for residents from the immediate neighbourhood".
14. While there was some debate between the parties as to the weight that should be afforded to the impact of the use on the neighbourhood in characterising the use, to adopt the words of Kirby P in Boyts at 60, "…whatever sympathy I might have for the desire of the Council and of the residential neighbours and the environmental interest in [restraining the use of the premises]…, I am obliged to approach the matter not by some personal opinion of my own but by reference to the Act."
15. I consider that impact is a consideration in both the characterisation exercise (Boyts at 59-60), and, as considered later in these reasons, in assessing whether there has been an enlargement, expansion or intensification of the use, and, while I have given it some weight, it is not necessarily determinative.
16. While Mr White submitted that the premises cannot be characterised as a place of public worship as that characterisation is too broad (Tcpt, 19 June 2019, p 48(8-16)), I am cognisant of Kitto J's comments in O'Keefe at 535 that it is not the "precise manner of use" as at the relevant date that may continue but that "use generally for that purpose" may continue, and that a "meticulous examination of the details of…activities" is not required. Further, as McHugh JA recognised in Royal Agricultural Society at 309-310, as cited in Boyts at 59, the appropriate characterisation should only be described at "a level of generality which is necessary and sufficient to cover the individual activities…carried on at the relevant date", and although "the test is not so narrow that it requires characterisation of purpose in terms of…detailed activities…which have taken place", it is "not so general that the characterisation can embrace activities…which differ in kind from the use which the activities…as a class have made of the land".
17. In all the circumstances, given the unique facts of this case, and noting the remarks of Mason P in House of Peace (at [56] above), I cannot accept, as Council submits, that the characterisation should specify a particular Christian denomination (being an Anglican Church), or be constrained to local residents. This is particularly so in circumstances where planning law "is concerned with the use of land - not with the identity of the user": House of Peace at [22].
18. Accordingly, adopting a liberal approach, having regard to town planning considerations, and noting the comments of Kirby P in Boyts at 59 that characterisation in the context of existing use is often a matter upon which "minds may differ", I find that on the evidence before the Court, the appropriate designation of the purpose being served by the use of the premises at the material date to be a place of public worship. This characterisation best describes the purpose served by the activities in question: Boyts at 59 and Wilson at [177]. Subject to the consideration below regarding the scope and intensity, it is clear that Iglesia is conducting church services and ancillary activities at the premises. This use is "really and substantially" a use for the purpose of a place of public worship.
19. In response to Iglesia's reference to Norman, Mr White submitted, and I find, that that case predated the provisions which brought into the legislation the former ss 107(2)(c) and 109(2)(c) of the EPA Act (now ss 4.66(2)(c) and 4.68(2)(c)). As such, there was therefore no opportunity for the Court in Norman to consider whether the increase in the use amounted to intensification, expansion or enlargement within the statutory definition so as to require development consent (see Tcpt, 19 June 2019, p 48(38-44)). Although there is substance in the submission made by Iglesia noted at [49] above in relation to characterisation of the use, as considered further below, the EPA Act does not otherwise permit unlawful increase without consent. Further, while I accept Iglesia's analogy with certain uses that vary according to level of activity and/or popularity at [54], development consent will still be required for any enlargement, expansion or intensification thereof.

Whether the use has been enlarged, expanded or intensified

Council's submissions

1. Even if the present use of premises by Iglesia is properly characterised as being of the same genus of use as the historic use in April 1979, Council submits that the present use is an enlargement, expansion or intensification (within the meaning of s 4.66 of the EPA Act) of the use as at 3 February 1986 for which development consent is required.
2. Council notes that s 4.66(2)(c) of the EPA Act states that "any enlargement or expansion or intensification of an existing use" is unauthorised. In relation to enlargement, expansion or intensification within the meaning of s 4.66(2)(c), Council submits that the Court is required to examine the extent of the use of the land at the date that the relevant environmental planning instrument came into force prohibiting the use and the later use which is claimed to be enlarged, expanded or intensified: South Sydney City Council v Houlakis (1996) 92 LGERA 401 ('Houlakis') at 403.
3. Council submits that the use of the premises as a place of public worship was prohibited by the BPSO, which came into effect on 6 April 1979. Despite this, Council notes that s 4.66(2) of the EPA Act was enacted on 3 February 1986 and it does not operate retrospectively: King v Lewis (1995) 88 LGERA 183 ('King v Lewis'). Therefore, Council submits that the relevant date for the comparison with the present use is the date of commencement of s 4.66(2), being 3 February 1986.
4. In addition to referring to Houlakis, where the Court found that there had been an enlargement of the existing use by reason of an increase in the trading hours of a licensed premises, Council noted that in Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197 ('South Coast Concrete Crushing'), Lloyd J held that an increase in the level of extraction from a quarry was an intensification of existing use of extracting material, in King v Lewis there was held to be an intensification arising from an increased rate of extraction from quarrying activities, and in McIlveen v Baiada Pty Ltd [2003] NSWLEC 174; (2003) 131 LGERA 129, Lloyd J held that the killing and processing of poultry at a poultry premises operated without development consent must be limited to the number or quantity killed and processed as at 3 February 1986.
5. In Houlakis at 403, the relevant question was whether the extension of the hours of operation of a hotel effected an expansion, enlargement or intensification of the earlier use. The Court of Appeal unanimously held that such an extension constituted an enlargement of the earlier use. Council submitted that the finding in Houlakis was made in circumstances where there was no development consent in place and no conditions attached to the use, and that s 4.66 of the EPA Act does not confine existing use to use which had prior conditions or limitations attached to it. Similarly, Council submits that in the present case, the extension of the hours of operation of the Church has resulted in an enlargement of the use as it existed in February 1986.
6. Alternatively, Council submits that the increased patronage of the Church and the numbers of worshippers arriving by car from other areas, leading to increased car parking demand in Daisy Street, has resulted in an intensification of the use from February 1986.
7. Mr White submitted that the evidence of members of the Church staying overnight at the premises was another indicia of an intensification or an increase in the extent of the use of the premises when compared to the position in February 1986.
8. Mr White further submitted that there is no authority to support the proposition that in assessing the intensity or the extent of the use as at 3 February 1986, the Court can have regard to the potential as to how the premises may have been used in circumstances where there was capacity for up to 180 attendees. Mr White contended that that was a hypothetical concept, being potential for which land could be used, noting that existing use provisions focus on what was actually happening on the land at a particular date.
9. Mr White submitted that if the Court concludes that services are now being held in the Church hall, the Court would be justified in concluding, under s 4.66(2)(b) of the EPA Act, that there has been an increase in the area of the use made of the land which was different from the area of the use of the land as at the relevant date, being February 1986. In passing, I note that Dr Berveling took issue with this point, stating that only s 4.66(2)(c) was raised in Council's Points of Claim, not s 4.66(2)(b).
10. Council submits that the Court would find that the present use of the premises by Iglesia amounts to an enlargement or intensification of the existing use as at February 1986. Accordingly, Council contends that development consent is required and has not been obtained.

Iglesia's submissions

1. Iglesia submits that s 4.66(2) of the EPA Act affects only what one cannot do with an existing use, and not its definition. Iglesia notes that the present case concerns s 4.66(2)(c) of the EPA Act, and then the application of cl 42 of the EPA Regulation.
2. Iglesia contends that the authorities referred to in Council's submissions, including King v Lewis and South Coast Concrete Crushing, relate to the enlargement of the area of the use made of land (rather than enlargement, expansion or intensification of an existing use), and that care needs to be taken not to confuse the respective criteria in the different paragraphs of s 4.66(2). Iglesia refers to the comments of Santow AJA in Houlakis at 408: Paragraph (c) of s 109(2) [now s 4.68(2)] is directed rather at the use itself than a building extension or increase in the physical area of the relevant use. There is clearly the possibility of overlap between paras (a) and (b) on the one hand and para (c) on the other. That is reflected in the fact that para (c) is prefaced by the words "without affecting paragraph (a) or (b)"…
3. Iglesia submits that neither Houlakis nor the present proceedings relate to any alteration or extension to or rebuilding of a building or work, or to any increase in the area of the use made of a building, work or land from the area of that use immediately prior to the relevant date. Accordingly, Iglesia submits that ss 4.66(2)(a) and 4.66(2)(b) of the EPA Act do not apply and only s 4.66(2)(c) is relevant.
4. Iglesia submits that in the present case, there is no alteration or extension to or rebuilding of the buildings on the land; there is no increase in the area of the use made of those buildings or the land from the area of that use immediately prior to the relevant date; and the existing use of the land is not subject to any conditions limiting the number of patrons or hours of operation.
5. Given the absence of any conditions attaching to the existing use imposing limitations in relation to hours of operation and patronage, Iglesia contends that enlargement, expansion or intensification thereof does not apply. As such, Iglesia submits that s 4.66(2) of the EPA Act does not apply so as to require development consent for the current use of the premises.
6. Iglesia submits that the evidence shows that the existing use operated with a similar variety of hours and accommodation for a greater number of worshippers than the present operator, and that the baseline from which to determine whether there might have been an enlargement, expansion or intensification is the scope of the existing use as at 3 February 1986.
7. Iglesia submits that intensification does not alter the nature of the existing use (Norman) and that the scope of the use provides for the land and all buildings thereon to be used for the purpose of a place of public worship without constraint as to hours or patronage. Further, Iglesia contends that the seating of the Church in 1967 and 1971 is noted to be "approx. 180", together with "approx. 160" in the hall. Iglesia says that the number of patrons referred to in Council's evidence does not exceed that number and is usually well below 100.

Consideration

1. While the characterisation of the existing use, being a place of public worship, governs the purpose of activities permitted at the premises, s 4.66(2)(c) of the EPA Act regulates the scope of those activities so as to require consent for any enlargement, expansion or intensification thereof. Accordingly, the essential question is whether the operation of the Church and related activities by Iglesia as at the date of the summons falls within the notion of an increase as embodied in 4.66(2)(c) of the EPA Act. If it does, development consent is required.
2. Section 4.66(2)(c) of the EPA Act is, in my view, directed at the use itself rather than a building extension or an increase in the physical area of the relevant use. While courts have found that there is clearly the possibility of overlap between ss 4.66(2)(a) and 4.66(2)(b) on the one hand and s 4.66(2)(c) on the other (Houlakis at 408), if any limb is satisfied, consent is required.
3. I accept Iglesia's submission and find that the evidence does not establish an alteration or extension to or rebuilding of the buildings on the land. Although there is some evidence that may establish that there is an increase in the actual area of use made of the buildings, I do not consider this determinative and I note that Council did not raise concerns regarding any increase in area in its Points of Claim. As such, ss 4.66(2)(a) and 4.66(2)(b) of the EPA Act do not apply and my consideration and findings below are confined to s 4.66(2)(c).
4. In Hunter Industrial Rental Equipment at [22], Basten JA stated (footnotes omitted): In a number of cases dealing with the existing use provisions in force prior to 1986, the High Court held that where land could be regarded as a "unit" and where part of it was in use for a particular purpose, the whole of the land was treated as having been used for that purpose prior to the relevant planning instrument coming into effect. The physical use of the land could therefore be expanded or intensified without the need for planning consent. That situation was changed with the commencement, on 3 February 1986, of amendments to provisions in the Planning Act. Those provisions amended ss 107 and 109 to require consent for alterations or extensions of works which otherwise constituted existing uses…the level of activity permitted without consent therefore crystallised on 3 February 1986.
5. I accept Council's submission that s 4.66(2) of the EPA Act, which was enacted on 3 February 1986, does not operate retrospectively: King v Lewis at 197. Accordingly, the relevant date for comparison with the use as at the date of the summons is 3 February 1986. Despite this, as noted above, the evidence does not indicate that there was any material difference between the nature, extent and manner of use as at 3 February 1986 and 6 April 1979.
6. Council's submissions in relation to enlargement, expansion and intensification of the use relied upon the decision and reasoning in Houlakis, a case that concerned whether the increase in trading hours of a hotel, in circumstances where no development consent existed for the extended hours of operation, amounted to an enlargement or expansion or intensification of use within the meaning of s 109(2)(c) (now s 4.68(2)(c)) of the EPA Act. The Court of Appeal held that it did.
7. Impact was specifically considered in Houlakis in the context of determining whether there had been an enlargement, expansion or intensification of the use. Clarke JA (accepting a submission) stated at 404 "...there can be no doubt that the impact of the use of the premises as a licensed hotel spread over 24 hours will have different consequences in town planning terms to the amenity of the neighbourhood than those activities within the earlier permitted hours". As I recorded at [69], while I consider that impact is a consideration, it is not determinative in the present circumstances.
8. In Steedman v Baulkham Hills Shire Council (1991) 72 LGRA 265 at 266-267 ('Steedman'), Stein J noted the difference between ss 107 (now s 4.66) and 109 (now s 4.68) of the EPA Act as follows: The two sections (107 and 109) therefore deal with different situations. Section 107 protects an existing use for a lawful purpose which becomes prohibited by an environmental planning instrument. It allows the use to continue subject to s 107(2). On the other hand s 109(1) deals with uses which operated without the requirement of consent or had a consent and an environmental planning instrument was enacted which required consent to be obtained…
9. In passing, I note that the Court of Appeal dismissed an appeal from this decision: see Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562.
10. While Houlakis concerned the application of s 109(2) of the EPA Act, at 406, Beazley JA relevantly noted that ss 109(2) and 107(2) were inserted into the EPA Act in 1986, before citing Priestley JA's comments in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 ('Vaughan-Taylor') at 587 (to explain the effect of the insertion thereof) as follows: The effect of s 109, as it was interpreted in light of the High Court decisions, was radically changed by the addition to it, operative from 3 February 1986, of subs (2). That subsection requires that "use" be understood in a much narrower sense than before; its effect was, in my opinion, to limit the continued use previously permitted by … s 109 without consent, to the actual use of the land on the day when the planning laws otherwise would have affected it, that actual use being confined to the land actually (as opposed to potentially) physically being used, and the extent of the use of that land likewise being limited to its extent on that day.
11. Beazley JA went on to state (Houlakis at 406): Section 109(2) to the extent it qualifies the scope of existing use rights (or perhaps more accurately "privileges": see Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374) restores to local councils, planning control over the continued use of a building, work or land affected by a planning instrument. To that extent, the earlier authorities on the meaning of "existing use of land": viz Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; 26 LGRA437; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 and Norman v Gosford Shire Council (1975) 132 CLR, 83; 31 LGRA 368; are of limited, if any, assistance: see Clarke JA in Ku-ring-gai Municipal Council v Mobil Oil Australia Ltd Supreme Court of New South Wales, Court of Appeal, Kirby P, Mahoney, Clarke JJA, No 40520 of 1990, 3 June 1992, unreported).
12. At 403, Clarke JA observed that: …the effect of the alterations to the Act of which s 109 formed part was that existing use rights were to be more narrowly interpreted while enlargements of, and other alterations to, existing uses were facilitated with the consent of the relevant local government authority…
13. I consider the reasoning above is apposite and I approach the application of s 4.66 (formerly s 107) of the EPA Act in a similar manner.
14. In light of Beazley and Clarke JJA's comments above, I consider that Iglesia's reliance on Norman does not assist as that case predated the provisions that were inserted to require consent for enlargement, expansion or intensification of an existing use. That is, as submitted by Mr White, in Norman, there was no opportunity for the High Court to consider whether the increase in the use amounted to an enlargement, expansion or intensification within the statutory definition so as to require development consent. Further, Iglesia's submission that the seating capacity of the Church in 1967 and 1971 was "approx. 180", together with "approx. 160" in the hall is irrelevant as, consistent with Council's submission, the Court is concerned not with the potential or permitted use but the actual physical use as at the relevant date, being 3 February 1986: Houlakis at 407 and Vaughan-Taylor at 587.
15. Council's primary submission on the increase issue was that there had been an enlargement of the use as it existed in February 1986 by virtue of the extension of the hours of operation (whether that be for services or ancillary activities) of the Church. My mind has fluctuated on this question and while I am conscious of the fact that this matter relates to a place of public worship, a vastly different use to that of a hotel, as was considered in Houlakis, or a quarry, as was considered in King v Lewis, the Court is obliged to consider existing use according to the terms in s 4.66(2) of the EPA Act.
16. I accept Council's submission that, like Houlakis, the extension of the hours of operation of the Church has resulted in an enlargement of the use as it existed in February 1986. However, I do not consider the concerns regarding members of the Church staying at the premises overnight to be persuasive as the evidence demonstrates that such activity is limited and is in response to security concerns. As such, I do not accept Iglesia's submission that in the absence of any conditions limiting hours of operation and patronage, there is no enlargement, expansion or intensification of the use within the meaning of s 4.66(2) of the EPA Act so as to require development consent for the current use of the premises.
17. The evidence of the residents, in particular the long-term residents, provides an understanding of the activities undertaken at the premises as at February 1986. As I have noted earlier, this evidence was unchallenged and, as such, it is clear that the use as at February 1986 constituted a much more modest use of the premises in relation to the number of services being conducted. Simply stated, I find that there has been an enlargement of the use brought about by the increase in the services as at the date of the summons (and presently conducted) compared with the position in February 1986.
18. That said, I do not consider the increase in attendees and the consequences thereof (for example in relation to increased demand for car parking and the like) are determinative in circumstances where I have found consent is required for the enlargement on the basis of increased frequency of services. In this regard, I am also conscious of the cautionary comments in Houlakis regarding the "use of numbers", and, in the context of a place of public worship, it would be inappropriate to limit wedding and/or funeral attendees in the manner sought in Council's summons.
19. Given my finding, the conduct of Iglesia as at the date of the summons (and presently) amounts to an enlargement of that which was undertaken as at February 1986 so as to require development consent. While the terms "enlargement", "expansion" and "intensification" in s 4.66(2)(c) of the EPA Act may have "similar or differing nuances" (Houlakis at 407), analogous to the findings of Beazley JA and Santow AJA in Houlakis, I find that an extension of the hours of operation and frequency of services at the premises amounts to an enlargement of the use.
20. It follows that I do not consider that the evidence shows that the existing use operated with a similar variety of hours and accommodation for a greater number of worshippers than Iglesia. While Dr Berveling relied upon a document entitled "Schedule of activities referred to in Exhibits BAK-B and BAK-C" to the affidavit of Mr Kirk (Exhibit 7), as well as the detailed historical material gathered by Mr Kirk as recorded at [27]-[29] above, the activities referred to therein were either undated or materially predated the relevant dates (being 6 April 1979 and 3 February 1986 respectively). Further, the mere fact that there was no development consent imposing limitations on the use does not deny the possibility of an enlargement, expansion or intensification of the use, as was the case in Houlakis and King v Lewis.
21. Finally, although I accept Council's submission that there is public interest in the enforcement of the law and the reliable and predictable public administration of the law, I do not find Council's references to Tegra for the proposition that the breach is ongoing and that there is obvious ongoing irreparable harm to the environment (referred to in Tegra at [15] as "irreparable injury") caused by the use of the premises, to be persuasive. As noted by Iglesia, Tegra related to an application for an interlocutory injunction where irreparable injury was considered in determining whether the balance of convenience favoured granting an injunction. I do not find the impacts of noise, parking, traffic and human behaviour as raised by Council to be "irreparable" within the meaning of the term as contemplated by Preston CJ of LEC in Tegra.

Submissions

1. Mr White submitted that the evidence of conduct after these proceedings were commenced goes towards the question of relief, and noted that there is no evidence indicating why relief would not be granted given that the harm is ongoing and that it is still causing an impact to the amenity of local residents.
2. Mr White also submitted that it would not be inappropriate to include the potential for there to be a wedding or funeral held on occasion to reflect the evidence, but accepted that the Court would have difficulty with such an order.
3. Iglesia submits that the declarations sought in prayers 1, 2 and 3 of the summons should not be made as: first, the declaration sought in prayer 1 is nothing but a statement of fact dealing with the current zoning of the land; second, the declaration sought in prayer 2 is contrary to the facts and seeks a declaration of breach, the making of which could have significant consequences in the event that a prosecution is contemplated in future; and the declaration sought in prayer 3 is of little assistance, being silent about the other 166 hours of a normal week. Iglesia contends that the orders sought in prayers 4 and 5 are contrary to the facts characterising the existing use carried out at the premises.
4. Iglesia further submits that in the event that the Court concludes that the existing use is constrained in terms of hours or patronage and that a restraining order is appropriate, it would be appropriate in the circumstances to grant Iglesia time (Iglesia suggests at least 9 months) to continue to seek development consent for enlargement, expansion or intensification of the use (as is sought in the Class 1 appeal proceedings presently before the Court).

Consideration

1. The discretion under s 9.46 of the EPA Act is wide and extends to both the granting and withholding of relief: Sedevcic at 335-341. The Court must weigh up the relevant factors including the possible injury to the public interest by the denial of relief; the likely hardship caused by the granting of the relief; whether the breach is merely technical; and the impact of the breach on the environment.
2. As canvassed with the parties at the hearing, I accept that Iglesia provides services to a large number of attendees, and note that there is no discrete evidence as to the consequences of the relief sought (other than that a number of attendees may be deprived of the services).
3. I am aware that the conduct of Iglesia (which I have found to constitute an enlargement of an existing use) has caused concern amongst local residents. Having considered the evidence in relation to those concerns, I do not consider those concerns, whether described as impact or otherwise, to be determinative in exercising my discretion.
4. Further, to the extent that the exercise of the Court's discretion must reflect the circumstances of the case before it, I am aware that Iglesia has taken steps (by bringing a development application and a subsequent Class 1 appeal to this Court) to seek development consent for the (continued) use of the premises, which I have found to be an enlargement of the existing use as at 1986.
5. In light of my findings, I accept Iglesia's submission that the specific declaratory and consequential injunctive relief currently sought in the summons is not appropriate. In the circumstances, and on the evidence before me, I am of the view that Council is entitled to relief in the form of a declaration that the present conduct of Iglesia is an enlargement based upon my findings above, and it follows that Council is entitled to consequential injunctive relief.
6. I have chosen to confine the use to one day per week based on the evidence that as at 1986, the premises were used one day per week (on Sundays) in the mornings and evenings, in addition to further use for religious days of significance (including Christmas and Easter) and weddings and funerals. I do not consider that that one day should necessarily be confined to Sundays as other religious organisations may worship on a different day (see [71] above).
7. I consider that the granting of relief should be suspended to allow Iglesia some time to seek development consent for enlargement of the use (as sought in the Class 1 appeal proceedings presently before the Court). I understand that Council does not oppose this approach. Given my understanding that the Court is presently considering the Class 1 appeal, I consider it appropriate to defer the making of final orders for three months from today.
8. Although Council has been successful in obtaining relief, and while the usual order is that costs follow the event, as I have not heard argument in relation to costs, I shall reserve any order for costs.

Orders

1. I make the following orders: 1. Declare that the premises, being Lots 25 and 26 in DP 9297 and known as 10 Daisy Street, Croydon Park NSW 2133 ('premises') may be used as a place of public worship (including for the provision of religious instruction and religious training): 1. one day a week; and 2. for occasional religious days of significance; and 3. for funerals and weddings. 1. Iglesia Ni Cristo ('Iglesia') is restrained from using the premises as a place of public worship (including for the provision of religious instruction and religious training) beyond the scope of Order (1) until such time as Iglesia has obtained development consent for the enlargement of the use. 2. Orders (1) and (2) are suspended for three months from 7 November 2019. 3. Costs reserved.

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: 08 November 2019