Burwood Council v Iglesia Ni Cristo

Background

1. The following facts are uncontroversial and provide context for the application for vacation: 1. The Church has been the owner of the land at the Premises since 25 June 2011 and the buildings on the Premises are used for the purpose of a place of public worship by the Church. 2. The present improvements on the land comprise a church building, for which a foundation stone was laid in or about December 1935, and a small attached wing which was constructed in 1952. Although not relevant to my present consideration, there appears to have been an earlier church or school building on the Premises from the 1920s. 3. The Premises are presently zoned R2 Low Density Residential under the LEP which came into effect on 9 November 2012 and the use of the Premises (and buildings) as a place of public worship is prohibited in that zone. 4. The Premises were earlier zoned R2(a) Residential under the Burwood Planning Scheme Ordinance 1979 ('BPSO') which came into effect on 6 April 1979. Under the BPSO, buildings or works on the Premises could not be erected, carried out or used for the purpose of a place of public worship by reason of the Premises' then R2(a) zoning. 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 effect), the Premises and buildings erected thereon were used as a place of public worship by St Nicholas Church, being a church of the Anglican Church. 6. In or about 1998, the Premises and buildings erected thereon were used as a place of public worship on Sundays and Christian Holy days and were operated by a group initially calling itself "the Children of God" and later calling itself "the Brethren". 7. Since 2011 or 2012, the Premises and the buildings erected thereon have been used by the Church as a place of public worship for the "Church of Christ". 8. The hearing in these Class 4 proceedings was set down (for 18 to 21 June 2019) on 14 December 2018. 9. On 20 March 2019, the Church lodged development application DA10.2019.28.1 ('DA') with Council, seeking consent for "the continued use and operation of an existing church". 10. On 3 May 2019, the Church filed a Class 1 appeal in relation to Council's deemed refusal of the DA. The DA was supported by: 1. a traffic and parking assessment report prepared by Varga Traffic Planning Pty Ltd dated 11 March 2019 (Exhibit C); 2. an acoustic report prepared by Wilkinson Murray Pty Ltd dated 18 March 2019 (Exhibit D); and 3. a statement of environmental effects prepared by Planning Urban Earth Pty Ltd dated 11 March 2019 (Exhibit F). 1. The Class 1 appeal will not proceed to hearing before late December 2019 or early 2020.

Notice of motion

1. In support of its notice of motion, the Church, represented by Dr Berveling of counsel, relies upon two affidavits of Paul Nicholas Vergotis sworn 3 May 2019 and 23 May 2019, a statement of agreed facts (Exhibit A), an undertaking proffered by the Church dated 23 May 2019 (Exhibit B), and the three expert reports which I referred to earlier. The Church also relies upon a notice issued by St Nicholas Anglican Church in December 1982 recording various church-related activities and times thereof.
2. Council, represented by Mr White of counsel, relies upon an affidavit of Michael Borosdevi sworn 7 May 2019, two affidavits of Paul Charbel Boutros sworn 21 May 2019 and 27 May 2019, an affidavit of Steven Elias Shneider sworn 22 May 2019, and an affidavit of Brian Olsen sworn 27 May 2019. Council also relies upon a copy of diary entries and a summary thereof prepared by Michael Borosdevi (Exhibit 1) and the DA form filed by the Church with Council dated 22 February 2019, which seeks consent for use of the Premises "...as a place of public worship/church" (Exhibit 2).
3. The affidavits of Mr Vergotis, the Church's solicitor, contain material upon which the Church intends to rely in the Class 1 proceedings, including details of the expert evidence to be relied upon. Mr Vergotis also provides a tabular formulation of "responses" to the discrete amenity concerns raised in Council's points of claim in these proceedings, making reference to the expert reports marshalled in the Class 1 proceedings. For example, in relation to the concerns regarding noise and further impacts, Mr Vergotis refers to the acoustic and traffic evidence marshalled to support the DA. He also annexes a plan of management dated 11 March 2019, which is a document that seeks to control the "operational impacts" associated with the ongoing use of the Church.
4. The evidence relied upon by Council in opposing the application for the vacation of the substantive hearing dates generally relates to the background facts and conduct of both these proceedings and the Class 1 appeal proceedings provided by Mr Shneider, Council's solicitor, and affidavits of local residents providing the particular deponents' observations and concerns in relation to the present use of the Premises. The affidavits of local residents contain detailed photographic material to support their specific concerns regarding noise, litter, traffic movement, and parking congestion.
5. Both Dr Berveling and Mr White have provided oral and written submissions.
6. Dr Berveling submits that the resolution of the Class 1 appeal proceedings would provide a better avenue for resolution of the matters of concern to Council. Specifically, he submits that the Class 1 appeal would deal conclusively with the main issues of concern to Council in relation to both the legitimacy of the activities on the Premises and the impact thereof on the locality, and would likely provide the development consent otherwise sought to be directed in orders (4) and (5) of the summons in the Class 4 proceedings. Further, if development consent was not granted in the Class 1 proceedings, it would raise "serious questions" for the Church as to whether to continue to defend the Class 4 proceedings.
7. Dr Berveling submits that the issue of impact on the locality would be the primary matter for consideration of the DA process in the Class 1 appeal. However, if the Class 4 proceedings remain on foot, Dr Berveling submits that there would be substantial argument (about which the parties disagree) relating to the magnitude of the use as at 5 April 1979, the relevant date. In particular, there would be significant argument as to whether there has been or is to be an enlargement, expansion or intensification of the use. He submits that this issue is "bypassed" in the DA process in the Class 1 appeal which concentrates on the current and future use. Dr Berveling also notes that in the present proceedings, Council has sought neither expedition nor interlocutory relief, which I take to mean that Council is not as concerned as it may otherwise have been.
8. Dr Berveling also relies significantly upon the undertaking of the Church that has been proffered to the Court, and submits that the Church is prepared to limit certain of its activities pending the determination of the Class 1 proceedings. He submits that the undertaking takes into consideration the expert evidence to be relied upon in the Class 1 proceedings and limits the use of the Premises to ensure compliance with the suggested acoustic criteria.
9. In summary, without doing a disservice to his detailed submissions, Dr Berveling submits that the adjournment of the Class 4 proceedings avoids unnecessary argument about the "scope" of the activity at the relevant date, provides resolution of the DA ultimately sought pursuant to orders (4) and (5) of the summons in the Class 4 proceedings without the need for a Class 4 hearing, and satisfies the guiding principles set out in Div 1 of Pt 6 of the Civil Procedure Act 2005 (NSW) in that it would be just, quick and cheap because the Class 1 appeal would dispose efficiently of the real issues between the parties and would be an appropriate and efficient use of available judicial resources. He also notes that the Church would be prepared to seek expedition of the Class 1 proceedings.
10. Mr White's primary submission is that, given the evidence before the Court and the issues in the proceedings, it is clear that the hearing of the Class 1 proceedings will itself need to resolve what he calls the scope of the existing use. In contradistinction to the matters put on behalf of the Church, he submits that because the development is prohibited by the LEP, the Court is required to determine and make an assessment of the existing use and the scope thereof and that only when the nature and extent of the existing use rights are determined, will a development consent be required for (any) enlargement.
11. Mr White's second submission is that there will be a duplication in relation to the Class 1 and Class 4 proceedings as both require determination of the extent of the existing use.
12. Mr White further submits that Council's evidence in relation to the significant present effect upon the residential amenity is such that a relatively expeditious determination will be provided for in the hearing which takes place in three weeks' time and that this provides an appropriate balancing of each party's concerns. Mr White refers to the uncontested evidence of the complaints made to Council by local residents.
13. A further matter raised by Mr White is delay. He submits that the Class 1 hearing will not be heard before 2020. In these circumstances, Mr White also submits that the undertaking proffered by the Church is unclear and that its terms are inadequate and would not control the amenity impacts.
14. Apart from those matters, Mr White submits that there would be real prejudice to Council if the hearing dates were vacated because Council has already commenced preparing evidence in relation to the upcoming hearing and indicates that there has been no evidence, or indeed submissions proffered by the Church to explain the delay in the progression of the Class 1 proceedings.

Consideration

1. In Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 ('Kenoss') at [13], Ward JA summarised the appropriate approach to be adopted by Courts to adjourn or vacate hearings as follows: The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.
2. I respectfully adopt her Honour's approach.
3. The parties referred me to, and I have read various other authorities in relation to the vacation or adjournment of hearings, including Sahade v The Owners - Strata Plan No 62022 [2006] NSWLEC 770 ('Sahade') at [6], Shellharbour City Council v Altz Pty Ltd [2014] NSWLEC 57 ('Shellharbour') at [25]-[34] and Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd [2016] NSWLEC 164; (2016) 220 LGERA 43 ('Dungog') at [97]-[109].
4. Without re-stating the principles in the authorities or the factual circumstances therein, I consider the present factual situation to be more akin to Kenoss and Dungog than Sahade and/or Shellharbour.
5. I consider that the matter is delicately balanced. Council has proper concerns given its statutory duties and in circumstances where there are significant and ongoing resident concerns. Similarly, the primary activities of the Church involve facilitating and attending to the needs of both its own congregation and, I assume, the wider community. There is no suggestion that the core activities of the Church are not properly conducted. It is the consequences of the manner in which those activities are undertaken, particularly the externalities of that conduct, which causes concern.
6. Despite this, I am of the view that the planning system must be adhered to and the individual motivation of the Church in particular is not a matter which is relevant to my present consideration. There is no doubt that the church-related activities have been undertaken on the Premises for a significant period of time. On any view, what needs to be determined is the nature and extent of the admitted existing use.
7. While I accept the Church's submission that a hearing of the Class 1 proceedings may provide for an optimum "environmental outcome", for the reasons I shall shortly state, I do not consider that the good intentions of the Church and its desire to regularise its conduct in relation to its effect upon the local residents defeat Council's entitlement to have the hearing of these Class 4 proceedings proceed as per the allocated dates.
8. I do not express any view as to the strength of Council's case, noting that one outcome in these Class 4 proceedings may favour the Church and may render the development consent sought in the Class 1 proceedings otiose.
9. Contrary to Dr Berveling's careful submissions, I find that the Court will need to consider the application of ss 4.65, 4.66, 4.67 and 4.68 of the Environmental Planning and Assessment Act 1979 (NSW) and indeed reg 42 of the Environmental Planning and Assessment Regulation 2000 (NSW). These provisions raise matters of legal and factual nicety (see Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 at [18], [71]) such as were considered by the Courts in Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 at [69], and earlier in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 50-60; and Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 at 310-311. The application of these provisions, in my view, is better suited to the more rigorous procedures in Class 4 proceedings.
10. Apart from the above, there remains an ongoing concern regarding the amenity impacts caused by the Church. The evidence of the local residents is uncontested and there is no suggestion that their experiences and complaints have been exaggerated. Given this evidence, the matter deserves a relatively quick determination.
11. The next matter, albeit of lesser concern, is that there has been an unexplained delay in relation to the Church's conduct in lodging the DA in an attempt to regularise its conduct. These Class 4 proceedings were filed in April last year, were set down for hearing from 18 to 21 June 2019 over five months ago, and the Church's DA was lodged on 20 March this year. As the Class 1 hearing will not, in my view, proceed until early next year, the Class 4 hearing dates should not be vacated.
12. In relation to the undertaking proffered by the Church, which I accept is a bona fide attempt to address the present amenity concerns, and accepting the submission of Dr Berveling that the Church is desirous of an amicable relationship with its neighbours, I do not consider that it adequately addresses the residents' concerns, primarily for the reasons raised by Mr White.
13. The hearing of the matter is in approximately four weeks. I can assume that the judgment will be handed down relatively quickly and each party will then know precisely what its position is. Should Council enjoy success, then there will be clarification in relation to the nature and extent of the existing use and there may still be utility in the conduct of the Class 1 proceedings, or indeed a new DA. As I see the material before me at the moment, Council is not seeking to completely stop the Church's activities on the Premises. It accepts that there are existing use rights and primarily accepts that these rights must be contained.
14. As I have indicated earlier, I express no view in relation to prospects of success in the substantive proceedings. I have some concerns in relation to the precise nature of the relief sought by Council. However, the relief in matters such as this (being primarily equitable) if Council enjoys success, would be subject to the Court's consideration and modification (if that is required).
15. In the circumstances, for the reasons I have given, I dismiss the motion and I reserve costs.

Orders

1. The orders of the Court are: 1. The Notice of Motion filed 3 May 2019 is dismissed. 2. Costs are 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: 07 June 2019