Hassib v Cumberland Council - [2021] NSWLEC 1012 - NSWLEC 2020 case summary — Zoe

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Hassib v Cumberland Council

[2021] NSWLEC 1012

Land and Environment Court (NSW)|2020-11-02|Before: McLelland J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-11-02

Before

McLelland J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Judgment

COMMISSIONER: In Granville, there is an industrial zone located between the river corridor of Duck River to the east, and Factory Street to the west. At a vacant site within the industrial zone, known as 2C Factory Street, Mr Hassib seeks development consent for the construction of a place of public worship. He lodged a development application with Cumberland Council ("the Council") on 14 November 2018. Following the expiry of the period after which a development application is deemed to be refused, Mr Hassib lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act").
The proposed place of public worship will accommodate prayer rooms for both males and females, and proposes to accommodate up to 300 people on the site. The premises are proposed to operate prayer and religious services, religious events associated with the Islamic faith and the local community, youth services and youth and general counselling. The proposal includes car parking for 218 cars across three levels. The upper level comprises the prayer halls, office area, amenities and other useable floor space, as well as 38 car spaces to the rear of the site. The lower two levels comprise car parking. Each level of the carpark is above ground level, except for the front portion of the lower level, which is partially below ground level. A driveway at the front of the site provides access to and from the carpark. The proposed development is accompanied by a Plan of Management that sets out the activities and services to be conducted on the premises and how the parking will be managed.
The hours of operation that are proposed are 8am to 10pm, 7 days a week. The timetable for prayer and religious services at the place of public worship is proposed as follows: Daily Service (Monday - Friday) (30min length) • No Fajr Service will be offered in this proposed Place of Worship. Anticipated maximum 50 people • Combined Zuhr & Asr: 12:00pm - 12:30pm • Combined Magrib and Isha: 4:45pm-6:45pm (includes Saturday and Sunday) Weekly Special Service - (Occurs every Friday mid-day in lieu of daily service) Maximum 300 people Saturday Service Anticipated maximum 150 people 3:30pm-7:30pm By appointment/bookings (Other than the combined Magrib and Isha prayers) Sunday Service Anticipated maximum 150 people 3:30pm-7:30pm By appointment/bookings (Other than the combined Magrib and Isha prayers) Ramadan (14 days during the month of Ramadan) 1-1.5 hours after sunset - finishes by 10:00pm Maximum 300 people (The first 10 nights of the month) Muharram (14 days during the month of Muharram) Maximum 300 people 6:00pm - 10pm Eid (Twice per year) Maximum 300 people 8:00am-10:00am Youth and Counselling By appointment/booking

[4]

The Planning Controls

The site is zoned IN1 General Industrial pursuant to the Parramatta Local Environmental Plan 2011 ("PLEP 2011"). Factory Street and the western side of Factory Street is zoned R2 Low Density Residential. The public reserve known as New Glasgow Park is zoned RE1 Public Recreation, and the Duck River corridor is zoned W1 Natural Waterways. An extract of the zoning map is at Figure 2.
A place of public worship is a nominated permissible use in the IN1 zone. The objectives of the zone, to which regard must be had in considering a development application, are as follows: • 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.
Pursuant to cl 4.3 of the PLEP 2011, the applicable maximum building height development standard is 12m. Pursuant to cl 4.4, the applicable maximum floor space ratio ("FSR") development standard is 1:1. The proposed development is agreed by the parties to comply with both the height and FSR development standards.
In accordance with cl 6.1 of the PLEP 2011, the rear portion of the site is mapped as class 4 land on the Acid Sulfate Soils map, with the majority of the site mapped as class 5. Nevertheless, consent is not required under cl 6.1(2) as the excavation within the class 4 land does not exceed 2m, and the works within the class 5 land are not below 5m AHD.
The draft Cumberland Local Environmental Plan, which will apply to the site once commenced, was exhibited from 1 April 2020 to 8 May 2020. The site is proposed to remain within an IN1 General Industrial zone, and places of public worship remain permissible with consent in the IN1 zone. Further, the proposed maximum building height and FSR development standards applicable to the site remain unchanged by the draft instrument.
The proposal has a capital investment value of more than $5 million, and is therefore a regionally significant development pursuant to cl 20 and Sch 7 cl 5(b) of the State Environmental Planning Policy (State and Regional Development) 2011.
The Parramatta Development Control Plan 2011 ("PDCP 2011") applies to the proposed development. Part 3.6.2 concerns parking and vehicular access, and provides a design principle at P3 that requires: "P3 Parking and service/delivery areas and vehicular access points are to be located to minimise conflict between pedestrians and vehicles and to minimise impact on residential amenity."
Further, Part 5.3 contains specific controls with respect to places of public worship and educational establishments. Section 5.3.3.1 concerns locational requirements, and has the following objective and design principle: "Objective O.1 To prevent unacceptable impacts on the amenity of residential areas by encouraging the location of larger places of public worship within non-residential zones. Design Principle P.1 Larger places of public worship (ie. with a seating capacity of greater than 250) are to be located within lands zoned for business or industrial purposes."
Section 5.3.3.3 concerns acoustic privacy, with two design principles that require that the projection of noise from the various activities to be minimised, and the preparation of a noise impact assessment to be submitted with all applications "which adjoin residential zones". The design principles have the following objective: "O.1 To minimise noise levels from places of public worship and educational establishments that may impact upon neighbouring or nearby properties."
In Section 5.3.3.2 there are a number of design principles concerning bulk and scale. One of those principles is at P5, which does not apply to the proposed development, and requires that "Development for the purpose of a place of public worship within a residential zone is to have a maximum seating capacity of 250".
Section 5.3.3.5 of the PDCP 2011 sets out the requirement for a traffic impact statement, and has the following objectives: "O.1 To ensure that pedestrian safety is maintained and protected. O.2 To ensure that the surrounding street network and intersections continue to operate effectively and within design parameters. O.3 To minimise the impact of parking on the local streets. O.4 To minimise impact upon the amenity of the neighbourhood."
One of the requirements of the traffic impact statement, in P1(d), is for it to "adequately consider future parking needs that may result from anticipated growth in the congregation of places of public worship."
Section 5.3.3.6 then sets out the objective and design principle for the operational plan of management. In particular, Table 5.3.3.6.1 requires that the operational plan of management sets out, inter alia: "Anticipated growth of the congregation and how these long term projections will be factored into the development and managed in the future."

[8]

Headlight glare

The Council contends that the headlight glare from cars exiting the driveway after dusk will cause undue disturbance to the amenity of residents of 21 Sixth Street. The Council says that this disturbance arises as there is no boundary fence protecting the windows of 21 Sixth Street that face Factory Street from the light from headlight glare. The Council relies on AS/NZS4282:2019, which specifies requirements for the control of the obtrusive effects of outdoor lighting, and provides light technical parameters to control those obtrusive effects. The Council submits that, based on the evidence of Mr McLean, the calculations of the lux levels from the headlights exceeds those light technical parameters.
I do not accept that the headlight glare causes an unacceptable impact on the amenity of the residents of 21 Sixth Street. The evidence of Ms Sneyd, in support of the Council's position, does not establish any such unacceptable impact. Her evidence is instead that any headlight glare has the potential to impact on residential amenity, "regardless of the light being regulated or exempted". She opines that the number of cars exiting the driveway at night is more than what would be anticipated in an industrial development. However, Ms Sneyd has not given any controls, measures or standards by which the headlight glare can be assessed as being acceptable or unacceptable. Nor does she bring any expertise in the area of lighting upon which an opinion of unacceptability can be properly founded. Contrary to her opinion, I accept the evidence of Mr McLean that vehicle headlights are a safety requirement and can be reasonably anticipated in an urban environment. For the following reasons, I conclude that the impact caused by the headlights of the vehicles leaving the proposed place of public worship is not unacceptable. I need not consider the acceptability of the specific lux levels to reach this conclusion.
Firstly, the time that the cars will be leaving the driveway is outside the curfew period under AS/NZS4282:2019 of 11pm to 6am. Although AS/NZS4282 is acknowledged by Mr McLean not to be an appropriate measure to determine the acceptability of temporary or transitory lighting such as that by headlights, it sets recommendations as to the amount of obtrusive light that a person can be reasonably expected to accept as a consequence of living in an urban environment. Mr McLean points out that the limits in the standard are based on permanent installations operating throughout the night, and sets lower limits that apply during the curfew period. In circumstances where vehicle headlights can reasonably be anticipated in an urban environment, I accept that it is appropriate that any lighting from the headlights occurs outside the curfew period.
Secondly, I accept the evidence of Mr McLean that the placement of the driveway opposite the back of the veranda of 21 Sixth Street will mean that the lighting from the headlights "will predominantly miss the house and only the peripheral light will impact the windows". I accept his evidence that the centre of the beam is therefore behind the building and the enclosed veranda and fence "act as a buffer zone to the main windows of the residence". This is shown in Figure 3 below, reproduced from his evidence in the joint report.
Thirdly, I accept the evidence of Mr McLean that the light from the headlights, if it passes through a window, is only transient in nature, can only be perceived within the room when the lights are off, and will only be perceived by passing across the ceiling (if there are no window coverings). His evidence is that this is because light is perceived only when it falls upon a surface, and the source of light from headlights is shining from below the height of the window. This light is only transitory in nature, and will occur only when there is a car on a section of the driveway ramp that is set back on the site, which is for a period of around 2 seconds (although the centre of the beam will be behind the veranda, as set out above in [33]). Once the cars reach the horizontal, then the light from the headlights will not reach the height of the window sill. This is because car headlight performance is controlled by the Vehicle Standard (Australian Design Rule 46/00 - Headlamps) 2006 (Cth), which requires a sharp cut-off below the horizontal when the vehicle is on flat ground. The main intensity of the headlight beam is below that cut-off, which will not reach the windows of 21 Sixth Street when the car is at the horizontal.
Fourthly, I accept Mr McLean's evidence that any light emitted from the headlights of a car in the position on the ramp described above is ameliorated by cars ahead of them on the driveway, which will shield that light from projecting to a level that could penetrate the windows of 21 Sixth Street. This is highly likely to occur given that vehicles will queue on the driveway to leave the site after a service.
For all of these reasons, any impact of the headlights on 21 Sixth Street will be minimal and is not considered unacceptable.

[11]

The Council's position on the acoustic impacts

The Council submits that the noise impact assessment and the expert evidence has a number of defects, which means that the Court could not be satisfied that the modelling provides an accurate assessment of the impact of the proposed development. These defects are outlined by the Council as follows.
Firstly, the Council says that the ambient noise levels are incorrect and not necessarily relevant. That is because there are no attended measurements, and the unattended measurements relied upon are from 2016 and are taken from a location that is not close to the residential receivers. Further, they are taken underneath a tree. The Council submits that this is contrary to the requirements of the Noise Policy for Industry. It relies on the evidence of Mr Cooper that the acoustic assessment has not identified the existing industrial noise levels at the subject site and adjusted them to a 15 minute level, and therefore the levels used to calculate the criteria for new sources could be incorrect and not necessarily relevant to 2020.
Secondly, the Council submits that the noise emission from the carpark is not accurately calculated, on the basis that it is modelled only on a large sedan, it does not model the difference between the sound power level of a car on flat ground in the carpark and a car ascending the driveway ramp, it does not add any factor for reverberation, and the analysis does not adequately explain how the data is manipulated by the model.
Thirdly, the Council submits that the road noise level has not been correctly modelled as it relies on traffic moving down the centre of the road rather than within the lanes. It relies on the evidence of Mr Cooper, who is also concerned that the formula used was not made available to him, and who opines that the noise of accelerating vehicles as they leave the driveway has not been taken into account in calculating the road traffic noise.
The Council also submits that there is concern with respect to the modelling of noise from the female prayer room, and of the patrons outside the front of the premises. However, Mr Cooper agrees that this can be dealt with by appropriate conditions.
Further, the Council submits that there should be an assessment of patrons outside the place of public worship in the evening period, and the noise of vehicles that are parked on the street.

[13]

The assessment is not sufficient to establish that the carpark and road noise is acceptable

I consider that there are shortfalls in the data used for the acoustic modelling that, taken together, materially affect whether I can accept the opinion of Mr Raymond that the acoustic impact of the proposed development is acceptable. They include the following:

The lack of data on existing industrial noise (Ex 16 pp 6-7);
Potential interference of the ambient noise measurements by noise from the adjacent carpark, particularly during the shoulder period (Ex 16 p 7);
Information on the difference between the sound power level of a car on flat ground and a car ascending a ramp, including the driveway ramp (Ex 16 p 3);
There is no adjustment for any reverberation caused by the carpark structure (Ex 16 p 3);
There is no information on the increased noise level from cars as a result of acceleration from the stop position to the speed of 50km/h along the road, and how that changes the increased road noise occasioned by the proposed development (Ex 16 pp 4-5).

The problem in there being shortfalls in the data is that the applicant bears the persuasive burden of satisfying the Court that the impacts of the proposed development are acceptable. As described by Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]: "an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed."
In furnishing expert opinion evidence in order to discharge this burden, any shortfalls in the data or in how it was used to calculate the impact deprives the Court of an opportunity to test the validity of the process by which the expert opinion was formed, and "reduces the value and cogency of the opinion evidence" (Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 705; [2001] NSWCA 305 at [72] per Heydon JA, quoting McClelland J in Bell v F S & U Industrial Benefit Society Ltd (Supreme Court (NSW) McLelland J, 9 September 1987, unrep). Further, for the expert opinion to be accepted, "it must be established that the facts on which the opinion is based form a proper foundation for it" (Makita (Australia) Pty Ltd v Sprowles at [85]).
In this matter, the absence of a number of factors from the noise modelling means that I cannot accept that the modelling provides an accurate assessment of the noise emitted from the carpark of the proposed development, and of the additional road noise resulting from the proposed development. As such, I cannot accept Mr Raymond's opinion that the acoustic impact is acceptable in relation to those sources of noise emission.
I note that, had the only issue with the acoustic assessment been the ambient noise levels, I would not have considered that the acoustic assessment is inaccurate on this basis alone. This is because, if there is any difference between the ambient noise levels at the logger location in 2016 and the typical ambient noise levels at the residential receivers, the distance of the noise logger from the traffic along Factory Street means that the use of the former levels is likely to result in a marginally more conservative calculation of the acoustic criteria. That is, I accept the submission of the applicant that moving the logger to the residential receivers, which are directly exposed to road traffic noise, could result in a marginally greater ambient noise level, and if so, greater acoustic criteria for the proposed development. Further, any issues concerning the acoustic criteria derived from the 2016 data would have been resolved by the imposition of the condition proposed by the Council which concerns general noise emission criteria (Ex 18 condition 155). However, these observations are not conclusive that there would be such a difference in the measurements of ambient noise, and do not assist in my consideration below, in which I find that the modelling of the calculated noise level of the carpark and road noise does not take into account all relevant factors.
I also do not consider that there needs to be modelling of any acoustic impact of vehicles parking on the road, in circumstances where the carpark provides adequate car parking and is easily accessible from the street, and where the Plan of Management discourages parking on the street. Accordingly, any cars that park on the street will be occasional and small in number, and will not be repeated by the same drivers in future as they will be dissuaded from so doing through the operation of the Plan of Management. In my view, the occasional parking on the street by a small number of vehicles, and the noise associated with the same, is not any different to what would ordinarily occur in a residential neighbourhood, and need not be separately modelled.

[14]

The noise from the carpark

In relation to the noise from the carpark, I accept the evidence of Mr Raymond that a use of a sedan for the carpark modelling is acceptable in circumstances where it represents an "average" vehicle type, with some vehicles likely to be smaller, and others larger (such as the SUVs referred to by the Council).
Nevertheless, I cannot be satisfied that the carpark noise is acceptable or can be acceptably managed, particularly given the proximity of the residential receivers, for the following reasons.
Firstly, the calculation of the noise level does not accommodate changes in sound power level for a vehicle ascending a gradient. I accept the evidence of Mr Cooper that, for a vehicle to maintain 5km/h whilst ascending a gradient requires more engine power and therefore more noise. The gradients are present on the ramps between the three parking levels, and at the driveway exit. There is nowhere in the acoustic assessment or in Mr Raymond's evidence that identifies any additional noise factor (or a reduced speed up the ramp) in calculating the noise generated by the use of the carpark.
Secondly, I accept the evidence of Mr Cooper that there should be a correction due to the reverberant energy in a partially enclosed space. Two levels of the carpark are roofed and there are a number of elements that enclose parts of the walls of those two levels. As a result, I accept that a correction should be applied. Even if reverberant energy in semi-open spaces is "generally low", as stated by Mr Raymond, a correction should nevertheless be applied to demonstrate that there is negligible change to the calculated noise level from the carpark.
In my view, the acoustic assessment ought to accommodate the above factors. Although they may influence the calculated noise level in only minor respects, there is no margin within the acceptable acoustic limit (as calculated in Table 5-3 of Ex D Tab 3) to accommodate additional noise in the calculated noise levels for the closest residential receiver. The calculated noise level for each period at that receiver is equal to the calculated acoustic criteria.
Further, I accept the submission of the Council that Mr Raymond has not provided clear information on how the conclusions with respect to the calculated noise level of the carpark are reached. Even upon Mr Cooper interrogating the data, his evidence is that "without the calculations for the maximum levels I have no idea how the just compliant level of 59 dB(A) for location 1 in Table 5-3 was determined". Even reviewing Appendix D (of Ex D Tab 3) does not make it clear how the data was used in the model to achieve the calculated noise level.
The absence of an adjustment for the two factors described above, together with the absence of a clear explanation for how the calculated noise level is determined and the lack of available margin within the acceptable acoustic limit to accommodate increases in the noise level, means that I cannot be satisfied that the nearby residents would not be exposed to unreasonable levels of noise arising from the carpark.

[15]

The additional noise from the use of the road

Similarly, I cannot be satisfied that the additional traffic on the local road generated by the proposed development is acceptable, for the following reasons.
Firstly, the line source plan upon which the traffic noise was modelled did not accurately depict the location of the vehicles. This means that northbound vehicles will be closer to the first and second residential receivers than what is modelled. Whilst Mr Raymond's evidence is that this variation is only by about 2m, and will make negligible difference to the modelling, he has not provided any basis for forming this conclusion.
Secondly, and more significantly, there is no evidence that the modelling accommodates the sound of vehicles accelerating as they leave the driveway of the development. I accept the evidence of Mr Cooper that vehicles that are accelerating will have a different sound power level than those that are moving at 50km/h. The evidence is that the model was based on the vehicles moving at 50km/h.
As the criteria and the calculated noise level is determined based on an average over one hour, it is possible that these two factors could alter the calculated noise level in a manner that exceeds the criteria.
Further, based on the current levels, without taking into account those two factors, there is already an exceedance of 1dB in the night period at the closest residential receiver. Once any additional noise from vehicles accelerating is factored in, this will result in a greater exceedance. Although vehicles exiting the carpark during the night period will be limited to the events of Ramadan and Muharram, the extent of the exceedance and its audibility needs to be known in order to determine whether it will result in the residents being exposed to unreasonable noise.
For those reasons, I cannot be satisfied that the nearby residents would not be exposed to unreasonable levels of noise as a result of the additional traffic noise generated by the proposed development.