Hillsong Church Limited v Council of the City of Sydney

Hillsong Church Limited v Council of the City of Sydney - [2012] NSWLEC 1059 - NSWLEC 2011 case summary — Zoe

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T he evidence 20Mr Wynne, the applicants town planner, stated that the draft LEP is not certain or imminent and should not be given significant weight in determining the proposed development. At the time of the substantive hearing, the council had not adopted the draft LEP and there remains potential for modifications based on the submissions during the advertising period although this ultimately was not the case following the council's adoption of the draft LEP on 12 March 2012. Mr Wynne further states that the council is also in the process of commissioning the "Employment Land Study". The study is to "assist the City in responding to submissions on the Draft City Plan". Mr Wynne notes that the Employment Land Study area includes land proposed to be included in the IN 1 Zone under the draft LEP. He notes that the study brief specifically seeks to address, in part "amendments to land use tables and detailed zoning controls to ensure an appropriate supply of employment land" and "review the draft City Plan LEP land use tables for employment zones and assess their capacity to allow for retail and other services (including places of public worship) while maintaining the viability of the areas for employment and industrial uses". The study brief provides a time line for reporting in November 2011 followed by exhibition and considerations of submissions with a final report presented to the council in March 2012, although Mr Wynne acknowledges that this timeframe has been breached and the study has not been finalised. 21Mr Wynne further states that the Director General of the NSW Department of Planning and Infrastructure (the Department) has confirmed in correspondence dated 6 December 2011 that the draft LEP, as it affects the proposal, is not certain or imminent. This letter states that the outcomes of the Employment Land Study are to be considered before a decision is made on the draft LEP and the council's proposal to prohibit places of public worship in the IN 1 Zone is "not a final policy position". 22At the time of the substantive hearing, Ms Grose, the council's strategic planner, stated that the IN 1 Zone is consistent with the council's coherent and demonstrated intent to protect industrial land, as on at least two occasions the council has endorsed this zoning. In her opinion, and even at the time of the substantive hearing Ms Grose maintained that there is no evidence that the proposed IN 1 zoning, and the prohibition of places of public worship, will be amended because:

any amendment would contravene the direction set by the Metropolitan Plan, the Subregional Plan and Ministerial Direction 1.1 - Business and Industrial Zones,
the Department has been involved in the development of the draft LEP, and
the s65 certificate issued by the Department, while identifying some minor issues with the draft LEP, raised no issues related to the IN 1 Zone. 23The evidence of Ms Grose was confirmed by the council's resolution of 12 March 2012. 24Ms Grose further states that the completion of the draft LEP is not reliant on the outcomes of the Employment Lands Study. The council has an agreement (Local Environmental Plan Acceleration Fund - Funding Agreement) with the Department to submit the finalised draft LEP by 30 March 2012. In her opinion, this deadline will be met and this was confirmed by council's resolution of 12 March 2012. The Employment Land Study however has not been commissioned and the draft report will not likely be finalised. at the earliest, until the second half of 2012.

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Findings 25The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at para 5). Relevantly, in Terrace Tower , Spigelman CJ states at paras 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 26If the draft LEP is imminent and certain, Terrace Tower (para 7) raises the question of whether the proposed development will preserve the character anticipated by the zone in the draft plan and whether the proposed development will undermine the objectives of that zone. 27In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in para [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at para [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 28His Honour further states (at para [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 29The questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application. Secondly, if the proposed development is imminent and certain whether the proposal undermines the expressed future planning objectives for the area in the draft LEP. 30On the question of whether the draft LEP is imminent and certain, I agree with Mr Wynne. At the time of the substantive hearing, there was no dispute over the status of the draft LEP. The draft LEP has been advertised, the submissions were currently undergoing consideration by the council staff and a report is likely to be submitted to the council prior to 30 March 2012 to satisfy the terms of the Local Environmental Plan Acceleration Fund - Funding Agreement between the council and the Department. The additional information provided with the reopening of the hearing confirmed this evidence. 31The status of the proposed Employment Land Study is also uncontroversial with the evidence of Ms Grose indicating that tenders are in the process of being sought for the preparation of this document with completion later in 2012 and exhibition and adoption in early 2013. The additional documentation provided by the council makes no reference to the status of the Employment Land Study. 32The critical issue, in my view, is the likely impact of the Employment Land Study on the finalisation of the draft LEP. Put simply, Mr Wynne maintains that the draft LEP will not be finalised until the Employment Land Study is completed and adopted by the council whereas Mr Grose is of the view that the draft LEP will be finalised prior to the completion of the Employment Land Study and that if the findings are inconsistent with the gazetted draft LEP then amendments to the gazetted draft LEP will be made as an independent process. 33I am satisfied that Mr Wynne's evidence should be preferred because it reflects the most recent correspondence from the Department where by letter dated 6 September 2011, from the Director General of the Department, Mr Haddad, to the General Manager of Hillsong Church, Mr Aghajanian, that states: I refer to your correspondence of 17 August 2011 raising concerns about the provisions of the Draft LEP 2011 that proposes the prohibition of places of public worship in the Industrial 4 zone. You highlighted the implications of this draft policy on the activities of the Hillsong Church, particularly its proposed development application in Doody Street, Alexandria. You sought the Department's urgent advice as to the status of these provisions, particularly in the context of an appeal to the Land and Environment Court. The proposed prohibition is not a final policy position as the Draft Plan is currently undergoing an assessment by the relevant authorities. I am advised that the Council is considering submissions in that regard, and in due course the Department will also be considering this issue and the merit of any policy decisions in that regard in advising the Minister for Planning and Infrastructure. The proposed prohibition had been put in the context of a Draft Plan seeking public submissions. As you pointed out in your correspondence, an Employment Land Study which will address, amongst other things f this particular issue, is currently in preparation. I also agree that the finalisation of the Employment Study will be an important input to the future planning of this area. Accordingly, the Department will discuss with Council how the Draft Plan will progress once the outcomes of the Employment Study are known. In making the above comments, the Department is not in any position to provide you with any comments on the specific merit of your proposal at Doody Street, Alexandria, nor on any other aspect of the appeal now before the Court. 34The correspondence make the following relevant points:

the prohibition of places of public worship within industrial zones "is not a final policy position",
the Employment Land Study is an important input into the planning of the area and will address the question of the appropriateness of other uses within industrial zones, and importantly,
the progression of the draft LEP will be based on the outcomes of the Employment Land Study. 35Contrary to Ms Grose's evidence, I accept that if the Director Generals correspondence is read in a reasonable and common sense way, there can be no meaning other than the draft LEP will not be finalised until the Employment Land Study is completed. It is considered to be an important input into the make up of the industrial land by the Department. While Ms Grose was correct in stating that the draft LEP would be before the council prior to 30 March 2012 to satisfy the terms of the Local Environmental Plan Acceleration Fund - Funding Agreement, the obligation to make the draft LEP rests with Department, and not the council. Based on the Director Generals correspondence, the draft LEP will not be made until the Employment Land Study is completed. I do not accept that any documentation provided by the council in the reopening of the hearing upsets this conclusion. As the Employment Land Study has not commenced its contents are unknown, as are any potential changes to the draft LEP. I note that no documentation was provided as part of the reopening to alter the status of the Employment Land Study. It follows, in my view that the draft LEP is neither imminent nor certain and as such no weight can be given to this document in the assessment of the development application. 36As I have found that the draft LEP is not imminent or certain, it is not necessary to address the question of whether the proposed development will preserve the character anticipated by the IN 1 Zone and whether the proposed development will undermine the objectives of the zone.

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The evidence 38Mr Wynne and Ms Grose and Ms Reeve, the council's statutory planner, agreed that objectives (a), (b), (c) and (d) remained in contention. Objective (a) - to facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres, or other land uses which, due to their type, nature, scale, transport requirements or impacts, cannot reasonably be located in another zone, and 39Mr Wynne states that the proposed development satisfies this objective as it is a use, that by virtue of its particular type, nature, scale, transport requirements and impacts cannot reasonably be located in another zone. In his opinion, the proposal would be difficult to accommodate in other zones, notwithstanding its permissibility, because of the particular characteristics of its operation. The particular characteristics are:

the dominant aspect of the proposal is holding services in a large scale, auditorium style environment and ancillary facilities, often accompanied by amplified music accommodating up to 1000 people,
the peak usage times outside standard business hours has the potential to conflict with sensitive land uses and the proposed location within an industrial zone minimises potential impacts,
the auditorium services are reasonably intensive, involving amplified music and large numbers of people coming to and leaving the site with the potential to impact on residential amenity - the proposed location minimises potential impacts,
the auditorium services generate relatively high levels of traffic and demands for parking and other zones are not suitable to accommodate such demands without unreasonable impacts on residential, retail and business activities,
the Church is not a typical place of public worship and has a specific character and function that requires a combination of specific site and locational requirements that are not readily satisfied in areas, other than in the industrial zone, and
the difficulties in establishing a large-scale auditorium style place of public worship in the Mixed Use Zone is highlighted by the significant public objections to other applications by the Church. 40Mr Peter Leyshon, a town planner and retail analyst, provided evidence for the applicant. On the question of whether the proposed development can be reasonably located in another zone, Mr Leyshon states that locating the proposed development within a Mixed Use zone may be problematic because of the existence of adjacent residential development and the potential for further residential development in the zones. On the basis that the Church requires a rental property of about 2700 sq m, Mr Leyshon identifies a number of properties available for rent within a Mixed Use zone however for a number of reasons, none are considered suitable. 41Ms Reeve maintains that the proposal does not satisfy objective (a) for the following reasons:
the proposed use is not an industrial use or a use that is ancillary to an industrial land use,
a place of public worship is a permissible use within the majority of the zones controlled by LEP 1998 and the existence of the applicant's Church at Waterloo within a Mixed Use zone supports the council's position that the proposal can be located in other zones,
the proposal relies on car parking that also serves other tenants of the Corporate Park,
the size of the Church is not considered to be extreme or at a level that could not be accommodated elsewhere, and
it is unclear what advantages the site offers in terms of transportation/parking above other zones. 42Ms Grose expresses similar concerns to Ms Reeve. 43Mr Adrian Hack, a retail analyst, also provided evidence for the council. He states that from a practical perspective, the question of whether the development can be reasonably located in another zone should not exclude zones outside LEP 1998. He states that the requirements of the Church could be met within existing Mixed Use or commercial zones and he identifies a number of specific sites that he considers suitable. On this basis, he believes that it has been demonstrated that the Church can be reasonably located in another zone therefore; the proposal is inconsistent with this objective. Objective (b) - to allow for a range of ancillary, non-industrial land uses that provide direct services to industrial activities and their workforce, including associated research, administration, commercial and retail facilities, and Objective (d) - to provide for appropriate forms of industrial development which will contribute to the economic and employment growth of the area, and 44Mr Wynne states that these objectives are not relevant as the proposal is not industrial development. 45Ms Reeve states that the proposed development is inconsistent with objectives (b) and (d) as it is not an industrial use or a use that is ancillary to an industrial land use on the Corporate Park site. While some additional employment opportunities may be created, these opportunities are not considered sufficient to outweigh the loss of industrial lands and the potential sterilisation impacts that the use will have on the ability of existing or new industrial uses. Objective (c) - to ensure that development is carried out in a manner which does not detract from the amenity enjoyed by residents in neighbouring localities, the viability of commercial centres in the vicinity, or from the efficient operation of the local or regional road system, and 46Mr Wynne states that the proposed development satisfies this objective because:
the proposal is permissible under LEP 1988 and is able to be approved notwithstanding the Masterplan applying to the site,
the proposal involves the use of an existing warehouse building that has been vacant for a long period of time,
the proposal occupies a building with a floor area of 2700 sq m which represents a very small proportion of the overall amount of industrial floor area,
the peak operating times are outside standard business hours thereby minimising potential conflict,
sufficient dedicated car parking is provided in close proximity to Unit 2 to cater for its demands, and
the proposal does not result in the loss or rezoning of industrially zoned land. 47Ms Reeve maintains that the proposal does not satisfy objective (c) as the Corporate Park currently accommodates a range of land uses whose viability and potential for future expansion may be restricted by the proposed Church operations in relation to available parking areas and the overlapping of approved hours of operations. The proposal also has the potential to negatively impact upon the efficient operation of the surrounding road network and is reliant on the use of traffic marshals to assist members of the Church to navigate a complex site. 48Ms Grose states that the proposal does not support "the viability of commercial centres in the vicinity" as Sydney and its centres rely on warehouses and other industrial uses being located close by for their successful operation. The proposal results in a loss of industrial lands that would otherwise be supporting commercial and residential centres. Ms Grose rejects Mr Wynnes statement that Unit 2 is a relatively small proportion of the industrial land in the area as the proposal affects a much larger percentage of the site, given its dispersed car parking.

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Findings - Objective (a) 49Contrary to the approach of Ms Reeve, objective (a) has two independent limbs. The objective does not solely require that any use must be an industrial use or a use that is ancillary to an industrial use to be consistent with the objective. The objective, by the use of the word or provides not only for the uses identified by Ms Reeve but any other land use, (i.e., land uses that are not industrial or ancillary to an industrial use) providing those other land uses satisfy the other criteria in the second limb of the objective. If other land uses, because of their type, nature, scale, transport requirements or impacts, cannot reasonably be located in another zone then they are consistent with objective (a). 50The question to be answered is whether the Church satisfies the criteria in the second limb of the objective. Importantly, and again contrary to the evidence of Mr Reeve, the answer to the question must be based on the particular characteristics of the Church, the subject of the development application, and not the more general question of whether a church or place of public worship is an appropriate use within the industrial zone. 51If the question is asked in this context, I agree with conclusions of Mr Wynne. The approach of Ms Reeve and Ms Grose that a place of public worship, irrespective of its size, is inappropriate in the industrial zone is puzzling, in that it is a permissible use and inconsistent with the findings in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, where McClellan CJ relevantly states (at para 117): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 52There can be little doubt that the Church has different characteristics to more traditional places of public worship. The application proposes multiple services on Sundays (based on the service times and changeover periods it is possible that there could be up to 6 services per day), large numbers of attendees, amplified music and the need for relatively large areas for car parking and bus set down and pick up areas because of the number the attendees. I have little trouble in concluding that the potential exists for substantial amenity impacts from the general operation of the Church, irrespective of the amount of management and control provided. The fact that places of public worship are a permissible use within a number of other zones within the local government area (and identified in Ex 10, p 13 and Ex 21) does not necessarily mean that the operation of the Church would be acceptable in these zones given its particular characteristics. In my view, the inevitable impacts associated with the proposed Church are best addressed through isolation rather than management practices, if possible. 53I do not accept that in answering the question posed by the second limb of objective (a), it is necessary to identify specific sites that may be suitable for the proposed development, as suggested by Mr Hack. This may appear to address the criterion in the objective of whether the proposed use c annot reasonably be located in another zone but, in my view, only in a superficial way. The identification of a site does not mean that it is suitable for the proposed development. Without a thorough examination of the identified site it is not possible to say it is suitable for the proposed use. For example, the rent may be prohibitive or it may have one or more important characteristics that may make it unsuitable. In my view, the question should be answered by a more general inquiry about the particular characteristics of the proposed use and with an understanding of the likely development within different zones. Similarly, I do not accept Mr Hack's evidence that the reference to another zone is a reference to zones in another local government area. I rely on the findings in Trivest Pty Ltd v The Council of the City of Sydney [2010] NSWLEC 1273 to reject this approach. 54I am satisfied that the proposed development due to its type, nature, scale, transport requirements and potential impacts, cannot reasonably be located in another zone, and as such the proposed development is consistent with objective (a).

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The evidence 59Mr McEwen SC submits that the applicant's primary position is that the strategy documents identified by council are to inform the environmental planning instruments that control development. This was a conclusion even accepted by Ms Grose. The environmental planning instruments that are identified in s 79C(1) are mandatory considerations whereas the identified strategy documents are not. Mr McEwen submits that ultimately the strategy documents will be taken into account in the draft LEP and even though it is likely that the site will be in the IN1 zone, it is highly uncertain that this zone will prohibit places of public worship. 60Mr Wynne accepts that the strategic planning direction for the area seeks to ensure that the site and surrounding area is used predominantly for industrial type of land uses, however it does not direct that non-industrial uses, that may be compatible or appropriate, are prohibited. The Metropolitan Strategy and the Subregional Strategy establish high-level policy directions for the planning of the city and Ministerial Directions guide the preparation of LEP's in accordance with strategic policy. He notes that the Standard Instrument LEP does not mandate that places of public worship or other non-industrial development are prohibited in the IN1 zone. He notes that the development is not an industrial use however it is a permissible under LEP 1988 that applied to the site prior to the draft LEP. Mr Wynne notes that places of public worship have been included as a permissible use in the IN 1 zone in other local government areas. 61Mr Tomasetti SC submits that any assessment of the application is not limited to the matters in 79C(1)(a)(ii) as a means of identifying councils planning intent, as contained in the draft LEP. He submits that the Court should also consider other policy documents, which demonstrate the consistency of council's approach to the zoning proposed in the draft LEP. The Court has power to do so under both s 79C(1) and s 39(4) of the Land and Environment Court Act 1979. 62Ms Grose states that the proposed development is not consistent with State government strategic planning direction because:

Direction A1.5 of the Subregional Strategy identifies the site as an industrial area of "State Significance" given its location near the port, airport and Central Sydney,
the Metropolitan Plan directs that a draft LEP is to retain industrial land, and recognises that industrial uses requires separation from sensitive uses,
Ministerial Direction 1.1 reveals that the clear planning strategy is to protect the site for industrial uses,
the fact that places of public worship are not mandated as prohibited uses in the IN1 zone is irrelevant as it is clear that the industrial zones are designed to accommodate industrial, ancillary and other compatible uses. Uses such as bulky goods development, showrooms and places of public worship are prohibited, and
other local government areas have prohibited places of public worship in the IN1 zone, such as Liverpool and Auburn.

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Findings 63In accepting the general proposition that it Court is not limited to the planning document identified in s 79C(1) as the sole means of determining whether a development is in the public interest, it must be accepted that environmental planning instruments should be given greater weight in the determination of a development application, unless there is a compelling reason not to do so. This is set out in Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195, where it states: 81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235). 64In this case, and for a number of reasons I am not satisfied that the policy documents identified by the council should be given any significant weight in considering the development application. First, and while the Metropolitan Plan identifies the site as part of a "Global Economic Corridor"; this corridor extends from North Sydney to Macquarie Park and from the City to the airport and Port Botany. The representation of the corridor (at pp 18 and 19) represents a wide and largely undefined area. The council placed some reliance on the " Objectives and Actions" component of the Metropolitan Plan and particularly Objective E3 that seeks " To provide employment lands to support the economy's freight and industry needs" and more specifically, Action E3.1 that seeks to " Monitor supply and demand for employment lands, and plan for new employment lands" and Action E3.2 that seeks to "Identify and retain strategically important employment lands". As I understand Actions E3.1 and E3.2 fall within the work contemplated by the council's soon-to-be commissioned "Employment Land Study". It would seem that the council has appropriately responded to this part of the Metropolitan Plan through its actions in commissioning the "Employment Land Study". I do not accept that it can be reasonably argued that the proposed use is somehow in conflict with Objective E3 without the completed "Employment Land Study". In my view, it would be unreasonable to refuse the development application on the basis that the "Employment Land Study" has not been completed. 65Second, the Subregional Plan was clearly envisaged to be a document that guided future planning for the Sydney City subregion and not a document that should specifically be used in the determination of a development application. The Introduction, relevantly states: Subregional planning is an the intermediate step in translating the Metropolitan Strategy to a local level, and recognises that some issues extend beyond local government boundaries and require a "subregional" approach. The draft Subregional Strategies act as a broad framework for the long-term development of the area, guiding government investment and linking local and state planning issues. They also provide the detail required to guide the preparation of Principal Local Environmental Plans (LEPs), which is the key legislation that links local councils and NSW Government in land use planning for each local government area (LGA) 66Also, under the heading of "How this Subregional Strategy will be used", the following words are also relevant: This draft Sydney City Subregional Strategy has been prepared by State Government in discussion with local government and stakeholders. It acts as a framework for council in preparing their new Principle LEP (scheduled for 2011). Council will be required to ensure its new Principle LEP is consistent with the Subregional Strategies. 67Third, I do not accept that the Section 117 Direction 1.1 applies to any assessment of the development application as para 3 states: When this direction applies (3) This direction applies when a council prepares a draft LEP that affects land within an existing or proposed business or industrial zone (including the alteration of any existing business or industrial zone boundary). 68I also note that para 5 provides the opportunity for a draft LEP to be inconsistent with the terms of the direction on the basis that it can be justified and is acceptable to the Director General of the Department. 69Fourth, the Southern Industrial Area Land Study was also envisaged to be a document that guided future planning for the southern industrial area and not a document that should specifically be used in the determination of a development application. The Executive Summary relevantly states (at p 1): The purpose of the study is to build upon the land use and urban design recommendations that were raised in the Southern Industrial Area Study Stage 1, which was undertaken by the City of Sydney in 2006. This study concludes Stage 2, which seeks to further assess and analyse the historical and planning evolution of the area, to come up with a design structure plan for the area which is then translated into land use and urban design planning controls. The recommendations from this study will specifically provide land use zoning, built form and urban design controls which can be incorporated into the City Plan Local Environmental Plan (LEP) and Development Control Plan (DCP), a new comprehensive package of planning controls being prepared by the City of Sydney. 70Fifth, cl 8 provides that in assessing any development application consideration must be made of the goals and objectives in The Strategy. The site is identified as being within the "Major Industrial" area. 71Mr Wynne states that the Strategy does not preclude the approval of the proposed development, which is development that is a permissible use under the zoning provisions of LEP 1998. Ms Reeve states that the principal objectives in cl 7 of LEP 1998 is to provide guidance on the implementation of the planning controls and provide an overview of the intent of LEP 1998. She states the following objectives are relevant: (a) to ensure a sustainable City of South Sydney through the efficient and equitable management and allocation of resources . (c) to implement the goals and objectives contained in the Strategy for a Sustainable City of South Sydney published in June 1995 by the Council . (f) to create an integrated planning framework of land use control which allowed detailed provisions to be made in development control plans 72Ms Reeve maintains that the use of the site as a "place of public worship" is inconsistent with objective (a) as it seeks to use car parking allocated to other users and removes warehouse space from the stock of industrial land. It is also inconsistent with objective (c), in that the site is reserved for "major industrial development" within The Strategy and is inconsistent with objective (f) in that it is inconsistent with the Masterplan approved for the site. 73As I understand, The Strategy was published in 1995 and consequently predates LEP 1998 although cl 8 requires the goals and objectives to be considered to the extent that they relate to the proposed development. While still being a relevant consideration, the evidence clearly suggests that this document has largely been superseded by the more recent strategic documents. As required by cl 8 and having considered the Strategy, I am satisfied that there is nothing in the Strategy (or the principal objectives in cl 7 of LEP 1998) that would suggest that the use of an existing factory unit for a place of public worship would somehow conflict with the goals and objectives of the Strategy or the LEP 1988 objectives. While the site is designated as "major industrial development", this designation in the Strategy also provides for "activities with low scale, supporting commercial" which would it be inconsistent with the approach of Ms Reeve where she suggests that the site and surrounding area, should be predominantly, if not exclusively industrial. I have previously found that the proposed development is not inconsistent with the relevant zone objectives. 74Sixth, cl 28(2) provides that before granting consent to a development application on land greater than 5000 sq m, the Court must take into consideration in the Masterplan for the land that is available. In this case, a Masterplan was endorsed by the Central Sydney Planning Committee on 23 June 2005, in relation to the assessment of DA D/2004/1721. Ms Reeve argues that proposed development is not consistent with clauses 10 and 31 of the Masterplan because, firstly, it is inconsistent with the objectives of the Industrial 4 Zone, and secondly, the number of driveways or access points exceeds the four driveways in Bourke Road, including the main central driveway. 75As a general principle, I accept the submission of Mr McEwen that the matters identified in the Masterplan, do not fetter the Courts discretion to approve the proposed development. If the Court is satisfied that the proposed development is acceptable, when considered against the heads of consideration in s 79C(1) of the EPA Act, then any non-compliance with the requirements of the Masterplan would not be a reason for the refusal of the development application. 76In response to the first concern, I have previously found that the proposed development is not inconsistent with the relevant zone objectives. On the second concern, and for reasons set out later in the judgment, the provision of more than four driveways in Bourke Road is acceptable and necessary for the management of vehicles attending the site at weekends. The Roads & Maritime Services (RMS) do not oppose the proposed development and specifically states: RMS has reviewed the above-mentioned development application and raises no objections to the proposed development as it will not have a significant traffic Impact on the classified road network during weekdays. 77I note that the RMS letter makes reference to "weekdays" and I have assumed, on the basis that there was no contrary evidence that the impact on the classified road network on weekends is also acceptable. 78While there can be no doubt that the strategic planning documents referred to by the council are extremely valuable for the long-term planning of the Sydney area, I do not accept that they should be given any significant weight in the determination of the subject development application, particularly when these documents clearly identify their purpose as not being a document for considering a single development application. For reasons outlined in the preceding paragraphs, the documents essentially guide the planning process and more specifically, the preparation of LEP's and DCP's. To give the strategic planning document the weight suggested by the council's witnesses, in my view, is overstating their role in the consideration of a development application.

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The available parking 81The Corporate Park occupies a relatively large area of land and is made up of a number of separate lots and 16 different buildings constructed at different times. There are many different occupiers on the site and these users operate generally independent of each other but utilise common infrastructure, such as car parks and vehicle and pedestrian access ways. Boom gates restrict vehicular access to some parts of the site and a security pass is required for entry. The existing car parking is provided in a mix of ground level, basement and multi-storey car parks across the site. A total of 1067 marked car parking spaces are provided for the Corporate Park (or 1709 car parking spaces if the approved, but not constructed deck for Hannan Print is included). For the purposes of this application, car parking is divided into 13 zones. 82A significant difficulty in addressing the car parking and pedestrian movement issues for the proposed development occurs as not all occupants of the Corporate Park have allocated car parking spaces. The majority of approvals require a specific number of car parking spaces to be provided for the development however many do not identify a specific location where the required car parking spaces are to be provided. Some also identify a number of car parking spaces in conditions of consent but provide a different number on the approved plans. Private agreements also exist between some occupiers and the owners of the Corporate Park for the provision of car parking spaces and where allocated, the allocation for specific periods of time. This complex parking arrangement for the Corporate Park was not initially fully addressed and this resulted in the proceedings being adjourned to allow the expert town planners and traffic engineers additional time to further consider the car parking spaces for the proposed use, taking into consideration the existing approvals near Unit 2. This resulted in amendments to the application and further reports from the experts on the revised car parking proposal. 83Ms Reeve and Mr Wynne agree that the Corporate Park provides a total of 1607 car parking spaces. They disagree on the number of car parking spaces that are available for the proposed development; Ms Reeve maintaining that 1433 car parking spaces are required for the existing industrial land uses, therefore only 174 car parking spaces are available for the proposed development. Mr Wynne states that he has identified a requirement for 1275 car parking spaces, based on a review of the existing development consents in the Corporate Park. This provides for a surplus of 332 spaces for the proposed development (or 349 spaces if 17child-care centre spaces are included for use on Saturday afternoon and Sunday as these times are not included in the development approval). Mr Wynne further states that there are 540 spaces in total in Zones 2, 8 and 11 and a minimum of 70 spaces available on the street within 200 m of the site during weekends. Given the observations of the low levels of usage of the existing car park within the site at weekends, it is likely additional car parking will be available for patrons within the site and on local roads than the 265 car parking spaces specifically allocated for Church use.

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The proposed parking 84The amended car parking proposal provides for:

the use of parking spaces within Zones 2 (further broken down into Zones 2A, 2B, 2C and 2D), 8 and 11. Access to Zones 2A and 2D is from Doody Street (Entry/Exit No.1), Zones 2B and 2D from Bourke Road (Entry/Exit Nos.2 and 3), Zone 8 from Bourke Road (Entry/Exit No.4) and Zone 11 from Doody Street (Entry/Exit No.5),
the provision of 27 permanent car park spaces located within Graphix Row within Zone 2 to be available seven days per week for the Church,
the provision of 17 spaces allocated to the child-care centre located within Zone 2, after noon on Saturdays and all day Sundays, being outside the approved hours of operation of the child-care centre, and
the provision of a maximum of 265 car parking spaces (including the 27 permanent car parking space in Zone 2 and the 17child-care centre spaces ) available for Church use in Zones 2, 8 and 11 after 6:30 p.m. on Monday to Friday, after noon on Saturdays and all day Sunday. Zones 2A and 2D 85Zones 2A and 2D provide for 13 and 23 spaces, respectively. The zones are located in close proximity to the auditorium. Zone 2A is to be used exclusively for staff parking, parking for people with a disability or church patrons with special needs. Zone 2D is to be used exclusively for staff parking. Access to both zones is from Doody Street. A boom gate is to be placed at the Doody Street access driveway to limit parking for staff, people with a disability or people with special needs close to the entrance to the auditorium. Staff will arrive prior to the services and will park along Graphix Row so that there will be little or no vehicle movements along Graphix Row immediately prior to the commencement of services in the auditorium. A traffic marshal will be located at the entrance to Zones 2A and 2D at Doody Street to direct church patrons to the Bourke Road car parking entrances if they are not entitled to park in Zones 2A and 2D. Zones 2B and 2C 86Zones 2B and 2C provide for 22 and 48 spaces, respectively. The existing driveway (Entry/Exit No.2) to Zone 2B will be reopened by removing the temporary roadblocks. A boom gate will be installed at this location and a traffic marshal will manage and control the access driveway. When the 22 available parking spaces within this zone are full, the boom gate will be closed and motorists will be directed to parking Zones 2C, 8 and 11. The existing connection to Zones 2A will be closed and replaced with parking. This will allow for the separation of traffic and church patrons along Graphix Row and allow the northern section to be converted to a pedestrian path between the parking areas and the bus set down/pickup area. 87For Zone 2C, the entry of the road (Entry/Exit No.3) will be controlled by a boom gate and a traffic marshal will manage and control the access driveway. When the 48 available parking spaces within this zone are full, the boom gate will be closed and motorists will be directed to parking in Zones 8 and 11. Zone 8 88Zone 8 provides for 70 spaces. The applicant proposes that the car parking within this zone will be an interim measure until the approved two additional decks containing 102 spaces, within the existing multi-storey car park in the Zone 11, is constructed. Access to Zone 8 will be via Entry/Exit No.4 and will be controlled by a traffic marshal who will be in communication with other traffic marshals controlling the other parking zones. Zone 11 89Zone 11 provides access to the 89 space that have been allocated for Church use within the multi-storey car park adjoining the Hannan Print operation. When the 89 available spaces are occupied, the traffic marshal will place a temporary barrier across the driveway to the car park. The traffic marshal will continue to provide access to be structured car park for tenants with allocated parking. 90The council raised a number of contentions in relation to the provision of car parking for each of the zones identified by the applicant. For this reason, it is more efficient to deal with their contentions zone by zone. The bus set down and pick up area 91The bus set down and pick up area adjoins Entry/Exit No.4. Buses will be used to deliver patrons to the Church from nearby railway stations where they will drop off passengers on the northern side of the internal driveway. This driveway has three entry lanes, and the kerbside lane will be used as the passenger set down and pick up lane. This area will be controlled by two traffic controllers who will manage pedestrian movements on and off the buses and pedestrians movements from the bus stop to Unit 2, via pedestrian facilities along Graphix Row. The traffic controllers will also be responsible for marshalling pedestrians at the end of the services for access onto the available buses leaving the site. The Traffic and Parking Management Plan 92The Traffic and Parking Management Plan (the Management Plan) provides details for the management of vehicles and pedestrians attending activities at the Church, and includes:
the hours of operation for each proposed Church activity and maximum number of participants,
the use of traffic marshals with appropriate RTA qualifications and car park attendants to manage and control vehicular and pedestrian movements. The traffic marshals and car park attendants are to be in radio communication with each other,
specific requirements for parking in certain zones, such as the provision of boom gates, dedicated areas for staff and persons with a disability,
the provision of signage,
the provision of roadblocks to manage the internal circulation of the vehicles, and
the provision of a shuttle bus to deliver patrons from nearby railway stations with a pickup and drop-off point adjoining Entry/Exit No.4.

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What parking spaces are required for the proposed development? 93The experts agree that the car parking numbers generated by the application of DCP 11 for places of public worship is not appropriate, in this case, and that appropriate car parking generation rates are best determined through surveys of similar establishments. Given the agreement by Mr Pindar and Mr Rogers that the 27 spaces allocated to the Church in Graphix Row for 24-hour seven-day per week use, satisfy the needs of the Church for their activities on Monday to Friday, the evidence focused on the weekend activities of the Church. 94Mr Pindar and Mr Rogers disagreed on the parking demand for the weekend activities. The dispute centred on firstly, the occupancy rate of vehicles and secondly, the split between those who drive and those who will use alternate transport services. On the question of the appropriate occupancy rate, Mr Rogers uses an occupancy rate of 3.3 persons per vehicle and this generates a demand for 252 spaces. This rate was identified in the traffic report by Transport and Traffic Planning Associates in July 2004 for the Hillsong Waterloo development application. Mr Pindar questioned the appropriateness of this rate given the different characteristics of the Waterloo site and the subject site. In his view, the occupancy rate should be around 3 persons per vehicle, which would generate a demand for around 315 car parking spaces. However, following additional evidence on the operation of the Hillsong Waterloo operation from Mr George Aghajanian, the General Manager, Hillsong Church Ltd, Mr Pindar generally accepted that an occupancy rate of 3.3 persons per vehicle was appropriate for the site. 95On the disagreement over the modal split, Mr Rogers adopts a split of 20% between private cars and other transport (14% by shuttle bus and 6% by other means) whereas Mr Pindar proposes a split of 30%, although under cross-examination, Mr Pindar accepted that the 20% rate used by Mr Rogers was acceptable, but only as a minimum rate. 96Based on the evidence of Mr Pindar and Mr Rogers, a minimum of 252 car parking spaces is required although Mr Pindar's evidence suggests a greater number but not necessarily his original assessment of 315 car park spaces.

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Are there sufficient parking spaces available? The evidence - Zone 2 97Ms Reeve states that 77 car parking spaces remain unallocated for Zone 2 based on a review of existing consents and an assumed parking rate of 1 space/100 sq m from DCP 11, where a consent does not exist. This compares to the 89 spaces calculated by Mr Wynne. The main disagreement exists between Ms Reeve and Mr Wynne over the allocation of 27 car parking spaces by Ms Reeve in Zone 2 when Mr Wynne states that these spaces are provided in Zone 11. Ms Reeve also expresses concern over the industrial units within Graphix Row as no development consents can be found for units 1-8 so it is unclear whether any car parking is currently allocated to these tenancies. Units 9-12 are subject to development consents from Development Applications U00-00873 and U01-00716 that require 8 parking spaces "within the premises". Also, no conditions were imposed restricting hours of operation on these tenancies. Ms Reeve notes that these approvals create a potential conflict with the use of Graphix Row as a pedestrian thoroughfare by Church patrons on the weekends. Mr Wynne maintains that any potential conflict with the use of Graphix Row can be adequately addressed through the Plan of Management and supervision by traffic marshals. The evidence - Zone 8 98The use of Zone 8 is seen as unacceptable by Ms Reeve as a consent was issued for a new two level warehouse building within this zone and a Construction Certificate was issued on 10 December 2009. Ms Reeve notes that the area set aside for car parking is within an area of an approval (DU/2004/479) and if the proposed development proceeds, a new car parking area will need to be found for the Church. She states it is not clear if the consent has been activated or lapsed however the proposed use of this area for parking would remove the possibility of intensifying industrial uses within this zone, as identified in the Masterplan. 99Also, a major loading dock for Hannan Print forms part of Zone 8 and, in her understanding, is frequently used by large trucks. She also understands that the uses around Zone 8 operate with unrestricted hours and should be allowed the flexibility to maximise their industrial capacity. Ms Reeve notes that Zone 8 also contains a warehouse, nursery and child play centre and no development consents have been found for these uses. As they exist, and would require development consent, the these uses should be allocated car parking. 100Mr Wynne identifies a total of 70 spaces within this zone as being surplus to be parking requirements of existing tenants. He acknowledges that the completion of DU/2004/479 will remove the 70 car parking spaces allocated the use of the Church, however in the event that this occurs the replacement car parking will be provided through the construction of the additional car parking level in Zone 11 that will provide an additional 102 car park spaces and adequately compensate for the loss of the 70 spaces within Zone 8. Conditions can be placed on the consent to ensure that all uses do not suffer a loss of parking through the completion of DU/2004/479. The evidence - Zone 11 101Zone 11 is a multi-storey car park that provides car parking for Hannan Print and Craft Print. Ms Reeve calculates that there is currently a deficiency of 21 spaces in car parking, based on a provision of 303 spaces and an assessment based on 1 space/100 sq m from DCP 11 that results in a need for 324 car parking spaces. She rejects the approach adopted by Mr Wynne who relies on the 1998 Statement of Environmental Effects for the construction of the car park that allows for 214 spaces based on a lower rate of parking (1 space/500 sq m) for the paper storage areas because of the lower level of staff in this area. She notes that 373 car parking spaces was required to address the issue of overlapping of changing shifts of workers. Ms Reeve also states that based on inspections of the car park, some spaces appear to be allocated for other operations within the Corporate Park, such as Westpac and Trivett. As the upper level car parking floor (Level 7 containing 49 spaces) has not been constructed the available car parking is only 324 spaces. Ms Reeve also notes that there are no hours of operation for the Hannan Print operation. 102Mr Wynne states that there are a total of 303 parking spaces within the existing multi-deck car park, of which 89 spaces are surplus to the parking requirements of existing tenants. Mr Wynne notes that the Statement of Environmental Effects that accompanied the development application (U98-01304), argued that the DCP 11 parking rate of 1 space/100 sq m was inappropriate given the bulk storage areas for the proposed printing business. A total of 373 car parking spaces was appropriate for the different uses (Hannan Print, Craft and Champion) including the requirements for the changeover of shifts. Mr Wynne notes that in the approval of the development application, the council did not place any conditions on the consent specifying the required number of car parking spaces to be provided. On this basis, Mr Wynne concludes that U98-01304 approved the construction of 373 car parking space in the multideck car park, which exceeded the amount car parking required specifically for the use by Hannan Print, based on the provisions of DCP 11, being 214 spaces. Therefore, of the total 303 spaces, 214 spaces relate to the floor area requirements of Hannan Print, leaving a balance of 89 spaces available for other users. In his opinion, Mr Wynne states that this is reasonable because it is based on:

the Statement of Environmental Effects that accompanied the development application (U98-01304),
even at the DCP 11 rate of 1 space/100 sq m for an area of 30,000 sq m of floor area, the 300 spaces approved spaces is considerably less than the approved 373 spaces,
the approved 373 spaces allow for floor space and operational activities associated with Craft printing however separate approvals exists for this facility, including separate requirements for the provision of 90 car parking spaces in Zones 10 and 13,
only 349 of the approved 373 spaces has been constructed demonstrating that council has never sought to enforce the approved number of spaces as the minimum required to support the approved development, and
recent surveys of parking domain in the multi deck car park reveal actual peak parking domain of 202 spaces; this being relatively close to the 214 spaces identified in the Statement of Environmental Effects that accompanied the development application (U98-01304). Findings 103As a starting point, it was accepted by Mr Pindar and Mr Rogers that the 27 spaces allocated to the Church in Graphix Row for 24-hour seven-day per week use, satisfy the needs of the Church for their activities on Monday to Friday (with the adjustment of the participant numbers from 200 to 100 at the Women's group meeting between 9.30am-midday on Wednesday). It was also accept by Mr Pindar and Mr Rogers that it was sound traffic management practice to allow some flexibility in the amount of car parking for the activities of the Church on Saturday and Sunday, given the different peak times for car parking for industrial uses and the use of the auditorium, the availability of on street parking and the use of buses to transport church patrons to the site. While originally disagreeing on the amount of parking required by the proposed development, Mr Pindar and Mr Rogers ultimately agreed that the required amount of parking was closer to Mr Rogers figure of 252 spaces, rather than Mr Pindar's 315 spaces. For reasons set out later in the judgment, the difference between the two experts does not significantly impact on whether adequate car parking can be provided for the proposed development. 104Ms Reeve and Mr Wynne independently conducted a particularly forensic examination of the existing consents for the Corporate Park, with different results based on their interpretation of the consents, the accompanying plans and assumptions on car parking, where no approvals existed. The different conclusions are unsurprising given the lack of clarity in the approvals. In considering the comprehensive evidence provided by Ms Reeve and Mr Wynne, I am satisfied that the general approach adopted by Mr Wynne should be flavoured for a number of reasons. 105In relation to Zone 2, the difference between Ms Reeve and Mr Wynne centred mainly on whether 27 spaces allocated to an area identified as Warehouse 2 should be allocated to Zone 2 or Zone 11. On this matter, I agree with Mr Wynne that the detailed survey of the gross floor area for the Hannan Print building, and the requirement for 214 spaces, demonstrates that the floor area for Warehouse 2 was included in the assessment of parking for the Hannan Print building. I also accept that the absence of some plans accompanying the development application showing Warehouse 2, simply reflected that no alterations and additions were proposed to this part of the building although I note Warehouse 2 was clearly part of the Hannan Print building on other plans accompanying the development application. 106For Zone 8, I accept the approach adopted by the applicant that in the event that the proposed new warehouse building within this zone is to be constructed, then no works can be an undertaken on this building that will remove any parking located within this zone, until such time as the additional car parking has been constructed in Zone 11, through the additional level of the multi deck car park. It is proposed that this will occur by 31 January 2015, or any approval for the Church to use the site will cease. It is ultimately proposed that the car parking located in Zone 8 relocated to the multi-deck car park in Zone 11. I note the applicant agrees to be bound by the conditions of consent below: (A) Development Consent DU/2004/479B is to be modified pursuant to section 80A(1)(b) of the Environmental Planning and Assessment Act 1979 and clause 97 of the Environmental Planning and Assessment Regulation 2000 such that no further construction works which would reduce car parking numbers in Parking Zone 8 may be undertaken under that consent until the multi-level car park approved by Development Consents U98-0134 and D/2009/205 is constructed and operational or until this Consent lapses in accordance with Condition C. (B) No work or use under this Consent may commence until condition A above has been complied with. (C) This Consent will lapse if the development for the purposes of the multi-level car park authorised by Development Consents U98-0134 and D/2009/205 is not completed and operational by 31 January 2015 . (D) Upon construction of the multi-level car park approved by Development Consents U98-0134 and D/2009/205 70 spaces are to be relocated from zone 8 to zone 11 and the Traffic, Parking and Pedestrian Management Plan is to be updated. 107The use of Zone 11 for car parking represented a significant difference between the experts and after considering the competing evidence, I am satisfied that the evidence of the applicants experts that sufficient parking is available in the multi deck car park should be accepted for the following reasons:

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The bus set down/pick up area The evidence 109Mr Rogers states that the church will operate four buses (3 x 12.5 m long buses and a minibus) running a shuttle between the site, the Waterloo church facility and nearby railway stations. The bus trips will take approximately 30 minutes for a round-trip and will operate at 8 to 10 minute intervals. The designated pickup/collection point adjoining Entry No.4 can accommodate at least three buses and because of the staggered nature of services Mr Rogers states there will be no congestion. 110Entry No.4 provides three traffic lanes for entry to the site. This allows sufficient room for buses to stop and drop off/collect passengers and for vehicles to access the site in the adjacent entry lane. Mr Rogers sees no potential conflict with its use of this area as a truck waiting area, as the truck movements to the site are few on weekends and the use of the waiting area will not be required. While accepting that the original proposal for a bus set down/pickup in Doody Road was more desirable, it was unfortunately rejected by the council even though this location would overcome a number of the issues raised by the council. 111Ms Reeve states that the bus set down/pick up area proposed in the amended application is in conflict with consents for Hannan Print that require trucks to be wholly within the site before being required to stop (condition 22) and that no trucks shall stand or queue on surrounding streets (condition 23). Based on these conditions, the heavy vehicles that service the loading dock located within Zone 8, associated with Hannan Print, are limited to accessing the site from either Entry No.4 or the northern driveway in O'Riordan Street. These vehicles cannot be diverted to another entry point to the site if the arrival conflicts with the collection times for Church patrons. Ms Reeve states that while Entry No.4 has a width to accommodate three traffic lanes, it has been accepted that the lane to be utilised for the bus set down/pick up area has been set aside for heavy vehicle parking in the event that the loading dock within Zone 8 is being utilised. This highlights potential conflict and queueing issues. Ms Reeve states that the operation of Entry No.4 is the key entry to the Corporate Park and its effective operation may be compromised by the prioritisation of Church uses over existing industrial users. Findings 112While the use of the driveway from Entry No.4 is not optimal, I am satisfied that it would not be a reason to refuse the development application for a number of reasons. First, the driveway has adequate with to accommodate the bus set down/pick up, while still allowing vehicles to pass and trucks, if necessary, to temporarily park if the Zone 8 loading dock is being used and still allow access to the Corporate Park. Second, I agree with Mr Rogers that the evidence clearly suggests that there is a low level of industrial activity on Saturday afternoons and Sundays when the peak operating times of the Church occur. Third, the evidence of Mr Hannan that Hannan Print is to vacate the site in 2012. Fourth, for reasons set out later in the judgment, I am satisfied that the Plan of Management can adequately deal with the traffic and pedestrian movements associated with the Church, in the event that a truck needs to use the area if the Zone 8 loading dock is being used, although I do expect this to be a regular occurrence. Fifth, I acknowledge that the use of transport, other than private vehicles, is a laudable aim and a desirable aspect of the proposed development that is supported in councils planning documents, and in the absence of a more optimal solution, such as a bus set down/pickup in Doody Road, the proposed location is a reasonable alternative.

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The Plan of Management 113In considering whether a Plan of Management is appropriate for a particular use and situation, the findings in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 provide some guidance through the following questions:

Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
Is the Management Plan to be enforced as a condition of consent?
Does the Management Plan contain complaint management procedures?
Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 114Mr Rogers and Mr Pindar disagree on the appropriateness and effectiveness of the proposed Plan of Management. Mr Pindar acknowledges that operations at the Corporate Part are presently moderate on weekends however the mixing of cars, trucks and pedestrians within an industrial estate, to the extent proposed in this application is unacceptable on weekdays and is unreasonable and on weekends because it is not sound planning for the uses to be mixed. In his opinion, they are fundamentally incompatible because of potential safety issues. The extent of reliance on traffic marshals within the public road system throughout the weekend is unprecedented, in his opinion. While it may be appropriate to deploy marshals within the site to control internal operations, the constant interruption to traffic on the public road network is unreasonable. 115Mr Rogers states that the Plan of Management should be seen in the context of the low levels of traffic activity in Zones 2, 8 and 11. With regard to access to units along at Graphix Row, access to tenant parking in Zones 2, 8 and 11, conflicts between pedestrians and vehicles, congestion and access points due to queueing and mixing of Church and non-Church traffic, Mr Rogers states that this simply will not occur as there is minimal traffic activity within the areas on weekends. Even if some of the concerns addressed by council do occur, the traffic marshals will manage the situation, in addition to their roles in guiding and directing cars and pedestrians. 116If the different opinions of Mr Pindar and Mr Rogers are considered against the questions raised in Renaldo Plus 3, I am satisfied that the conclusions of Mr Roger should be preferred, although the Plan of Management needs to be amended to include further matters identified in the following paragraphs. Also, and while I am satisfied that the Plan of Management is acceptable, I am also of the view that a requirement should be included in the Plan of Management that it be audited over the first 12 months of its operation to determine whether other modifications should not be made to provide greater efficiency and effectiveness in its operation for Church patrons and the adjoining road network (see deferred commencement condition 1(a)(xv)). Question 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 117I accept that the requirements in the Plan of Management relate to the proposed use and complement the other conditions of approval. The management of traffic and pedestrians is a significant part of the proposed development and the use of a Plan of Management is an appropriate mechanism to control these movements. I am unaware of any conflict between the contents of the Plan of Management and the other conditions of approval. Question 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 118I agree with Mr Rogers that the Management Plan will not require people to act in an unlikely or unreasonable manner. While Mr Pindar may be correct in that the proposal provides more traffic marshals than in other applications he has considered, this does not necessarily mean that the management of traffic and pedestrians cannot be properly and safely achieved. As explained by Mr Rogers, the role of the traffic marshals is to guide the Church patrons into the various zones allocated to the Church for car parking. When the car park zones are full, signs will be provided to indicate that the car parking area is full and directing Church patrons to other car parking zones. While there may be some initial confusion by Church patrons in the early operation of the parking regime that may result in some disjointed movements into the various car parking zones, I am satisfied that given the likely regular attendance of the same Church patrons, any disruption is likely to be minimal once a greater knowledge of the on-site parking regime is gained by a Church patrons. While there still may be some times where Church patrons seek assistance from the traffic marshals, I see no reason why a largely constant flow of vehicles into and out of the parking zones cannot be achieved in a relatively efficient manner. I do not accept the conclusions of Mr Pindar that the traffic marshals necessarily need to operate within the public road or that there will be a constant interruption of traffic on the public road network caused by vehicles reversing on to public streets and constant interruptions to vehicles entering the parking zones. In coming to this conclusion, I have taken into account the lack of objection from the Roads and Maritime Services and the agreed relatively low volumes of traffic on surrounding streets during the weekend. 119The Plan of Management is to be amended to include:

the provision of temporary pedestrian fencing to separate pedestrian movements and vehicle movements from the bus set down/pickup area to Graphix Row and the monitoring of movements by a traffic marshal during Church operating times (see deferred commencement condition 1(a)(ix)),
the temporary replacement of existing signage that indicates the one-way flow of traffic along, and in the vicinity of Graphix Row outside Church operating times and its replacement with signage that indicates the amended traffic movements in this area during Church operating times (see deferred commencement condition 1(a)(iii)), and
the notification to all tenants and operators of businesses affected by the changed traffic movements along Graphix Row of the amendments to traffic movements on weekends and also a contact name and phone number so that access can be obtained if required, during Church operating times (see deferred commencement condition 1(a)(ix)). Question 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 120Given the generally low level of use of the industrial uses near the site and the fact that the Plan of Management is directly related to the Church and the management of its patrons; I am satisfied that the source of any breaches of the Plan could readily be identified, if any enforcement action was required. Question 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 121While absolute compliance with the Plan of Management is a desirable outcome, I am satisfied that an acceptable outcome can be achieved without total compliance given the agreed relatively low volumes of traffic on surrounding streets during the weekend and low levels of parking in the Corporate Park. Question 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 122I accept that it can reasonably be expected that the Church patrons will be made aware of the contents of the Plan of Management through communications between patrons and the Church. 123The Plan of Management is to be amended to include details of the means of communicating the requirements of the Plan of Management to Church patrons (see deferred commencement condition 1(a)(xii)). Question 6. Is the Management Plan to be enforced as a condition of consent? 124Yes. Question 7. Does the Management Plan contain complaint management procedures? 125No, but procedures should be included as a condition of consent. The Plan of Management is to be amended to include complaint management procedures (see deferred commencement condition 1(a)(xiii)). Question 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 126No, but this should be included as a condition of consent. The Plan of Management is to be amended to include procedures for updating and changing the Plan of Management (see deferred commencement condition 1(a)(xiv)).

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Is approval required from the Roads and Maritime Services? 127Mr Tomasetti submits that the Court has no power to approve the Plan of Management as the powers of the Roads and Maritime Services contained in Division 2 Part 8 of the Roads Act 1993 or Division 1 Part 4 of the Road Transport (Safety and Traffic Management) Act 1999 that have been delegated to the council are not matters which refer to, or require "consultation with" or the "concurrence or approval" in the terms set out in s 39(6A) of the Land and Environment Court Act 1979. 128Mr McEwen disagrees that the provisions of the Roads Act 1993 or the Road Transport (Safety and Traffic Management) Act 1999 apply as the internal roads of the Corporate Park, which are subject to the Plan of Management, are not roads on road related areas, as they are not open to the public as of right. The internal roads are designated for use by the owners, the tenants, contractors and visitors of the Corporate Park but not the public at large. Mr McEwen submits that even if Mr Tomasetti's submissions are accepted, the only concern of the Court would be to ensure that the Plan of Management is approved by the Roads and Maritime Services (RMS) prior to any works or use being carried out under the consent, and as such a deferred commencement condition could be imposed. 129Notwithstanding the comprehensive submissions made by the parties on this issue, I agree with Mr McEwen that a deferred commencement condition is the appropriate means of dealing with this matter. In my view, the fundamental question of whether the RMS needs to give approval is questionable given that the Plan of Management deals principally with internal traffic movements, although I acknowledge that the access points are from public roads. 130I do not accept that the use of a deferred commencement condition leaves "unresolved and for future determination, issues known and unknown, in respect of the development" ( Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (11 December 1996, unreported). The RMS has previously commented positively on the proposed development in terms of the impact on the adjoining road network, and presumably their comments were with the knowledge that the proposed development relied on a Plan of Management In accepting that an absence of comments specifically on the Plan of Management is not necessarily an endorsement of the document, it is sufficient, in my view, for the question of whether a deferred commencement condition is appropriate, in this instance, to answered in the positive.

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Conditions 131The council filed without prejudice conditions of consent (Exhibit 18) and the applicant provided a response to these conditions (Exhibit M). A number of conditions remained in dispute between the parties. These conditions are: Deferred commencement conditions 132The council accepts deferred commencement conditions that identify a range of matters to be included in an updated Traffic, Parking and Pedestrian Management Plan however objects to the deferred commencement condition requiring the surrender of Development Consent DU/2004/479 for the construction of a new industrial warehouse building within Zone 8 of the Corporate Park on the basis of proposed operational conditions (A) - (D) that addresses any potential conflict with the allocated parking in Zone 8. 133I accept the applicant submissions on the protection of the allocated parking in Zone 8, and their ultimate relocation to Zone 11, through proposed operational conditions (A) - (D). Condition 3 134This condition addresses the maximum capacity of the different activities proposed for the site. I accept the applicant's submission that this is best addressed through the table in the amended Statement of Environment Effects (see para 7) as this was basis on which the hearing was conducted and the expert evidence provided. Condition 4,19, 34 135Condition 4 requires the Operational Plan of Management to be submitted to and approved by the councils Director City Planning and Regulatory Services whereas the applicant proposes that the Operational Plan of Management to be submitted to and approved by the Council. Similar approval requirements are proposed for conditions 19 and 34. 136I accept the applicant submissions on the appropriate approval authority as well as some other minor drafting changes to condition 4. Condition 14 137This condition provides a mechanism to deal with noise complaints that includes the cessation of the operation, if the noise complaint is substantiated by a Council Officer. The applicant seeks the deletion of this condition as it is unnecessary and unreasonable. 138I agree with the applicant on this condition given conditions 11, 12, 13,15,16 and 17 that address potential noise issues. Noise was not an issue raised in the proceedings and given the distance to residential properties and the different peak times with the industrial users of the property, I accept that the condition is unreasonable and unnecessary in this context. In the event that a noise issue arises, action may be taken under the Protection of the Environment Operations Act 1997. Conditions 6, 11, 13, 15 139The applicant proposes minor drafting changes to these conditions, which I accept.

[29]

Costs 140The respondent seeks the following orders in relation to costs: 3. The Applicant is to pay the costs of the Respondent that were incurred in respect of the assessment, and proceedings relating to the original development application the subject of the appeal up to 31 August 2011. 4. The Applicant is to pay the costs of the Respondent thrown away as a result of the adjournment of the proceedings on 6 September 2011. 5. The Applicant is to pay the costs of the Respondent that were incurred in respect of the assessment, and proceedings relating to the original development application the subject of the appeal up to 19 October 2011. Order 4 141Mr Tomasetti submits that the applicant has already given an undertaking to pay the respondents costs thrown away as a result of the adjournment of proceedings on 6 September 2011. In the event that the parties are not able to reach an agreement as to the quantum of costs to be paid, an order for costs is required to commence cost assessment proceedings in the Supreme Court of New South Wales, pursuant to s 353 of the Legal Profession Act 2004. While the council will negotiate in good faith, the order should be made to avoid the necessity of a further costly court appearance. 142Mr McEwen submits that Order 4 falls within the category of a general costs order and pursuant to Rule 3.10(1)(a)(iv) of the Land and Environment Court Rules 2007 (the Rules), a Commissioner of the Court cannot exercise general cost orders pursuant to s 98 of the Civil Procedure Act 2005. 143On the question of an Order 4, I accept that submissions of Mr McEwen that a Commissioner of the Court cannot exercise general cost orders. I decline to make Order 4 for this reason however I acknowledge the agreement of the applicant to pay the respondents costs thrown away as a result of the adjournment of proceedings on 6 September 2011. Orders 3 and 5 144Orders 3 and 5 are sought by the respondent pursuant to s 97B Environmental Planning and Assessment Act 1979. There was no dispute that a Commissioner of the Court can exercise the power to grant orders pursuant to Rule 3.10(2) of the Rules. As the development application was lodged prior to February 2011, s 97B relevantly states for the purpose of this application:

This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law. The first amendment 145Leave was granted for the first amendment on 31 August 2011. The amendments, in general terms, were:

different access arrangements,
different bus set down/pickup point from Doody Street to within the site, change parking arrangements with Zones 5 and 6 no longer used and replaced with Zone 8,
changed starting and ending time for Church services,
further details on the number of people using the premises,
closure of Graphix Row to vehicles, and
a changed Plan of Management. The second amendment 146Leave was granted for the second amendment on 19 October 2011. The amendments resulted in an Amended Statement of Facts and Contentions, a Supplementary Statement of Environmental Effects and an amended Traffic Report, additional expert evidence on traffic and parking and new joint reports on traffic and parking and statutory planning. New statutory planning evidence was necessary as the previous council statutory planning expert was not available beyond the original hearing dates; being on maternity leave. The additional evidence amended the proposal, in general terms, by:
additional parking within Zone 11,
reduced parking within Zone 2,
relocation of the bus set down/pickup area,
additional access point to Bourke Road,
additional use of traffic wardens, an
reduction in the number of patrons to 1050. The submissions 147The applicant's primary submission is that there is no power for the Court to make Orders 3 and 5 pursuant to s 97B because s 97B(2) can only require a costs order in respect of "the original development application". Once the original development application is amended it is no longer "the original development application" and therefore s97B(2) is no further applicable. 148Mr McEwen submits that from the first amendment, the development application was no longer "the original application" but instead became an amended development application. The consequence of this is that when the amended development application was amended the second time, s 97B could not apply. 149Mr McEwen submits that there are no authorities that indicate what constitutes a minor amendment for the purposes of s 97B(1) but accepts that it is a question of fact and agree in every case. Some principles are set out in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 as to what constitutes a minor amendment. 150Mr McEwen submits that the first amendment was minor and therefore s 97B does not apply, in any event. In the context of the application, the amount of parking and the availability within the site has always been in contest and the experts had always considered the parking within the Corporate Park and all of the consents. Although the amended application gave rise to further investigation of consents, these investigations did not arise from the amendment. It arose because the initial assessment, which was undertaken by both parties regarding the number and location of spaces allocated by the numerous consents affecting land, was incomplete. Similarly, the location of the bus stop was always flexible and the management of Graphix Row was a minor extension to the original traffic management plan. If considered against the principles in Futurespace, Mr McEwen submits that the first amendment was minor. 151For the second amendment, Mr McEwen submits that as a matter of fact and degree; the amendment was minor. The amount of parking was always in contest and although the second amendment application gave rise to further investigation of consents, these investigation did not arise from the amendment. It arose because the initial assessment, which was undertaken by both parties, was incomplete. The change in patron numbers and the expanded parking locations were only changes to details. Again, if considered against the principles in Futurespace, Mr McEwen submits that the first amendment was minor and as such, not costs order can be no. 152Mr Tomasetti submits that s 97B costs orders can, and have been made on multiple locations before by the Court. In circumstances where the Court has allowed the applicant to amend its development application, the section applies or is triggered. Once a development application is amended, it becomes the development application to be assessed under s 79C of the EPA Act. Nothing precludes an applicant from seeking to amend the development application, notwithstanding that it has already been amended before. The section is not expressly constrained so as to apply only to the first amendment made. It logically applies when an amendment to the development application (as amended) is applied for and allowed, except for a minor amendment. 153Mr Tomasetti submits that the first amendment is not a minor amendment. When the development application was lodged with the council, a detailed analysis of available car parking on this site was requested, and repeated on numerous occasions, including the joint conferencing. The production of a detailed parking study may have resulted in the amendments, and the adjournment being unnecessary. The absence of critical information and the lack of analysis by the applicants experts during the initial hearing, led the applicant to realise that the Plan of Management, as proposed, was fundamentally flawed and that reliance on entirely different parts of the site for parking was now necessary. Car parking and traffic was, and is a fundamental part of the development application and is a central contention raised by the council. Mr Tomasetti rejects the submission that the amendments made were merely additional details but a fundamental part of the application. 154Mr Tomasetti submits that the second amendment necessitated a significant reassessment, including preparation of amended contentions, new reports, new statements of evidence and further joint conferencing. He further submits that at the time of the adjournment of the initial hearing, the applicant was in full knowledge that any adjournment would result in the council needing to engage a different statutory planner because of the previous statutory planner was commencing maternity leave soon after the first dates for the hearing. With this knowledge, the applicant still chose to adjourn the proceedings, amend its application and seek new hearing dates rather than proceed with the development application that existed at that time. Findings 155The first question to be answered is whether the amendments are "minor". If the amendments are "minor", then the question of a s 97B costs order does not arise. Some guidance on this matter can be obtained from the judgment of Pepper J in Futurespace where Her Honour states (at 42): 42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree ( Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development ( Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). 156If the amendments are considered in light of Futurespace, there can be no disagreement that:

The Applicant is to pay the costs of the Respondent that were incurred in respect of the assessment, and proceedings relating to the original development application the subject of the appeal up to 31 August 2011.

because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties it is not relevant to the determination of whether the amendments are minor (para 42(f)). 157In this case, and having regard to the cumulative or overall effect in the context of the amendments, I am satisfied that the first amendment is not minor. I accept that a significant re-assessment of the development application was required by the first amendment. While amendments such as the changed starting and ending time for Church services and further details on the number of people using the premises, could, in isolation be regarded as minor, the change to the bus set down/pickup point and parking areas and the closure of Graphix Row to vehicles clearly amounted to a significant change to the access and parking arrangements for the proposed development. The parking and traffic assessment is complicated by the multiple users (some without development consent) and the specific requirements of development consents that needed to be individually assessed, largely because of the haphazard way in which parking was allocated for the Corporate Park. Because of this arrangement, car parking could not be simply reallocated to another area on the site. Further assessment was also required because of the potential conflict with the Masterplan and the industrial users of the site and Church patrons, even though they operate different peak times. I agree with the submission of Mr Tomasetti that the absence of a detailed analysis of the convoluted parking arrangements within the Corporate Park was a significant reason for the adjournment of the initial hearing. 158I also accept that a significant re-assessment of the development application is required by the second amendment for similar reasons as the first amendment. The additional parking within Zone 11 raises the same issues over the allocation of parking within the Corporate Park. The need to prepare an Amended Statement of Facts and Contentions, a Supplementary Statement of Environmental Effects, an amended Traffic Report and additional expert evidence on traffic and parking and new joint reports on traffic and parking and statutory planning highlights the complex nature of the amendments. Minor amendments, in many instances, can be addressed solely through additional oral evidence from the experts. 159On the question of whether s 97B costs orders can be made if a development application is amended, I accept with the submissions of Mr McEwen that once the original development application is amended it is no longer "the original development application" and therefore s 97B(2) is no further applicable. The power to modify the development application by the Court is available through s 39(2) of the Land and Environment Court Act 1979 and cl 55 of the Environmental Planning and Assessment Regulation 2000. Section 97B(1) specifies when the provisions of s 79B apply, that is when the applicant files an amended application. Section 97B(2) however places limitations on the provisions of s 79B(1) by limiting costs to "the original development application the subject of the appeal". Having been amended, the "the original development application the subject of the appeal" effectively no longer exists. The development application, the subject of the appeal, is now the amended development application even if Mr Tomasetti's submission that it is an illogical has some practical merit. To grant a s 97B costs order for the second amendment would be in conflict with s 97B(2). The unavailability of s 79B for costs associated with the second amendment does not however preclude the question of costs being sought pursuant to Rule 3.10(1)(a)(iv) of the Rules. 160For these reasons, the appropriate costs order is:

At a glance

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Judgment (30 paragraphs)

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Cases Cited (8)

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