COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2019/0644 for demolition works, alterations to an existing building, change of use from a nursing home to a place of public worship, associated community meeting rooms, car parking, landscaping and associated works, (the proposal) at 88-92 Botany Street, Carlton (Lots 21-24 in DP 87691) (the site), by Georges River Council (the Council).
The appeal was subject to conciliation on 10 March 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As an agreement was not reached during the conciliation phase, the conciliation conference was terminated on 20 April 2022, pursuant to s 34(4) of the LEC Act.
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The development application has been amended
The applicant was granted leave by the Court to amend the application on 19 July 2022.
The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the application because the application was lodged with the Council on 6 January 2020, the application was refused on 16 December 2021, the Class 1 application was filed with the Court on 17 December 2021, and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).
The amended application was uploaded to the NSW planning portal on 19 July 2022 with the Council's consent (cl 55 of the EPA Regulation 2000).
The amended application was renotified to affected residents on 19 July 2022 and additional submissions were received (Ex 1, par 81).
Orders by consent of the parties
On 16 August 2022, following the amendment of the application, the parties applied for consent final orders.
The Court's Practice Note Class 1 Development Appeals includes the following in relation to an application for consent final orders in a development appeal at paragraph 99:
99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
(i) the content of the proposed orders (including the proposed conditions of consent);
(ii) the date of the hearing by the Court to consider making the proposed consent orders; and
(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.
Council read the affidavit of Ms Jane Elizabeth Hewitt affirmed on 11 August 2022 who deposed that she sent letters (by electronic mail to 847 persons who had submitted an objection to the development application by email; and by post to a further 1200 persons who had submitted an objection and not provided an email address) informing objectors that the application had been amended and that the matter would now proceed to a consent orders hearing. The letters included a link to the proposed conditions of consent.
The site and its context
The site is bounded by Botany Street to the south-west, Ethel Lane to the north-west and Xenia Avenue to the north-east.
Sydney Technical High School is on the north-western side of Ethel Lane and Ethel Street.
The site contains an existing nursing home on three lots (88-90 Botany Road), and a dwelling and a garage on an adjoining single lot (92 Botany Road).
The site area is 1,988m2 and falls approximately 4m from north to south.
The proposal
The proposal is to amalgamate the four lots.
The proposal is to demolish the dwelling and garage at 92 Botany Street and the annex to the existing building fronting Xenia Avenue. The proposal is to retain the footprint and outer walls of the two-storey existing building; to retain some internal walls on the upper level; and to retain the existing roof form.
The proposed alterations to the existing building include internal works to create new prayer rooms, community rooms, administrative rooms, a small residential apartment, and facilities. The changes to the existing building include new windows and doors.
The vehicular entry to the site is from Botany Road. The existing vehicular entry to the site from Xenia Avenue is to be removed.
The proposal includes parking for 27 cars onsite, accessed from Botany Road, including two tandem car spaces adjacent to the southern boundary to be used by staff. The proposal includes landscaping.
The proposal includes a 1m acoustic fence along the Xenia Avenue boundary.
The proposal includes a Plan of Management (Ex B). The proposal requires all worshippers to register for onsite car parking and prayer sessions; identifies specific limits on the number of worshippers for all prayer events and community events; and requires worshippers and visitors to the site to be electronically counted and the data be made available to the Council on request.
Planning framework
The Georges River Local Environmental Plan 2021 (LEP 2021) includes a savings provision at cl 1.8A for development applications lodged prior to the commencement of LEP 2021 on 8 October 2021 but not yet determined. The application was lodged on 6 January 2020. The proposal would be a prohibited development in the R2 zone under LEP 2021, had LEP 2021 applied to the application. LEP 2021 is relevant only as a public interest consideration under s 4.15(1)(e) of the EPA Act (Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 at [21]).
The saved Local Environmental Plan applicable to the application is the Hurstville Local Environmental Plan 2012 (LEP 2012).
The site is zoned R2 Low Density Residential and pursuant to LEP 2012 community facilities and places of public worship are permissible uses in the R2 zone with consent. The relevant objectives of the R2 zone, to which regard must be had, are as follows:
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that a high level of residential amenity is achieved and maintained.
• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.
The proposal complies with the height of buildings development standard under cl 4.3 of LEP 2012 of 9m, with a maximum height of 6.3m; and the floor space ratio (FSR) development standard under cl 4.4 of LEP 2012 of 0.6:1, with a FSR of 0.52:1.
Georges River Development Control Plan 2021 (DCP 2021), which commenced on 8 October 2021, contains a savings provision for applications made but not yet determined before the commencement of DCP 2021. Those applications are to be determined as if DCP 2021 had not commenced. The Council submitted that, notwithstanding that DCP 2021 does not apply to the application, the proposal satisfies the requirements for places of public worship under Section 4.3 of DCP 2021.
Hurstville Development Control Plan No. 1 (DCP No. 1) applies to the application (1.3 of DCP No. 1).
Under Table 2 car parking rates of Section 3.1 of DCP No. 1, a place of public worship is required to provide 1 space per 10 seats or 1 space per 10m2 GFA (gross floor area), whichever is the greater. The proposal requires 97 car parking spaces according to this rate.
Expert evidence
The applicant relied on the expert evidence of Robert Bennett (planning), Thomas Taylor (acoustic engineering) and Rhys Hazell (traffic and parking).
The Council relied on the expert evidence of Clare Brown (planning), Richard Haydon (acoustic engineering) and Robert Varga (traffic and parking).
The planning experts prepared a joint report (Ex 2).
The acoustic experts prepared a joint report (Ex 3).
The traffic and parking experts prepared a joint report (Ex 4).
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Public submissions
Twelve objectors gave evidence at the commencement of the hearing onsite. Their concerns can be summarised as:
The proposal will result in loss of privacy for surrounding residential dwellings;
The acoustic impacts of the proposal will disturb neighbours;
The proposal will increase activity in the residential neighbourhood;
The proposal is an overdevelopment of the site;
The development is inconsistent with a low density residential character and this is reflected in the prohibition of Places of Public Worship in the R2 zone under the new Local Environmental Plan;
The site is unsuitable for the development;
The development does not provide the required number of car parking spaces onsite;
Cars associated with the use of the development will be parked on surrounding streets;
There will be vehicles leaving the site after 10pm;
There will be queues of cars during special events and Ramadan, blocking access to Ethel Lane;
The visitor numbers are an underestimation of the capacity of the development;
The Plan of Management cannot be enforced;
Clarification is needed regarding the proposed crowd control measures associated with the development;
The residents should not be required to report breaches of the conditions of consent to the Council;
The amended proposal does not ameliorate the concerns of the objectors;
The development is likely to be intensified in the future;
The Council had ignored the wishes of the local residents;
The value of properties proximate to the development will decrease;
The increased vehicular traffic around the development will pose a safety risk to school children;
The new Local Environmental Plan should be considered as the development is prohibited under the new plan;
The trial period will occur after the development has been constructed;
The fence along Xenia Avenue must be an acoustic fence;
The planned prayer session clash with sports afternoons and school dismissal;
The current configuration of the driveway only allows for a single car to enter or exit;
There is no room for a small rigid vehicle to turn around; and
Car parking spaces should be 2.6m wide instead of 2.5m wide.
The written submissions of objectors were included in the Council's folders admitted as evidence in the proceedings.
A protest of the proposed development was held during the site inspection, supervised by NSW Police.
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Consideration
I accept the Council's submission, on the basis of the evidence before me, that the site is not identified as a heritage item or within a heritage conservation area (cl 5.10 of LEP 2012); that the conclusions of the Flood Impact Report are accepted (Ex A, tab 20) and the proposal meets the objectives for flood planning (cl 5.21 of LEP 2012); that the site is not identified as containing acid sulfate soils (cl 6.1 of LEP 2012); and that essential services necessary for the development are available (cl 6.7 of LEP 2012). I accept the Council's submission that the site is not identified as contaminated land (cl 4.6(1)(a) of State Environmental Planning Policy (Resilience and Hazards) 2021.
I accept the experts' analysis and agreement that the amended application has successfully addressed the contentions raised by the Council in the Statement of Facts and Contentions filed 23 February 2022 (Ex 5) and the relevant concerns raised by the objectors.
I accept the planning experts' agreement that the proposed landscaping along the boundaries of the site meets the performance criteria for landscaping at PC5 and PC7 of Section 3.5 of DCP No. 1. I accept their agreement that the proposed landscaping will soften the interface between the development and the public domain, and that the consent requires the landscaping to be maintained for the life of the development.
I accept the acoustic experts' agreement that the 1m high fence along the Xenia Avenue eastern boundary, together with the topography of the site, will be an effective noise control measure. I accept the acoustic experts' agreement that a safety margin of 2dB exists under a worst-case operations scenario and a minor exceedance of patron numbers or vehicular movements would produce a noise level that would be less than the safety margin.
I accept the agreement of the traffic experts that 27 car parking spaces onsite, including 2 tandem spaces for staff, is sufficient and that further car parking spaces are available for worshippers and visitors on Botany Road. I accept their analysis and agreement that the concerns raised by the traffic consultant engaged on behalf of one of the objector organisations are resolved by the amended application.
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Conclusion
I have considered the matters raised in the Court's Class 1 Development Appeals Practice Note under paragraph 99 regarding an application for final orders by consent of parties, and I am satisfied, based on all the evidence before me, that it is lawful and appropriate to make the orders requested by the parties.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. 2019/0644 for demolition works, alterations to an existing building, change of use from a nursing home to a place of public worship, associated community meeting rooms, car parking, landscaping and associated works, at Lots 21-24 in DP 87691, known as 88-92 Botany Street, Carlton NSW 2218, is determined by the grant of consent, subject to the conditions set out in Annexure A.
3. The exhibits, other than Exhibits 1, 2, 3, 4, 5, 10, A and B, are returned.
Susan O'Neill
Commissioner of the Court
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Annexure A
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Decision last updated: 06 September 2022