Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1590 | Case summary

Land and Environment Court (NSW)|2017-08-16

Judgment

COMMISSIONER: These are two separate but related appeals in relation to the existing heritage building at 60C Blair Street, North Bondi (the site). The parties accepted that the evidence in one appeal can be evidence in the other appeal. The appeals are: Appeal No 2016/159476 - development application that seeks consent for alterations and additions to the existing building to incorporate a child care centre (the child care application). Appeal No 2016/374762 - development application that seeks consent to use the existing building as a place of public worship (synagogue), associated religious and community education and ancillary dormitories for religious educators (the synagogue application).
On 16 August 2017, the Court handed down findings on the two appeals that concluded that both appeals should be upheld (Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1276). As the Court was being asked to consider two separate applications on the same site, the parties agreed at the hearing that the Court should hand down its findings initially and allow the parties time to provide conditions; which may vary depending on whether both applications are approved or alternatively only one application is be approved.
This judgment addresses the dispute between the parties on a condition of consent.

Relevant planning controls

The site is zoned SP2 Educational Establishment & Place of Public Worship under Waverley Local Environmental Plan 2012 (LEP 2012). The synagogue application is permissible in this zone, with consent; however the child care application is a prohibited development on the site. This application relies upon the heritage conservation incentive provisions in cl 5.10(10) of LEP 2012 to overcome the prohibition.
The site is not located in a heritage conservation area but the building is identified as a heritage item of local significance as a "1930's style brick religious building, St Anne's Convent of Mercy", so the heritage provisions in cl 5.10 apply.
Waverley Development Control Plan 2012 (DCP 2012) applies to the site.

The condition in dispute

The only outstanding difference between the parties relates to council's condition 12 of the synagogue application which states: NOISE FROM USE The use of the premises shall not give rise to: a) Transmission of "Offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy. b) The LAeq(15min) noise level emitted from the use of the premises shall not exceed the LA90,15min background noise level (measured in the absence of any noise emitted from the premises by more than 5dB when measured at a height of 1.5m above ground level at any point within the boundary of any affected residential premises, or at 1.5m above the floor level of any residential balcony, or at any residential window or elevated residential window. "affected residential premises" includes any lot in a strata scheme. Terms in this condition shall have the same meaning as in the Environment Protection Authority Noise Guide for Local Government & NSW Industrial Noise Policy. Notwithstanding compliance with (b) above, the noise from any sound reproduction device and mechanical plant and equipment associated with the premises must not be used in such a manner that it emits noise that can be heard within a habitable room in any residential premises between the hours of 12.00 midnight and 7.00am.
The parties rely on the respective positions of the acoustic experts set out in the acoustic joint report and the position of the experts with respect to condition 12
Dr Tonin, for the council, requires that noise emitted from the use of the premises shall not exceed the background noise level by more than 5dB ("background plus 5"). "Use of the premises" includes both internal use and use of the outdoor area (for example, noise from children playing in the outdoor area). The applicant advises that noise from the outdoor area will not comply with this criteria and objects to use of the outside area being included in condition 12. The use of the outdoor area is documented in the table "Existing Operation and Hours - August 2017" and does not constitute an infrequent use.
Dr Tonin explains that council's criteria of "background plus 5" is based on EPA's recommended intrusive noise limit which can be found in the Noise Guide for Local Government (p2.7) and the NSW Industrial Noise Policy (p 14). If that objective cannot be complied with then feasible and reasonable mitigation measures need be adopted. In respect of children using the outdoor area, this might include the installation of a noise barrier to protect the acoustic amenity of the adjoining neighbours. The applicant has agreed to adopt this approach for the approved childcare centre on the site. On this basis, there is no reason why the applicant should not adopt a similar approach in respect of mitigating noise from children associated with the Jewish Learning Centre playing in the outdoor area. The proposed outdoor area is well defined and an extension of the noise barrier proposed for the child care play areas would in Dr Tonin's opinion, be feasible and reasonable.
Mr Scannell, for the applicant, states the noise barriers that have been agreed to by the acoustic experts for the synagogue application and which are the same noise barriers agreed to for the approved child care centre on the site. These barriers should ensure acceptable levels of noise from the synagogue use, including compliance with council's "background plus 5" noise criteria with respect to children at play in the outdoor area. Mr Scannell states that is not appropriate to apply the NSW Industrial Noise Policy, and by reference the Noise Guide for Local Government as it is specifically aimed at large and complex industrial activities and places of public worship are not normally subject to the NSW Industrial Noise Policy and to do so here would set a dangerous precedent.
Mr Scannell states that the synagogue use is unlikely to be able to comply with the acoustic criteria sought in condition 12 on certain infrequent and short occasions, for example, during the Kiddush (which comprises part of the Sabbath service from approximately 11.45am to 12.45pm on Saturdays). However, the synagogue use is likely to be able to comply with the "background plus 5" acoustic criteria if it applies only to the use of mechanical plant and equipment and amplified music from the premises. In the circumstances, this would be a reasonable solution that would avoid the need to extend noise barriers on the site.
In balancing the different evidence, I am satisfied that the condition should remain in the form provided by the council. The basis of the "background plus 5" acoustic criterion may be the same as that provided in the NSW Industrial Noise Policy, and by reference the Noise Guide for Local Government however it is not an unreasonable criterion given the proximity of residential development. Once operational, and if there are no unacceptable acoustic impacts; the condition may be modified through s 96 in line with Mr Scannell's suggestion.

Orders

In Appeal No 2016/159476, the orders of the Court are: 1. The appeal is upheld. 2. Development Application No DA-254/2015 for alterations and additions to the existing building to incorporate a child care centre at 60C Blair Street North Bondi is approved subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibits 1, 2, A, S and T.
In Appeal No 2016/374762, the orders of the Court are: 1. The appeal is upheld. 2. Development Application No DA-466/2016 to use the existing building as a place of public worship (synagogue), associated religious and community education and ancillary dormitories for religious educators at 60C Blair Street North Bondi is approved subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibits 1, 2, A, S and T.

G Brown Commissioner of the Court 159476.16 (C) gtb (512 KB, pdf) 374762.16 (C) gtb (355 KB, pdf)

Amendments 20 December 2017 - Pursuant to UCPR 36.17, the slip rule, amend judgment of 20 October 2017 so that paragraph [9] quotes the corrected condition 12(b), and so that the conditions (17/374762) reflect the corrected condition 12(b). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2017

Jewish Learning Centre Limited v Waverley Council

At a glance

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Decision date

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Judgment (6 paragraphs)

Parties

Cases Cited (1)