Merrylands Islamic Centre for Youth and Adults Incorporated v Cumberland Council

Cases Cited: Australian Muslim Welfare Centre Inc v Campbelltown City Council [2024] NSWLEC 1810
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Texts Cited: Cumberland Development Control Plan 2021

Category: Principal judgment

Parties: Merrylands Islamic Centre for Youth & Adults Incorporated (Applicant)
Cumberland Council (Respondent)

Representation: Counsel:
Ms J Reid (Applicant)
Mr C McFadzean (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Cumberland Council ((Respondent)

File Number(s): 2024/421968

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER**:** This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. DA2023/0484 for the demolition of existing structures and construction of a community facility on land known as 20 Myee Street, Merrylands (Lot Z in DP 388342) by Cumberland Council (Council).

2. The Council remains opposed to the grant of development consent on the basis that the nature of the proposed use is uncertain and accordingly the environmental impacts of the proposed development are similarly uncertain and therefore warrant refusal of the application.

3. For the reasons set out below, I have determined that contrary to the Council’s position the application warrants approval. I find that, having regard to the proposed plans and amended POM, the proposed development is appropriately characterised as a community facility and is therefore permissible in the R3 Medium Density Residential zone being a nominate use. Further I find that the proposed use is consistent with the relevant objectives of the zone and that the likely environmental impacts are both known and acceptable. I have therefore determined that development consent should be granted subject to conditions.

4. In respect of the suggestion that the proposal will or may be used as a place of public worship, I find that no compelling evidence has been put to substantiate this claim. Indeed, to the contrary the Applicant has agreed to be bound by a detailed POM and conditions of consent that will ensure this does not occur. The fact that a previous application for a place of public worship was submitted by the same Applicant on the same site cannot be considered evidence that the previously intended use continues. Nor can arguments made that the Applicant does not own a separate site from which to operate a place of public worship or in respect of the cost of the land.

5. Further in accordance with s 4.15 of the EPA Act in determining a development application, a consent authority is to take into consideration such matters listed in that section as are of relevance to the development the subject of the development application. It is not open to the consent authority to consider what use a development may be used for in breach of its consent rather the consent authority, including the Cort in this instance, is bound by the applicable legislative framework.

The Application

6. The subject development application was originally submitted to Council on 25 August 2023. The Court granted leave for the Merrylands Islamic Centre for Youth and Adults Incorporated (the Applicant) to amend the application on 30 July 2025 and leave was also granted at the commencement of the hearing to rely on amended plans referred to in the Town Planning Joint Expert Report (JER). Accordingly, the application before the Court, as amended, comprises:

7. Demolition of existing structures and construction of a community facility with basement car park as follows:

| Basement | • 13 car parking spaces inclusive of 1 accessible car space • Bus bay parking space • Waste storage room • Services room | | Ground Floor | • 260m2 multipurpose area inclusive of entry foyer and reception • Kitchenette • Storage room • Office • Male, female and accessible toilets • Cleaner’s room • Landscape balcony facing the street above the ramp to the basement car park • 56.7m2 rear outdoor area surrounding water feature • 36.3m2 trafficable rear patio, accessed from the office, with stairs down to a landscape rear yard area • 66m2 of landscaping above the basement rooftop slab with a continuous 1.2m balustrade which denies access from the covered patio to the area. |

7. Throughout the course of the hearing the Applicant sought to address various contentions via amendments to its Plan of Management (POM) and agreement to proposed conditions of consent. I granted leave for the Applicant to rely on an amended version of the POM (v6.0 dated 11 November 2025) during the course of the hearing. This was not opposed by the Council. This judgment therefore has regard to the amended application including the latest revision of the POM.

8. The proposed hours of operation for the facility, as amended, are 8.30am to 7pm 7 days per week as detailed in the POM with the car park to be opened at 8.00am and closed at 7.00pm daily. The facility will also be closed between the hours of 12.45pm and 1.45pm daily to avoid congestion in respect of school pick up times. In addition, the Applicant agreed to a condition of consent proposing a maximum capacity of 60 patrons (including managers, staff and volunteers) at any time.

9. The POM incudes a list of proposed activities and timeslots for use of the proposed facility but does not specify exactly when each activity will occur or how frequently. Further it includes the term “or the like” to provide flexibility of use. The POM also includes a requirement that a 6 monthly schedule of activities and programs be prepared by the Site Manager / President of the Centre and be available for Council inspection on request. No changes are allowed to the POM without the written approval of Council.

Key Issues

10. The key issues in the appeal relate to the consistency of the proposed development with the objectives of the R3 Medium Density residential zone, uncertainty of the proposed use and accordingly its environmental impacts and the proper characterisation of the proposed development. All other contentions have been resolved to Council’s satisfaction or, as agreed by the parties, are minor only and can be addressed via condition of consent.

11. Most notably the Council says that the precise nature of the use is uncertain and that notwithstanding that the application seeks consent for a community facility, the proposal may be used as a place of public worship. This uncertainty appears to have been fuelled by a previously refused development application (DA2022/0417) on the subject site for a place of public worship for 40 – 50 worshippers. This previous application was refused on the basis of amenity impacts including primarily in relation to traffic, parking and noise.

12. Subsequent to refusal of previous DA2022/0417, the subject application was submitted for a community facility comprising a multi-purpose area of 215.1m2 with basement parking for 12 cars. The Applicant has proposed that the capacity of the facility be limited to 60 persons at any one time and that the premises be operated in accordance with a detailed POM. Further a condition of consent has been agreed to prohibit use of the premises as a place of public worship or prayer sessions.

The site

13. The subject site comprises land known as 20 Myee Street, Merrylands (Lot Z in DP 388342). The site is rectangular in shape with a frontage of 18.18m to the southern side of Myee Street with a depth of 55.64m and area of 1,011.5m2. It contains an existing detached dwelling house with outbuildings. The site is located within a largely residential neighbourhood however is directly opposite the Merrylands East Public School to the north across Myee Street. It is noted that the school has the unusual school hours of 8.00am to 1.15pm.

Permissibility

14. The primary environmental planning instrument applying to the site is Cumberland Local Environmental Plan 2021 (CLEP) under which the site is zoned R3 Medium Density Residential.

15. In accordance with the CLEP community facilities are permissible in the R3 Medium Density Residential zone with consent. A ‘community facility’ is defined as:

a building or place-

(a) owned or controlled by a public authority or non-profit community organisation, and

(b) used for the physical, social, cultural or intellectual development or welfare of the community

but does not include an educational establishment, hospital, retail premises, place of public-worship or residential accommodation.

16. There is no dispute between the parties that the Applicant, the Merrylands Islamic Centre for Youth & Adults Incorporated is a non-profit community organisation as detailed in its minutes of incorporation.

17. Notably, although no consent is sought for it, a place of public worship is also permissible with consent in the R3 Medium Density Residential zone being defined as:

Place of public worship means a building or place used for the purposes of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

18. The objectives of the R3 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a medium density residential environment.

• To encourage residential development that maintains the amenity of the surrounding area.

Public submissions

19. The original application was notified between 7 and 21 September 2023 and design amendments were renotified between 26 March and 9 April 2024. A total of 85 submissions were received objecting to the application. Issues raised by objectors include: inconsistency with character, uncertainty of the proposed use and potential to be used as a place of public worship, traffic and parking impacts, inappropriate location, overdevelopment, stormwater impacts, property devaluation, tree removal, acoustic impact, noise and dust, privacy and overlooking, building height, inconsistent documentation, waste pollution and solar impact.

20. Following amendment of the plans on 30 July 2025, the amended plans were further renotified by the Council from 6 to 20 August 2025. In response 37 submissions were received objecting to the proposal. The reasons for objection were generally consistent with those summarised at [19] above.

The expert evidence

21. Expert evidence was adduced in the appeal in respect of traffic and parking and planning matters.

Traffic evidence

22. Expert evidence in respect of traffic and parking was given in a joint expert report (Traffic JER) by Ken Hollyoak engaged by the Applicant and Chris Palmer engaged by Council.

23. The traffic consultants conferred in relation to contention 4, that is, whether sufficient parking has been provided. Mr Palmer engaged by the Council noted that the application stresses that the proposed building will be used as a community facility and not a place of public worship. However, he raised concern that should the community centre be used as a place of public worship, contrary to any approval granted by the Court, the proposed 13 car parking spaces and mini-bus bay will likely be inadequate for 60 visitors resulting is reliance on on-street parking between 12 noon and 2pm daily (which coincides with the ‘Dhuhr’ (noon) Muslim prayer time). Alternatively, visitor numbers would need to be significantly reduced to not rely on on-street parking. He further noted that this peak time period coincides with the Merrylands East Public School pick up time following the final bell which occurs at 1.15pm. Mr Hollyoak relies on the application which he says is very specific in stating that the facility will not be used as a place of public worship and that accordingly the parking provision is appropriate.

24. Ultimately the traffic experts agree that if the facility is used as a community facility, and not a place of public worship, the proposed parking provision is adequate. They noted that the Applicant has proposed mini bus parking and advised in this respect that whilst it will assist to ensure no adverse parking impact, it is not required given the scale of the proposal. They also agreed that a 15-20 minute overlap should be scheduled between activities in order to minimise any traffic and parking impacts.

25. In response to the Traffic JER (and planning matters), the Applicant amended its POM to include a table outlining the frequency, duration and capacity for various community centre activities and which includes a 15 minimum arrival and 15 minute departure window (total of 30 minutes overlap) between time slots as reproduced below:

| TIME | ACTVITY | CAPACITY | | 8.00am to 8.30am | Arrival window for timeslot 1 attendees | N/A | | 8.30am to 9.30am | Timeslot 1 | 60 | | 9.30am 9.45am | Departure window for timeslot 1 attendees | N/A | | 9.45am to 10.00am | Arrival window for timeslot 2 attendees | N/A | | 10.00****am to 11.00am | Timeslot 2 | 60 | | 11.00am to 11.15am | Departure window for timeslot 2 attendees | N/A | | 11.15am to 11.30am | Arrival window for timeslot 3 attendees | N/A | | 11**.30am to** 12.30am | Timeslot 3 | 60 | | 12.30am to 12.45am | Departure window for timeslot 3 attendees | N/A | | 12.45pm to 1.45pm | CENTRE CLOSED | N/A | | 1.45pm to 2.00pm | Arrival window for timeslot 4 attendees | N/A | | 2.00p****m to 3.00pm | Timeslot 4 | 60 | | 3.00pm to 3.15pm | Departure window for timeslot 4 attendees | N/A | | 3.15pm to 3.30pm | Arrival window for timeslot 5 attendees | N/A | | 3.30p****m to 4.30pm | Timeslot 5 | 60 | | 4.30pm to 4.45pm | Departure window for timeslot 5 attendees | N/A | | 4.45pm to 5.00pm | Arrival window for timeslot 6 attendees | N/A | | 5.00p****m to 6.30pm | Timeslot 6 | 60 | | 6.30pm to 7.00pm | Departure window for timeslot 6 attendees | N/A |

26. No oral evidence was given in the proceedings by the traffic experts with the only outstanding matters relating to parking being in respect of the characterisation of the use which is addressed by the town planning experts. Accordingly, I accept that subject to the development being used as a community facility and in accordance with the POM (as required by recommended condition) the proposal will be acceptable in respect of parking impacts.

Town planning evidence

27. Expert evidence on the town planning issues was given in a joint report and in oral evidence by Ali Hammoud engaged by the Applicant and Jeremy Swan engaged by Cumberland Council. The town planners conferred in respect of contentions 1 (consistency with zone objectives), 2 (uncertainty of use and environmental impacts) and 3 (characterisation of the proposed use) primarily and noted that contentions 5 (equitable access), 6 (plan inconsistencies) and 7 (landscaping) has been satisfactorily addressed by either the submission of additional information, amendments to the proposed plans or could be addressed by conditions of consent.

28. The town planning experts disagree in respect of Contention 1 that the development fails to conform with the objectives of the R3 Medium Density Residential zone as outlined at [15] above. The disagreement hinges on characterisation of the proposed use and hence consistency with the relevant objectives as discussed further below.

29. The key area of dispute between the planners then relates to Contention 2 – Uncertainty of use and Environmental Impacts and, related to this, Contention 3 – Characterisation of the Proposed Use.

30. In relation to Contention 2 in the Town Planning Joint Expert Report (Town Planning JER, Ex 2), Mr Swan gave evidence that the range of activities and programs to be run at the premises is uncertain, not well considered and would result in a premises that will either be largely unused or used for alternative unknown purposes and therefore likely result in different environmental impacts. His view is that there needs to be a reasonable level of certainty as to the use to be certain in respect of the environmental impacts. He also has the view that based on the DA (as amended) there is not that level of certainty (Ex 2, p 14-15). Mr Swan raised concern that activities outlined in the POM could refer to religious services, would not physically fit within the facility, would not generate significant hours of use, are unrealistic or impractical or the like. He also points to amendments to the POM over time heightening his concern regarding the uncertainty of use and impact. He states that he cannot be certain that the premises will be used for the purposes of a community facility and therefore he is concerned that the environmental impacts on the community may not have been sufficiently considered. Further Mr Swan raised concerns that the POM does not adequately address the requirements of Part E2 s 2.4 of the Cumberland Development Control Plan 2021 (CDCP) which sets out specific requirements for Operational Plans of Management for Community Facilities.

31. Mr Hammoud relies on the application and the amended POM and states that it is his evidence that the POM provides a high degree of certainty that the premises will be used as a community facility including by reference as amended to pars 3.3, 3.7 and 3.8 of the POM (Ex F) as follows:

3.3 Whilst the Community facility is run by the Centre which is a religious organisation, the Community Facility will not be used as a place of public worship. The people associated with the Merrylands Islamic Centre for Youth & Adults Incorporated who practice the Islamic Faith attend the Holroyd Centre where worship services are carried out. It is intended that the people associated with Merrylands Islamic Centre for Youth & Adults Incorporated who practice the Islamic Faith will continue to attend the Holroyd Centre. Community is an integral aspect of Islamic Faith. The Community Facility will enable connection with community to promote unity and kindness. The programs and activities of the Community Facility identified in Part 7 will foster connection between members of the community including youth, the elderly, new migrants, families and those in need.

3.7 The Community Facility will not be used as a place of public worship or prayer service. The centre conducts services for public worship by its congregation at a separate location, which is presently at The Holroyd Centre at 11-17 Miller St, Merrylands NSW 2160.

3.8 The Community Facility is limited to programs which encourage the physical, social, cultural or intellectual development or welfare of the community, and are particularised further in this POM.

32. Mr Hammoud says that the range of activities and programs listed in the POM have been developed following consultation with the proponent and an identified need for a multi-purpose facility that can accommodate and provide a range of services that will contribute to the physical, social, cultural and intellectual development or welfare of the wider community. He says that the environmental impacts of the proposed use have been both qualified and quantified based on the schedule of activities, hours of operation, duration, capacity and management measures. (Ex 2, p 12).

33. In relation to Contention 3 – Characterisation of the Proposed Use Mr Hammoud says that the permissibility of the development based on characterisation is a matter for legal submission however Mr Swan says that it is clearly a planning matter. Mr Swan says that based on the POM his view is that there is a high likelihood that the premises could be used and comply with the POM but be considered both a community facility and place of public worship depending on the activities carried out at the premises and the primary reason or purpose for the use of the premises. With reference to the decision of Targett C in Australian Muslim Welfare Centre Inc v Campbelltown City Council [2024] NSWLEC 1810, Mr Swan raises concern that even with compliance with the POM in respect of daily activities onsite, there is uncertainty in the use that may result in a use that is different to a community facility at certain times of the week (Ex 2, p 20).

Contentions that are resolved

34. As a result of amendments to the development application, together with the evidence in the joint expert reports and agreed conditions of consent, a number of contentions raised by Council have been resolved, as follows.

35. The Council, in its Amended Statement of Facts and Contentions (SOFAC), raised Contention 5 that equitable access is not available for those arriving by wheelchair and unable to park within the basement. The parties agree that this contention has been resolve by the amended Architectural Plans (Ex A) and letter from the access consultant (Ex D).

36. The parties further agree that Contentions 6 and 7 in relation to plan inconsistencies and landscaping can be addressed via conditions of consent. Conditions in this regard are included in the recommended conditions which are agreed between the parties.

Contentions that are unresolved

37. The contentions that are unresolved between the parties then are Contention 1 in relation to conformity with the zone objectives; Contention 2 Uncertainty of Use and Environmental Impacts and Contention 3 Characterisation of the Proposed Use. I have considered these below in reverse order as the first two hinge on characterisation of the proposed use.

Contention 3: Characterisation of the proposed use

38. Characterisation of the proposed development is essential to determine permissibility and is an essential task for any decision maker as determined by his Honour Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114. Further conditions of consent cannot be relied upon to establish permissibility rather this needs to be achieved at the time of the grant of consent.

39. A community facility is defined under CLEP as:

a building or place-

(a) owned or controlled by a public authority or non-profit community organisation, and

(b) used for the physical, social, cultural or intellectual development or welfare of the community

but does not include an educational establishment, hospital, retail premises, place of public-worship or residential accommodation.

40. As outlined above the parties agree that the Merrylands Islamic Centre for Youth and Adults Inc is a non-profit community organisation being a charitable organisation incorporated under the Australian Charities and Not-for-profits Commission Act 2012 (Cth). The organisation’s statement of purpose, under its constitution provides that:

Merrylands Islamic Centre for Youth and Adults Inc is dedicated to:

Promote greater understanding and awareness of Islam

Organise, educate and enhance the development of Merrylands Muslim communities; and

Encourage positive contribution to Merrylands society and the promotion of social justice.

41. The Council argues that the Centre’s purpose is distinctly religious and that, notwithstanding that the Applicant does not propose a place of public worship, there is a risk that the facility may be used either partly or in whole as a place of public worship. The Council further puts that if the facility is used as a place of public worship (either independently or in conjunction with a community facility) consent ought not be granted due to parking impacts.

42. The Court notes that the Applicant has clearly indicated that the facility will not be used as a place of public worship and has accepted a condition of consent to this effect. Further the POM, which forms part of the subject application expressly prevents the facility from being used as a place of public worship or prayer service (Ex F p 2).

43. While a place of public worship is permissible in the subject zone, a separate development application would be required to provide consent to such a use. Given the constraints on site, particularly in respect of car parking, it is unlikely that such a use would be approved.

44. The next question in characterising the development then is whether the Court can be satisfied that the building or place will be used for the physical, social, cultural, or intellectual development or welfare of the community. The Council says that the nature of the proposed development is sufficiently unclear such that the Court cannot be satisfied that the proposal is a community facility and is therefore permissible. It notes that unlike other forms of development whether a proposal is a community facility is not easily discernible from the plans rather it must turn on the proposed use or activities (and mix thereof) and that these need to be for the physical, social, cultural or intellectual welfare of the community as set out in (b) of the definition. The Council’s evidence is that the DA description of the proposal is unclear and that the nature of the proposed activities has changed over time. Mr Swan, engaged by the Council, initially provided expert town planning evidence (JER at Ex 2) that the range of activities and programs to be run at the premises is uncertain, not well considered, resulting in a premises that will either be largely unused or used for alternative unknown purposes and likely different impacts”. Further he raised concern about the layout of the facility, its suitability for the proposed activities and indeed whether the facility could, in the alternative, be actually a suitable facility to be used for worship.

45. Mr Hammoud engaged by the Applicant provided evidence in the alternative that the plan of management provides a high degree of certainty that the premises will be used as a community facility by the inclusion of limitations on the use at paragraphs 3.3, 3.7 and 3.8 (of the POM) and further that the POM includes sufficient detail regarding the nature and frequency of programs and services, maximum occupancy numbers and hours of operation (Ex 2 p 13).

46. As noted above during the course of the hearing amendments were made to the POM and ultimately the Applicant was granted leave, which the Council did not oppose, to amend the application to rely on version 6.0 of the POM dated 11 November 2025 (Ex F). Changes were made to the activities list and proposed timeslots such that ultimately the planners agreed that the POM provides sufficient certainty that the facility would be used as a community facility.

47. On the basis of the evidence before me including, most notably, the amended POM I am satisfied that the proposal is appropriately characterised as a community facility and that it does not comprise an alternate either permissible or prohibited use. I am satisfied that the POM provides sufficient certainty that the proposal will not be used as a place of public worship. Further I find that the purpose of the Applicant, the Merrylands Islamic Centre for Youth and Adults Inc, as set out in its statement of purpose [40] whilst founded in the Islamic faith does not presuppose that the facility will be used for worship rather it appears clear that the Centre intends to undertake a myriad of activities within the Centre that are consistent with the definition of community facility for the benefit of the community. While I note that incidental individual prayer by visitors of the centre may occur on occasion, I am satisfied that ‘worship’, consistent with the definition of ‘place of public worship’ (refer [17] above) that is by a congregation or religious group, will not form either the primary use or an ancillary use of the Centre.

Contention 2: Uncertainty of Use and Environmental Impacts

48. Following on from my finding above that the proposal is properly characterised as a community facility, I note that the parties agree that if the proposal is a community facility its environmental impacts are sufficiently known and appropriate. Specifically in relation to parking impacts I note that the traffic experts have agreed that subject to the proposal being property characterised as a community facility the parking provision is appropriate. In this regard the Court also notes that the POM has been amended to provide 30 minute transition periods between activity timeslots, to close the Centre between the hours of 12.45pm and 1.45pm to avoid school pick up times and to provide a mini bus to further reduce the potential for parking impacts.

49. The particulars in relation to this contention relate to the activities detailed in the POM which has since been amended as described above such that the expert town planners agreed at the conclusion of the hearing that the POM now provides sufficient certainty in respect of the proposed activities that the facility will be used as a community facility.

50. I therefore find that having regard to the POM which forms part of the application, there is sufficient certainty that the proposal will be used as a community facility and that therefore the environmental impacts of the proposal are sufficiently known and acceptable.

Contention 1: Conformity with zone objectives

51. The Council’s contention that the development fails to conform with the objectives of the R3 Medium Density zone were primarily based upon the uncertainty of the proposed use. Having regard to my finding above, that the proposal comprises a community facility, it is clear that community facilities are permissible with development consent in the R3 Medium Density zone under CLEP being a nominate land use identified in the land use table. Clause 2.3 of CLEP requires that regard be had to the zone objectives when determining a development application in respect of land within the relevant zone. The objectives of the R3 Medium Density zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a medium density residential environment.

• To encourage residential development that maintains the amenity of the surrounding area.

52. The objectives outlined at bullet point 3 and 4 above are relevant to the subject application being related to non-residential development. Based on the information before me, I conclude that the explicit nomination of community facilities as a permissible use in the zone is declaratory in nature and provides consistency with objective 3. In respect of objective 4 I note the parties’ agreement that, subject to the facility being appropriately characterised as a community facility, the environmental impacts are known and acceptable. I concur with this view.

Outcome

53. For the reasons set out above I have determined that the application warrants approval. I find that, having regard to the proposed plan and amended POM, the proposed development is appropriately characterised as a community facility and is therefore permissible in the R3 Medium Density Residential zone being a nominate use. Further I find that the proposed use is consistent with the relevant objectives of the zone and that the likely environmental impacts are both known and acceptable. I have therefore determined that development consent should be granted subject to conditions.

54. In respect of the suggestion that the proposal will or may be used as a place of public worship, I find that no compelling evidence has been put to substantiate this claim. Indeed, to the contrary the Applicant has agreed to be bound by a detailed POM and conditions of consent that will ensure this does not occur. The fact that a previous application for a place of public worship was submitted by the same Applicant on the same site cannot be considered evidence that the previously intended use continues. Nor can arguments made that the Applicant does not own a separate site from which to operate a place of public worship or in respect of the cost of the land.

55. Further, in accordance with s 4.15 of the EPA Act in determining a development application, a consent authority is to take into consideration such matters listed in that section as are of relevance to the development the subject of the development application. It is not open to the consent authority to consider what use a development may be used for in breach of its consent rather the consent authority, including the Court in this instance, is bound by the applicable legislative framework.

56. The remaining contentions have either been resolved by the provision of further information, by agreed conditions of consent, or by agreement of the experts. There are no other issues raised by the Council. Further, the following jurisdictional matters are satisfied:

57. Owner’s consent to the application has been provided in accordance with the requirements of s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg).

58. In accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 written notice of the proposed development was given to Endeavour Energy and comments received considered.

59. Consideration has been given to whether the site is suitable for the proposed use in accordance with the requirements of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 and it has been determined that the site can be made suitable.

60. Consideration has also been given to the requirements of Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 as the site is located within the Sydney Harbour Catchment and as advised by the parties the relevant requirements satisfied such that the proposal will be acceptable.

61. The proposal complies with cl 4.3 of CLEP having a maximum height of 7.7m where a maximum height of building of 9m is allowed.

62. The proposal complies with cl 4.4 of CLEP having a floor space ratio (FSR) of 0.36:1 where a maximum FSR of 0.7: 1 is allowed.

63. While the site is located across Myee Street from the Merrylands East Primary School, which is a heritage item of local significance under CLEP, Council has advised that given the physical separation the heritage impact of the proposal on the item will be negligible and as such Council did not require a heritage management document in accordance with cl 5.10(5) of CLEP.

64. I am satisfied that the proposal is consistent with the requirements of cl 6.2 of the CLEP in respect of the proposed basement excavation works having regard to the amended SOFAC, the proposed civil engineering plans and conditions of consent.

65. I am also satisfied that essential services are available to the site as required by cl 6.4 of CLEP as advised in the amended SOFAC and the existing use of the site.

66. While the site is mapped as ‘Potential Moderate Salinity Land’ I am satisfied in respect of cl 6.9 of the CLEP, that the proposal is not likely to have an adverse impact on salinity processes on the land, that salinity does not significantly affect the development and that no specific design measures are required in respect of salinity having regard to the amended SOFAC.

67. I am also satisfied in respect of the requirements of cl 6.12 in relation to urban heat on the basis of the amended SOFAC.

68. I am satisfied that the relevant requirements of CDCP have been adequately considered.

69. I therefore find that development consent should be granted, subject to conditions of consent.

Conditions of consent

58. The Council’s conditions of consent were adduced as Exhibit 6 and the Applicant’s disputed conditions as Exhibit G. The sole dispute between the parties in respect of conditions relates to condition 134. Council seeks to impose a condition in respect of use as follows:

134. Use

The approved development is not permitted to be used as a place of public worship, including for prayer sessions or for religious training.

59. The Applicant in the alternative seeks the following version of the condition:

134. Use

The approved development is not permitted to be used as a place of public worship, including for prayer sessions without first obtaining development consent or other lawful authority.

60. The Council submitted that its proposed version of condition 134 is required to provide further clarity and certainty in respect of the proposed use. The Applicant to the contrary states that the condition is not necessary given the applicable law however that it would accept its version of the condition. I agree with the Council that it’s version of the condition assists in providing clarity and certainty in respect of what is approved and the use and therefore apply the Council’s version of condition 134.

Orders

61. The Court orders that:

62. The appeal is upheld.

63. Development consent is granted to development application DA2023/0484 for the demolition of existing structures and construction of a community facility on land known as 20 Myee Street, Merrylands (Lot Z in DP 388342) subject to the conditions of consent at Annexure A.

64. The Exhibits are returned with the exception of exhibits A, B, C, D & F which are retained.

H Miller

Acting Commissioner of the Court

Annexure A (411 KB, pdf)

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