Mount Annan Christian Life Centre v Camden Council

Applicant: Mr G Newport, barrister instructed by Mr C Shaw of Shaw Reynolds Lawyers LEGAL REPRESENTATIVES: Respondent: Mr K Webber, solicitor, Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10548 of 2005 Mount Annan Christian Life Centre v The Council of Camden

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal of a development application by Camden City Council to erect a "multi-purpose centre" on lots 1 and 2 DP 1019708, Narellan Road, Mount Annan. The multi-purpose centre is best described as an auditorium for 1,750 people with administrative and other associated spaces and a car park for 530 cars.

The site 2 The site adjoins the Currans Hill residential area to the west. It has an area of 14ha. Vehicular access is from Narellan Road. A high-tension electricity easement traverses the site, with two electricity towers located on the site. There are several school buildings on the site, accommodating about 500 students, though the applicant has consent to erect additional buildings to accommodate 850 students. The largest of the buildings is an existing auditorium. There is also consent for a parking area, part of which has been constructed. 3 Along the common boundary with the Currans Hill residential area runs a private road adjoining the rear yards of the eastern dwellings.

The proposal and its history 4 In 1998 the council issued a consent to a school for 850 students. A master plan accompanied the application. The application before the Court describes the proposal as a "variation to the adopted site master plan to erect a multi function building primarily for church-related activities". The statement of Environmental Effects describes it as a "multi-purpose centre". The principal use of the building is defined as a place of public worship, a use that is permissible in the 7(d) zone. The building comprises nearly 7,000m2 of floor space, with a footprint of 4,600m2 and a height of 12.6m. The largest part is an auditorium with over 1,750 seats; however, it also includes administration space, children's ministry, youth chapel, gym, seminar rooms, bookshop, café, crèche and parent's room. The building will necessitate the removal of ten mature trees. The associated parking for 530 cars is located at grade in an open-air carpark of 17,000m2. 5 The applicant proposes to erect a 2.5m-high acoustic barrier along the site's western boundary, which is the boundary separating it from the suburb of Currans Hill. 6 The application describes the activities in the multi-function building as weekly services on Sundays attracting 1,500 people between 10 am and 8 pm. Other weekly uses will be youth services and rehearsals, while monthly services will be business seminars, forums, conferences, trade conferences and school functions. Conferences over 6-8 days per year are described attracting 2,000 people; however, when that description was given, the application was for a larger auditorium, so it may be assumed that the maximum numbers attending will be 1,700-1,800 people. 7 The applicant lodged the application in August 2003. Following notification, the council received 14 submissions, of which one supported the proposal. The applicant amended the proposal by reducing the auditorium from 2,500 to just over 1,750 seats. In August 2005 the council considered a planning report prepared by its staff, recommending refusal. The council accepted the recommendation and refused the application, quoting four reasons, namely that the proposal · exceeds the statutory height limit; · is inconsistent with zone objectives; · exceeds nose criteria; and · is not in the public interest. 8 The applicant lodged the appeal in June 2005.

Relevant planning controls 9 Two planning instruments are relevant to the application. The first one is Local Environmental Plan 48 (LEP 48), which deals mainly with the rural parts of Camden City and zones the site 7(d), a zone that is described as Environmental Protection (Scenic) Zone. Clause 2 contains the LEP's aims and objectives, of which the following are relevant: a. … b. … c. to maintain the rural atmosphere of the Municipality of Camden, d. to ensure that development maintains the rural character of the locality and minimises disturbances to the landscape, is in harmony with the environment and does not unreasonably increase demands for public services or reduce the existing levels of service, e. to enable certain non-agricultural activities to be carried out within a particular zone if they are in keeping with the objectives of that zone and compatible with development of adjoining and adjacent lands, f. … g. to enable development to occur that will serve the needs of the rural community, h. to preserve the lifestyles and amenities of the people living in the Municipality of Camden by controlling the type and magnitude of development within the rural areas, i. to conserve the environmental heritage of Camden's rural land, and j. …, k. to promote the use of buildings which are designed, sited and constructed, using passive solar principles, so as to maximise energy efficiency by reducing the consumption of non-renewable forms of energy for heating and cooling purposes. 10 The second relevant planning instrument is State Environmental Planning Policy 1- Development Standards (SEPP 1) under which development standards may be varied by well-founded objections. The applicant lodged an Objection to vary the maximum height standard in the zone.

The issues 11 The council filed an amended Statement of Issues containing five issues, of which it pressed four. The main issue, however, was the scale, bulk and height of the proposed building and associated parking. The council questioned this on two main grounds: · inconsistency with the objectives of the environmental protection zone, and · non-compliance with the height control in the zone.

The objectors' concerns 12 The Court read the submissions of all objectors and heard the evidence of two during a visit to the site. Mr G and Mrs J Huygens, who live at 3 Harriet Place, said that they were concerned about the scale of the proposal and the additional activity it would bring to the site. They were content to have a school next to them but not an auditorium for 1,700 people. Ms K Fortiano, who lives at 9 Harriet Street, said that she agreed with the Huygens' comments and added that she did not want to see a 2.5m high acoustic barrier along her rear boundary.

The experts 13 The Court-appointed planning expert was Ms J Bindon, a consultant planner. Because Ms Bindon did not support the application, the applicant sought, and was given leave to present the evidence of its own planning expert, Mr C Hill, also a planning consultant. The Court also appointed Mr B Murray as the expert on acoustics.

The Master Plan 14 When the applicant sought development consent in 1998 for a school on the site, it submitted a sketch indicating its intentions for the site, and called the sketch a Master Plan. The Master Plan shows the area on which the multi purpose building is now proposed as undeveloped. Additional car parking is shown towards the centre of the site, removed from the common boundary with the Currans Hill residential area. The applicant revised the Master Plan in June 2001, still keeping the area on which the multi purpose building is now proposed undeveloped; however, additional car parking is shown towards the south, with the proviso "if required". 15 I note that the Master Plan has no statutory status, since the LEP does not require it. Nevertheless, at least in the applicant's mind, it is a meaningful document, since the applicant has described the subject application as "a variation to the adopted site master plan". While the Master Plan is no more than an indication of the applicant's intention on how to develop the site, it is of some significance that when the council granted consent to a school for 850 students, it was led to believe that the area now proposed for the multi purpose building would be kept undeveloped.

Objectives of the environmental protection zone 16 The relevant objectives of the environmental protection (scenic) zone are (a) to protect and enhance those areas of particular scenic value and ensure that the land remains a rural environment providing visual contrast to urban development, (b) to maintain the visual amenity of prominent ridgelines, (c) … (d) … 17 In Ms Bindon's opinion, the proposal is inconsistent with the above aims, because it does not · protect the scenic value of the site; · ensure that the land remains a rural environment; · provide visual contrast to the urban environment; and · it interrupts the ridgeline when viewed from certain positions, such as the park in the Currans Hill residential area. 18 Mr Hill took issue. In his opinion, the site has little scenic value and is not rural in character. He described the site as follows: The land on which this development is proposed, whilst technically in a scenic protection zone, already accommodates numerous large buildings used for a school with an approval for 850 students as well as a large existing auditorium, associated buildings and two steel Transgrid towers which stand in excess of 20m above the natural ground level, supporting high voltage electricity cables. A comprehensive road and carpark network, bitumen-sealed with kerb, guttering and drainage is already in place. 19 I do not think that this is a fair description of the site. While the site is hardly pristine, the existing and approved buildings are low-key. They are behind trees and hardly visible from the east. Even the existing auditorium (which Mr Hill describes as "large") is minuscule compared to the proposed multi function building. It is true that the carpark is insensitively designed and would fit more into a shopping centre than an environmental protection zone. However, the fact that the applicant has failed to plant trees in the carpark does not justify the proposal. 20 The high-tension cables and towers are probably the most visually obtrusive features of the site; however, even their existence does not justify calling the site's character urban. The approved buildings on the site are all north and west of the existing auditorium, leaving vacant the prominent part of the site that is now proposed for building. As I have noted above, both the 1998 and the 2001 versions of the Master Plan (whatever its status) show the area as vacant. 21 I accept Ms Bindon's evidence that the scale of the proposal renders it inimical to the rural environment. It will not provide visual contrast to the urban environment. It is antipathetic to the objectives of the environmental protection zone.

Variation of the height control Clause 17 of LEP 48 applies to land zoned 7(d). Subclause (4) states: A building may be erected on land to which this clause applies only if: (a) it has a maximum height about natural ground level of no more than 8 metres, and (b) it has a height of less than 6.5 metres above natural ground level when measured at the eaves, gutter line or equivalent building element, and (c) it does not have more than 2 storeys, and (d) the external surfaces of the building are composed of prescribed materials except where the building is screened from view from outside the site by topography or building design, and (e) the Council is satisfied that the building will not interfere to an unacceptable degree with the amenity of the locality by detracting from the visual or scenic quality of any ridgeline. 22 Subclause (5) states: In determining an application for consent to the carrying out of development on land to which this clause applies, the Council must (in addition to the other matters which it is required to consider under any other provision of the Act and this plan) consider the adequacy of the landscaping of the site, and may, as a condition of its consent, require the retention of existing vegetation, trees or shrubs or the planting of additional trees and shrubs. 23 Subclause (6) states: The Council must not consent to the carrying out of development on land to which this clause applies unless it has considered plans and details showing the existing vegetation (including tree heights) and showing what landscaping of the site is proposed and the number and types of any trees and shrubs proposed to be planted. 24 The height of the proposal is 12.6m. Council's 1998 consent includes a condition that the maximum height of buildings from natural ground to the ridge is to be 10m. That consent does not relate to the subject application. I understand that the council imposed this condition without an Objection under SEPP 1 being submitted. However, whether the condition was imposed lawfully or otherwise, it is now a condition of a valid consent. In my opinion, the only relevance it has to this application is that in 1998 the council considered that it was acceptable (at least for the buildings comprising the 1998 application) to exceed the height limit of 8m by 2m. 25 The applicant lodged an Objection under SEPP 1 to the height development standard. The Objection asks the five questions suggested in Winten v North Sydney [2001] NSWLEC 46, namely

1. Is the control a development standard?
2. What is the underlying purpose of the development standard?
3. Is compliance consistent with the aims of the Policy and does it hinder the attainment of the objectives of the Environmental Planning and Assessment Act 1979?
4. Would compliance be unnecessary or unreasonable in the particular case?
5. Would compliance with the development standard in this particular case hinder the objects of the Act? 26 The Objection identifies the underlying objective of the height standard as: To ensure that the height of proposed buildings does not offend the scenic value of the area or adversely impact on the visual amenity of prominent ridgelines. 27 Ms Bindon disagreed with this. She identified the objectives as: s to achieve the objectives of the zone, specifically to maintain the rural character, maintain scenic and visual amenity, not penetrate the ridgelines, s to permit low scale buildings that blend in with and are generally characteristic of the rural landscape; and s to be visually unobtrusive in that landscape especially when viewed from outside the site. 28 In her opinion, because of its large scale, the proposal was inconsistent with the underlying objectives. She considered that the Objection was not well-founded. 29 I accept Ms Bindon's evidence. The scale of the proposed multi-function building can only be described as far beyond what might be compatible with a rural environment. Moreover, in my opinion, the Objection's responses to the questions identified in Winten are based on a misunderstanding of the planning system and SEPP 1. For example, the response to question 4 states: In determining whether the standard is unreasonable, consideration must be given to whether it is reasonable to restrict a multi-use building, which incorporates an auditorium designed to seat around 1763 people and is permissible in the zone, to a height limit of 8m. To restrict such a building to an 8m limit would force the footprint to be enlarged to accommodate vital ancillary rooms, which are intrinsically linked with the building's operation. This would reduce the area available for landscaping on the site and increase impervious areas, thus increasing stormwater runoff. It would also result in the removal of additional vegetation. Strict compliance with the development standard is therefore considered unreasonable in this circumstance, as it would result in a less favourable environmental outcome. 30 The above implies that a permissible use must receive consent, no matter at what scale it is proposed. The only question for the consent authority is how the amount of building an applicant desires is best accommodated on the site. This is not how the planning system works. The permissibility of a use says nothing about its appropriate scale. In the present case the proposed use is acceptable, but the proposed building is vastly out of scale with the character of the zone. 31 In my opinion, there is no justification for varying the 8m maximum height that applies to the site. The SEPP 1 Objection is not well-founded and therefore the application must fail.

Conclusion 32 There are two difficulties with this proposal: its location within the site and the scale of the building. The location is highly visible and, because it adjoins a high-tension easement, cannot be screened from the east. I note that in the Master Plan indicating the future development of the site, this area was to be kept undeveloped. 33 Under the heading "The proposal and its history", this judgment provides some statistics of the scale of the proposed building. It is interesting to note that the proposed auditorium is considerably bigger than the Opera Theatre of the Sydney Opera House, which has 1,547 seats. It is more than three times as big as the Drama Theatre in that complex. It is much bigger than the assembly halls of schools of comparable size. In addition to the main auditorium, it has a second auditorium of nearly 500m2, six seminar rooms, administration areas including 15 individual offices, communal offices, waiting and meeting room; an executive suite containing several further offices, workstations, boardroom and lounge, children's ministry, youth chapel, gym, bookshop, café, crèche and a parents' room. I do not think that a consent authority granting consent to a school could ever envisage that it would one day receive an application for a building of this magnitude. 34 The proposal's vast scale makes it inimical to the desired rural character of the zone. If the proposal were built, the site would no longer act as a boundary to the urban edge, rather it would extend that edge 35 For the above reasons the appeal is dismissed.

2. Development application to erect a multi-purpose building containing an auditorium for 1,750 people with associated spaces and a car park for 530 cars on lots 1 and 2 DP 1019708, Narellan Road, Mount Annan is determined by refusal.

      Dr John Roseth
      Senior Commissioner

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