New Century Developments Pty Limited v Baulkham Hills Shire Council

Land and Environment Court (NSW)|1997-02-17|Before: Lloyd J, Mr J, Mr P

CITATION : New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 revised - 5/09/2003 APPLICANT: New Century Developments Pty Limited

PARTIES : RESPONDENT: Baulkham Hills Shire Council

INTERVENER: Annangrove Progress Association Inc FILE NUMBER(S) : 11083 of 2002 CORAM: Lloyd J Development Application :- appeal - Muslim house of prayer (mehfil) - Rural 1(c) zone objectives - large number of objectors - social impact - character and amenity of area KEY ISSUES: Words and Phrases: - "amenity" - "social impact" Constitution of the Commonwealth of Australia s 116 LEGISLATION CITED: Baulkham Hills Local Environmental Plan 1991 cl 9 Environmental Planning and Assessment Act 1979 s 5(c), ss 79C(1)(b), (d), (e) Broad v Brisbane City Council & Anor (1986) 59 LGRA 296; Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185; Dixon & Anor v Burwood Council [2002] NSWLEC 190; Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, 17 February 1997, unreported; Gillespies v Warringah Council (2002) 124 LGERA 147; Hely Horne Perry Medcalfe Architects Pty Ltd v Sydney City Council, NSWLEC, Senior Commissioner Jensen, 16 February 1999, unreported; CASES CITED: House of Peace v Bankstown City Council (2000) 48 NSWLR 498; Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79; Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; Newton v Wyong Shire Council, NSWLEC, 6 September 1983, unreported; Novak v Woodville City Corporation (1990) 70 LGRA 233; Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; Schaffer Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Venus v Parramatta City Council (1981) 43 LGRA 67 DATES OF HEARING: 12/05/2003; 13/05/2003; 14/05/2003 and 15/05/2003 DATE OF JUDGMENT: 07/30/2003

APPLICANT: Mr J J Bingham (solicitor) SOLICITORS: Deacons

RESPONDENT: Mr D P F Officer QC and Ms A Pearman (barrister) LEGAL REPRESENTATIVES: SOLICITORS: Phillips Fox

INTERVENER: Mr P J McEwen SC SOLICITORS: Matthews Dooley & Gibson

JUDGMENT:

8 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11083 of 2002 Lloyd J 30 July 2003 NEW CENTURY DEVELOPMENTS PTY LIMITED Applicant v BAULKHAM HILLS SHIRE COUNCIL Respondent ANNANGROVE PROGRESS ASSOCIATION INC Intervener JUDGMENT Introduction 1 This is an appeal against the refusal by the respondent, Baulkham Hills Shire Council ("the council"), of a development application to construct a place of worship at No. 165 Annangrove Road, Annangrove. I record the fact that I have had the assistance of Commissioner A Tuor, who heard the case with me. 2 I have concluded, for the reasons which I set out below, that the proposal is compatible with the rural residential character of the area and it will not have an adverse impact, including social impact, on the amenity of the area. In these circumstances the appeal is upheld. The site and its context 3 The subject site (being lot E in deposited plan 420961) is located on the northern side of Annangrove Road. It has an area of 2.05 hectares, with a frontage of approximately 59 metres to Annangrove Road and a depth of approximately 350 metres. A single storey dwelling, carport and two sheds currently occupy the site. 4 To the east, the site adjoins Annangrove Recreation Park. To the west it adjoins an access road that leads to a dwelling house. Further to the west is a group of local shops, known as "Annangrove Village". Opposite the site, across Annangrove Road is a plant nursery. 5 Annangrove Road is a long road that stretches from Kenthurst Road, Kenthurst to Windsor Road, Rouse Hill. There is a range of uses along this road including dwellings on rural allotments and commercial and community activities. There is no consistency in the size or style of the dwellings but the allotment pattern is generally two hectares (five acre) lots. The newer dwellings are large and two storey. Commercial activities include plant nurseries, cafes and catteries. There is also the Zoroastrian House of Worship, the St Madeline Sophie Catholic Church and School and the Annangrove Primary School. Background 6 The development application was lodged on 1 October 2002. It was advertised for an extended period and 5,181 submissions from 532 households were received, of which 5170 were objections and 11 were submissions in support of the application. Contrary to the council officer's recommendation, the application was refused by Council on 17 December 2002. The reasons for refusal formed the basis of the Statement of Issues provided by the council. Proposal 7 The application is for the demolition of the existing buildings and the construction of a single storey building for use as a place of worship with parking for 62 cars. 8 The proposed hours of operation are: Monday to Friday - 8am to 9.45pm Saturday and Sunday - 9am to 9.45pm 9 The proposal contains three hall areas, amenity areas and ancillary rooms. It is to be used as a house of prayer, known as a mehfil, by a sect of the Muslim faith. The maximum number of people using the facility would be up to 250 persons on three occasions per year with up to 110 attending services twice per week. At other times it would be used for individual prayer, counselling, Sunday school, funerals and weddings and administration. At present there is no house of worship for members of the Islamic faith within the Shire of Baulkham Hills. Statutory framework 10 Under the Baulkham Hills Local Environmental Plan 1991 ("the LEP") the site is zoned Rural 1(c). The proposed development is permissible with consent. The relevant objectives of the Rural 1(c) zone stated in the table in cl 9 of the LEP are as follows: (a) to accommodate rural-residential development that is sympathetic with the environment and minimises risks from natural hazards, and (b) to provide for a range of activities which are compatible with the rural residential character of the locality, and (c) to ensure that development in the area does not unreasonably increase demand for public services and public facilities, and … 11 Clause 9(2) of the LEP states: (2) Except as otherwise provided by this plan, consent must not be granted for development unless the consent authority is satisfied that the development is consistent with one or more of the aims and objectives of this plan or one or more of the objectives of the zone within which it will be carried out. 12 Also applicable to the site is the Baulkham Hills Development Control Plan No. 102 - Carparking ("DCP No. 102). This specifies that a rate of one car space per 5 seats be provided for a place of worship, with which requirement the development complies. The issues 13 The statement of issues provided by the council contains eight issues. Issues two and three relating to wastewater were not pressed. There was agreement by the expert witnesses relating to the design of the proposal. The remaining issues are discussed below: Issue 1: Whether the proposed development is inconsistent with the objectives of the Rural 1(c) Zone in Baulkham Hills Local Environmental Plan 1991. 14 The Court heard from Mr M George, a town planner who provided evidence for the council, Mr R B Smyth, a town planner, and Mr R D Martin, a social and environmental planner, who provided evidence for the applicant. The Court also heard from several local residents referred to below, and had the benefit of the written submissions of the large number of persons who made submissions. Those who gave evidence were: · Mrs D Bain No. 193 Annangrove Road, Annangrove; · Mr M Dolly No. 182A Annangrove Road, Annangrove; · Mr D O'Sullivan No. 150 Annangrove Road, Annangrove; · Mrs B Cochrane No. 3 Woodland Road, Annangrove; · Mrs E White No. 216 Annangrove Road, Annangrove. 15 The main area of disagreement between the expert witnesses and the local residents related to the character of the area and whether the proposal was "compatible with the rural residential character of the locality". 16 Mr George said that the proposed development is not consistent with objective (a) of the objectives of the zone because it does not comprise rural residential development. Mr George also concluded that "the proposal, because it has no material connection with the local community, will adversely affect the character of amenity of the area". This conclusion was based on the reasons that may be summarised as follows: (a) The locality is characterised by low density residential development often associated with rural activity, such as the keeping of horses; (b) Non residential activity primarily services the local residential community; (c) The zone reflects these existing characteristics and "the planning intent is predominantly to provide for low density residential use with local support uses and semi rural activity"; (d) The local community has strong homogeneous characteristics; (e) The proposal is not intended to serve the local community. There are no people of Muslim faith in the Annangrove area and only nine within the "designated community" (defined as being made up of eight census collection districts); (f) The proposal will alter the character of the area by introducing a use that has "no material connection with the area". (g) The proposal will impact on amenity primarily as the use "will regularly bring into the area large numbers of people who have nothing to do with the locality". 17 Mr Smyth and Mr Martin held a different view of the character of the area and the impact of the proposal. In their opinion the area was fringe urban or as Mr Martin described, it is "peri-urban". Based on inspections and his review of the 2001 census data for the "designated community", Mr Martin concluded: "Physically the "designated community" area is made up of large residential lots zoned "rural residential" which give the community a physical rural character. Functionally and socially, however the area operates as part of an "urban community" with a higher percentage of managers and administrators and associate professionals than at the Shire level and a large variety of services which are characteristic of a typical Sydney "urban" lifestyle." 18 Further, Mr Martin concluded that there was little difference in the profile of the designated community and that of the Shire. He stated that "35 of the 49 families in the potential user group are in fact current residents of the Shire" and he found little difference in the social profile of the potential users to that of the Shire and the community. 19 Mr Smyth defined the area as "widely spaced ribbon development consisting of old and new dwellings of varying age and size set into a mixture of landscapes……Mixed in with these dwellings is a range of activities ……needed to serve the local and more distant residents. Passing trade during the weekends is probably an important source of customers for businesses along Annangrove Road." 20 Mr Smyth considered the proposal would be compatible with the character of the area as it is a permissible use within the zone, and there is nothing in the LEP that requires a place of worship to service the needs of the local community. He cited the example of the Zoroastrian House of Worship and Community Centre which is located a few hundred metres to the west of the subject site along Annangrove Road. This facility serves a religious community from outside of the local area. In his opinion, the commercial uses along Annangrove Road were also typical of fringe urban development. Such commercial uses were located on the edge of urban areas, where the land is cheaper, and largely served the needs of the nearby urban areas. 21 The residents held a similar view to Mr George and disagreed with both Mr Smyth and Mr Martin. They described their community as being close knit, with common interests and shared activities that bind them together. An important characteristic of the area was that the non-residential uses serviced the needs of local residents either by providing employment or goods and services. Mrs E White stated that except for the Regal Gardens Nursery, the proprietors of all the nurseries lived on the sites of their business and were part of the community. 22 The residents strongly objected to the area being described as fringe urban. While they recognised that nearby areas were urbanised, they considered their area to be "different" and "special". They were attracted to the area because it provided a rural lifestyle in close vicinity with urban facilities. A major attraction was being part of a community that shared this lifestyle. 23 Both Mrs Bain and Mrs Cochrane stated that, until the current proposal, they were not aware of the Zoroastrian house of worship and it did not impact upon them. However, they both considered that the Zoroastrian house of worship could not be compared to the current proposal, as it is smaller and used less frequently. The presence of the Zoroastrian facility, the Catholic Church and commercial facilities that brought in people from outside the area did not change their opposition to the current proposal. 24 The residents' main opposition to the proposal was that it had no connection to their community as it would be used by people from outside the area and would provide no service to their community. They were concerned that large numbers of people would come, use the facility and go without any contact with their community. Conclusions on Issue 1 25 In applying cl 9(2) to the objectives of the zone, it is important to note that a development will generally be "consistent with" the objectives if it is not antipathetic to them: it is not necessary to demonstrate that a development promotes or is ancillary to these objectives, nor even that it is compatible with them (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 192 per Clarke JA, Schaffer Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 per Pearlman J). 26 I have referred above to the fact that Mr George, the town planning consultant who gave evidence for the council, said that the proposed development is not consistent with objective (a) of the objectives of the zone because it does not comprise rural residential development. Neither, in his opinion, is it consistent with objective (b) because it involves an activity that is not compatible with the rural residential character of the locality, having no connection with the area and which will regularly bring into the area large numbers of people who have nothing to do with the locality. 27 It seems clear, however, that the development is not antipathetic to the objectives of the zone. The development is clearly not rural-residential development. But cl 9(2) requires consistency with one or more of the zone's objectives. As a matter of statutory construction, provided the development satisfies one or more of the zone's objectives, then it is not prohibited and may be considered on its merits. 28 The proposed development is not antipathetic to objectives (b) or (c) of the zone. As to objective (b), the zoning expressly allows a range of activities, such as educational establishments, hospitals (including nursing homes), clubs, restaurants, plant nurseries, animal establishments, car repair facilities and places of public worship. Within the Rural 1(c) zone in this locality there are already places of public worship (a Catholic church and a Zoroastrian house of worship), a Catholic high school, a primary school, several plant nurseries (with cafes), a number of catteries, a concreter's business and a smash repair business. All of these activities, both permissible and existing, would (with the possible exception of the primary school) regularly bring into the area large numbers of people who have nothing to do with the locality, but it is not suggested that such activities are on that account antipathetic to the objectives of the zone. In particular, it cannot be seriously argued that a house of worship is antipathetic to the objectives of the zone. I am thus unable to accept the opinions of Mr George, and of the objectors, that the proposed development is inconsistent with the objectives of the zone. 29 In the event that I am wrong in my construction of the phrase "consistent with" in its context in cl 9(2) of the LEP, my conclusions are unchanged. The more discerning "ordinary and natural" meaning of the expression, adopted by Bignold J in Gillespies v Warringah Council (2002) 124 LGERA 147 at 165 [70] produces the same result in this case. Such approach embraces the Macquarie Dictionary (3rd ed (2001) at 414) entry pertaining to the word "consistent": "1. agreeing or accordant; compatible; not self- opposed or self- contradictory; 2. consistently adhering to the same principles, course etc…". Contrary to Coffs Harbour and Schaffer, this elucidation of the term is not confined to the conception of the proposed development "not being antipathetic to" the objectives of the Rural 1(c) zone, Bignold J stating that "antipathetic" suggests a much stronger and narrower connotation than "inconsistent" and is thus not a true synonym of the term (Gillespies at 165 [73]). In applying the "ordinary and natural" meaning approach to the present matter, it is clear that the proposed development is accordant with and not contradictory to the objectives in cl 9(2) of the LEP, and is therefore consistent with them. Issue 4: Whether the proposed development is antipathetic to the shared beliefs, customs and values of the local community and, if approved, would result in a change in the character and amenity of the area. Issue 5: Whether the proposed development will have an adverse effect on the amenity of the area. 30 These two issues largely overlap and may be considered together. 31 In relation to the impact on the amenity of the area, Mr George was of the opinion that as the proposal would change the character this would have an adverse impact on the area. Specifically he considered that: The congregation of people from outside the area raised questions of: · the introduction of traffic that has no other reason to be there · the potential for the generation of noise and other nuisance effects, eg with large numbers of people exiting the site at night · the 'presence' of an activity that is unrelated to the community in which it sits. 32 Mr Smyth's opinion was that the proposal would have no impact on the amenity of the area. It generated no tangible noise or traffic impacts, was situated between the Annangrove Village and the Park, was not in close proximity to residential development, and was domestic in scale and well setback from its boundaries. As discussed above, Mr Smyth did not consider that the use of the facility from outside the area would impact on the character of the area. Nor did he consider the proposal would have an adverse social impact. 33 Mr Martin agreed that the proposal would not have an adverse social impact and would not be antipathetic to the shared beliefs, customs and values of the local community. He concluded: Based on the evidence from the community profile, the National Survey (SBS, 2002) and the social survey conducted in Baulkham Hills Shire, it was found that shared beliefs and attitudes of the potential user group of the proposed development were in fact very similar on most issues and consequently sympathetic to the designated community and if the development were approved would not result in a change in the character and amenity of the area. 34 Mr George said that the conclusion was the obvious result of the questions asked in the survey, it simply demonstrated that "people who were closer, or are affected by a development, are much more likely to be opposed to it, than those who are distant". In his opinion, the survey carried out by Mr Martin did not provide an indication of the attitudes of the wider community towards this type of proposal in their area, as this question was not asked. 35 The residents also took issue with Mr Martin's conclusion; in particular Mrs White disagreed with the results and methodology of his survey. She considered the survey to be flawed as it purported to represent the views of the designated community based on results of surveys undertaken at Round Corner Shopping Centre (Dural Mall). She considered that the survey should have been conducted in Annangrove, as she did not consider Round Corner to be a local facility, and the sample therefore would not represent the special views of her small and close-knit community. 36 The residents also expressed the opinion that the proposed development had already resulted in behaviour that was antipathetic to their values. They cited acts of vandalism where the house on the subject site and the roadway had been spray painted with graffiti. They recognised that people associated "with the proposal had not carried out this vandalism, but felt that the proposal was the trigger for these actions." Actions which Mrs Bain, Mrs White and Mr Dolly stated "had not occurred before in their community, were abhorrent to their community and caused them to fear for their safety". They were concerned that if the proposal were approved, "these acts of antisocial behaviour would continue to occur in their community and thereby have an adverse social impact." 37 Mr Smyth, while condemning the vandalism, was of the opinion that it was commonplace for vacant development sites to have graffiti or be vandalised and that of itself it was not indicative of social disharmony. He did not consider the residents' fears of further anti-social behaviour as being a relevant planning consideration. He based this opinion on there being no evidence to link the vandalism to this particular proposal as opposed to vandalism because the building is vacant. He also was of the opinion that there was no evidence that the antisocial behaviour would continue if the proposal were to be approved. Issue 6: Whether, given the submissions received in opposition to the proposed development, the proposed development should be approved. Issue 7: Whether the proposed development is in the public interest. 38 These issues overlap and are substantially addressed by the other issues. However, the residents raised additional concerns that have not specifically been addressed under the other issues. Mr George was of the opinion that the number of objections is "a significant consideration in itself, and one that in practice would see any development the subject of those objections being refused." Mr Smyth held a different view that the number of objections, of itself, is not a proper planning consideration but rather the substance behind the objections. 39 The residents who gave evidence reiterated the issues raised in the letters of objection submitted in response to the exhibition of the application. The issues, the number of mentions and the expert evidence in relation thereto is as follows: Traffic (4421) and Carparking (1765) 40 The council did not raise traffic and parking as an issue in the appeal. Thompson Stanbury Associates prepared a traffic study for the applicant that concluded there would be no traffic or parking problem as a result of the proposal. Mr George and the residents raised the issue of "spiking". Their concern was that as the congregation did not live in the area, they would drive to attend services. The proposal would generate periods of concentrated traffic activity, particularly when people leave the facility. Mr George recognised that this would not be beyond the capacity of the road system but that there would be an environmental effect. Mr Smyth accepted the conclusions of the traffic study. In his opinion the traffic generated would not impact on local traffic conditions or the amenity of residents, and there was more than adequate parking to meet the needs of the facility, in excess of the requirements in DCP No. 102. In my view the opinion of Thompson Standbury & Associates and of Mr Smyth may be accepted and appear to be self-evident. The impact would appear to me to be no greater than the traffic generated by the local primary school, for example. LEP/DCP compliance (1098) 41 This issue was raised by the council and is discussed under Issue 1. No benefit to the community (2789) 42 This issue was raised by the council and is discussed under the other issues. Out of character (2682) 43 The experts agreed that physically the proposal would not be out of character with the area. It would appear no larger than a large house similar in scale to recent dwellings in the area. In relation to the rural residential character, this issue was raised by the council and is discussed under Issue 1. Operational impacts (2292) 44 Operational issues related principally to hours of operation, size of congregation and noise. The mehfil, unlike a mosque, does not call the congregation to prayer. RSA Acoustics prepared a report for the applicant that concluded that the noise generated by the proposal would not be audible from adjacent residences at any time. The council has also proposed noise control conditions to this effect. Although they are probably not necessary. In relation to the other operational issues, these are discussed as part of the other issues and the council also proposed conditions to limit the maximum number of people and the hours of operation. Impact on Amenity and lifestyle 45 This issue was raised by the council and is discussed under the other issues. Impact on Annangrove Park (2400) 46 The council did not raise the impact on Annangrove Park as an issue, but the residents were concerned that the proposal would impact on the flora and fauna within the park and on the subject site and there would be conflict between the use of the park and the site. 47 Biosphere Environmental Consultants prepared a flora and fauna assessment of the site for the applicant. This concluded that the site is highly disturbed and that it does not provide a habitat, nor will the removal of trees impact on any threatened species or ecological communities. Mr Smyth's evidence was that as the proposal is confined to the subject site it will not impact on the flora and fauna within Annangrove Park: the proposal would not affect the use or enjoyment of the park, as it is well setback from the boundary and additional landscaping and adequate parking are proposed. In his opinion there would be no conflict between the use of the park and the proposal. The opinions of Biosphere Environmental Consultants and of Mr Smyth are undisputed by expert evidence and may thus be accepted by the Court. Infrastructure (1248) 48 The residents were concerned that the proposal did not adequately address sewerage and drainage and would impact on existing infrastructure. This was raised as an issue by the council but was resolved before the hearing by the submission of further information regarding an on site sewerage management system and stormwater detention. Use of site for large festivals (105) 49 The residents were concerned that the mehfil would be used for festivals and activities that would attract a large number of people on a regular basis. The proposal, as previously noted in par [9], is to use the mehfil for festivals on three occasions per year being Commemoration Day, the Prophet's birthday and the end of Ramadan. The number of people attending these three services is limited to 250. This is reflected in the proposed conditions of consent. Any change to these arrangements would require the council's approval. Property value and rates (911) 50 No evidence was submitted that there would be a loss of property values or rates. Social concerns/fears (844) 51 This issue is discussed under the other issues. Bushfire Hazard (94) 52 The council did not raise this as an issue. The Rural Fire Service assessed the proposal and raised no objection. Conclusions on Issues 4, 5, 6 and 7 53 In the determination of a development application the consent authority must consider the effect of the proposed development or use upon the amenity of the locality. The amenity of the locality is encompassed by the consideration of environmental impacts on both the natural and built environments, and social and economic impacts in the locality required by s 79C(1)(b) of the EP&A Act. The concept of "amenity" is wide and flexible (Broad v Brisbane City Council & Anor (1986) 59 LGRA 296), transcending the merely physical content (Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301 at 317 per Bignold J). The following passage, contained in the judgment of Thomas J in Broad at 299, attempts to articulate the notion: The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. 54 "Amenity" may embrace the effect of a place on the senses, as well as the residents' subjective perception of their locality. Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity, as explained by de Jersey J in Broad at 305: There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity. 55 Indeed, the creation of an institution within a neighbourhood is capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce (Broad per Thomas J at 299). 56 These concepts of amenity were adopted by Jacobs J (Cox and Prior JJ concurring) in Novak v Woodville City Corporation (1990) 70 LGRA 233 at 236. Jacobs J went on to adopt what was said by Cripps J in Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67 at 69: It must always be a question of fact whether the amenity of a neighbourhood will be or is likely to be adversely affected by a development. It is not difficult to envisage a development which may cause such great offence to a significantly large part of a community that for that reason it ought not be permitted on town planning grounds. 57 In Perry Properties Pty Ltd v Ashfield Council (No. 2), Bignold J said (at 318): In my judgment, the very wide concept of "amenity" expounded in cases like Broad applies with even greater force in a statutory scheme like the EP&A Act, s 79C which in par (b) gives effect to the widest conceivable scope of "likely impacts" of a proposed development, including environmental, economic and social impacts, without employing the term "amenity". 58 The consent authority must also consider the community responses to the proposed development as set out in the submissions made to the council (s 79C(1)(d) and (e) of the EP&A Act). The community responses are aspects of the public interest within the meaning of s 79C(1)(e) in securing the advancement of one of the express objects of the Act: "to provide increased opportunity for public involvement and participation in environmental planning and assessment" (s 5(c) of the EP&A Act; Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415 per Bignold J). 59 The impact of intangible elements as compared with physical environmental effect is illustrated by Hely Horne Perry Medcalfe Architects Pty Ltd v Sydney City Council (NSWLEC, Senior Commissioner Jensen, 16 February 1999, unreported). In that case the intangible deleterious impact of activities and people associated with the proposed public house and gambling saloon upon an area likened to a special "sacred place", being St Andrews Cathedral and the Sydney Town Hall, proved determinative in that merits appeal. 60 In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate (Venus Enterprises at 69, Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, Mason P and Dunford AJA, 17 February 1997, unreported). Indeed, as Mr Officer QC submitted, it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds (Venus Enterprises per Cripps J at 70, see also Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 349 per Cowdroy J). Such antagonism would amount to a detrimental social impact (Dixon v Burwood Council [2002] NSWLEC 190 at [66] per Pain J). These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak at 237, with the caution that there is room for opinions to differ in weighing the same objective criteria. 61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use. 62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]). 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "… the demonstrable social effect of a particular …use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48]). 64 The assessment of the specific objections raised by the local residents shows that the concerns raised by them, objectively assessed, must be afforded little weight. As is shown by the consideration of the specific objections, discussed above, they appear to have little basis in fact. 65 It must be borne in mind that the development application is for a house of prayer. One of the draftsmen of the United States Constitution, Thomas Jefferson, regarded freedom of religion as "the most inalienable and sacred of all human rights" (Thomas Jefferson: Virginia Board of Visitors Minutes, 1819, from The Writing of Thomas Jefferson, Memorial Edition, Washington, D.C. 1903-04, Vol. 19, p. 416). The words of the First Amendment to the United States Constitution found their way into s 116 of the Constitution of the Commonwealth of Australia: "the Commonwealth shall not make any law ... for prohibiting the free exercise of any religion". 66 In Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525, McHugh JA (at 543) observed, in a case of statutory construction, that we are and always have been a multi-religious society. McHugh JA also said (at 543-544): Furthermore, in my opinion, Australian courts should be slow to adopt an interpretation of a legislative instrument which would have the effect of preventing the use of premises in a neighbourhood by some of those who wish to practice their religion while at the same time allowing others to practice their religion in the same neighbourhood. The preservation of religious equality has always been a matter of fundamental concern to the people of Australia and finds its place in the Constitution, s 116. As Mason J pointed out in Attorney-General (Vic); ex rel Black v The Commonwealth (1981) 146 CLR 559 at 617: …To the Australian colonists the preservation of religious equality was perhaps more important than the preservation of religious freedom for the simple reason that they had experienced the disadvantages of religious inequality and it posed a more immediate threat than the absence of religious freedom. Although this case is essentially concerned with a question of statutory construction, at back of the proceedings is a question of freedoms to exercise religious beliefs. "… Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society": per Mason ACJ and Brennan J in Church of New Faith v Commissioner for Pay-roll Tax (1983) 57 ALJR 785 at 787;69 [154 CLR 120 at 130]. If the ordinance is capable of a rational construction which permits persons to exercise their religion at the place where they wish to do so, I think that a court should prefer that construction to one which will prevent them from doing so. 67 In my view the comments of McHugh JA apply equally to the construction of the words "social…impacts in the locality" as used in s 79C(1) of the EP&A Act. In the interest of preserving religious equality and the freedom to exercise religious beliefs, the Court should be slow to adopt a construction which could have the effect of preventing the use of premises by persons who wish to practice their religion at the place where they wish to do so. 68 The views of McHugh JA to which I have referred were expressly adopted and applied by Mason P (Stein and Giles JJA concurring) in House of Peace v Bankstown City Council (2000) 48 NSWLR 498 at 508. That was a case in which the appellants sought to use a disused Presbyterian church as a Muslim mosque. Mason P also said (at 504): Planning law "is concerned with the use of land - not with the identity of the user": per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. This means that it is no part of the court's function to seek as such to ensure that the pattern of worship adopted by the Presbyterians in 1954 continues. Nor is it open to favour or disfavour any pattern of religious expression. Equality before the law requires judicial agnosticism in this area. … Cripps J's statement that planning law is concerned with the use of land, not with the identity of the user also focuses attention upon the functions of environmental planning instruments and consents. They are concerned with physical use, environmental impact and amenity. In the present context, attention is directed away from "church" as a body of believers to "church" as a building where particular types of activity take place. 69 In applying what was said by Mason P in House of Peace, I am not to be concerned only with the identity or identities of the user or users of the proposed facility. The consent, if granted, would afford any religious group or denomination the use of the facility. It would not be limited or restricted to use only by the present applicant. Accordingly, the focus must be on the physical building that is proposed and on the environmental impact and amenity impact that the building and its use will have. And I repeat, in accordance with the views of McHugh JA, set out above, in the interests of preserving religious equality and the freedom to exercise religious beliefs the Court should be slow to prevent the use of the premises by persons who wish to practice their religion at the place where they wish to do so. 70 Finally, lest there be any conjecture I disclose for the record my personal affiliation. I am a practising Christian, an active member and occasional lay preacher in my local church, and a member of the Synod of the Anglican Diocese of Sydney.

Orders 71 In summary, I have concluded that the proposed development would be compatible with the rural residential character of the area and would not have an adverse impact on the amenity of the area, including social impact. While I recognise that there is strong community opposition to the proposal and that the residents have real fears, these fears must have foundation and a rational basis, which in this case is absent. The conditions of consent proposed by the council and as modified by the Court will ameliorate what little impact the development will have. 72 The formal orders of the Court are: - 1. The appeal is upheld. 2. The development application No. 1257/03 for the demolition of the existing building and construction of a place of worship at lot E in deposited plan 420961, known as No. 165 Annangrove Road, Annangrove, is determined by the grant of development consent subject to the conditions in Annexure A attached hereto. 3. The exhibits other than exhibits A and 7 may be returned.

I hereby certify that the preceding 72 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Annexure A CONDITIONS OF DEVELOPMENT CONSENT DEVELOPMENT APPLICATION NO. 1257/03 Lot E Deposited Plan 420961 No. 165 Annangrove Road, Annangrove

GENERAL MATTERS

Development in accordance with submitted plans The development being carried out substantially in accordance with the following plans (except where amended by the following conditions):

Plans Nos Date of Plan Prepared By DA-0356-01C 4/12/02 el design DA-0356-02C 4/12/02 el design DA-0356-03C 4/12/02 el design DA-0356-04C 4/12/02 el design DA-0356-05C 4/12/02 el design Landscape Plan Undated Perfection Landscape Services Stormwater SW1 10/4/03 Sabbagh Engineering Consultancy Stormwater SW2 10/4/03 Sabbagh Engineering Consultancy

Construction Certificate Submission to, and approval by, Council or an Accredited Certifier of a construction certificate. Plans submitted with the construction certificate are to be amended to incorporate the conditions of the Development Consent .

A pre-lodgement meeting is required for Class 2-9 developments if lodging the Construction Certificate Application with Council. Please contact Council's Building Control Section on 9843-0431.

Engineering Construction Certificate In order to certify that engineering plans and specifications are in accordance with the Conditions of the Development Consent and Council's Design Guidelines and/or Works Specification, an Engineering Construction Certificate is to be obtained prior to the commencement of any works.

To obtain an Engineering Construction Certificate, a completed application form and payment of the appropriate fee is required with the submission of the design plans and specifications for approval. Such plans and specifications are to be prepared by a suitably qualified person or company. The engineering design shall be based on plans of survey showing existing contours and levels prepared by a registered surveyor to Australian Height Datum (AHD).

Four (4) copies of the plans and specifications are required to be submitted with the Engineering Construction Certificate application. Please Note : All construction work within the road reserve or any other land under Council's control are to be carried out under the provisions of the Roads Act (1993) and as such, may only be certified and approved by Council.

Hours of operation The hours of operation being restricted to the following:-

Monday to Friday 8.00am - 9.45 pm. Saturday to Sunday 9.00am - 9.45pm.

Any alteration to the above hours of operation will require the further approval of Council.

Maximum Persons Using the Facility On 3 occasions each year, comprising the festival days being Commemoration Day (occurring in or about late March), the Prophet's birthday celebration (occurring in or about late April) and the end of Ramadan (occurring in or about late November), a maximum of 250 persons may attend the premises between the hours of 8.00am and 9.45pm. For the avoidance of doubt, the number 250 is the total number of persons who may attend on each of the 3 days referred to above. On all other accasions, the number of persons attending the premises shall not exceed 120 at any one time. 7. Provision of Parking Spaces The provision and maintenance thereafter of 62 off-street car parking spaces. In addition, over-flow parking is to be provided to the rear of the building should an event/activity necessitate the need for additional parking.

Enter and Leave in Forward Direction All vehicles are to enter and leave the site in a forward direction and permanent signposting to this effect is to be provided and maintained .

Security Lighting Low scale security lighting is permitted to be erected within the carpark area. This lighting must be turned off by 10pm each night. The lighting shall not cause an adverse impact to adjoining property owners.

The proposed building or grounds are not to be floodlit outside of the approved hours of operation.

Fuel Management of Site The site is required to be fuel managed at all times in order to minimise the impact of bushfire in the area.

Building Construction The development shall comply with the Building Code of Australia for a Class 9b building in Type C construction.

Exits and Path of Travel Exits and paths of travel shall be kept clear and unobstructed at all times. 13. Gutter & Footpath Crossing Application The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council's Schedule of Fees and Charges.

Supervision of Works All engineering works associated with the development are to be carried out under the supervision of a practising Professional Engineer or Registered Surveyor. 15. Supervision of Road Works All work in the road reserve shall be supervised by a suitably qualified and experienced Civil Engineer, Registered Surveyor or Civil Engineering Foreman. The supervisor's name, address and contact phone number shall be submitted to Council prior to the commencement of construction in the road reserve.

In this regard a construction programme and anticipated duration of construction shall be submitted in writing to Council prior to the commencement of any works in the road reserve.

Noise (a) The sound pressure level at 1 metre from the external surface of the mechanical services room shall not exceed 55 dB(A)L Aeq15min in the direction of the service station.

(b) The sound pressure level at 1 metre from the external surface of the mechanical services room will not exceed 65 dB(A) L Aeq15min in the direction of the residence to the north.

(c) The sound pressure level shall not exceed 45 dB(A) L Aeq, 15 min from any amplification system or from any activity undertaken within the building during day time and shall not exceed 40 dB(A) L Aeq, 15 min during night (being after 10pm) when measured when the microphone is 1.2 to 1.5 metres above the ground at a distance of 3 to 5 metres from the façade of the closest residence, or within 30 metres of the residences located in any other direction. (d) No amplified music or noise emissions from internal audio equipment is permitted to be projected outside the building or on the site. 17. Acoustic Report

Within one (1) month of the commencement of normal operations an acoustic assessment shall be undertaken of the activities and operation of the development to confirm the findings of the initial Noise Assessment Report prepared by RSA Acoustics and dated November 2002. This acoustic assessment is to be submitted to Council. Should the performance criteria identified in Condition 16 not be met the operator/applicant will be required to undertake effective noise mitigation measures in accordance with the recommendations of a recognised acoustic consultant. 18. Signage Approval is granted for one identification sign only. This sign may be either a freestanding pole or panel sign, or alternatively may be erected upon the building, and must be wholly within the site boundaries. The sign is restricted to 2 metres x 1 metre in size.

External Colours The external colours of the building are to be in accordance with the details submitted to Council dated 4 December 2002, as follows: Colorbond Roofing Grey Nurse Gloss Window Frames and Downpipes Smooth Cream Low sheen External Walls (lower) Clay Satin External walls (upper) Tuscany Satin Large Blade Walls Hedge Low Sheen Small Blade Walls Hammersely Brown Satin

Sydney Water Advice The submission of documentary evidence from Sydney Water Corporation confirming that satisfactory arrangements have been made with the Corporation regarding the provision of reticulated water supply to the development prior to issue of the Construction Certificate. 21. Essential Fire Safety Measures Details of all proposed essential fire safety measures to be installed in the building, are to be submitted to and approved by Council or the Principal Certifying Authority (PCA) prior to the issue of the construction certificate in accordance with the Building Code of Australia.

Mechanical Air Handling Systems Details of mechanical air handling systems to be installed incorporating smoke hazard management systems are to be submitted to and approved by Council or the PCA prior to issue of the construction certificate.

Waste Management Plan A waste management plan is required to be submitted to and approved by Council or the PCA prior to issue of the construction certificate. The plan shall address:- the type of material, the estimated volume (m3) or area (m2) of material, the proposed reuse or recycling methods, contractor information, recycling outlet and land fill site. Reuse and recycling of materials must be maximised. The applicant must keep supporting documentation (dockets/receipts) to be checked by Council if required.

Engineering Works and Design In order to provide satisfactory servicing of the development, engineering design and construction works are to be provided or carried out by the applicant in accordance with:- ? Councils Design Guidelines - Subdivisions/Developments (June 1997); ? Councils Works Specifications - Subdivisions/Developments (November 2001). Such works require an Engineering Construction Certificate to be obtained and are to include:- i) Road Construction, Shoulder & Kerb & Gutter Kerb and gutter, road shoulder and associated drainage construction, footpath formation including any necessary relocation of services across the Annangrove Road frontage of the site. The road construction shall match the alignment of 169 Annangrove Road (Lot B DP 413001) and extend along the frontage of the site, and also provide for the provision of a 3 metre wide bus bay at the existing bus stop fronting the site. The road is to be designed to have a traffic loading of 1.5x106. ii) Kerb Inlet Pit A kerb inlet pit is to be constructed along the Annangrove Road frontage of the proposed development and connected via a constructed piped drainage system to the existing kerb inlet pit outside 169 Annangrove Road (Lot B DP 413001). All stormwater drainage from the site is to be connected directly into the kerb inlet pit referred to above.

iii) Concrete Footpath - 2m wide - Annangrove Road Concrete footpath paving 2 metres wide is to be constructed across the Annangrove Road frontage of the development and extending/transitioning into the existing concrete footpath either side of the development site. In this regard the Applicant must if required reconstruct the existing concrete footpath paving (full frontage), to suit adjusted footpath levels and services.

iv) Verge Formation The grading, trimming, topsoiling and turfing of the pedestrian area from the back of kerb to the property boundary in Annangrove Road. This work shall include the adjustment and/or relocation of services as necessary, to the requirements of the appropriate Service Authority. This shall ensure that any service pits and lids are flush with the finished surface level.

v) Heavy Duty Crossings Heavy duty gutter and footpath crossings to all points of vehicular access to the site.

vi) Sealed Driveway Access A sealed or concrete driveway from the rear of the footpath crossing to the proposed carpark area. vii) OSD Hawkesbury Catchment On-site detention is to be provided in accordance with Councils adopted policy for the Hawkesbury River catchment and Councils Design Guidelines - Subdivisions/Developments (June 1997). viii) Carparking & Access In order to provide satisfactory access and parking arrangements, the formation, paving, sealing and draining of all access roads, car parking and manoeuvring areas is required. The design of the parking area shall be in accordance with: Australian Standard 2890.1 - 1993 - "Parking facilities - Off-street carparking" Council's Development Control Plan No. 102 - "Car Parking" Council's Design Guidelines for Subdivisions and Developments All internal car parking spaces and access roads shall be prominently and permanently linemarked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled. All access roads and carparking areas are to be separated from landscaped areas by means of a kerb or concrete dwarf wall.

ix) 'No Stopping Restrictions Installation of 'No Stopping' restrictions along the full frontage of the site incorporating a 'Bus Zone'. x) Upgrade Street Lighting The street lighting fronting the site is required to be upgraded to the satisfaction of Council's Manager - Traffic and Parking, on the existing power poles near the site. 25. Preliminary Site Assessment A preliminary site assessment for soil contamination shall be submitted to Council prior to issue of the construction certificate. Such report shall be prepared by a suitably qualified person, conform to the NSW EPA Sampling Guidelines and the Guidelines for Consultants Reporting on Contaminated Sites and include a statement that the subject land is suitable for the proposed use.

Traffic Control Plan In order to ensure the safety of the public during construction works within the road reserve, a Traffic Control Plan is required. In this regard, traffic control measures such as advanced warning signs, barricades, warning lights, after hours arrangements etc. are required where works are in progress on Annangrove Road and shall be in accordance with:

RTA Specification - October 1998 - "Traffic Control at Work Sites Manual" Australian Standard 1742.3 - 1996 - "Manual of Uniform Traffic Control Devices" & accompanying Field Handbooks (SAA HB81).

Written and/or sketched details shall be certified by the designer as conforming to the above specifications and shall be submitted with the engineering plans prior to the issue of a construction certificate.

Security Bond - Pavement & Public Asset Protection The provision of a Security Bond to the value of $36,000.00 to guarantee the protection of the adjacent road pavement and public assets during construction works is required. The amount of the security bond shall be calculated at the rate of $30.00 per m2 based on the public road frontage of the subject site plus 50m either side and the road width from back of kerb to back of kerb or $10,000.00 (whichever is greater). The bond shall be lodged with Council prior to the issue of a Construction Certificate. The value of this bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being restored to the satisfaction of Council's Engineer. Should the restoration cost exceed the value of the bond, Council will undertake the works and issue an invoice for the recovery of these costs.

External Works Security Bond The provision of a security bond to the value of $59,000.00 to guarantee the construction, completion and performance of all works external to the site is required. The amount of the security bond will be based on 150% of the value of providing all such works or $10,000.00 (whichever is greater) and shall be lodged with Council prior to the issue of an Engineering Construction Certificate. The value of the External Works Security Bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being completed to the satisfaction of Council's Engineer. Note: The release of a security bond for works in trafficable areas (measured from the rear of kerb) shall be subject to a satisfactory performance period and final inspection 6 months after certified completion of the works.

Draft 88B Instrument - O.S.D. The submission to Council of a Draft 88B Instrument/Request document, together with a $1,000 cash bond for the creation of a Positive Covenant and Restriction As to User in respect of the on-site stormwater detention system. Council will refund the $1,000 cash bond upon registration of the 88B Instrument/Request document at the Land Titles Office.

NOTE: A request document must be signed by Council and a fee is payable in accordance with Council's "schedule of fees and charges". 30. Bank Guarantees Should a Bank Guarantee be the method of submitting a Security Bond, the guarantee is to:- i) Have no expiry date. ii) Be forwarded direct from the issuing bank to Council under cover of a suitable letter that refers to the consent and details Council's Development Application Number (1257/03/HA). iii) Should it become necessary for Council to uplift the Bank guarantee, a notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken. NO BANK GUARANTEE WILL BE ACCEPTED DIRECT FROM THE APPLICANT.

Road Inventory Report Prior to the issue of a construction certificate the submission to council of a road inventory report is required. The road inventory report shall include:

? Designated access and delivery routes. ? Photographic evidence of the pre construction condition of all public assets including road pavement, kerb and gutter, footpaths and drainage structures along all street frontages of the site and the designated access and delivery routes

Fencing and Root Barrier (i) The proposed fence to be located along the front property boundary is to be setback a minimum of 2 metres from the front boundary. The setback area between the fence and the boundary is to be landscaped with native species. The design of the fence is to be amended to incorporate render columns (to match the proposed building) with a decorative open pool style metal infill.

(ii) A fence is required to be erected along the eastern boundary of the site (adjacent to the Annangrove Park Reserve) from the front boundary of the site in accordance with the design identified in subclause (i) of this condition 32 for the extent of the development (to the rear car park), to restrict pedestrian access from the subject site into the Reserve. This fence is to extend around the rear of the car park and adjacent to the adjoining residential driveway along the western side of the site to provide site security. (iii) A root control barrier is be installed to a depth of 300mm along the eastern boundary (adjacent to Annangrove Reserve) from the front boundary (corner) of the site for the extent of the development, to prevent the underground spread of grasses. (iv) An above ground barrier to a height of at least 250mm is to be constructed along the eastern boundary (adjacent to Annangrove Road) from the front boundary (corner) of the site for the extent of the development.

Erosion and Sedimentation Control Erosion and sedimentation controls shall be in place prior to the commencement of site works; and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the details approved by Council and the requirements of the Department of Land and Water Conservation. Additional erosion and sedimentation controls may be required on site as directed by Council's appropriate officer.

Stabilised Access Point A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements of the Department of Land and Water Conservation.

Structural Engineer's Details Duplicate copies of Structural Engineer's details of footings, concrete beams, slabs and stairs, retaining walls, structural steelwork, roof timbers and roof construction to be submitted to the Principal Certifying Authority prior to work commencing. The details shall also include certification of the required Fire Resistance Level of the structural members in accordance with the Building Code of Australia. 36. Erection of Temporary Fencing Temporary fencing is required to be erected prior to work commencing in order to ensure that there is no encroachment of works into the adjoining Annangrove Reserve.

Hours of Work Work on the project to be limited to the following hours: - Monday to Saturday - 7.00am to 5.00pm; No work to be carried out on Sunday or Public Holidays. The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.

Builders Rubbish Compound A trade waste bin or a builder's rubbish compound shall be provided on the site within the property boundaries during construction of the building. The compound shall be a minimum of 2 metres x 2 metres squared and shall be constructed of sediment fencing or shade cloth firmly staked into the ground. During construction of the building, all building waste shall be disposed of into either the trade waste bin or the rubbish compound .

Approved Temporary Closet An approved temporary closet is to be provided on the land, prior to building operations being commenced .

Protection of Public Infrastructure Council must be notified in the event of any existing damage to the road, kerb and gutter, road shoulder, footpath, drainage structures and street trees fronting the development prior to commencement of work .

Adequate protection must be provided for Council infrastructure prior to work commencing and during building operations.

Any damage to Council's assets shall be made good prior to commencement of use.

Facilities for people with disabilities Access and facilities for people with disabilities shall be provided in accordance with Clause DP1 - DP8 and Clause FP 2.1 of the Building Code of Australia, respectively. Furthermore, your attention is drawn to the requirements of the Disability Discrimination Act 1992.

Wet Areas The wet areas in the building shall be impervious to water as required by P2.4.1 of the Building Code of Australia (Housing Provisions). On completion of the waterproofing of the wet areas, the Principal Certifying Authority shall be furnished with a certificate from the person responsible, stating that the materials used are suitable for the situation, and that the application and/or installation has been carried out in accordance with Australian Standard AS 3740-1994: Waterproofing of Wet Areas in Residential Buildings. 43. Building Inspection Notification The following inspections are required to be carried out during the construction of the building:

a) Pier holes prior to the placing of concrete; b) Steel reinforcement in position for footings or slabs prior to the placing of concrete; c) Full frame work and brick work complete prior to the fixing of internal linings; d) Wet area flashing; e) Stormwater drainage lines and disposal trenches prior to covering; f) Building complete prior to occupation.

You are advised that Council provides the service of carrying out the above inspections at the rate of $60.50 each (GST inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority within a minimum of 2 days prior to commencement of work.

It is the responsibility of the builder and/or owner builder to obtain from or the Principal Certifying Authority relevant Compliance Certificates or inspection results prior to proceeding with any further work. NOTE : No building shall be occupied or used prior to a satisfactory final inspection being carried out. 44. Standard of Works All work shall be completed in accordance with the development consent, Council's Engineering Works Specification for Subdivisions/Developments and include any necessary works to make the construction effective. All work and public utility relocation shall incur not cost to Council.

Pre-Construction Meeting The applicant shall contact Council's Supervising Officer 48 hours prior to commencement of work in Council's Road Reserve to arrange an on-site meeting between the superintendent (or applicant's delegate), the contractor and council's representative .

Public Liability Insurance All contractors working in Councils road reserve shall take out public liability insurance for a minimum amount of $10 million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence shall be supplied to Councils representative prior to the commencement of construction in the road reserve.

Civil Engineering Compliance Certificates & Inspections In order to ensure works are constructed in accordance with Council's Works Specification and these conditions of development consent, inspections and/or compliance certificates are required at the following stages (where relevant) and subject to payment of the appropriate inspection fee :

(a) Completion of installation of erosion and sediment control structures. (b) Prior to backfilling pipelines, subsoil drains and dams. (c) Completion of backfilling pipelines, subsoil drains and dams. (d) Prior to casting pits and other concrete structures, including kerb and gutter, roads, accessways, aprons, pathways/footways/cycleways, vehicle crossings and dish crossings. (e) Completion of subgrade and sub-base. (f) Completion of basecourse pavement and prior to application of protective seal. (g) Prior to backfilling public utility crossings in road reserves. (h) Prior to placement of asphaltic concrete or wearing surface. (i) Final inspection after all works are completed and "Works as Executed" plans have been submitted to Council. (j) Concrete core test results and pavement density tests results

Compliance with all Conditions All works required by the conditions of the Development Consent are required to be completed/satisfied prior to issue of the occupation certificate.

Landscaping Prior to Issue of Occupation Certificate The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved landscaping plan and being maintained at all times in accordance with Council's Landscaping Development Control Plan .

Infrastructure Inspection On completion of the building, Council shall carry out an inspection of its infrastructure which fronts the site to ensure that no damage has occurred during construction works. You are advised that Council charges a fee of $60.50 (GST inclusive) for this inspection which is required to be paid either on collection of the Development Application or prior to completion of the building. 51. Fire Safety Measures (1) The following conditions have been imposed to ensure that adequate fire safety measures are included in the building . a) Upon completion of works or prior to the commencement of a change of use, a Final Fire Safety Certificate (or Form 15) is to be issued by the owner of the building to the effect that each essential fire safety measure installed within the building and specified in the attached fire safety schedule: ? has been assessed by a properly qualified person, AND ? was found, when it was assessed, to be capable of performing to at least the standards required by the current fire safety schedule for the building. b) A Final Fire Safety Certificate must be provided before a Final Occupation Certificate can be issued under Clause 153 of the Environmental Planning & Assessment Regulation 2000. A soon as practicable after a Final Fire Safety Certificate is issued, the owner of the building to which it relates:

(2) Shall submit a copy of the Certificate (together with a copy of the current fire safety schedule) to the Commissioner of NSW Fire Brigades, AND

(3) Shall ensure that the Certificate (together with a copy of the current fire safety schedule) is prominently displayed in the building. All essential fire safety measures are to be installed in the building and be appropriately certified prior to occupation of the building.

Road Inventory Report - Prior to Occupation Prior to the Occupation Certificate being issued, the builder/developer is to provide an updated road inventory report identifying any damage to local roads caused by construction traffic associated with the development and means of rectification to these roads for the approval of Council .

Asset Management - Road & Drainage Upon the completion of Road and Drainage works and prior to the issue of an Occupation or Subdivision Certificate, Council requires as part of its Assets Management Policy, the submission of a certificate from a duly qualified engineer detailing:- ? The length and cost of constructed roadworks (i.e. roadworks to be dedicated as Public Road). ? The length and cost of constructed drainage works (not including common drainage lines or inter allotment drainage).

OSD - Satisfactory Completion and Submission of Documents The on-site stormwater detention system shall be completed to the satisfaction of the Principal Certifying Authority prior to occupation of the dwelling. On completion of all works associated with the on-site stormwater detention system, the Principal Certifying Authority will require :

The submission of works as executed drawings prior to a final inspection level. The drawings are to be prepared by a suitably qualified engineer or registered surveyor.

The submission of a certificate of hydraulic/hydrological compliance prior to a final inspection. This certificate is to be prepared by a suitably qualified engineer or registered surveyor and is to include details of any non-compliance with approved plans and specifications.

The submission of a certificate of adequacy from the structural engineer for the on-site stormwater detention system. 55. On-site sewage management system (a) Details of the system of sewage management are to be submitted to and approved by Council prior to the issue of the construction certificate.

(b) A system of sewage management must be operated in a manner that achieves the following performance standards: (i) the prevention of the spread of disease by micro-organisms,

(ii) The prevention of the spread of foul odours, (iii) The prevention of contamination of water, (iv) The prevention of degradation of soil and vegetation, (v) The discouragement of insects and vermin, (vi) Ensuring that persons do not come into contact with untreated sewage or effluent (whether treated or not) in their ordinary activities on the premises concerned, (vii) The minimization of any adverse impacts on the amenity of the premises and surrounding lands, (viii) If appropriate, provisions for the re-use of resources (including nutrients, organic matter and water). (c) A system of sewage management must be operated: (i) in accordance with the relevant operating specifications and procedures for the sewage management facilities, and (ii) so as to allow the disposal of any treated sewage and the removal of any by-product of the treatment of sewage in a safe and sanitary manner. (d) The system of sewage management must not cause sewage or treated effluent to be discharged into any watercourse or onto any land other than its related effluent application area (e) The person responsible for the operation of the system of sewage management must provide details of operation and evidence of compliance with conditions of the approval whenever the council reasonably requires the person to do so. (f) The council may inspect any premises, facilities or records related to the operation of the system of sewage management, which is the subject of this approval in order to assess compliance with this approval. The council may carry out up to 2 compliance inspections per year of the system of sewage management, which is operated in relation to this approval. The council may carry out follow up inspections in relation to any matter requiring rectification about which the person responsible has been notified. The fee for each such inspection is the approved fee determined in accordance with the Local Government Act 1993. The approved fee is the amount specified in the council's management plan for the period in which the compliance inspection is carried out unless another amount is specified in regulation or determined by the Director General, Department of Local Government. (g) Notification of completion is necessary prior to use. (h) All effluent from the sewage management system shall be disposed of within the confines of the premises. There shall be no irrigated water run-off from the allotment to adjoining premises, public places or reserves. (i) The disposal area shall be prepared in accordance with the amended On-site Waste Water Management Report as prepared by Nyranie Consulting dated 23rd December 2002. The disposal area shall be deep ripped and lime shall be added at application rates nominated in the report. The soil absorption beds are to be constructed in the approximate positions indicated, with the beds parallel to the contour. (j) The effluent disposal area/s shall be completely prepared or landscaped to the satisfaction of Council prior to occupation of the premises or commissioning of the treatment plant. (k) If spray irrigation is provided, only low pressure, low volume spray heads which are not capable of producing aerosols shall be used. The spray shall have a plume height of less than 500mm and a plume radius of not more that 2.0m. (l) The disposal area shall not be used for recreational purposes. (m) Within or adjacent to any surface irrigation area there shall be displayed a sign advising that reclaimed effluent is being used for irrigation. The sign shall be on a WHITE background with RED lettering at least 20mm high. The sign shall state "RECLAIMED EFFLUENT, DO NOT DRINK, AVOID CONTACT." (n) The owner shall enter into an annual service contract, requiring quarterly servicing of the sewage management system according to the following, with the manufacturer, distributor, or other person authorised in writing by the Council: (i) Each quarterly service shall include a check on all mechanical, electrical and functioning parts of the treatment and disposal system including; * The chlorinator; * Replenishment of the disinfectant; * All pumps; * The aeration system; * The alarm system; * The effluent disposal area, including any spray irrigation outlets; * The slime growth on the filter media; * The grease trap; * The operation of the sludge return system. (ii) An Annual Service is to include a check on sludge accumulation in the treatment plant. The grease trap is to be emptied at least annually. (iii) The following field tests are to be carried out by the service contractor at every service:- * Free Residual Chlorine using the DPD photometric method; * pH from a sample taken from the irrigation chamber; * Dissolved oxygen in a sample taken from the final aeration chamber;

s For systems which utilise the sewage treatment principle of Activated Sludge or Contact Aeration an additional field test (SV 30 Test) shall be carried out by the service contractor at least annually to determine if the accumulated sludge is bulking and as an indication that the aeration compartment/s require desludging. (iv) An emergency callout service with a response time of 24 hours in case of alarm activation or breakdown. (o) A report shall be obtained for every service and retained in a register to be made available to Council upon request. (p) An operator's manual incorporating a service record, is to be provided with the treatment plant. The date of each service shall be entered on the record sheet. (q) A valve system shall be designed to ensure that at least one disposal area is available for use at all times. 56. Works As Executed Plans (WAE Plans) In order to provide an accurate record of the works undertaken, the Applicant is required to submit a set of WAE plans detailing all completed civil works. The WAE plans shall be certified by a Registered Surveyor indicating that the survey is a true and accurate record of the works that have been constructed.

The WAE plans shall be prepared in accordance with Council's Design Guidelines for Subdivisions and Developments. 57. Positive Covenant - O.S.D. A "Positive Covenant" under Section 88E of the Conveyancing Act, 1919 in a form approved by the Council (whose approval must not be unreasonably withheld) is to be registered against the title of the property to ensure the maintenance of the on-site detention structure. 58. Restricting Development - O.S.D. A "Restriction-As-To-User" in a form approved by the Council (whose approval must not be unreasonably withheld) is to be registered against the title to the property for the on-site stormwater detention structure, that restricts the carrying out of development upon and/or the varying of the finished levels of the structure without the approval of the Council. 59. Garbage Disposal Prior to use of the development the applicant is required to satisfy Council that suitable arrangements for the provision of garbage disposal from the site have been made.

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.

(2002) 124 LGERA 147

(1999) 103 LGERA 402

(2001) 113 LGERA 301

(2000) 110 LGERA 345

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (9)

Cited By (50)