Conclusion and findings
91The JRPP refused the previous proposal primarily on the grounds of traffic, parking and acoustic impacts affecting the amenity of the neighbourhood which led to the conclusion that the proposal would not be consistent with the aims and objectives of the LEP.
92The applicant has attempted to address those concerns through the amended plans and additional details provided in both the traffic/parking and acoustic reports prepared on its behalf and the POM prepared to address any potential conflicts that may arise from the operation of the site.
93Having regard to the evidence and had the benefit of the site view including the immediate locality, it is apparent that there are a number of factors that must be considered in determining this application. They are the impacts of traffic/parking and noise, the mitigation measures proposed to address these and how they impact on the amenity of residents of adjoining properties. Visual impact, scale and design of the development and whether it would be consistent with the objectives of the existing 2(b) zone are important considerations, as is the weight that is to be given to the DLEP.
94It is clear that the peak traffic and parking demands of the development do not coincide with the peak traffic flows on the adjoining road network, with the peak at the site being Fridays around noon. It is also apparent that the efficiency of some of the intersections in the vicinity of the site are already at a less than desirable LOS and that this situation is likely to worsen in the future. I accept Mr Hendicott's evidence that the peak demands of the site will not have such an impact as to require remedial works to those intersections in the future.
95The impacts of the traffic associated with the application are more localised and in particular relate to the efficiency and effectiveness of the proposed ingress and egress driveways. It is apparent, from the evidence provided that without limiting attendances at the site to 250 persons there will be a traffic conflict, that is agreed between the experts. The POM is intended to address this cap however, it cannot control the number of persons attempting to attend the site. I accept the evidence that persons could see signage placed ahead of the entrance advising them the site is full and they would proceed away from the site having met their religious obligation however, there is no quantitative or qualitative information that would indicate the impact of those additional vehicles on the road network as Mr Hendicott advises all modelling has been conducted on the basis of 250 persons maximum.
96Mr McLaren remains concerned about the safety implications of the egress driveway due to its proximity to the shopping centre exit. Whilst Mr Hendicott says that the performance of this driveway will be acceptable if the mosque opens in 2013, he agrees that within 10 years, the performance will require restricting its use to left out only and therefore require the installation of a median. This is a matter that must be considered by the Court in assessing the impact of the development as it is not possible for the council to impose additional requirements at a later stage if that work is found necessary after consent is to be granted.
97The experts agree that the installation of the median would also restrict the movement of vehicles from the shopping centre and adjacent residential properties to left-out only and that the alternate route involves travelling an additional 1-1.3 kilometres. I am not satisfied that this is an acceptable impact and the travel distance involved may, as suggested by Mr McLaren, lead to unsafe or illegal turning movements along Croudace Road. Further, the loss of on-street parking as a result of the median and turning bays is another undesirable impact of that work.
98I accept the evidence of the experts that the site would provide for the parking demands of the development under the 250 person cap provided it is managed in a way that ensures all attendees heed the signage and directions of traffic control persons. The POM is an important consideration and requires a high level of detail to ensure that all potential impacts are met including patrolling streets within the vicinity of the site to ensure no on-street parking occurs, limiting numbers, turning people away from the site at the entry to the site, ensuring signs are erected at appropriate times, windows and doors are closed, plant and equipment is operated at specified times etc.
99A POM is a recognised planning tool used to address potential conflicts as described in: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315:
53 Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law ( Transport Action Group Against Motorways Inc v Roads & Traffic Authority [ 1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused.
100Whilst I accept that POMs can successfully be applied to manage a range of issues, I am not satisfied on the evidence before me, that the potential impacts of the application, particularly those that relate to traffic attending the site can be controlled to ensure there will be no adverse impacts, particularly in regard to road safety along Croudace Road. The POM cannot control how many people attempt to enter the site, it can only restrict the number of persons who can access the site.
101I accept the evidence of the acoustic experts that the use of the site would comply with the appropriate noise standards however consider that the proposed acoustic wall to be constructed around the entire perimeter of the site where it adjoins residential development would have a detrimental impact on the amenity of those dwellings, particularly those at Nos 160 and 162. This is due to the height of the wall and, despite the use of clear material above 1.8m, it would still affect the enjoyment of the yard areas of those properties and, as stated by the owner of No 162, limits air flow to the studio apartment at the rear of that site. Any landscaping proposed would not mitigate that impact. The wall is not characteristic to the area.
102The isolation of those two properties between the proposed entry and exit driveways is an undesirable effect of the development, particularly when combined with the high fence that would surround those properties.
103The attempt to reduce the height and scale of the development by cutting into the site has resulted in the need to remove the majority of trees and this has an unacceptable impact on the amenity of the area. I do not consider that the extent of planting proposed, which is limited to the perimeter of the site and the area adjacent to the proposed mosque building, would compensate sufficiently for the loss of that advance vegetation.
104Whilst I am satisfied that the size, height and scale of the buildings proposed are appropriate in the context of the site, I am not satisfied that the external impacts, particularly those of the acoustic walls and traffic management maintain the amenity and character of the area.
105The Court must have regard to the objectives of the LEP and the 2(b) zone. I do not accept Mr Shiels' proposition that it is necessary for the development to satisfy all of those objectives, however, it is important to ensure that the development is not antipathetic to those objectives. In particular, objective (b) anticipates non-residential development within that zone however, it contemplates that only a limited range of non-residential development will occur and that the scale and intensity of that development will be compatible with the predominantly residential environment. A further consideration is to ensure that the development does not unreasonably detract from the amenity or character of the neighbourhood or the quality of the environment.
106For the reasons outlined above, I do not consider that the objective relating to non-residential development in the 2(b) zone is met as the mitigation measures necessary to address the impacts of the development would detract from the amenity and character of the neighbourhood and the tree removal would adversely affect the quality of the environment. Failure to satisfy the objectives is not a precondition to the grant of consent however, there is an obligation for the Court to have regard to the objectives.
107The planning experts agree that the making of DLEP is imminent however, Mr Harding does not accept that it is certain as he says that changes to the plan at any stage until it is made are inevitable. Whilst it is apparent that further changes are required, I accept the evidence of Ms McCarthy that the plan, when made, would prohibit development of a place of worship in the R2 zone.
108In determining the weight to be given to the draft environmental planning instrument, Spigelman CJ in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 states:
6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
109In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]):
...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
110The objectives of the R2 zone are similar to those of the 2(b) zone however, in regard to non-residential development, more broad. Again, I do not accept the evidence of Mr Shiels that all of these objectives must be met and prefer the opinion of Mr Harding that the proposed development is not antipathetic to those objectives. For that reason, I do not give the draft plan determinative weight however, the fact that the development would be prohibited when the plan is made and that I have found that it is unsatisfactory in general terms for the reasons outlined above, means that I will give the draft plan some weight in determining the merits of the application.
111In view of the above findings and having regard to the evidence and the council's planning controls, it is apparent that there are many factors that, when considered individually, would not be of sufficient weight to refuse the application. However, when considered cumulatively, they go to the council's contention that the application, if approved, would have an adverse impact on the amenity of adjoining residents and the adjacent locality which confirms that the site is not suitable for the proposed development. Accordingly, the application should be refused.