Prajna Monastery Australia Inc v Georges River Council

The proposed development

1. The development application proposes retention of the existing dwelling house, which comprises an office, 4 bedrooms, a study, kitchen, and a living area; and the construction of a new building at the rear of the site for the meditation hall and memorial hall. The Meditation Hall and Memorial Hall are within a single building; the Meditation Hall has a proposed area of 160sqm, and the Memorial Hall has a proposed floor area of 48sqm.
2. The proposed development provides basement parking for 10 vehicles in the new building, accessed by a driveway from Wright Street along the southern boundary with 10-12 Wright Street; and one hardstand disabled parking space in the front setback, in front of the office. Pedestrian access is from Wright Street along a pathway on the northern boundary with No 16. Between the existing dwelling and the proposed new building is a forecourt, with paved pathways and landscaping.
3. The proposed Plan of Management (PoM) (ex P) outlines the proposed use of the site. The existing dwelling house is proposed to be used for accommodation by three nuns. Individual counselling sessions conducted by the Abbot for Buddhist members of the NSW Police Force, and by the Abbot and nuns for members of the public, on an appointment basis, are proposed for the existing dwelling house. The Memorial Hall is where auspicious tablets are kept. The Meditation Hall is to be used for chanting and dharma talk, and meditation practice. The proposed hours of operation are: 1. Monday-Friday: 9.00am-5.00pm Monastery building: counselling sessions by appointment, occasional visits to Memorial Hall by appointment; 2. Saturday: 9.00am-5.00pm: Meditation Hall for chanting and dharma talk service from 9.00am-1.30pm; occasional visits to Memorial Hall by request from 1.30pm-5.00pm; and 3. Sunday: 9.00am-5.00pm: Meditation Hall for meditation practice from 9.00am-4.15pm, occasional visits to Memorial Hall by request from 4.15pm-5.00pm.
4. The Saturday activities involve the Abbot and 3 nuns, and a maximum 40 devotees, and include chanting (30-45 minutes), silent meditation (30-45 minutes), dharma talk by Abbot (45 minutes); then the congregation walks from the Meditation Hall to the Memorial Hall and chants (10-15 minutes); and returns to the Meditation Hall for closing chanting (10-14 minutes); followed by a vegetarian lunch.
5. The Sunday activities start at 9.00am with devotees turning up between 8.00am-9.00am; the service is attended by the Abbott and 3 nuns, and a maximum of 40 devotees. The session includes chanting, recitation of the sutra, and silent meditation, and includes a lunch break and rest period, with devotees starting to disperse around 3.45pm in a time spread of half an hour.
6. The PoM provides for only 1 joss stick to be burnt during the Saturday and Sunday sessions; and specifies use of musical instruments (a small bell, tingsha; drum; cymbal; and the wooden fish). No chanting is to occur on Saturday during that part of the session where the congregation moves between the Meditation Hall and Memorial Hall. No celebrations in association with special days (which number about 8 in any year) are to be held at the site.
7. Bookings for the Saturday and Sunday sessions are to be maintained by the nun in charge, to a limit of 40 non-sangha attendees, with reservations for places for the relevant service or session the following week to be offered once that number is reached.
8. During Saturday chanting and dharma services and Sunday meditation practice sessions entry to other parts of the Monastery requires permission of the nun in charge. The Memorial Hall and Monastery are to be kept locked, with the Memorial Hall unlocked on Saturday to allow the auspicious tablets in the Memorial Hall to be acknowledged.
9. Security provisions include a CCTV system in the administration office in the Monastery; and a security gate to the carpark opened at 8.00am and closed at 5.00pm each day. Sangha members residing at the Monastery will have an electronic controller for the security door for access to the carpark outside those hours.

Issues

1. In its Amended Statement of Facts and Contentions (ex 3) the Council contended that the application should be refused on the grounds of inconsistency with the character of the local area; impacts on visual and acoustic privacy and overshadowing; landscaping and visual amenity; car parking and access; the operation of the PoM and car parking; inadequate information as to preparation and catering of food, and impact on surrounding street parking; visual impact on the heritage significance of Hurstville Public School; suitability of the site for the development; and the public interest.
2. In its Statement of Facts and Contentions in Reply (ex A) the applicant contends that the application should be approved because the proposed development is consistent with the character of the local area and the streetscape of Wright Street; is unlikely to have an adverse impact on the amenity of adjoining properties in terms of visual and acoustic privacy and overshadowing; provides a satisfactory level of landscaping; and the provision of 11 car spaces is adequate for the purpose and capacity of the facility.

Planning Controls

1. The objectives of the R2 Low Density Residential zone, to which regard must be had in accordance with cl 2.3(2) of the LEP, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. • To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.
2. Development for the following purposes is permissible with consent: Animal boarding or training establishments; Attached dwellings; Bed and breakfast accommodation; Boarding houses; Boat sheds; Building identification signs; Business identification signs; Car parks; Child care centres; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Multi dwelling housing; Places of public worship; Recreation areas; Recreation facilities (indoor); Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Water recycling facilities; Water reticulation systems
3. It was common ground that the proposed development is permissible as a "place of public worship", which is defined: place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.
4. The proposed development complies with the height development standard in cl 4.3 of the LEP.
5. Clause 5.10 provides for heritage conservation, and includes: (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
6. The Hurstville Development Control Plan No 1 - LGA Wide (the DCP) applies to the site. Relevant parts are section 3.1 Car Parking, section 3.3 Access and Mobility, and section 3.4 Crime Prevention Through Environmental Design.
7. The Objective and Performance Criteria of section 3.1.4 Parking Provision are: Objective To provide sufficient, safe and convenient parking facilities meeting user requirements including pedestrians, cyclists and vehicles. Performance Criteria (a) Parking and service vehicle areas are provided according to projected needs and provide pleasant areas in which to park. (b) Parking that is safe, easily accessible, does not obstruct the passage of vehicles or create traffic conflicts, impact pedestrians or cyclists and does not result in detrimental affects [sic] to adjoining or nearby properties.
8. The Controls at 3.1.4.1 are in the form of a Table for different types of land use. The relevant provisions in section 3.1.4.1 are: (a) In determining the prescriptive parking requirements for each type of land use, Council has adopted guidelines from the Roads and Traffic Authority Guide to Traffic Generating Developments, October 2002. It must be emphasised, however that Council uses this guide on a discretionary basis only, and may be flexible in establishing parking conditions according to expert reports on the existing parking and traffic conditions in the vicinity of the subject site. (b) In calculating the number of car spaces required, Council takes into consideration: (i) The type of development (or land use) proposed; (ii) The size and scale of the development; (iii) The intensity of the development; (iv) Street hierarchy and existing traffic situation.
9. Section 3.1.4.1(d) notes that where parking calculations according to the Table produce a fraction, the requirement is rounded up.
10. The Table provides for a "Place of Worship (Church, Temple, Mosque etc)" 1 space per 10 seats or 1 space per 10sqm GFA (whichever is greater). For Residential, the Table refers to the Residential Section of the DCP, which in section 4.1.3.8 requires a "minimum of 2 car parking spaces must be provided for dwellings with 3 or more bedrooms".

Evidence

1. A conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act) was held on site on 1 October 2015. On that occasion submissions were made by the owners of 16 Wright Street, 18/21-25 Wright Street, 10/15-19 Wright Street, 4/10-12 Wright Street, 1/10-12 Wright Street, and 2/18 Wright Street. The view included the subject site, 16 Wright Street, 10-12 Wright Street, and Forest Road and Kenwyn Street outside Hurstville Public School. The parties did not reach agreement, and the conciliation was terminated. The parties consented to my hearing and determining the appeal, and to the evidence from the site view and submissions forming part of the evidence.
2. On the first day of the hearing submissions were made by Ms Anne Hewson, Principal of Hurstville Public School; the owners of 7/10-12 Wright Street and 75 Wright Street; a resident of 16 Wright Street; and by Mr Jason Yeo on behalf of the Hurstville Public School P& C.
3. The Council notified the development application and received 137 written submissions and petitions containing 413 signatures against the proposal and a petition with 881 signatures in favour of the proposal. Those submissions are in evidence (ex 1).
4. The objectors raised concerns as to traffic and congestion in Wright Street; lack of parking; safety for pedestrians including children; noise; previous unauthorised use of the site; impact of use of commercial kitchen and burning of incense and joss sticks; increase in the number of people using the site; inappropriate development for residential area; and proximity of the development to Hurstville Public School including overlooking. The Principal of Hurstville Public School stated that the school's concerns are with any development attracting more vehicles on to roads in proximity to the school, and the opportunity for accidents and issues of parking for vehicles dropping off or picking up children; and privacy for the classrooms. The submissions of objectors in the adjoining villa development at 10-12 Wright Street and the dwelling at 16 Wright Street raised concerns as to impact on residential amenity, from noise, overshadowing, overlooking, and smells from cooking.
5. The applicant relied on expert evidence from Mr Paul Corbett (traffic), Ms Jennifer Hill (heritage), Mr Kerry Nash (planning) and Mr Stephen Gauld (acoustic). The Council relied on expert evidence from Mr Craig McLaren (traffic), and Mr Anthony Rowan (heritage and planning).

The Appeal

1. The development application was lodged on 15 July 2014, and refused on 10 December 2014. On 11 June 2015 the applicant filed the Class 1 appeal against that refusal. On 24 July 2015 the applicant was granted leave to amend the application to rely on amended plans (ex L).
2. On the first day of hearing the applicant sought, and was granted, leave to amend the application to rely on further amended plans (ex M). On the second day of the hearing, the applicant provided further amended plans (ex O), and was granted leave to amend the application to rely on those further amended plans. The question of whether the amendments were other than minor so as to require an order under s 97B of the Act was reserved. On 10 March 2016 the parties advised their agreement that an order under s 97B is required, and their agreement as to the amount, $8,000.00.
3. The amendments reduce the height of the new building. The ridge is reduced from RL69.60 to RL68.00; the gutter to RL 64.50; and the ceiling to RL 66.70. Those amendments have consequences for the impact on the heritage item, Hurstville Public School, and the extent of overshadowing of villa 3, 10-12 Wright Street.
4. Having regard to the principles as stated in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 at [42], I agree that the amendments to the application are not minor, and that as a consequence, an order pursuant to s 97B(2) of the Act requiring the applicant to pay the Council's costs thrown away as a result of amending the development application must be made. In particular, the cumulative or overall effect of the amendments in the context and location of the proposed development is significant (Futurespace paragraph (b)); and a re-assessment of the development application was required by the expert witnesses (Futurespace paragraph (c)).

Consideration

1. The amendments to the plans substantially addressed the matters raised in the evidence of the heritage experts and the Council's contention relating to visual impact of the proposed development on the heritage significance of Hurstville Public School. The issues raised in the Council's other contentions relating to character of the locality, impacts on amenity, landscaping, car parking and access, and the PoM, remained in dispute.
2. The Council's position at the conclusion of the evidence is that the application does not warrant approval because the proposed development does not provide adequate parking; has adverse impacts on the amenity of adjoining neighbours in terms of overshadowing of villa 3/10-12 Wright Street, and acoustic impacts; is inconsistent with the character of the local area and the streetscape of Wright Street; and provides inadequate landscaping.

Applicant's submissions

1. The applicant submits that the key issue in the appeal is parking, and in that regard, the applicant seeks to rely on the flexibility provided by s 79C(3A) of the Act, given the nature of the development and its small and modest scale; the PoM specifying the hours of operation which are primarily outside school hours; and the traffic survey showing sufficient on-street parking. The Council has approved other development applications with shortfalls in parking. The applicant submits that on balance an acceptable level of amenity is being maintained. The Court should find based on Mr Gauld's evidence that acoustic impacts are acceptable, and should find, based on Mr Nash's evidence that the residential controls under the DCP are not applicable, that the landscaping provision is acceptable. The provision of just under 20% of the site as landscaped area is consistent with the intent of the landscaping requirements, and the development will provide 246-247sqm of landscaping if areas less than 2m in width are included. The lowered height on the amended plans means that the overshadowing is close to the existing impacts for villa 3, 10-12 Wright Street, and is therefore acceptable. The increase in overshadowing is only minor and not significant in the context of the nature of the development overall. The Court should give limited weight to the objections, as the issues of traffic and parking are addressed. The PoM will ensure that noise levels are contained for neighbours.

Council's submissions

1. The Council submits that the application is fundamentally flawed, having regard to the inadequate on-site parking, amenity impacts on neighbours, impact on character, and inadequate landscaping. In determining the required on-site parking, the use of the existing dwelling means that the relevant residential control cannot be ignored; there is a shortfall of 11-12 spaces based on GFA, which is substantial and real. The development is too big, and should be reduced. Section 79C(3A) of the Act requires consideration limited to this application, and not Council's determination of other development applications. In assessing impacts on amenity, the resident of villa 3, 10-12 Wright Street is entitled to expect no further reduction in solar access. Acoustic compliance is obtained only if doors and windows are kept closed. The courtyard area is to be used every weekend for up to 44 people, and so the concerns of the neighbour at 16 Wright Street are not fanciful or irrational. In terms of character, the intensity of the use is not characteristic of the R2 zone, and the built form is not characteristic in terms of its length and footprint. The landscaped area does not meet the 20% required for residential development.

Heritage

1. In its contentions the Council identified the adverse impact on the heritage significance of Hurstville Public School to be the visibility of the roof form of the building from Forest Road, above the height of the existing neighbouring single storey building. The Council's position was that the height of the proposed building adversely impacts on the setting of the heritage building, instead of stepping back and down from it, to avoid the building being screened from view, and to avoid obscuring external vistas to the curtilage of the item from the south. The development should not rise above the eaves level of the heritage building on the school site, to protect the heritage setting of that building as viewed from Forest Road, should be single storey in the rear portion of the site with a minimum setback of at least 6m from the rear boundary, and any roof form should be hipped in nature.
2. The applicant provided a Revised Heritage Impact Statement (ex J). Ms Hill and Mr Rowan conferenced and provided a joint report (ex 8). In that joint report the experts addressed the 1891 Tower building on Forest Road, and the 1886-97 classroom building closest to the boundary of the subject site, which they agreed were designed by WE Kemp at the time he was NSW Architect for Public Schools. They agreed that the 1891 Tower building has a higher degree of significance than the 1886-97 classroom building based on its scale, architectural expression, and visual contribution to the public domain. They disagreed as to the impact of the development on the heritage significance of the heritage item. Mr Rowan's opinion was that the location of the structure at 3m from the boundary and at a height of RL69.6 (marginally greater than the classroom building at RL69.56) did not reflect the prevailing manner of development of single storey dwellings which had not impacted on the available visual appreciation of the classroom building from a number of aspects; the additions would visually dominate the classroom building when viewed from Forest Road; the development is not typical for the locality and is out of character; and views to the heritage item would be impacted by the contrasting scale of the proposed development. Ms Hill disagreed, stating her opinion that the impact of the new development is minimised by ensuring that the height of the new building is consistent with the scale of the buildings on the site, the highest being at RL77.25; the additions do not visually dominate the heritage item; the building is of a similar scale to the building immediately adjacent and considerably lower than the ridge of the highest building on the site; and it does not affect views to, and from, the heritage item from the public domain or within the school grounds.
3. In oral evidence Ms Hill and Mr Rowan commented on the further amended plans (ex O). Mr Rowan's evidence was that the reduction in height of the hall resolved the heritage concerns, and his opinion was that the impact on the heritage significance of the heritage item is minimal. Ms Hill's evidence was that the Tower building on Forest Road at RL77.25 is the key building on the school site, and anything at the rear would have no impact on the heritage item. She was of the opinion that the reduction in height in the further amended plans would reduce a minimal impact to low.
4. I accept the agreed expert evidence based on the amended plans, and I am satisfied that the impact of the proposed development on the heritage significance of the heritage item Hurstville Public School is at its highest minimal; and on that basis would not be a reason for refusal of consent.

Overshadowing

1. The villa units at 10-12 Wright Street have a central driveway access, with the rear private open spaces of villas 1, 2 and 3 adjoining the site on its south-east boundary. Villa 4 has its private open space on that boundary and along the rear boundary of that site, adjoining the school. The Council contends that the proposed development will have an unreasonable impact on the amenity of those adjoining properties in terms of overshadowing and visual enclosure as a consequence of the height of the hall building and its location at the rear of the site.
2. Mr Nash and Mr Rowan agreed (ex 7, paras 44-45) that villa 4 does not have its living room facing the side boundary to the subject site, and the living room has its private open space courtyard on the rear boundary. Villas 1, 2 and 3 have their north-facing living room windows facing, and private open space courtyards adjacent to, the side boundary of the subject site, with no other private open space. Based on the plans in ex L and the shadow diagrams which are Attachment E to their joint report, the experts agreed that the existing solar access for villas 1 and 2 would not reduce for a period of less than 3 hours between 9.00am-3.00pm in mid-winter; and that there is a reduction in the level of existing winter sunlight received to the north-facing living room window of villa 3, which currently receive full winter sunlight from 9.00am-3.00pm. They disagreed as to the quantification, however agreed that more than 50% of that window would be in sunlight from 9.00am-9.45am (45 minutes), and 11.45am-12.15pm (30 minutes), a total period of about 1.25 hours. They agreed that villas 2 and 3 would not achieve 3 hours of sunlight to their private open space as a consequence of the development, and that it is both the ridgeline and gutter line of the hall building that would cast those shadows.
3. In oral evidence the planning experts considered the further amended plans (ex O), which include shadow diagrams (drawings DA-12C, DA-15B, DA-16B, DA-13C, DA-17B, DA-18B and DA-14B). Mr Rowan's evidence was that at 10.00am there is a minor variation for villa 3, and a reduction in sunlight at 11.00am, and no additional impact at 12.00pm. In his opinion the reduction in solar access for villa 3 would be between 10.30am-10.45am and 11.15am. The living room window would get 3 hours of sunlight in the morning, however the courtyard would not now get 3 hours of sunlight. Mr Nash was of the opinion that there would no loss of sunlight between 9.00am and 2.00pm for the living room windows of villas 2 or 3.
4. The planning experts disagreed as to whether the overshadowing impacts of the proposed development are acceptable. Section 4 of the DCP provides Specific Controls for Residential Development. For multiple dwelling development of land in the R2 zone, section 4.3.2.8 requires that buildings should be designed to allow at least 3 hours of sunshine on open space areas of adjacent dwellings between 9.00am-3.00pm on 22 June, and section 4.3.2.1(iv) which provides that adjoining properties must be capable of receiving not less than three hours of sunshine during midwinter. Section 5 of the DCP provides Controls for Specific Non-Residential Development Types, which does not include any specific provision for a place of public worship.
5. Mr Nash's opinion was that the provisions for solar access requirements of multi-unit housing in section 4.3.2.8 are not applicable in the context of development that is a place of public worship; and that the outcome for villa 3 in respect to privacy, noise and overshadowing is satisfactory, and the only adverse impact relates to overshadowing of the private open space in mid-winter. Given that the roof ridge and gutter line are within the ceiling height and building height controls, the impacts on villa 3 are reasonable given the north-east/south-west orientation of the allotment and the villas at 10-12 Wright Street.
6. Mr Rowan's opinion was that section 4.3.2.8 of the DCP is indicative of what is a reasonable level of amenity to be expected in a residential property in a residential zone irrespective of the land use on the development site that is causing the impact. In his opinion it is reasonable that the permissible use for a place of public worship achieve the same level of residential amenity for neighbouring properties as any other use permissible in the zone, and the standard of ensuring a minimum 3 hours of sunlight is a well-established principle in residential zones. Even if section 4.3.2.8 does not apply, the level of solar access for villas 2 and 3 is inadequate when considered against the planning principle in Benevolent Society v Waverley Council [2010] NSWLEC 1082. It is unreasonable for a two storey development to be located in the rear of the site, and the size of the building is excessive to requirements: a reduction in the size of the hall building to ensure that it could not cater for more than 40 persons would reduce its overall bulk and scale with the potential of increasing winter solar access to villas 2 and 3, and also increase the landscaped area of the site.
7. I accept that the DCP does not in terms address solar access requirements for a "place of public worship", and in particular, that section 4.3.2.8 of the DCP does not expressly apply. However, I prefer the evidence of Mr Rowan that that provision is indicative of what is a reasonable level of amenity to be expected in a residential zone, and that the permissible use as a place of public worship should achieve the same level of residential amenity for neighbouring properties as any other use permissible in the R2 zone, such as a multi-unit dwelling. That approach is in my view consistent with the objective of the R2 zone "to ensure that a high level of residential amenity is achieved and maintained". The proposed development does not allow at least 3 hours of sunlight to the open space of the adjacent villa 3. It was common ground that it is the gutter line of the proposed building that causes the impact. While the roof ridge and gutter line are within the relevant height controls, I agree with Mr Rowan that in the context where the proposed building is larger than required for its intended use, that impact is unreasonable.

Acoustic impacts

1. Mr Gauld's Acoustic Report (ex K) calculated noise levels at the Hurstville Public School classroom on the rear boundary of the site; at two locations at 10-12 Wright Street and 16 Wright Street; and at 18 Wright Street. Mr Gauld applied the Industrial Noise Policy criterion of 5dB above background noise level, to provide acceptable noise intrusiveness of 49 dBA during the day, 46 dBA in the evening, and 42 dBA at night. The recommended noise level for the school is a maximum of 45 dBA. Mr Gauld concluded that the noise of cars inside the car park and on the driveway was calculated at 37 dBA at 16 Wright Street, 43 dBA at 10-12 Wright Street (at the car park entrance), and 34 dBA at the south west residence of 10-12 Wright Street. Compliance with noise criteria for 40 worshippers chanting in the Meditation Hall requires fixed windows and doors closed; when doors are open as people enter or leave the noise level at 10-12 Wright Street and 16 Wright Street would be 46 dBA. For the Memorial Hall, assuming 10 people talking, there would be compliance with windows and doors closed, and a noise level at 18 Wright Street of 48 dBA if doors are open. For 20 worshippers accessing the premises by walking along the northern boundary, over a period of 30 minutes, the predicted noise level is 44 dBA; if all are talking with a raised voice, it would be 47 dBA. Devotees socialising in the outdoor areas, modelled on 40 devotees talking in the forecourt, were calculated at 47 dBA at both 16 Wright Street and the adjacent residence at 10-12 Wright Street; for people talking in the gallery outside the Meditation Hall, it would be 42 dBA at 16 Wright Street. Mr Gauld recommended that worshippers using the pedestrian access and outdoor areas are made aware to not make an unreasonable level of noise in those areas, that worshippers not arrive earlier than 8.00am on Sunday, and that the Memorial Hall and Meditation Hall doors be fitted with automatic door closers.
2. In oral evidence Mr Gauld accepted that his calculation of the noise of devotees socialising in the courtyard was based on normal voices, and that if there were 20 people speaking in raised voices it would be 50 dBA, which would exceed the 49 dBA criterion. He accepted that 20 people speaking continuously would be audible to people across both side boundaries. Mr Gauld accepted that if the people moving from the Meditation Hall to the Memorial Hall were required to stay silent that would reduce the acoustic impact.
3. The planning experts agreed that it is likely that conversations of attendees will be audible within the private open spaces of neighbouring properties at 10-12, 16 and 18 Wright Street. Mr Nash considered that Mr Gauld's findings demonstrate that the acoustic impacts of the proposed development will be acceptable. Mr Rowan disagreed. In his opinion the audibility of conversation arising from the use represents an unreasonable change in the character of the area and is unreasonable given that it will affect the only areas of ground level private open space available to 7 dwellings abutting the site; the weekends are the days when most residential outdoor spaces are used to their greatest intensity, and the use of the hall building on those days heightens the sensitivity of the noise receivers and the unreasonableness of the proposal.
4. The applicant proposes in its PoM that no chanting is to occur as the congregation moves between the Meditation and Memorial Halls. That provision is incorporated in condition 77 of the final draft Conditions provided after the hearing. Condition 76 provides for doors and windows to both Meditation and Memorial Halls to be closed during prayer/meditation sessions.
5. I accept the evidence of Mr Gauld, which was not contested, that operation of the proposed Memorial Hall and Meditation Hall with windows and doors closed, and in strict compliance with the PoM requirement that no chanting occur during movement between the two, would not exceed the relevant noise criterion at the adjoining residences. Based on that evidence, management of acoustic impacts of people walking along the pedestrian access on the northern side of the development or congregating in the courtyard would require strict supervision so as to ensure compliance with the noise criterion; and in any event, even if compliant with the +5 dBA above background criterion, that noise would be audible to the adjoining properties. Whether it is appropriate to rely on compliance with the PoM in order to avoid or minimise that interference with the amenity of adjoining neighbours is addressed below.

Car parking and access

1. The Council contends that the car parking and access for the proposed development is inadequate and unacceptable: the provision of 11 spaces is not consistent with the requirements of the DCP; the applicant's justification relating to availability of on-street parking to accommodate the shortfall is based on limited and sparse parking survey data; and the vehicular access corridor at 3m does not comply with the minimum width of 3.6m required by AS2890.1-2004.
2. In the joint report (ex 6) Mr Corbett considered in relation to the latter contention that satisfactory access can be achieved; Mr McLaren was of the opinion that the vehicle access corridor while not strictly compliant was workable subject to detailed design certification. The traffic experts agreed that a traffic signal system for the ramp, a "Car Park Full" electronic display and electronic parking space monitoring system could be accommodated in the development and would overcome issues with drivers attempting to enter the site when the car park is full.
3. The focus of the evidence of the traffic experts was on determining the required number of on-site car spaces, and whether parking provision was adequate.
4. The traffic experts disagreed as to the number of spaces required for the monastery. Mr Corbett did not consider that the DCP rate of 2 car parking spaces per dwelling was applicable to the monastery, as that relates to new buildings, and the dwelling is required only to retain the existing parking provision of 1 space, represented by the single garage presently on the site. Mr McLaren considered that the existing residence has the ability to park more than one car on site, and the residence has at least 3 bedrooms; and on that basis, there should be 2 spaces.
5. The traffic experts agreed that applying the definition of gross floor area (GFA) in the LEP, the proposed new building is 240sqm. There is no seating shown on the plans. The experts disagreed as to how to apply the DCP parking requirements to the proposed Meditation and Memorial Halls. Mr Corbett's approach was that it is not appropriate to use the DCP rate of 1 space per 10sqm GFA where a large proportion of the space is not used for worship. Mr Corbett accepted that while the design of the development is that not all the space will be used, there is nothing to limit that.
6. Mr McLaren's opinion was that the DCP control, which is based on GFA, should be used in circumstances where the applicant has not provided material sufficient to justify a departure. Strict application of the DCP car parking requirement would require 24 spaces based on the GFA of 240sqm and the required rate of 1 space per 10sqm GFA or 1 space per 10 seats (whichever is the greater). Mr McLaren considered that the question of car parking demand relates to how well the proposed PoM can be enforced as well as to the likely car occupancy rate in practice. In his opinion the PoM cannot be enforced, and it is preferable to provide a building that suits the needs of 40 attendees rather than relying on a PoM and council enforcement for a larger building, particularly for a residential street.
7. Mr Corbett's evidence was that of the 44 persons intended to be the maximum permitted at any one time, only 41 persons (the Abbot and 40 worshippers) would be required to travel to and from the Meditation Hall, and a substantially reduced number of people will be on site on weekdays and on weekends outside of the proposed hours for activities in the Meditation Hall and Memorial Hall. The parking requirement for the dwelling is a single space. Given the operational characteristics of the Meditation Hall, the area to be utilised for prayer is only 120sqm. Applying the DCP rate of 1 space per 10sqm or 1 space per 10 seats to 120sqm, there is a requirement for 12 car spaces. Mr Corbett considered that given the access to rail and bus services and proximity to Hurstville Town Centre with high density residential developments, approximately 15% of worshippers would use non-private car travel modes such as public transport, cycling and walking. Mr Corbett was of the opinion that car occupancies in the order of 3.0 persons per car could be expected, based on his experience and surveys of Christian and Islamic places of worship. Applying the 15% non-private car travel mode and average car occupancy rate to the 41 persons expected to travel to the development would result in a parking demand for 12 spaces, consistent with the DCP calculation. The resulting deficiency of one space between 9.00am-1.30pm on Saturdays and 9.00am - 4.15pm on Sundays would need to be accommodated on-street; on-street parking surveys show that a minimum of 35 spaces and 80 spaces were available on Saturday and Sunday respectively within 200m walking distance of the site.
8. Mr McLaren disputed the reliability of Mr Corbett's 3 persons per car occupancy rate, and referred to his research at mosques resulting in a car occupancy rate of 1.5 persons per car. That would give rise to a car parking demand for 40 patrons of 27 cars, while higher figures of 84 and 112 patrons based on the worship area and usage in other Buddhist temples would require 56 and 75 cars respectively.
9. In oral evidence Mr Corbett was questioned on the data on which he based his estimate of 3 persons per car, being a mosque at 17 Cross Street Bankstown and a church at 25 Carrington Street Hurstville, referred to at 2.1.18 of the joint report. Mr Corbett accepted that that data (ex 10) in fact establishes an average occupancy of 2.5 persons at 25 Carrington Street Hurstville, and reports observations of 2-3 persons per vehicle at 17 Cross Street Bankstown.
10. Mr Corbett and Mr McLaren disagreed as to whether there is sufficient on-street parking to meet any shortfall. Additional survey data was provided for Saturday 12 September 2015 for each hour between 8.00am - 2.00pm, and for Sunday 13 September 2015 between 7.00am-3.00pm (ex 6, Appendix 3). In Mr Corbett's opinion those results show a minimum of 35 spaces on Saturday and 80 spaces on Sunday available, however in oral evidence he agreed that there is high demand in Zones C (which is the eastern side of Wright Street where the site is located), and A (the western side of Wright Street). Mr McLaren's evidence was that there is very little capacity in those areas, and availability of spaces over 400m away is not convenient.
11. The planning experts also commented on traffic and parking. Mr Nash noted (ex 7, paragraph [84]-[85]) that the Council has approved development applications for three places of public worship that do not comply with the DCP requirements, and his opinion is that the Court should look at compliance with the DCP provisions as a guideline in the context of s 79C(3A). In oral evidence Mr Rowan responded to the three examples given by Mr Nash.
12. The applicant submits that it is appropriate to provide flexibility in accordance with s 79C(3A) to the DCP calculation of car parking spaces, given the nature of the development and its small, modest scale. The appropriate area to use for the GFA calculation is 120sqm and to exclude areas not used at the same time. The PoM is a sufficient basis to justify a variation given the hours of operation and the conditions attached, with the main use on weekends outside school hours; there is sufficient on-street parking; and the Council has previously adopted a flexible approach for other places of public worship. The Council submits that there is a shortfall of 11 or 12 spaces based on the GFA calculation. Section 79C(3A) requires consideration of the objectives of the DCP provision. As a new building there is no reason why it cannot comply, and it is simply too big. If the number is determined on the basis of the limit of 40 devotees and 4 clergy, on Mr McLaren's approach (including 2 spaces for the dwelling) there is a shortfall of 18.3 spaces, while on Mr Corbett's approach the shortfall is 6.4-7.4 (at 1-2 spaces for the dwelling).

Findings

1. The proposed development (ex O) provides 11 car spaces, including an accessible space at the front of the existing dwelling.
2. The DCP provides for determination of the parking requirements for a place of public worship by reference to the number of seats, or the GFA. It was common ground that as with some other forms of place of public worship such as a mosque, the proposed development does not provide seating. The appropriate basis for calculation according to the DCP is, therefore, by GFA. On the agreed 240sqm GFA for the new building, that would require 24 car parking spaces for the Meditation Hall and Memorial Hall.
3. I agree with the Council that the continued residential use of the existing dwelling cannot be disregarded. The planners agreed that the building is still a "dwelling house" as defined in the LEP to be used for residential purposes. The proposed use of the existing dwelling is for accommodation for the three nuns, and the use for additional functions including provision of meals and counselling associated with the use as a place of public worship, would not change the continuing use as a dwelling house. Based on the DCP, the existing dwelling would require 2 car parking spaces.
4. On that basis, the DCP would require a total of 26 car spaces for the proposed development. The provisions of the DCP are, by virtue of s 79C(1)(a)(ii) of the Act, a fundamental element in, or a focal point to, the decision-making process, but are not determinative: Zhang v Canterbury City Council [2001] NSWCA 167. Section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP that set standards with respect to an aspect of a proposed development where a development application does not comply with those standards, and the consent authority is to "allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development". The DCP itself requires flexibility, as acknowledged in section 3.1.4.1, based on "expert reports on the existing parking and traffic conditions in the vicinity of the subject site", and taking into account the type of development, its size and scale and intensity, and the street hierarchy and existing traffic condition.
5. The applicant relies on the number of proposed attendees and the actual area used, rather than the total GFA, and on Mr Corbett's assessment of likely numbers arriving in a private vehicle. On the latter, I prefer the evidence of Mr McLaren to that of Mr Corbett: the data on which Mr Corbett relied for his car occupancy rates in fact did not support his conclusion that it is 3 persons per vehicle, rather that it is 2.5 per vehicle, and he accepted that his estimate of 15% non-private car travel mode was not based on any survey data. However, even accepting Mr Corbett's concession in oral evidence that his data supports a rate of 2.5 persons per vehicle, there is still a significant shortfall in spaces. At 44 attendees, at the rate of 2.5 occupants per vehicle there would be a requirement for 17.6 (rounded up to 18) spaces; on Mr McLaren's 1.5 per vehicle, it would be 29.3 spaces. If the clergy are disregarded, 40 attendees at 2.5 per vehicle would require 16 spaces, and at 1.5 per vehicle, 26.7 (27) spaces. If the 40 non-sangha attendees and the Abbot are considered, for 41 attendees at 2.5 persons per vehicle there would be a requirement for 16.4 spaces; and at Mr McLaren's 1.5 per vehicle, it would be 27.3 spaces.
6. Even assuming that it is appropriate to base the parking requirement on the number of attendees and actual area used by those attendees, at the highest case for the applicant, the proposed development would require 16 car spaces, a shortfall of 5 spaces. On the least favourable calculation for the applicant, that approach would require 29 spaces.
7. The issue is whether it is appropriate to depart from the requirement for 24 spaces determined in accordance with the DCP, or the reduced requirement of at best 16 spaces as determined in accordance with the number of attendees. The evidence referred to by the expert planners establishes that there have been circumstances where the Council has granted consent to developments with a shortfall of car parking; however, this application must be considered on its merits, as recognised by section 3.1.4.1 of the DCP. I accept that with the primary use on weekends and the minimal attendance for counselling during the week, there would be no conflict with the needs of the school; that was also accepted by the Principal of Hurstville Public School. The additional survey data (ex 6, Appendix 3), shows the highest demand for parking in zones A and C on Saturday between11.00am-1.00pm, and on Sunday from 10.00am. In oral evidence Mr Corbett conceded that at 1.00pm on Saturday there is a high demand for parking in zones A and C, and that more on-street spaces than can be provided in zones A and C would be needed for attendees than the on-site shortfall, even on his best case scenario. Given the timing of intended arrival of devotees on those days, I accept the evidence of Mr McLaren that the effect of the proposed development would be to displace parking close to the site, to locations further away where there may be capacity.
8. The objective of section 3.4.1 of the DCP is "to provide sufficient, safe and convenient parking facilities meeting user requirements", and to the extent that there is available on-street parking, even at some distance from the site, the proposed development with its shortfall of on-site parking would not be inconsistent with that objective. However, the performance criteria include provision of parking that does not result in detrimental effects to adjoining or nearby properties. In that regard, the central issues are the impacts on adjoining residences of vehicles seeking to access the site or obtain on-street parking close by when the car park is full, and whether it is reasonable to rely in that regard on the PoM to maintain the limitation on numbers of attendees.

Plan of Management

1. The expert planners disagreed as to whether the PoM is a satisfactory means by which to control the operations of the site, in particular the number of attendees. Mr Nash was of the opinion that it is, placing clear responsibilities on the Abbot and nuns; in oral evidence he agreed that it is fundamental to the assessment of parking requirements. Mr McLaren considered that it is questionable whether the PoM is reasonable, in its requirement of a limit of 40 attendees; enforceable, as breaches would be difficult to ascertain; practical, as it requires absolute compliance to achieve an acceptable outcome; or workable, given the size of the building at a scale that could give rise to attendance figures a factor of 2.1 or 2.8 higher than the PoM restriction.
2. An appropriate approach to consideration of whether a management plan is appropriate for a particular use and situation is in the form of the questions posed in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54], as revised in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72]: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?
3. The PoM for this proposed development (ex P) relates to the proposed use and complements the conditions of approval (Renaldo (1)); it is to be incorporated in and enforced as part of the conditions of consent (Renaldo (6)); and it contains complaint procedures (Renaldo (7)).
4. However, the critical issue for minimising impacts on amenity of neighbouring residences is both the total number of people on the site, and their compliance with measures to reduce noise. Some of those measures are provided in the PoM, such as no chanting while walking between the Meditation and Memorial Halls, however there is no information as to how attendees are to know of the PoM requirements (Renaldo (5)). Others measures, such as the need for persons walking along the pedestrian access and using the courtyard to keep their voices down, are not provided for in the PoM. The applicant in submissions relies on reminders to people attending to contain noise levels in the form of the information given to worshippers; however, there are no details as to how that is to be provided, or monitored or enforced.
5. It can be accepted that the holder of a consent would comply with the conditions of that consent, including relevantly a limitation on numbers. However, I agree with Mr Rowan that the location of the Meditation and Memorial Halls at the rear of the site, and the size of those spaces in excess of what might otherwise be required for the proposed number of attendees, has implications for an ongoing need to monitor attendee numbers. I am not persuaded that the source of any breaches could readily be identified (Renaldo (3)).
6. The critical issue in the context of this appeal is whether absolute compliance with the PoM is required to achieve an acceptable outcome (Renaldo (4)). Mr Nash accepted that it is, in relation to parking. Based on the evidence of Mr Gauld, the same conclusion can be reached relating to acoustic impacts of attendees gathering in the courtyard and accessing the Memorial and Meditation Halls. Given that, together with the difficulty in identifying breaches, I am not persuaded that it is appropriate to rely on the PoM to mitigate or avoid amenity impacts on neighbouring residences.

Conclusion

1. For the above reasons, I am not satisfied that the impact of the proposed development on the amenity of neighbouring residences is reasonable. The proposed development provides for the most intense use in the building at the rear of the site, adjacent to the private open space of neighbouring residential properties. The proposed development overshadows the only private open space for villa 3, 10-12 Wright Street. The use of the courtyard and pedestrian access to the site for the number of attendees contemplated will have adverse acoustic impacts for those dwellings and 16 and 18 Wright Street. Mitigating the potential acoustic impacts, and maintaining compliance with appropriate acoustic criteria, would require stringent management measures. Strict compliance with the PoM would be required to restrict attendee numbers to minimise both the acoustic impacts, and the impacts on surrounding streets of attendees finding on-street parking where the proposed development does not provide sufficient on-site parking. I am not persuaded that those potential impacts can be appropriately managed by the PoM. In those circumstances, the impacts on amenity are not consistent with the objective of the R2 zone to "ensure that a high level of residential amenity is achieved and maintained". I am not satisfied that the site is suitable for the proposed development, and development consent should be refused.
2. That conclusion means it is unnecessary to deal with the Council's remaining contentions relating to landscaping and character. However, since the matter was fully argued, some brief comments may be made. In relation to landscaping, Mr Nash calculated the area from the plans (drawing DA-03B) at a total of between 246-247sqm, while Mr Rowan's calculation was similar, at 233.43sqm; however, if section 4.1.3.2 of the DCP is applied so as to exclude areas less than 2m in width from the calculations, the landscaped area is 178.3sqm. The planners disagreed as to whether the visual amenity would be improved. The plans now before the Court do not provide detail of the access provision for the accessible car space at the front of the site, and in particular whether, as considered likely by Mr Rowan, a retaining wall, ramp and balustrade are likely to be required. Those elements would detract from any enhancement of visual amenity that the proposed landscaping would provide. If the exclusion of areas less than 2m in width in section 4.1.3.2 is applied, the proposed development provides less than the 20% of total site area as landscaped areas specified in the DCP; and in my view that would be a relevant factor in assessment of the consistency of the proposed development with the character of the local area and the streetscape.
3. In relation to character, based on the view the existing development along Wright Street is a mix of lower density and higher density residential development, including the adjoining villa development and the residential flat buildings opposite; and other uses including child care centre, places of public worship and a school. The expert planners agreed that the existing dwelling would still appear as a dwelling. Mr Nash was of the opinion that the proposed development is not out of scale with development on the adjoining sites, and its length is not inconsistent with the continuous residential footprint of the adjoining villa development, whereas Mr Rowan considered that the distribution of built form, with one singular large roof structure, and the intensity of the proposed development including the use of the kitchen and courtyard, and the capacity of the development, are relevant. Given the diversity in built form in the locality, I agree with Mr Rowan that the relevant factors are the intensity and capacity of the proposed development. Whether or not that would be a separate basis for refusal of consent, those factors support the conclusions above relating to the impacts of the proposed development on amenity and consequent unsuitability of the site for that development.

Orders

1. The orders of the Court are:
2. The appeal is dismissed.
3. Development Application No 2014/0978 for the use of an existing dwelling as a Buddhist monastery providing residential accommodation for 3 nuns and the construction of a meditation hall and memorial hall with basement and on-site parking at 14 Wright Street Hurstville is refused.
4. The exhibits are returned except for Exhibits 3, A, L, M and O.
5. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay those costs of the consent authority that are thrown away as a result of the amendment of the application in the amount of $8,000.00. Linda Pearson Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2016