//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWLEC 1362
appellant. The Court made preliminary findings that the proposal had merit for conditional consent, invited further submissions on the Railway Street entrance amendments and trial-period conditions before...
The Court considered a proposal to operate an existing building as a mosque in a residential area. It found, provisionally, that the proposal could fit the zone objectives if its design and operations were controlled. The Commissioner relied on expert evidence about noise and parking, but emphasised managing attendance and access, particularly by discouraging use of Kay Street. The Commissioner also considered that some entrance design changes and a trial period were needed before final consent conditions could be settled. The decision did not make final consent orders. The modified plans were treated as minor for the costs issue, and no costs order was considered reasonable.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,222 words · generated 28/09/2026
Rahma Islamic Association of Australia Inc appealed Fairfield City Council’s refusal of a development application for an existing building to be used as a place of worship, described in the judgment as a mosque, together with residential use of an existing dwelling as a caretaker’s residence. The site was a consolidated, irregularly shaped property of about 4,049 square metres at Kay Street and Railway Street in Old Guildford ([1]-[2]).
No linked legislation citations have been extracted yet.
The proposal included demolishing a dwelling and garage at 3 Railway Street, and removing partially built structures at 2A Kay Street. It also included using an existing building as a congregation hall, building an ablution and toilet block, providing separate courtyards, and constructing acoustically treated carports. The application proposed 60 off-street parking spaces and access works ([8]). A place of worship was permissible with consent in the site’s 2(a) Residential A zone under the Fairfield LEP 1994 ([9], [32]).
Council’s main concerns were noise, whether parking was adequate, consistency with the zone objective of integration into the locality, and visual effects ([1]). The appeal was heard on 9 and 10 November 2011. Commissioner Hussey issued the decision on 16 December 2011. Although the Commissioner found that the application had merit for conditional consent, this was a preliminary decision: further submissions were invited on trial-period conditions, and final consideration of consent remained outstanding ([52], [56]).
A proposed attendance limit of 130 people and operating times were described to the Court. The sunrise services were not to start before 7 am, evening services were to finish by 10 pm, and the main Friday service was expected to occur around midday over two hours ([12]). The evidence also addressed youth activities, expected to involve about 20 attendees on Saturdays between 1 pm and 2 pm ([15]).
The central statutory question was whether the development could meet one or more objectives of the Residential A zone. Clause 8(2), reproduced at [32], said that consent must not be granted unless the development was consistent with one or more zone objectives. The relevant objective allowed non-residential uses that could integrate with the immediate locality, served the surrounding population and did not place unreasonable demands on services ([33]).
The Commissioner was satisfied that the proposal served local demand and would not place unreasonable demands on services. The remaining issue was integration ([34]). To assess compatibility, the Commissioner referred to Project Venture Developments v Pittwater Council [2005] NSWLEC 191, which framed the inquiry around physical impacts on surrounding development and whether the proposal’s appearance was harmonious with nearby buildings and street character ([36]).
On physical effects, the Commissioner considered whether the carports, fencing and access arrangements would affect neighbouring properties. The Commissioner accepted that No 2 Railway Street could still be developed with a larger two-storey dwelling, and that any constraint from the adjoining driveway was not substantial enough to warrant refusal ([38]). The revised carports, increased side setbacks and landscaping were considered capable of integration with existing sheds and other substantial boundary structures nearby ([37], [41]).
On appearance, the Commissioner accepted that the long acoustic fence and carports were not usual features in the neighbourhood. However, their effects were not considered large enough to warrant refusal, particularly given the revised design and the proposed material treatment of the northern boundary fence ([39]-[41]). The Railway Street presentation remained a design issue: the entry gates were to be set back and reduced in height, with other adjustments also suggested ([39]). The preliminary finding that the proposal had merit was therefore conditional, not a finding that the design was complete in every respect.
Noise was assessed through the acoustic evidence. The applicant’s acoustic expert modelled the effects of the proposal, and the judgment records agreement between the acoustic experts that a satisfactory noise environment could be achieved with acoustic fencing, treated carports and compliance with conditions ([14]-[15], [42]). The Commissioner relied on that agreement. The reasoning was tied to the particular evidence and proposed controls; it was not a general finding that places of worship of this kind produce no noise impacts.
Parking and traffic presented a more qualified picture. The traffic evidence identified demand of about one space per 1.3 people, suggesting that an attendance of 130 might require around 100 spaces, while only 60 were proposed on-site ([18], [44]). The Commissioner accepted the traffic expert’s view that short-term overflow could be accommodated on nearby streets, particularly Railway Street, based on the observed availability of on-street parking ([44]). This assessment depended on the anticipated pattern of use, including the Friday midday service and the short period of possible higher attendance during Ramadan ([43]-[44]).
The Commissioner did not treat parking capacity as the only traffic issue. The judgment emphasised controlling attendee numbers, vehicles and pedestrian movements through a Plan of Management. A traffic warden at the Railway Street gate and controls on both people arriving by car and those walking to the site were discussed ([45]). The Commissioner gave particular weight to residents’ concerns about Kay Street, its limited nearby parking and its role as a busy feeder road. The preliminary view was that pedestrian access from Kay Street should not be permitted in the first instance ([46]-[49]).
The possibility of a trial period addressed concerns about whether the operational controls would work in practice. The Commissioner considered that a trial would allow management systems to be implemented and the traffic and acoustic outcomes to be reviewed ([51]-[53]). The decision invited further submissions about the trial’s appropriate conditions, rather than settling them.
This judgment applied, rather than comprehensively restated, the planning controls identified in the reasons. Before the decision, the relevant framework included the Fairfield LEP 1994, under which a place of worship was permissible with consent in the Residential A zone, and the Fairfield Development Control Plan 2006, including provisions on parking, vehicle and access management ([9]). Clause 8(2) required consistency with at least one zone objective, and the relevant objective concerned integration, local demand and service demands ([32]-[34]).
For compatibility, the Commissioner used the two questions from Project Venture: acceptability of physical effects, including constraints on surrounding development, and harmony with surrounding buildings and street character ([36]). The decision applied those questions to the site-specific design amendments and surrounding built form. It did not purport to replace the LEP or DCP, or to state a new general test for every development proposal.
The judgment also considered costs associated with modified plans. It referred to Futurespace Pty Ltd v Ku-Ring-Gai Council [2009] NSWLEC 153 for principles assisting in deciding whether amendments were minor for s 97B purposes ([54]). The Commissioner assessed the amendments cumulatively in the context of this proposal, including the revised carport design, frontage, access arrangements and landscaping. The conclusion was that they were minor and that reassessment was comfortably undertaken within the appeal timetable, so a costs order was not considered reasonable ([55]).
The material provided does not establish a broader “after” state of the law. The reasons do not say that the LEP, DCP or cited authorities were changed by this decision. The outcome was expressly preliminary and concerned the application before the Court. Any account of later legal developments would require sources beyond this judgment.
At [32], the judgment quotes cl 8(2): “The Council must not grant consent” unless the development is consistent with one or more zone objectives. In plain English, being a permissible use was not enough by itself. The proposal also had to fit at least one relevant objective of the zone.
At [33]-[34], the Commissioner identifies the integration objective and finds that the proposal served local demand and did not place unreasonable demands on services. The remaining question was whether it could integrate with the neighbourhood. In plain English, the decision separated the proposal’s purpose and service needs from its practical fit with the surrounding area.
At [36], the Commissioner sets out the two compatibility questions from Project Venture. One concerns effects on neighbouring development, including the ability to develop nearby land. The other concerns whether the development’s appearance fits its surroundings. The Court then applies those questions to the carports, acoustic fence, setbacks, landscaping and Railway Street entrance ([37]-[41]).
At [44], the Commissioner recognises a potential gap between the expected parking demand and the 60 on-site spaces, but accepts that nearby on-street parking could accommodate short-term overflow. This was a conclusion tied to evidence about the expected attendance pattern and observed parking availability, not a conclusion that parking demand was irrelevant.
At [48], the Commissioner says pedestrian access from Kay Street should not be permitted “in the first instance”. In plain English, the preliminary assessment favoured restricting that access because of traffic, pedestrian safety and neighbour amenity concerns. The words “in the first instance” also sit within a decision that left operational conditions to be further considered.
At [52], the Commissioner invites further submissions about conditions for a trial period “to enable the following orders to be made”. This is the clearest indication that the reasons did not themselves make final consent orders. The application was found to have merit, but final conditions and orders remained unresolved.
The reasoning may be relevant to a planning dispute involving a non-residential use proposed in a residential zone where the governing instrument makes that use permissible with consent but also requires consistency with zone objectives. The particular importance of this judgment is its treatment of integration as a practical assessment involving surrounding development, appearance, noise, traffic and access, rather than merely the label attached to the proposed use ([32]-[42]).
Its compatibility analysis may be relevant where a proposal has physical features that are uncommon in the locality, such as long acoustic barriers, rows of carports or access arrangements adjoining dwellings. The Commissioner assessed those features in context, including setbacks, landscaping, nearby sheds, the visual presentation to the street and possible effects on neighbouring development ([37]-[41]).
The traffic reasoning may be relevant where attendance varies by service or event, on-site parking is below a potential peak estimate, and the evidence identifies nearby on-street parking. The judgment’s analysis depended on attendance limits, the expected timing and duration of peak use, observed parking and operational controls ([18]-[19], [43]-[49]). It should not be read as establishing that off-site parking will always resolve a shortfall.
The trial-period discussion may also be relevant where the acceptability of a proposal depends on management measures whose practical operation is uncertain. Here, the Commissioner contemplated a trial to review traffic control and acoustic amenity and invited submissions on conditions ([51]-[53]). The judgment does not establish a general entitlement to a trial period; it records that one appeared reasonable in the circumstances before the Court.
The judgment supplied here contains no discussion of later decisions applying, distinguishing, approving or rejecting Rahma Islamic Assoc of Australia Inc v Fairfield City Council. It is therefore not possible, from this source alone, to describe how later courts have treated it or to make claims about its subsequent precedential status.
The relationships that can be identified from the judgment itself concern authorities cited by Commissioner Hussey. Project Venture was used for the compatibility questions applied to the proposed development ([36]-[41]). Dipper v Pittwater Council [2006] NSWLEC 273 was referred to in connection with practical measures for compliance with consent conditions, including attendee and traffic controls ([53]). Futurespace was considered on the costs issue concerning whether amendments were minor ([54]-[55]). Those are relationships recorded in this decision, not evidence of later treatment of Rahma.
The immediate unresolved matters were procedural and practical. The Commissioner invited further submissions on the appropriate trial-period conditions and noted that further consideration was required of the Railway Street entrance design before final conditional consent could be considered ([52], [56]). The judgment does not state the eventual final orders or whether the parties agreed on conditions.
The operational questions included how a maximum attendance of 130 would be controlled, how entry would be managed when the limit or the on-site parking capacity was reached, and how controls would cover people arriving on foot as well as by car. The Commissioner recognised concerns about the practical difficulty of refusing entry, while noting evidence that limited entry occurred at another mosque and that the applicant was willing to consider a trial period ([23], [51]-[53]).
A further question was whether the Plan of Management could reliably implement traffic, pedestrian and acoustic controls over time. The Commissioner considered that it should include attendee and traffic controls and be capable of revision after the trial period ([45], [53]). The judgment records that these measures were contemplated, but it does not report their later performance.
The decision also leaves open how the parking assessment would operate during the different service patterns, especially peak Friday attendance and the identified Ramadan period. The Commissioner relied on the expected short duration of some peak use and the availability of on-street parking ([43]-[44]). The supplied reasons do not resolve what would happen if actual attendance, parking demand or management practices differed from those assumptions.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Mr A Pickles (Respondent) Solicitors Mr M Sonter (Applicant)
Ms P Hudson (Respondent) File Number(s): 10589 of 2011
Background 1This appeal was lodged against council's refusal of a development application for the use of an existing structure as a place of worship (mosque) and residence on a consolidated battleaxe lot at Railway Street and Kay Streets, Old Guildford. These uses have been operating for a period and the council has identified the following contentions:
The site 2The site is of irregular shape and comprises following four lots known as 2A and 2B Kay Street, and 3 Railway Street Old Guildford with a total area of approximately 4049 sq m.
The proposal 8This proposal involves the following details in order to access and use the existing building as a mosque, together with the existing dwelling as a caretaker's residence:
Planning controls 9The following planning controls are relevant in this matter: (1)Fairfield LEP (FLEP 1994); under which the subject land is within the 2(a) - Residential A zone wherein a "place of worship" is permissible. A place of worship is defined as: Place of worship means a building or place used predominantly for the purpose of religious worship, whether or not the building or place is also used for counselling, social events or religious training by a religious group. (2)Fairfield DCP 2006 . Of relevance in the matter, chapter 12 deals car parking, vehicle and access management and chapter 10 miscellaneous development.
The evidence 10Detailed evidence in this matter was presented by: Mr K Kerzinger; Senior strategic planner for council Mr S Harding; Consulting planner for applicant Mr S Gauld; Acoustic consultant for council Mr A Paolino; Acoustic consultant for the applicant Mr M Bridgman; Traffic consultant for the council Mr K Hendicott; Traffic consultant for the applicant Mr S Elriche; President of the Rahma Corporation 11The proposal was advertised and attracted a number of objections and petition, which are included in the council bundle of documents, which have been considered along with the oral evidence given at the site. 12The main issues raised concern the suitability of the site for the proposed mosque due to the likely noise from internal activities and associated parking arrangements. It was initially explained to the court that the initial proposal had been reviewed with the use being limited to a maximum number of 130 people and that the various prayer services would involve:
Conclusion 31Having considered the evidence, the submissions and undertaken a view I am satisfied this application has merit. 32The property is within the 2a - Residential A zone under FLEP 1994 where a place of worship is permissible with consent. Clause 8 contains the zone objectives and development control tables. Clause 8(2) states: (2) The Council must not grant consent to development on land within a zone unless it is of the opinion that the carrying out of the development would be consistent with one or more of the objectives of that zone . 33The objectives for the Residential A zone relevantly include: (e) to allow a range of non-residential uses that: (i) are capable of integration with the immediate locality, (ii) serve the demands of the surrounding population, and (iii) do not place demands on services beyond the level reasonably required for residential use. 34I am satisfied from the evidence that the proposal serves the demands of the surrounding population and it does not place unreasonable demands on services for the proposed use. The remaining hurdle concerns the ability to integrate with the immediate neighbourhood. 35As previously noted, Mr Kerzinger did not consider the proposal would satisfactorily integrate with the immediate neighbourhood for a number of reasons, including the battleaxe lot shape and proximity to other dwellings. However, based on the design amendments undertaken during the course of the hearing, I am satisfied that the proposal should now result in a satisfactory visual impact in the neighbourhood, subject to some "scaling down" of the Railway Street presentation. 36In this regard, I have considered the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, where the Senior Commissioner set the following: 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. + Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. + Is the proposal's appearance in harmony with the buildings around it and the character of the street? 37Applying these principles to the present case, I think that the revised carport dimensions and increased side setbacks with landscaping, should integrate with neighbours. Whilst the extended carport is not a common element, nevertheless it is adjacent to other substantial sheds along this boundary, which provide substantial screening of the physical impacts of the structure. 38In terms of possible development constraints on 2 Railway Street, I am inclined to accept Mr Harding's opinion that it is currently developed in accordance with the residential zoning it would not be restricted from increasing its development by way of a larger two storey dwelling. Whilst there could be some constraint in terms of the adjoining driveway, I do not consider this of such magnitude to warrant refusal. 39With reference to the second question on compatibility, I think better integration could be achieved for the Railway Street presentation by setting the entry gates back from the road boundary and that they should also be reduced in height. The setback should be closer to the carport to provide better consistency with the adjoining setbacks of the neighbouring dwellings. The revision could also consider the inclusion of a pier at the end of the carport to differentiate the pedestrian area. 40Whilst I accept that the proposed 3 m high acoustic fence along the northern boundary is not a common feature, nevertheless the specification for the lower portion to be solid masonry and the upper section to be clear, transparent material will assist in the integration. Whilst it is a negative aspect, I do not consider it of such magnitude to warrant refusal of the development. 41Insofar as the row of carports is also an uncommon element in the neighbourhood, nevertheless it is adjacent to the southern boundary along which are a number of existing larger sheds and higher walls. From my observations at the view, I think the proposal will reasonably integrate within the subject context. 42The other aspects of the proposal that concerns the integration of the proposal are the acoustic and traffic impacts. I am satisfied to rely on the agreed position of the acoustic experts that with provision of the perimeter boundary fencing and compliance with the conditions, then the acoustic outcome should be satisfactory. 43With regard to the traffic issue, I have carefully considered the evidence regarding the intensity of use of the mosque. From this I note that the main weekly service is around midday on Fridays, where a limit of a maximum of 130 attendees it be allowed. Also during the Ramadan period a maximum attendance could occur over the 30-day period. But this attendance is only likely to be for about 1 hour after sunset. 44Consequently, it is possible some 100 car spaces will be required but only 60 are provided on-site for these events. Considering the attendance circumstances, I rely on the traffic expert's agreement that there is sufficient on-street car space to adequately accommodate any short term overflow parking. It was apparent from the view that there is considerable on - street parking available along the western side of Railway Street, adjacent to the Southern Rail Line. 45Notwithstanding this, it is apparent to me that the parking and pedestrian arrangements need careful control. I understand that a traffic warden at the gate will control the Railway Street entry. However this will also have to involve some control of attendee numbers both in the cars and those who walk to the premises. These operational measures are to be covered by the POM controls. 46One of the difficulties in achieving effective integration concerns the proposed access from Kay Street. In this regard, I give substantive weight to the residents' objections that parking spaces are limited near the subject site and that Kay Street is a busy north - south feeder road. My observations at the view indicated that the footpath along the southern side of Kay Street near the subject site is somewhat unattractive for pedestrians, particularly for some members of the public with limited mobility. 47Therefore I do not consider the public interest is well served by encouraging more vehicles to use this street seeking the limited parking spaces that then is likely to encourage pedestrian use of the road carriageway near the existing road crest over the water pipeline. 48Furthermore, I think due weight should be given to the other concerns of the neighbours that the use of the pathway by significant numbers of pedestrians is likely to reduce the amenity of those properties, particularly at night. Accordingly, I consider that in the first instance pedestrian access from Kay Street should not be permitted and this is consistent with Mr Bridgman's opinion that mosque traffic should be discouraged from using Kay Street. 49Bearing in mind Mr Kerzinger's concerns about the likely difficulty in turning away worshippers when the maximum 130 people is reached, I think that the restriction on entry from Kay Street facilitates this outcome, thereby ensuring that the entry control systems can be effectively maintained from Railway Street. 50In summary then, I am satisfied that this proposal is a permissible type of use within the residential neighbourhood. Insofar as a number of objections were raised, I consider they have been reasonably addressed by the amended plans and also the requirement for the mosque to operate in compliance with the conditions of consent, including the Plan of Management. From reference then to the revised plans and perspective, whilst acknowledging this proposal is different, nevertheless I consider it possible for the proposal to operate in harmony with neighbourhood, subject to the aforementioned Railway Street revisions and thereby satisfy the cl 8(2) requirements of the LEP. Trial period 51Insofar as concerns were raised about the difficulty in self-regulation of the conditions, particularly the enforcement of the maximum numbers, I note Mr Elriche's evidence that the imposition of limited entry is not uncommon and this regularly occurs at the Guildford mosque. The turning away of people apparently does not cause significant problems because the person has made their intentions to attend apparent. In response to the concerns, he said there would be no objection to the approval being granted subject to a trial period. 52The imposition of a trial period then seems reasonable in the circumstances, to allow the management of the property to implement adequate traffic control systems to ensure that the use does satisfactorily integrate into this neighbourhood. Also, it would allow for the other on-site activities to be reviewed to ensure the acoustic amenity is maintained. Further submissions are invited from the parties on appropriate conditions for the trial period to enable the following orders to be made. 53In reaching this conclusion, I have considered the various submissions regarding other authorities. With regard to self- regulation, Mr Pickles referred to Dipper v Pittwater Council [2006] NSWLEC 273 wherein Preston CJ at paras 32 and 33 made findings regarding practical measures to obtain compliance with conditions of consent. I accept that careful attention is required for the subject attendee and traffic controls and consider such control mechanism should be in the POM. I also consider that the POM should included provisions for revision after the trial period. Costs 54Submissions were made regarding costs arising from the modified plans. The council submits that modified plans were in response to matters raised initially about inadequate details and re -assessment resources were expended. The main authority for s97B cost is Futurespace Pty Ltd v Ku- Ring-Gai Council [2009 NSWLEC 153, where Pepper J identified the following principles to assist in determining whether amendments are "minor": 42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). 55Having considered these principles, I note that there were a number of detailing amendments that have been responsive to the contentions and resulted in a more acceptable development. This includes revisions of the carport designs to incorporate acoustic recommendations. There are also the amendments to the Railway Street presentation in terms of the front facade, entry arrangements and the landscaping. In the context of the subject development, my assessment is that the amendments are minor and the reassessment was comfortably undertaken within the appeal timetable. Therefore I do not consider it reasonable that a s 97B cost order be made. 56In accordance with the aforementioned reasons, I am satisfied the proposal has merit for the granting of conditional consent. However, I consider it appropriate that further consideration be given to minor amendments to Railway Street entrance as mentioned. Also, details of an appropriate "trial period" are invited so that final consideration can be given to the granting of conditional consent for the development. R Hussey 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: 16 December 2011
Rahma Islamic Assoc of Australia Inc
Fairfield City Council
The Court made preliminary findings that the proposal had merit for conditional consent, invited further submissions on the Railway Street entrance amendments and trial-period conditions before making final orders, and declined to make a costs order.