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.
Further submissions
57Following the publication of my findings, the parties have provided further written submissions regarding possible conditions of consent. In this regard, I note that council maintains its primary position that the application should be dismissed.
Trial period
58As I have previously indicated, the implementation of the access and parking arrangements to the mosque are particularly sensitive to ensure that the development integrates into the neighbourhood. The applicant originally indicated its willingness to accept a trial period to enable the implementation of the conditions of consent to achieve the desired outcome. The applicant's further submission is that this trial period be for 6 months and that the use then be allowed to continue pending a final consent.
59Against this, the council submits that this period is inadequate and should be for 18 months so as to include the Ramadan period. Also, that such trial period should commence after the issue of the Final Occupation Certificate, rather than after issue of any Occupation Certificate.
60My assessment is that the longer 18-month trial period is appropriate in the circumstances; particularly to include Ramadan where it is likely the mosque will be at capacity, based on the previous evidence submitted to the Court. This trial period would enable the designated traffic controllers to undertake the necessary (RMS Traffic Control) training and progressively implement safe and practical procedures to control both pedestrian and vehicular ingress/egress to the premises in the busy periods so that overflow parking on the premise and on-street is controlled and any disamenity minimised.
61With regard the time of commencement of the trial period, I accept the council's submission that this should be from the date of the issue of the final Occupation Certificate. This is to avoid the situation where an interim certificate(s) could be issued in respect of partial completion of the development. In my assessment, full compliance with the conditions of consent, including acoustic treatments, car parking/enclosures, landscaping and entry controls, is required to achieve the anticipated integration into the neighbourhood outcome.
62With regard to the applicant's concerns about the continuation of use at the end of the trial period, it seems to me that this should be managed by the timely lodgement of details prior to the end of the trial period. On the basis that a proper application made for final consent, I think it reasonable that the use be allowed to continue while any final assessment is being made.
Plan of Management
63Insofar as it is intended to operate the development in accordance the POM, the original plan required some upgrading from the initial plan. Following the delivery of my findings, it is apparent that further amendments are required and the parties agree to these items as listed in Condition 32. The unresolved matter concerns whether the final POM should be submitted for council's approval.
64Having reviewed the Version 2 POM, it is apparent to me that it is still in concept form and not the final document that can be used for the management of the property. There are still several important management issues that have to be determined and in the circumstances I think it reasonable that the amendments be made and the final POM approved by council.
65Considering that the proposed development is of a sensitive nature and accordingly requires careful management to integrate into this residential neighbourhood so as to achieve a good neighbourhood outcome, careful attention is required to the following management issues:
- Environmental capacity ; practical procedures are required to ensure the limit of 130 persons and 60 vehicles on-site is not exceeded. As there are two available entrances, i.e. Railway Street and Kay Street, careful coordination is required to ensure the limits are not exceeded. In this regard it would seem preferable that for major events where the limit is likely to be exceeded, excess worshippers be restricted entry at the property gates rather than at the door of the mosque.
- RMS Training ; The proper management of traffic is important in the effective use of the property. This means that designated persons should undertake the RMS (previously RTA) traffic controllers course and their identity for the traffic control responsibility clearly identified either in the POM or some satisfactory form of attendance log, which is available for review. I think it appropriate that the POM incorporate a standard operating procedure for both pedestrian and traffic management, particularly the refusal of entry when the maximum capacity is reached and this should be subject to council's approval, considering the impacts on neighbours and operations on the public roads.
- Re part 4.4; it seems that any "training" of traffic controllers should be undertaken well before any major events.
- POM review; it is a fairly common feature that POM's incorporate a review mechanism. I think this should be included whereby council can consider any future management matters.
66On the basis of the further submissions, I am satisfied conditional consent can be granted along the aforementioned lines and including the specific condition relating to the youth group limitations.
Court orders
67The Court orders that:
(1)The appeal is upheld.
(2)Development consent is granted to DA 505.1/2010 for the use of the premises at No 3 Railway Street and No 2A & 2B Kay Street, Old Guilford as a place of worship and youth centre, construction of an awning, demolition of the existing dwelling fronting Railway Street and construction of on-site car parking subject to the conditions in Annexure A.
(3)The exhibits may be returned except 1, 5, 8, A, B, K and M.
R Hussey
Commissioner of the Court
ANNEXURE A
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: 24 January 2012