Shree Swaminarayan Temple v Baulkham Hills Shire Council

Judgment (9 paragraphs)

[1]

Mr Staunton, Counsel (Respondent) Solicitors Mr A Gough, Storey & Gough Solicitors (Applicant)

[2]

Neil Howie, Wilshire Webb Solicitors (Respondent) File Number(s): 10147 of 2010

[3]

Introduction 1The applicant, Shree Swaminarayan Temple Sydney, seeks development consent for the erection of a building on a site at 33 Nelson Rd, Nelson, for use as a place of worship. 2The site is zoned Rural 1(a) pursuant to clause 13 of Baulkham Hills Local Environmental Plan 2005 (LEP) and a place of worship is a permissible development subject to consent. However, in order to obtain development consent the Court must be satisfied "... that adequate arrangements have been made for any provision or augmentation of ...(b) an electricity supply that...will be needed because of the carrying out of the proposed development". This is because cl 45(1)(b) of the LEP prohibits the erection of a building on the site unless the precondition stated in the clause is met. Like the clause considered by the Court in Codlea Pty Ltd v Byron Bay Shire Council [1999] NSWCA 399, cl 45(1) speaks of " adequate arrangements having been made" but is silent as between whom. It cannot be " adequate arrangements" between the council and the applicant because the council does not acquire the functions of the electricity supplier. Therefore, the " adequate arrangements" must be between the applicant and the electricity supplier. 3Although the words " adequate arrangements " allow some flexibility the mandatory instruction of cl 45(1) requires the Court's satisfaction or no consent. The adequate arrangements must exist and must pre-exist the Court's satisfaction prior to the issue of consent under s 39 (2) of the Act. To be " satisfied " requires an evaluation and a consideration of the evidence submitted to prove that " adequate arrangements have been made ". The " adequate arrangements" under review in this appeal are the email communications between the applicant and the electricity supplier (Endeavor Energy) and the Supply Offer Documents (in exhibits JJ and KK). 4It is the council's case that the Court will not be satisfied, on the applicant's evidence, that " adequate arrangements have been made " and; therefore, it cannot grant development consent for the erection of this building. It also contends that the proposed development does not satisfy the matters raised by cl 13(2) of the LEP, and after an assessment under s 79C (1) of the Environmental Planning and Assessment Act 1979 (the Act) the Court will conclude that the site is not suitable for the development. The applicant, as to be expected argues to the contrary. 5Despite the evidence submitted to address cl45 (1)(b), I am not "... satisfied that adequate arrangements have been made for any provision of an electricity supply that will be needed because of the carrying out of this proposed development ". This is because the arrangements the applicant relies upon are contingent upon events that are outside the control of the parties and are based on assumptions. In my opinion, it is a misconstruction of cl 45 (1) to base the satisfaction that it demands upon contingencies and assumptions. This reasoning is consistent with that taken by the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 per Kirby at p 442. While my finding in respect of cl 45 (1)(b) is determinative of this appeal I have also considered the merits of the application. Based on an assessment under s 79C (1) of the Act I am of the opinion that the site is simply not suitable for this development.

Clause 45(1)(b) of the LEP 9As already identified, a critical issue in this appeal is whether the Court is satisfied under cl45 (1) of the LEP that "... adequate arrangements have been made for any provision or augmentation of ...(b) an electricity supply that...will be needed because of the carrying out of the proposed development". This is because the site does not have a supply of electricity to service the needs of the proposed development. The email from the electricity supplier dated 7 April 2011 (exhibit JJ) acknowledges: " there is insufficient capacity on the HV Feeder from Riverstone Zone Substation. The new Schofields Zone Substation will offload Riverstone Zone. The estimated commissioning date of Schofields is summer, 2012. Supply to the development should be available thereafter upon completion of the necessary contestable works (new Padmount Substation) and associated HV switching. " 10However, the applicant contends that by the time the development is constructed the new Schofields Zone substation will be built and commissioned. At that time, it submits, there will be available an electricity supply that will be needed because of the carrying out of the proposed development: cl45 (1)(b). It intends to connect to that electricity supply and take up the supply offered by the electricity supplier evidenced in exhibit KK. 11There is not dispute about the fact that the applicant's electricity need depends upon the construction and commissioning of the new Schofileds Zone substation. It has not proposed any other means of an electricity supply to the development. However, the evidence about the timing of the construction and commission of the new substation changed frequently, if not daily, during the hearing. The email communications between the electricity supplier and the applicant's consultants and lawyers demonstrates the uncertainly about the timing of the construction of the new substation: - Emil Ee dated 13 April 2011(exhibit JJ) and David Ho dated 3 May 2011 and 4 May 2011, and an amended supply offer document. (Exhibit KK). 12The first email relied upon by the applicant from Emile Ee (of electrical energy) dated 13 April 2011, commences with the statement, "... Unless something drastic happens, Schofields Zone should go ahead "(exhibit JJ). A month later, on 3 May 2011 in an email from David Ho (the electricity supplier's Contestable Projects Manager North) the applicant is told: " According to our programming, we are expecting Schofields ZS to be commissioned prior to Summer 2012/13. Thereafter, Riverstone ZS and the associated feeders will be off loaded to allow your development to connect to the existing feeder A0555 from Riverstone ZS . We will issue a revised supply offer letter to the applicant, ...to confirm this information. " 13The next day - 4 May 2011- David Ho sends an email and a new supply offer document. The email states: " ...a new Schofields Zone Substation is currently being constructed and will be commissioned prior to Summer 2012/13. Upon completion of the Schofields Zone Substation, the captioned feeder can be off loaded and the proposed development will be able to be provided with an adequate supply of electricity. A supply offer document confirming this arrangement is attached for acceptance by the Applicant ". 14The applicant submits that the words in the email dated 4 May 2011 "... A Supply Offer Document confirming this arrangement is attached " evidence the fact that "...adequate arrangements have been made for any provision or augmentation of ...(b) an electricity supply that...will be needed because of the carrying out of the proposed development". 15The email dated 4 May 2011, forwarding the supply offer document, advises that the electricity supply substation (the construction of which is outside the control of the applicant and the council) will be built and commissioned prior 2012/13. However, there is no evidence before the Court to confirm the stage of its construction. What is clear is the fact that the supply offer document is contingent upon the substation being built and commissioned by 2012/13. The supply document includes the following qualification: "There is insufficient capacity on the HV network. HV Feeder A055 and Riverstone Zone Substation is overloaded. The new Schofields Zone Substation is expected to be commissioned about Summer 2012/2013. Upon the commissioning of the Schofields Zone Substation, Riverstone Zone Substation will be offloaded and capacity available. The temple can be connected thereafter ". 16In my opinion, the satisfaction required by cl 45(1) needs to be " ... based upon written evidence by responsible persons that those facilities will be provided in a way which permits their adequacy and cost to be judged at the time consent is sought ": Hornsby per Kirby at [442]. The applicant's written evidence does not satisfy me that the substation will in fact be built or have capacity needed because of the carrying out of the proposed development. This is because the evidence is based on assumptions and estimates of the electricity needs of the development. This evidence also changed frequently during the course of the hearing. 17The revised supply offer document states that it is based on a desktop assessment of a " proposed load of 136A/Phase total " as per the email from the applicant's solicitor and is subject to further detail. The council's electricity expert Mr McLean calculated the proposed load during the hearing. The council only briefed Mr McLean during the hearing to answer the applicant's expert. The estimate provided by the applicant's electrical engineer in Exhibit KK was ultimately inaccurate and not relied upon. It did not include a consideration of the air-conditioning, cooking and cooling needs, electrical music, the amplifiers and lights, power points etc. While Mr Mclean's estimate appears to be more accurate I am still concerned that it may not have had regard to all electricity needs for the carrying out of the proposed development. 18As council submits, it is unclear whether the revised estimate has had regard to the fact that building when in use will be reliant on electrical ventilation - because a noise condition requires all doors and windows to be closed when the building is in use. This is to avoid unacceptable noise impacts from amplified speech, the playing of recorded music, and the playing of electronic keyboards and percussion instruments and the use of the dining room. It is also unclear whether the electrical amplification devices, recorded music and electrical instruments have been taken into account when assessing the development's electrical needs. Or the electrical needs of the kitchen/dinning room and the onsite caretaker's unit. In my opinion, the estimate of the electrical needs of the proposed development appears to have been guessed on the run during the hearing rather than properly assessed. Importantly, if that estimate of load is inaccurate so too is the revised supply offer document. 19The number of attendees at the development will also impact on the electricity needs. The more people, the greater the need for air conditioning, lighting, cooking/heating, amplified sound. The Court cannot assume the number of attendees as stated in the plan of management (exhibit M), because the plan does not provide any clear detail about how the applicant will ensure compliance. I accept the council's evidence that the building will hold more than 300 people and the applicant's experience on festival days that up to 280 people attend. I am particularly concerned about how the applicant will limit the numbers on festival days when a max of 300 people are allowed to attend under the plan. Particularly, in light of the evidence that they have not in recent times, successfully controlled the number of attendees at festivals held in rented premises. While I have no doubt that the applicant has every intention to comply with the plan of management (which is proposed as a condition of consent) there is nothing in the plan about how the number of attendees will be controlled short of turning them away at the door. 20The plan of management provides for services scheduled from 7.30 am to 8 pm Mon to Friday, 9 am to 8 pm Saturday, 8 am till 8 pm on festival days (or ten special events each year) and a thirty minute clearance/clean up time outside those hours. At p 5 of the plan I am told the congregation will be divided into four groups of males and females. Each group is to have three managers and "... Volunteers of the temple are prepared to undergo crowd management training should it be required ". This part of the plan however, appears to deal with crowd control of the expected attendees, not the unexpected. There is no reliable plan for the management of attendees in excess of the approved number. In short, I accept council's evidence that the plan of management needs more detail. It does little to ensure the amenity of the immediate neighbors or the surrounding area particularly, if the numbers are exceeded. 21The uncertainty about the number of attendees at any one time makes it difficult to accurately estimate the electricity supply needed because of the carrying out of the proposed development. While the Court in Codlea Pty Ltd v Byron Bay Shire Council [1999] NSWCA 399 at [39]; and Newton v Commissioner of Taxation (Cth) (1958) 98 CLR 1 at 7 held that the term " arrangement " can mean "... something less than a binding contract or agreement, something in the nature of an undertaking between two or more persons a plan arrangement between them which may not be enforceable at law ...'' to my mind, that is not sufficient to satisfy the precondition in cl 45(1). The clause requires not just arrangements but " adequate arrangements to have been made". At its highest the evidence supports a finding of a qualified offer of a arrangement based on assumptions and contingencies. 22The fact that the substation is not built or commissioned at the time of the Court's consideration of this application means that the Court cannot be satisfied about the adequacy of the arrangements before the issue of the consent. It not sufficient that the "adequate arrangements" are made when the electricity is needed, or after the construction of the proposed development. The adequate arrangements must exist and must pre-exist the Court's satisfaction prior to the issue of consent under s 39(2) of the Act. The fact that the substation may be operational by the time the development is built is not an adequate arrangement for the purposes of cl45 (1). The imposition of a condition of consent consistent with that used in Grampion Regional Council v City of Aberdeen (1984) 47 P&CR 633 does not make the arrangement adequate because the imposition of such a condition does not obviate the need for the Court to be "...satisfied that adequate arrangements have been made for any provision of electricity needed because of the carrying out of the proposed development" prior to the consent being issued. Neither the council nor the applicant can make the electrify supplier complete the construction and commission the substation it is outside their control. Nor would it be acceptable to have a deferred commencement condition imposed requiring no use until supply of electricity is provided. Again the supply is outside the control of the parties. 23The applicant submits that I can be reassured that the substation will be built because it is needed - irrespective of this development - to meet the needs of the NSW Government's North West Growth Centre. In support of that proposition it relies on the following statement in the email dated 13 April 2011 (Exhibit JJ): " Schofields and the nearby precincts are part of the NSW Government's North West Growth Centre and the proposed Schofield Zone Substation is a vital component of this urban development. Unless something drastic happens, Schofields Zone should go ahead... " However, there is no reliable evidence before the Court about when the North West Growth Centre is to be developed. When pressed the planners guessed it was at least several years away. 24The applicant contends that the Court is not being asked to be satisfied on the assumption that supply will be provided because a supply offer document has been issued to the applicant for this development and the substation is being constructed. It submits that the facts of this case can be distinguished from those considered by the Court in Hornsby . I reject that submission because the applicant's arrangements are based on several assumptions. The applicant's reliance on assumptions, as the basis of satisfaction, was not enough for the Court in Hornsby [at p 442] and the position is no different in this appeal. Although Mr Ho advises the applicant's consultant planner by email dated 4 May 2011 that the substation is " currently being constructed " (exhibit KK), it is unclear on the evidence, the stage of its construction and a specific date when it will be commissioned, if at all. The estimate is sometime in the summer of 2012/13. 25The problems for the applicant are compounded by the fact that the supply offer document in exhibit KK states that the offer will lapse if it is not taken up within 3 months of issue (at p 6 exhibit KK). After lapse the position is even more precarious it states: " Where the Supply Offer has lapsed, the accredited designer must verify the currency of the supply offer before submitting the information requested. However, it must be recognized that the network is being constantly extended/augmented as new customers are connected . There is no guarantee of supply after the offer has lapsed and at the conclusion of the hearing the applicant had not taken up the offer.

Merit Assessment 27The merit contentions raised by the council generally concern the suitability of site for the development. 28To understand the contentions this appeal commenced with a view of the site and the locality/surrounding area. The view also included an inspection of the properties adjoining and opposite the site and, two approved places of worship within the local government area. Several objectors to the proposal addressed the Court at the view about their concerns with the application. Those concerns generally echoed the comments in the large volume of written submissions received by the council during the notification period. 29The Court was also assisted by expert evidence from Mr Varga (traffic), Mr Smyth (town planner), Mr Koikas (noise) on behalf of the applicant. Mr Hallam (traffic), Mr Young (town planner), Mr Tonin (acoustic) and Mr McLean (electrical engineer) on behalf of the council. 30Clause 13 (2) of the LEP is a gateway provision to the development of this site. It states: "Except where otherwise provided in this plan, consent must not be granted for development unless the consent authority is satisfied that the proposed development: (a) is consistent with one or more of the aims of this plan and any relevant objectives for development, and (b) is not contrary to achieving the objectives of the zone within which it will be carried out." 31The Council contends that the development is not consistent with relevant objectives of the LEP and therefore the Court cannot be satisfied as required by cl 13(2)(a). The objectives for development are set out in Clause 2 of the LEP. The development is said to be not consistent with the following relevant objectives: (2)(a)(v) respect, improve and integrate with the local character of the locality in which it is carried out; (2)(a)(vii) have regard to the land uses that form the rural and urban environment of the shire; (2)(c)(i) protect localities from inappropriate development and ensure that local amenity is maintained and enhanced; (2)(c)(iv) contribute to the synergy between land use activities. 32Council also contends that the proposed development is contrary to achieving the objectives of the Rural (1)(a) zone within which the development will be carried out as required by cl 13(2)(b). The Council submits that it is contrary to the following zone objectives: (d) to ensure that development is designed and carried out having regard to adjoining land uses and the natural environment; and (e) to ensure that development is designed and carried out having regard to the rural and heritage character of the surrounding area. 33In assessing the development under cl13 (2)(b) the Council's assessing officer in his assessment report (at p13 of exhibit 2) states, "... the above objectives require the design and operation of the development to be assessed against adjoining land uses, the natural environment and the rural character of the surrounding area . " 34I accept council's submission that the terms " surrounding area" and " locality" in cl 13(2) are interchangeable. It is generally "... the visual catchment of the site and the setting in which the development on the site would be viewed and any comparison made with the adjoining and surrounding areas " per Brown c in The Qur'anic Society v Camden Council [2009] NSWLEC 1171 at [34]. 35Mr Young's evidence supports this definition. At p11 of Exhibit DD he describes the visual catchment. I do not agree with the applicant's submission that cl13 (2) captures a more extensive area as marked by the red line on exhibit 13 which takes in large sheds, large dwellings and commercial /industrial land uses. The yellow line, which depicts Mr Young's visual catchment, to my mind, defines the surrounding area or locality contemplated by cl13 (2). The view also confirmed the expert evidence of Mr Young about this issue. The visual catchment takes in semi rural uses on adjoining lands and is characterized by small scale rural residential /hobby style farms with little built form beyond scattered farm sheds and dwellings surrounded by open space and grassed area, dams and sheds. I accept the evidence of Mr Young at p11 of the joint report exhibit DD that " the visual catchment for the site is considered to be limited to the valley area generally defined by the northern side of McHale Way, the curve in McHale Way to the east, the dwellings on the western side of Nelson Rd and the area toward the east west section of Nelson Rd and Edwards rd to the south . It is my opinion that the proposal and operation will be out of character with this rural character of the immediate area. Rural character is not a generic matter and varies with the specific locale." 36I accept Mr Young's assessment that the proposed development with its built form concentrated toward the corner of Nelson Rd and McHale Way has not been designed having regard to " adjoining land uses and the natural environment ". The proposed development is not is keeping with the bulk and scale of surrounding built form. It will not present as a large building surrounded by open space. It will be a large bulky rectangular building 30 m wide and 36.5 m long and constructed of precast concrete panel walls and metal sheet roof. The building at the highest point will be 8.08m above existing ground level. The building is surrounded by ancillary structures including a hardstand car park, pathways, disabled ramps and overflow car parks, which will be used day and night seven days a week. The total site coverage - according to the council's calculation - is 5347 sq m. The DCP prescribes a maximum of 2500 sq m. The development has not been designed having regard to adjoining land uses, the rural character of the surrounding area or the natural environment. The development requires excavation of up to a depth of 3 m and filling works of 1.5 m to create platforms for the new buildings and parking area. 37The evidence supports a finding that the development will be very different to buildings adjoining the site and in the surrounding area. The other temples I was shown on the view fronted busy roads and one temple adjoined a commercial shopping strip. Those temples were in very different localities. Semi rural blocks surround this site. While the area has been earmarked for future urban development this proposal needs to be assessed having regard to the existing adjoining land uses and surrounding area when assessing the objectives of the zone. 38The proposed parking area (even with the grasscrete - if it grows -) will not appear as a large open grassed area. It will present as a parking lot; particularly, when it is used to accommodate some 49 cars 2 motorcycles and a bus zone with an additional 34 spaces concrete/grass crete overflow car park on the southern side of the building. There is no comparable large hard stand parking area on adjoining properties or in the surrounding area. I do not accept the submission that the car park will be "largely screened from the public domain due to its location proximate to the building and the presence of landscaping around its borders." I accept that the parking design is driven by the drainage. While the traffic experts have resolved the traffic issues by condition and the applicant agrees to pay for certain works in that regard it is contrary to the adjoining land uses and the natural environment - objective (d) - and the rural character of the surrounding area and thereby objective (e) of the zone. 39In regard to operation of the development, the applicant submits that the premises will function having regard to the rural character of the area. All potential impacts regarding noise, light spill, and off street parking will internalized ensuring the semi rural character of the surrounding area is unchanged. According to the applicant the plan of management will ensure that people are moved "efficiently between vehicles and the centre". I do not agree. For reasons stated earlier the plan of management falls well short of providing any useful control for people. The noise experts agree that noise is only controlled if all windows are double-glazed and shut whilst in use, there is an air lock system for the main entry doors, and the ceiling, doors and windows are insulated. The amenity of the neighbor on the southern boundary is only ensured by an 82 m long acoustic fence/mound. Even with landscaping the acoustic mound will be very different to the natural environment. In my opinion these extreme measures to ensure acoustic amenity only highlight the fact that the site is not suitable for this development and that the development's design and use is contrary to the zone objectives (d) and (e). 40The headlights of vehicles at night, seven days a week, until 8pm, is a concern for the objectors. I accept, as they state, that the lights on the site and the movement of vehicles and pedestrians will intrude on their existing amenity and change the rural character of the surrounding area. The evidence does not support a finding that the temple will operate having regard to adjoining land uses or the rural character of the surrounding area. The plan of management will not ensure the operation of the development will address the amenity concerns raised by the objectors or Mr Young for the reasons that I have stated earlier in this judgment. 41Council also contends that the proposed development does not comply with the provisions of the Baulkham Hills DCP Part C Section 1 - Rural in section 3.1 - Site Coverage in that the site coverage exceeds the 2500 sq m maximum prescribed. I accept the council's assessment that the aim of the site coverage is to limit the scale and intensity of development within the Rural 1(a) zone in an effort to maintain the rural character. The proposed site coverage is far in excess of any other in the surrounding area and would contribute to the deterioration of the rural character, natural environment and amenity of adjoining land. The proposed development's site coverage is 2.28 times greater that the maximum permitted. This evidence only strengthens council's submission that the site is not suitable for this development, which is a relevant consideration under s 79C (1)(c). 42The other contentions raised by the council do not need to be addressed in any further detail because the Court is not satisfied that "... that adequate arrangements have been made for any provision or augmentation of ...(b) an electricity supply that...will be needed because of the carrying out of the proposed development" as required by cl 45(1)(b) of the LEP. Furthermore, the evidence supports a finding that the development is contrary to relevant zone objectives (d) and (e) under cl13 (b) of the LEP. Therefore, after an assessment under s 79C (1) of the Act, the Court has determined to dismiss this appeal and refuse development consent. Accordingly, the Court orders: 1.The appeal is dismissed. 2.Development consent to Development Application 1178/2009/ HA for the construction of a new building for use as a place of worship at the property known as 33 Nelson Road, Nelson is refused. 3.The exhibits are returned accept exhibit 1. Susan Dixon 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: 02 August 2011

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Judgment (9 paragraphs)

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