The Qur'anic Society v Camden Council

The Qur'anic Society v Camden Council - [2009] NSWLEC 1171 - NSWLEC 2009 case summary — Zoe

[15]

8 The surrounding area is predominantly rural in nature. An existing poultry farm is located on the diagonally opposite corner of Burragorang and Cawdor Road. Other non-rural land uses in the general area consist of the Camden General Cemetery, Camden Nursery, the Catholic Cemetery and Camden High School. The proposal 9 The proposal has been amended since the original application was lodged with the council. The amended proposal seeks approval for an educational establishment to be used as an Islamic School. The main components of the school are: o Primary school: the primary school is located at the eastern end of the site and consists of 5 x 2 storey buildings to accommodate 540 students. There are 22 classrooms, administration, canteen, library, outdoor sheltered area and play equipment. o Secondary school: the secondary school is located at the western end of the site and consists of 5 x 2 storey buildings to accommodate 360 students. There are 24 classrooms, including specialist classrooms for metalwork, woodwork, visual arts, kitchen, laboratory, multi-media, male and female staff facilities, canteen, library, outdoor sheltered area and play equipment. o Multi-purpose hall: the multi-purpose hall adjoins the secondary school and contains a large open area, stage, store rooms and change rooms. o Staff: 90 staff will be employed for the primary and secondary schools. o Parking/access: separate ingress and egress to the primary school and the secondary school is provided from Cawdor Road. A bus parking area is located near the street frontage together with a car parking area for 46 vehicles. A circular driveway at the primary school provides access to the school in addition to a drop-off zone for cars and minibuses. The access road to the secondary school also provides drop-off facilities. Two separate car parking areas are provided to accommodate 32 and 44 vehicles respectively and these adjoin the secondary school and multi-purpose hall. o Caretaker's cottage: the existing dwelling on site is to be converted to a caretaker's cottage with access off Burragorang Road. o Sports ground: a sports ground is located centrally on the site between the primary school and secondary school. o Staging: the development of the school will occur in 10 separate stages that will take between 8 and 10 years. A staging plan identifies the 10 separate stages. Relevant planning controls 10 The site is within Zone No 1(a)(Rural "A" (40 ha) Zone) under Camden Local Environmental Plant No. 48 (LEP 48). An "educational establishment" is a permissible use within this zone, with consent. Clause 9(3) provides that consent shall not be granted unless the Court is of the opinion that the carrying out of the development is consistent with the objectives of the zone. The objectives of the zone are: a) to provide suitable land for agricultural use, (b) to promote the conservation of economic units of productive agricultural land, particularly those areas designated as having prime crop and pasture potential, by regulating subdivision to prevent the fragmentation of actual or potentially productive rural holdings, (c) to enable compatible forms of development, including recreation and tourist orientated uses to be carried out, if they are in keeping with the rural character of the locality, and carried out in an environmentally sensitive manner, (d) to permit the development of extractive industries to occur in an environmentally acceptable manner, and (e) to ensure that development does not detract from the existing rural character of the area or create unreasonable or uneconomic demands for provision or extension of public amenities and services . 11 LEP 48 contains no other relevant provisions.

[18]

14 The relevant policies and strategies are Agriculture/aquaculture and fishing (cl 6(8)) and Metropolitan strategy (cl 6(12)). These state: (8) Agriculture/aquaculture and fishing Policy : Agriculture must be planned and managed to minimise adverse environmental impacts and be protected from adverse impacts of other forms of development. (a) Give priority to agricultural production in rural zones. (b) Ensure zone objectives and minimum lot sizes support the continued agricultural use of Class 1, 2 and 3 Agricultural Land (as defined in the Department of Agriculture's Agricultural Land Classification Atlas) and of any other rural land that is currently sustaining agricultural production. (c) Incorporate effective separation between intensive agriculture and adjoining uses to mitigate noise, odour and visual impacts. (d) Protect agricultural sustainability from the adverse impacts of other forms of proposed development. (e) Consider the ability of the site to sustain over the long term the development concerned. (f) Consider the likely effect of the development concerned on fish breeding grounds, nursery areas, commercial and recreational fishing areas and oyster farming. (12) Metropolitan strategy Policy: Development should complement the vision, goal, key principles and action plan of the Metropolitan Strategy. Strategies: (a) Consider the impacts of transport infrastructure proposals on water quality and air quality. (b) Consider the impacts of metropolitan waste disposal on water quality. (c) Consider the impacts of development on air quality. (d) Consider the need for waste avoidance, waste reduction, reuse and recycling measures. (e) Consider the implications of predicted climate change on the location of development and its effect on conservation of natural resources. 15 Other relevant planning documents are the NSW State governments Metropolitan Strategy and South West Subregion Draft - Subregional Strategy. The contentions 16 The council's Further Amended Statement of Facts and Contentions identifies 8 main areas that warrant the refusal of the development application, including a large range of particulars for each of the main areas of contention. The main areas of contention can be grouped into the following: o the unsuitability of the site for the development, o traffic and safety impacts, o visual impacts, o unsuitable provision of sewage disposal, o non-compliance with ecologically sustainable development (ESD) principles, and o the development is not in the public interest.

[26]

26 Mr Nick Truelove provided evidence for the applicant and Mr Ian Sinclair provided evidence for the council on the agricultural objectives (objectives (a) and (b)). 27 Mr Truelove and Mr Sinclair agree that the site does not have the capability for commercial agriculture, however Mr Sinclair states that the proposed school, in close proximity to commercial agricultural operations, particularly the nearby poultry farm, will have the impact of causing rural land use conflict. The students and staff attending the school are likely to suffer a loss of amenity and complain to the council or the EPA, which could lead to the ceasation of farming operations. In his opinion this does not satisfy objective (a). Mr Truelove states that the impact on the surrounding agriculture is not significant and therefore not inconsistent with objective (a). The findings - zone objectives Is the proposed development a compatible form of development? 28 Mr Caladine places some weight on the permissibility of the use in his support of the application. The weight to be given to a permissible use is addressed in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (12 August 2004) where (at par 117) it states: 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 29 I do not accept that because a school is a permissible use within the zone that this suggests that the proposed development should be given some greater entitlement to an approval. To adopt such a stance effectively ignores the words "in some form" in BGP Properties. It may be that a school is suitable for the site but it does not follow that all schools are suitable. For example, Mr Dowd accepted that a school that contained only a very small number of classrooms may be acceptable on the site. The weight should be determined by the particular characteristics of the permissable use and this is appropriately achieved though consideration of the relevant planning instruments, including the zone objectives and the wider considerations in s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act).

[44]

Impact on agricultural land 57 Mr Truelove states that a school is a suitable use for the site and is unlikely to materially impact on the operations of the surrounding farms, including the nearby poultry farm. The impact of the proposed school on the nearby grazing operations is not significant as the neighbouring farms are used for low intensity beef cattle grazing. They are very small farms in terms of the average size of beef cattle properties and would likely only use machinery in close proximity to the school on an infrequent basis. Given the limited operating hours of the school and the long hours that farmers normally work, it would be of little or no inconvenience to adjust the farm work schedule to carry out any operations in close proximity to the school at times outside normal school hours. Noise and dust would only cause a disturbance from the immediate surrounding paddocks and this would take only a few hours to work, at best. Any potential impact is further diminished by the landscape design that includes a vegetative buffer zone along the common boundaries with the adjoining farming property. While the poultry farm is located diagonally across the intersection of Burragorang and Cawdor Roads, the sheds are located further along Cawdor Road and set well back from the road, thereby minimising any impacts. 58 Mr Sinclair states that the site is located within a broad regional context with a number of intensive and extensive agricultural uses, residential uses as well as other uses. In his opinion, a school will have an impact on the surrounding intensive and extensive agricultural uses by potentially impeding them from operating to their current performance. Mr Sinclair makes particular reference to the poultry farm located diagonally opposite the site. While acknowledging the existence of the odour study prepared on behalf of the applicant, he questions the findings of the study that concludes that the impact is acceptable. In his experience, complaints relating to dust and odour from poultry farms regularly occur and can lead to restrictions on the operation of the poultry farm. Similar complaints relating to cattle grazing and pasture growing also occur because of the location of sensitive land uses, such as schools, adjoining operating agricultural uses.

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84 In summary, a consideration of the relevant matters in REP 20 reveals that there are no matters that would support the refusal of the application. Traffic The contentions 85 The contentions raised by council are: o the proposed development does not satisfy the planning aims and objectives of Draft State Environmental Planning Policy No 66 - Integration of Land Use and Transport, o the proposed development is inconsistent with the Integrated Land Use and Policy Package, o the proposed development will result in unacceptable implications in terms of traffic management, traffic flow, road safety and the ability to service the proposed development by public transport, o the proposed development does not incorporate appropriate travel demand management mechanisms that will minimise the use of cars, o whether there is sufficient catchment to draw students from within the local area for the initial stages of the development, o the proposed school is poorly located in relation to new housing opportunities, o the proposed development will have an adverse impact on traffic in the surrounding area and in particular the intersection of the Camden Bypass with Burragorang Road and the Old Hume Highway, o the proposed development will have an adverse impact on the intersection of Burragorang Road and Cawdor Road, o the proposed development provides inadequate on-site movement for buses, o the proposed development will create conflicts between buses, mini buses, cars and pedestrians and create adverse impact on the intersection of Burragorang Road and Cawdor Road, o the proposed development will create unacceptable amounts of queuing for vehicles turning into the site from Cawdor Road, o the proposed development provides inadequate stopping sightlines along Cawdor Road, o additional land is required for widening of Cawdor Road to provide turning lanes and the exit driveway, o the proposed development provides unsatisfactory internal circulation and vehicle layout that will cause conflict between vehicles and students, o the proposed development does not properly address pedestrian facilities within the site, o the proposed development does not satisfactorily address the proposed drop-off point for primary schoolchildren, o the proposed development is likely to create significant and undesirable parking along Cawdor Road, and o the proposed development does not comply with the objectives and controls in the DCP for car parking.

[65]

87 Of the contentions raised by the council (see par 85), Mr Coady and Mr Rogers agreed that the only contention that was in issue was who should be responsible for the cost of upgrading of the intersection of the Camden Bypass with Burragorang Road and the Old Hume Highway because of capacity and safety reasons. They agreed that the Camden Bypass/ Burragorang Road intersection will reach capacity by 2012 or 2013 as a consequence of normal traffic growth whether or not the proposed school commences operation in 2011. They also agreed that the following works will ultimately be required: o traffic signal control at Camden Bypass and Burragorang Road intersection, o modification to the existing traffic signal control at the Camden Bypass and Old Hume Highway intersection and modification to the southbound carriageway of the Camden Bypass. 88 Mr Rogers states that the identified works should be undertaken prior to the school commencing operations and funded through a condition of consent as there is no s 94 Contribution Plan or Voluntary Planning Agreement in place. Mr Coady does not agree that the works need be in place prior to the opening of the school because the capacity of the intersections are reached largely because of normal traffic growth. Mr Coady is also of the view that the school should not be required to fund the works for this reason. Findings 89 In considering the different views of Mr Rogers and Mr Coady, I am satisfied that the school should be required to make a contribution towards the upgrade of the intersections. In my view, it would be unreasonable for the school to pay the full cost of the intersection works because the additional traffic generated by the school would not be responsible for the intersection reaching its capacity (see Fabcot v Maitland City Council [2007] NSWLEC 296). The agreed position of the experts was that the capacity of the intersection would occur irrespective of the school commencing operation and generally around the same time.

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110 The council provided no expert evidence to challenge the conclusions of Dr Holmes. I accept the conclusions in her report. Building design 111 The applicant provided the following reports on the general area of ESD by environmental consultants, Cundall: o Daylight Study - this study addresses the amount of daylight to the classrooms and interior of the high school block. The report concludes that both levels of the building receive adequate daylight under both a cloudy sky and sunny sky scenario. o Energy Efficiency Report - this report addresses the energy efficiency of the least efficient of the school buildings for energy use. The report concludes that with minor modifications to glazing, the building would comply with the relevant requirements of the Building Code of Australia (BCA). o Sustainability Report - this report compares the proposed development against a range of sustainability issues. The report concludes that the design makes provision for high levels of ESD within the construction and operation of the school, over and above the minimum regulatory requirements. o Mechanical Services Report - this report addresses the proposed mechanical air-conditioning systems. The report notes that a mixed mode system is proposed, and in most instances, that allows for natural ventilation when the outside conditions are favourable and mechanical heating or cooling when the conditions are not favourable. There was agreement between Mr Dowd and Mr Caladine that the provision of appropriate air conditioning could be addressed through conditions that require the compliance with Section J of the BCA. 112 The council provided no expert evidence to challenge the conclusions of the Cundall reports. I am satisfied that the proposed buildings satisfy the objective in Pt D Ch 3 of the DCP in that the buildings are designed, sited and constructed, using passive solar principles and maximise energy efficiency by reducing the consumption of non-renewable forms of energy for heating and cooling purposes. The public interest 113 The proposed development attracted extensive public interest that centred on the impact the proposed school would have on the amenity of the immediate area and the broader Camden area. The original application attracted 3083 submissions; 23 submissions were in support; 18 were neutral; and 3042 opposed the school. The submissions included 14 petitions containing 435 signatories who opposed to the proposed school. The amended application attracted 1858 submissions of which three submissions were in support and 1855 were opposed to the proposed school.

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115 In New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) Lloyd J made the following relevant comments on amenity: 60 In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate ( Venus Enterprises at 69, Fairfield City Council v Liu Lonza & Beauty Holdings , NSWCA, Mason P and Dunford AJA, 17 February 1997, unreported). Indeed, as Mr Officer QC submitted, it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds ( Venus Enterprises per Cripps J at 70, see also Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 349 per Cowdroy J). Such antagonism would amount to a detrimental social impact ( Dixon v Burwood Council [2002] NSWLEC 190 at [66] per Pain J). These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak at 237, with the caution that there is room for opinions to differ in weighing the same objective criteria. 61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area ( Dixon at [53]). In Broad , de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use. 62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act ( Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]). 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "... the demonstrable social effect of a particular ...use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48]). 116 The decision in New Century Developments makes the following points on amenity: o issues of taste and morality are not necessarily set aside in the consideration of amenity, o if there is such great offence to a large portion of the community then this may be a valid consideration, o there is room for opinions to differ in weighing the same objective criteria, o evidence on amenity impacts must be objectively assessed before a finding can be made of an adverse effect on the amenity of the area, o little, if any, weight can be given to amenity impacts if there is no objective, specific, concrete, observable likely consequence, o a fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact, and o a Court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. 117 The power to consider a development application (including the "public interest") comes from s 79C of the EPA Act. This power is not unfettered and unsurprisingly must relate to matters that are relevant to a planning application. The "public interest" is a wide ranging concept and local residents are usually given considerable flexibility in the range of matters that they see as being appropriate matters in the "public interest". It does not follow that every matter raised by a resident, even though it may genuinely be thought by the residents to be in the "public interest", is a matter that falls within the power provided by s 79C.

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Judgment (84 paragraphs)

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