UMA Centre Limited v Canterbury-Bankstown Council

The site and its locality

1. A site view was conducted at the commencement of the hearing. The site has a street address of 15-19 Enterprise Avenue, Padstow and comprises three lots legally described as Lot 1 in Deposited Plan 632135 and Lots 19 and 20 in Deposited Plan 220041. The site is located at the end of the Enterprise Avenue cul-de-sac, which runs north from its intersection with Watson Road around 270m south of the site. The site is irregular in shape, with a combined frontage of approximately 70 metres to Enterprise Avenue and an area of approximately 8 000m2.
2. The site is zoned IN2 Light Industrial under the provisions of Bankstown Local Environmental Plan 2015 ("BLEP 2015"). The site contains an existing vacant warehouse building at No. 15 Enterprise Avenue, and a two storey building at No. 19 Enterprise Avenue which is currently being used for a multi-purpose community facility. Vehicular access to the site is provided by a number of driveways at the bulb of the cul-de-sac, and that part of the site that remains vacant is currently utilised for car parking.
3. The site is located in a light industrial locality bound by the M5 Motorway to the north, Davies Road to the east, Watson Road and low density residential properties to the south, and Padstow North Public School and low density residential properties to the west.
4. Enterprise Avenue is characterised by industrial buildings ranging from single storey to three storeys in height, all of varying age and condition. An existing place of public worship adjoins the southern boundary of the site on the western side of the road, and a single storey industrial building adjoins the southern boundary of the site on the eastern side of the road. The grounds of Padstow North Public School, which is on Watson Road, adjoin the site at its western boundary. An aerial photograph of the site can be seen at Figure 1.

The relevant history and the present application

1. On 13 January 2016, following a decision and orders made by Morris C in Al Ali v Bankstown City Council [2016] NSWLEC 1044, development consent was granted for the change of use of an existing warehouse building to a multi-purpose community facility, with associated alterations and additions. The Commissioner described the works in the following way (at [10]): "Within the building it is proposed to extend the existing mezzanine and divide the area into a number of different functional spaces. These include a gymnasium, multipurpose sports court, prayer area, storage room, office area and classrooms. The basement carpark would be reconfigured to provide parking for 13 cars with an additional five spaces provided at grade. The proposal includes the demolition of the existing sheds within the car parks at No 15 and the provision of an additional 53 parking spaces in that area. A further eight spaces are available adjacent to the warehouse building. The application does not involve the use of the warehouse at No 15 for any purpose and it was agreed during the hearing that it was appropriate that the consensus that apply to that land be surrendered to ensure that no conflict occurs from the use of the building and the parking for the proposed use."
2. With respect to the prayer area, the Commissioner referred to the Council's position that its use would be ancillary to the use for the purpose of the community facility and agreed that the proposal was not for a place of public worship. She stated as follows (at [20]): "Whilst the plans include an area that would be used by persons attending the facility for prayer if they were present when they would be required to pray, that fact does not mean that the application is for a mosque [or] place of public worship."
3. As distinct from the consent granted on 13 January 2016, the present application seeks development consent to use that area, which has a built area of 322m2, and associated facilities, as a place of public worship.
4. Further, whilst the functional spaces described by Morris C were constructed, it is agreed that parts of the internal configuration of the premises were not constructed in accordance with the development consent granted on 13 January 2016. The present application seeks development consent for use of those structures for the purpose of the community facility use, the place of public worship use and the child minding use.
5. The child minding use is confined to playgroups with parents in attendance, and to short term child minding for a 50-60 minute duration whilst parents attend the adult classes. In order to manage the capacity of each type of use, the Operational Plan of Management makes it clear that bookings are required for each.
6. Further, the consent granted on 13 January 2016 limited the capacity of the community facility to 139. As set out above, the present application seeks to increase that to 205 for Ramadan evenings (including staff). The maximum occupancy during midday prayer at any time of the year is sought to be 186 persons (including staff). The maximum occupancy sought for the prayer room at any time is 177 persons. During the Friday midday prayer and Friday evening prayer during Ramadan, no other activities will be carried out within the facility. The maximum occupancy sought for the approved community facility use is 164, which is the maximum that will apply when the prayer room is not being used as a place of public worship. The detail of the occupancy for each of the spaces within the facility, including the prayer room, and the total across the facility, is set out in Attachment 1 to the Operational Plan of Management.
7. The present application also seeks development consent for the partial demolition of warehouse structures and associated building work to the warehouse structures for car parking, and for physical works to be carried out for and in connection with the car parking so as to create 155 car parking spaces accessed by two driveways of sufficient width to accommodate traffic both arriving and leaving the site at each driveway. The proposed layout of the ground floor, including the proposed 155 car parking spaces and the existing prayer room, is depicted in Figure 2.

Issues raised on the original application

1. In an Amended Statement of Facts and Contentions filed on 27 April 2018, the Council raised a number of grounds upon which it contended, at that time, the application should be refused. They can be summarised as follows:

• The proposal is an overdevelopment of the site as it is of a scale and intensity that is inconsistent with the light industrial character of Enterprise Avenue, and is unlikely to be effectively managed through a Plan of Management,
• The proposal is contrary to the zone objectives of the IN2 Light Industrial Zone,
• There is insufficient information to make a proper assessment of the proposed child minding,
• The proposal has unacceptable traffic and parking impacts,
• The proposal has unacceptable acoustic impacts,
• The proposal is inconsistent with the provisions of the Bankstown Development Control Plan 2015 ("BDCP 2015") regarding places of public worship, and
• There is insufficient information with respect to contamination, the proposed childcare use, traffic impacts, stormwater drainage, site levels, BCA compliance of unauthorised works, and the patronage limit and the Plan of Management is not sufficient.

1. As a result of amended plans for the carpark layout, an amended Plan of Management, additional information, and the expert evidence, the Council now agrees that these matters are resolved or can be managed by the imposition of appropriate conditions of development consent. As such, when the hearing of the appeal commenced on 12 July 2018, the Council indicated its agreement that, except for one aspect of the insufficient information contention, each of the matters above had been resolved. Specifically, however, it formed the view that there remained insufficient information concerning site contamination. As a result, and with the agreement of the Council, an adjournment was granted to allow UMA to obtain a further contamination report. Following the provision of a report dated 9 August 2018 titled "Stage 2 Detailed Site Investigation", the Council filed a Further Amended Statement of Facts and Contentions, which removed all of the contentions previously in issue and raised a contention that can be summarised as follows:

• The contamination report is inadequate to satisfy the Court that the land can be made suitable for the development.

1. Following receipt of the joint report of experts on contamination, the Council agrees that this contention has also been resolved and that contamination can be appropriately dealt with by conditions of development consent.

Planning Framework

1. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The site is within the IN2 Light Industrial zone pursuant to the BLEP 2015, in which "community facilities" and "places of public worship" are permissible with consent. Clause 2.3(2) requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are as follows: • To provide a wide range of light industrial, warehouse and related land uses. • To encourage employment opportunities and to support the viability of centres. • To minimise any adverse effect of industry on other land uses. • To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. • To support and protect industrial land for industrial uses.
3. The aims of the BLEP 2015 are set out at cl 1.2(2), of which the following are relevant to the issues raised by the Council: ... (i) to achieve good urban design in terms of site layouts, building form, streetscape, architectural roof features and public and private safety, (j) to concentrate intensive trip-generating activities in locations most accessible to rail transport to reduce car dependence and to limit the potential for additional traffic on the road network, (k) to consider the cumulative impact of development on the natural environment and waterways and on the capacity of infrastructure and the road network ...
4. The development is also subject to the requirements of the BDCP 2015. Part B8 of the BDCP 2015 concerns places of public worship, and has the following objectives: "(a) To have development controls that regulate the effective and orderly development of places of public worship in the City of Bankstown. (b) To ensure places of public worship contribute to the sustainability of the City of Bankstown. (c) To encourage places of public worship to be located in areas with good access and public transport. (d) To have places of public worship minimise the physical and visual impact on the amenity of established suburbs. (e) To protect the amenity of development in the vicinity of places of public worship, and in particular residential areas. (f) To ensure places of public worship do not adversely impact on the safety and efficiency of the surrounding road system. (g) To ensure the long term operation of places of public worship maintain the amenity of surrounding residents and employment areas. (h) To ensure the bulk, scale, height and character of places of public worship are compatible with the predominant characteristics of existing development in the surrounding area. (i) To enhance perceptions of public safety; and ensure buildings and places are designed to minimise the opportunities for criminal and anti-social behaviour. (j) To ensure the development assessment process for a proposed place of public worship is consistent, fair and accessible to all religious groups."
5. Part B5 of the BDCP 2015 concerns parking, and provides that for places of public worship "Car parking must be provided on-site at a minimum rate of 1 car space per 5m2 of the assembly area. Car parking for ancillary uses and social/special events must be provided on-site on the basis of a Parking Study…" The "assembly area" is defined in B8 of the BDCP 2015, as follows: "the sum of that portion of the gross floor area of a building to be used for public assembly for the purpose of worship or other purposes and any outdoor area that may be used for public assembly for the purpose of worship or other purposes. It includes halls; mezzanines; secondary areas of assembly such as choir or musicians' areas, altar areas confessional areas, podiums, staging and the like; rooms used for religious instruction; and rooms and any outdoor areas capable of being used for overspill accommodation of the congregation during a worship service. Ancillary areas such as kitchens, toilets, washrooms and residential accommodation, which are not normally used for worship, are not considered to be part of the assembly area."
6. If the "assembly area" is confined to the prayer room the subject of the application for the proposed use, then (aside from the parking for ancillary uses and social/special events) the requirement for car parking would be 65 spaces.
7. Clause 3.5 of Part B8 requires that, with respect to traffic management, development for the purpose of places of public worship must not result in a street exceeding its environmental capacity. In particular, it states: "Development for the purpose of places of public worship must not result in a street in the vicinity of the development site to exceed the environmental capacity maximum. If the environmental capacity maximum is already exceeded, the development must maintain the existing level of absolute delay of that street. This clause applies to places of public worship in the residential zones, the special use zone and the industrial zones."
8. The State Environmental Planning Policy No 55 - Remediation of Land ("SEPP 55") also applies to the site, and cl 7 of SEPP 55 states as follows: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. ...

Evidence of resident objectors

1. The development application seeking use of the prayer room as a place of public worship was publicly notified and advertised for a period of 21 days. Once additional information was received by the Council in the course of the assessment of the application, the additional information was publicly notified and advertised for another period of 21 days. A significant number of submissions were received that raised issues in opposition to the application, with 1205 submissions received in the second period. Many of these submissions were pro-forma letters.
2. Additionally, a number of objectors or their representatives attended the site inspection at the commencement of the hearing and made submissions concerning the proposal. Their concerns can be summarised as follows:

• Enterprise Avenue does not have the capacity to accommodate the additional traffic generated by the development. The additional load on Enterprise Avenue causes long delays at the intersection with Watsons Road. These delays, which have been experienced by local residents since the community facility has operated, also cause poor driver behaviour.
• The car park is unlikely to be utilised, and so worshippers will park on the street, which does not have capacity to accommodate additional parking. This will result in increased illegal parking, and presents a risk to safety as there is no pedestrian footpath along Enterprise Avenue.
• The premises have a greater capacity than the 205 or 177 that is sought, and therefore it is likely that the conditions of development consent limiting capacity will not be adhered to. This will also exacerbate the traffic and parking problems.
• There will be an adverse impact on the adjoining school and on surrounding residents.
• The adjacent industrial uses will not be able to operate given the additional traffic and demand for parking.
• The previous development consent has not been complied with, so there is no certainty that a future consent will be complied with.
• There has been poor driver behaviour by those attending the premises in the past.

1. There is no evidence in support of the submission that the proposed use of the existing prayer room as a place of public worship, or the increase in the capacity of the premises to what is sought, in and of themselves, will have an adverse impact on the adjoining school and on surrounding residents. The remainder of the concerns raised and summarised above, including the concerns about traffic and parking, are dealt with below.

Expert evidence

1. A number of experts were engaged by the parties and gave expert opinion evidence in joint reports tendered at the hearing.

Traffic and parking evidence

1. Mr Craig McLaren, engaged by the Council, and Mr Paul Corbett, engaged by UMA, are traffic consultants who conferred and produced a joint report concerning the traffic and parking issues raised in the proceedings.
2. Mr McLaren and Mr Corbett agree that the provision of 155 car parking spaces will enable the development, at the patronage level set out in the Operational Plan of Management, to accommodate all car parking demands on-site. They reached that conclusion as a result of their agreement that the most appropriate method for assessing the car parking requirements of the proposal is to use survey data collected by Mr Corbett from the existing development, and from other comparable Islamic places of public worship developments. They agree that the provision of 3 traffic controllers during Friday prayer and Ramadan events will also minimise the potential for any reliance on on-street parking.
3. As to the impact on the external road network, the joint evidence of Mr McLaren and Mr Corbett is that the modelling of the additional traffic generated by the proposal demonstrates that the proposed development will have minimal impacts on the operation of the key intersections "with only minor increases to intersection delays and degree of saturation, with no change to the existing levels of service during all periods" (Ex 2, p 14). As to the Watson Road and Enterprise Avenue intersection, they agreed it "will experience a change in Level of Service from A to B, under the 'Midday In' scenario only" (Ex 2, p 14). This means that there will be additional delays in the weekday 12-2pm period. Despite this, their evidence in the joint report is that the intersection "will still operate satisfactorily with acceptable delays and spare capacity" (Ex 2, p 14).
4. With respect to the car parking arrangements, Mr McLaren and Mr Corbett agree that the latest amendments, including the provision of a new two-way, two-lane ramp (so that both driveways accessing the car parking are two-way), will improve the proposed traffic circulation and allow drivers to enter and exit the main car parking area using two access driveways. This will improve efficiency and minimise driver delays, particularly when leaving the site.
5. As to the management of traffic circulation, Mr Corbett's evidence is that the traffic management procedures to be implemented through the Operational Plan of Management will be effective in safely managing larger congregations. These procedures include the provision of three RMS accredited traffic controllers on-site, staging of inbound and outbound vehicle movements to minimise delays for drivers and the potential for on-street queuing, and individual traffic control/staging plans which clearly indicate the required locations of traffic controllers, parking areas and vehicle accesses to be utilised, and direction of traffic flows. Further, the Operational Plan of Management contemplates a SMS messaging system that will be used to advise patrons if the facility is reaching capacity for Friday midday prayer or Ramadan, and if capacity is reached this will be communicated to traffic controllers by radio so that vehicles will no longer be admitted to the car park and an SMS alert will be sent to those registered to advise them to proceed to alternate prayer services in other locations.
6. Mr McLaren opines that the adequacy of the proposed Operational Plan of Management and associated traffic management procedures for Friday prayers and Ramadan events should be the subject of a trial period including independent monitoring of patronage, parking demand, parking behaviour and traffic generation.

Planning evidence

1. Mr Scott Barwick (engaged by UMA) and Mr Anthony Betros (engaged by the Council), consultant town planners, conferred and produced a joint report concerning the planning issues raised by the Council on the original application.
2. They agree that the concerns with respect to overdevelopment have been adequately addressed through the proposed management of the proposed use for the purpose of a Place of Public Worship. They opine that this has been achieved by improved traffic access arrangements, the streamlined management by UMA of the various uses so that there is no usage of other areas of the facility during the Friday midday prayer period or Friday evening Ramadan prayer period, excluding the use of other areas as a Place of Public Worship, and linking the intensity of the use to the capacity of the site to accommodate the required car parking and facilities such as toilets and egress points.
3. Given that the layout of the premises creates a capacity that Mr Betros considers could lead to worshippers using other areas for prayer, Mr Betros opines that self-regulating procedures need to be in place as part of the Operational Plan of Management to ensure that these concerns do not eventuate. Whilst Mr Betros understands that the UMA website, the SMS notifications and staff counters will be utilised to regulate/control occupancy numbers, he opines that he would need to be satisfied that such procedures are effective prior to any permanent consent being granted. As such, Mr Betros is of the view that a 12 month trial period would need to be in place to allow for regular and unannounced inspections to ensure that the premises operates in accordance with the conditions of consent and the Operational Plan of Management.
4. The joint evidence of Mr Barwick and Mr Betros is that the proposed use is not inconsistent with the zone objectives. Their evidence is that, with effective parking and traffic management, the proposed Place of Public Worship use would not impede or restrict the operation of existing surrounding land uses in an unacceptable manner.
5. Mr Barwick and Mr Betros are also satisfied that the playgroup is not a child care centre, and that the child minding is an ancillary use to the approved community facility and provides support to allow greater participation in education options available through UMA and its community centre programs.

Evidence on the Plan of Management

1. The proposed Operational Plan of Management sets out the hours of the facility (4:00am to 10pm), the schedule of prayer services provided in the prayer room as a Place of Public Worship, the maximum occupancy of the facility, and how that will be managed. Inter alia, the Operational Plan of Management includes:

• How attendees will be managed, including ongoing communication with members through "Mosque Rules" placed on the notice board and reinforced through means such as SMS and email alerts.
• How the maximum occupancy will be managed, including using a register of attendance for each service, using a SMS alert system, conducting head counts and preventing entry to the car park after maximum occupancy is reached.
• How the different facilities with the building will be used, the occupancy for each facility, and how the times of their use will be staggered.
• Requirements for safety and security, noise control and management, and community relations and complaint management.
• How the traffic management will operate, including staging of inbound and outbound traffic movements, and duties of traffic controllers.

1. Mr Barwick, Mr Betros, Mr McLaren and Mr Corbett gave joint evidence with respect to the suitability of the Operational Plan of Management as a mechanism to manage the site. They agree that, consistent with the Planning Principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315, the Operational Plan of Management:

• Relates specifically to the use of the premises as a Place of Public Worship and Community Centre, and gives directions to ensure that the approved maximum capacity of the facility is complied with and that the use of the car park operates in an efficient and safe manner.
• Provides requirements for attendees to follow directions in relation to entry to and exit from the car park for peak events, which directions are not unreasonable or onerous.
• Requires attendee numbers to be logged for peak prayer services and made available to the Council, so that breaches could be readily identified.
• Will be publicised on the UMA website and enforced as a condition of consent.
• Is proposed in conjunction with a 12 month period for the use of part of the premises as a Place of Public Worship, and is to be reviewed every three years.

Acoustic evidence

1. Mr Dan Dang and Mr Steven Cooper, acoustic consultants, conferred and gave expert opinion evidence in a joint report tendered at the hearing. Although there was some disagreement in their evidence, they now agree that with the imposition of a condition limiting the proposed use to a trial period of 12 months, the acoustic impact of the proposal can be limited by conditions of development consent, and compliance can be tested within the 12 month trial period. The conditions that seek to limit the acoustic impact of the proposal are as follows: "CONDITIONS TO BE SATISFIED PRIOR TO OCCUPATION 49) A suitably qualified acoustical engineer shall undertake a compliance test of mechanical plant and the operational sound systems (at their maximum level) and provide certification of compliance for a cumulative noise contribution not exceeding 35 dB(A) at any residential boundary (refer to the predicted noise levels set out in Sections 4.1 and 4.2 of the report prepared by Acoustic Consultant Engineers (revision 6) dated 15 March 2018). Certification documentation is to include measured source and receiver noise level data 50) The in-house amplification shall be controlled by rms limiters or restricted by power amplifier size. Certification shall be provided identifying the maximum levels generated by the in-house sound system(s) in each area of the premises utilising pink noise. A certificate of compliance shall identify the reference locations and pink noise levels for each space, a block diagram of the sound system(s) configuration, identification of the amplifier and speaker types, limiter/processor settings and a diagram of speaker placement. … USE OF THE SITE … 64) The cumulative noise emission from the operation of the premises (activities, sound systems and mechanical plant) is not to exceed an LAeq (15 minute) level of 35 dB(A) when measured or calculated at any residential boundary. 65) No additional sound amplification systems is permitted at any time within or external to the premises. All amplification must use the in-house system(s). No alterations to the installed sound system (s) shall occur without the prior approval of Council and will be required to be recalibrated and an amended certificate of compliance submitted to Council. The use of the car park during the period of 10.00pm - 7.00am Monday to Saturday, or 8.00am on Sundays shall not give rise to a maximum level exceeding 40 dB(A) at any residential boundary."

BCA evidence

1. Mr Peter Rosello and Mr Mardiros Tatian, building surveyors, conferred and gave joint expert opinion evidence in a joint report concerning compliance of the current building with the Building Code of Australia ("BCA"). That report identifies a large number of non-compliances of the existing built form with the deemed-to-satisfy provisions of the BCA. In so identifying those non-compliances, Mr Rosello opines that each of those matters are required to be satisfied so as to ensure that the building occupants are provided with an adequate and acceptable level of fire safety provisions as well as accessibility. Further, he opines that the structural adequacy of the mezzanine constructed over the gymnasium and changes made to the first floor class rooms and office areas are required to be assessed and validated.
2. Both Mr Rosello and Mr Tatian agree that these non-compliances can be addressed by both rectification works, supported by a performance based solution to validate that the relevant requirements of the BCA are met.
3. Given that the BCA is a performance based building code, Mr Rosello and Mr Tatian agree that compliance can be best achieved through a condition of development consent that binds the applicant and the certifying authority to a prescribed regime relating to the formulation, assessment and approval of BCA performance based solutions. They are of the view that such a condition can be imposed in the context of cl 94 of the Environmental Planning and Assessment Regulation 2000.
4. As a result, they agree that the BCA compliance issues can be dealt with by a condition of consent requiring that "the existing building is to comply with the relevant provisions identified within Section C, D, E & F of the Building Code of Australia."

Contamination

1. Ms Rebeka Hall, environmental scientist, and Mr Stephen McCormack, geotechnical and environmental engineer, conferred and prepared a joint report on the contamination issues. Their agreed expert evidence includes that the site can be made suitable, from the contamination perspective, for the proposed development. They opine that (at Ex 10, p 2): "• The proposed development does not include the use of the site (or part of) as a childcare facility, and the site can be assessed under a commercial landuse setting; • The additional works to close out the data gaps can be outlined in a remedial action plan (RAP) which will detail any remediation should the supplementary investigation identify contamination greater than what is currently known. • The experts have agreed that the site can be made suitable, from a contamination perspective, for the proposed development. • A Condition of Approval should require the completion of the additional investigation, and any necessary remediation to render the site suitable prior to a Construction Certificate being issued."
2. The additional investigation and works will require confirming or dismissing the presence of an underground storage tank that could be an ongoing source of ground contamination, conducting additional groundwater monitoring, confirming groundwater flow to ensure there is no risk to adjoining land uses, and conducting soil vapour sampling to confirm that the risk level is acceptable.
3. As a result of this evidence, the parties agree that the development consent should be the subject of a deferred commencement, with the conditions to be satisfied as follows: "DEFERRED COMMENCEMENT CONDITIONS … 2) The applicant shall carry out site investigations of the land the subject of this Consent, in accordance with the scope of work for additional investigation in the "Sampling Analysis and Quality Plan" ('SAQP') prepared by Rebeka Hall and Stephen McCormack dated 11 October 2018. The results of the site investigation arising from the SAQP are to be incorporated into a report titled Supplementary Contamination Report ('SCR'). The applicant shall forward the SCR to Council for its consideration and satisfaction within 24 months of the grant of development consent, otherwise the development consent lapses pursuant to section 4.53(6) of the Act. 3) If the SCR identifies contamination at concentrations that exceed the contamination assessment criteria set out in the SAQP, then the applicant is to prepare a Remedial Action Plan ('RAP') by a suitably qualified and experienced site contamination and remediation consultant in accordance with New South Wales EPA guidelines. The RAP is to identify whether an Environmental Management Plan is required to ensure the ongoing land use is suitable so as to manage residual contamination remaining onsite. The applicant shall forward the RAP to Council for its consideration and satisfaction, within 24 months of the grant of development consent, otherwise the development consent lapses pursuant to section 4.53(6) of the Act."

Evidence of previous breaches of the existing development consent

1. UMA concedes that there have been breaches of the existing development consent, including in 2017 during the Ramadan period. However, past unlawful behaviour is not a relevant factor in determining whether to grant development consent. This was made clear by Preston CJ in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [35]: "… in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully."
2. Instead, the relevance of such unlawful behaviour is confined to its impacts. Specifically, at [38] Preston CJ states that: "The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful."
3. In the present circumstances, the traffic and parking impacts of the past use have limited relevance to the assessment of the merits of the development application that is now before the Court. There are three reasons for this. Firstly, the past use did not have a car park of the capacity of that now proposed (155 car spaces). Secondly, the past use did not appear to have any traffic and parking management system in place such as that in the proposed Operational Plan of Management, discussed above, which involve turning vehicles away once capacity is reached. Thirdly, there is insufficient evidence of the numbers in attendance at the community facility during the periods of alleged breaches of the development consent to verify that it was commensurate with the numbers that are now proposed. Whilst there was a count of persons conducted by Transport Planning Partnership and tendered by Mr Daintry on behalf of the Padstow Residents Association, there is no evidence as to how those counts were obtained. Even if they were correct, the numbers counted (up to 544 persons) are far greater than the occupancy that is currently sought for the facility, and therefore any impacts caused by that number of occupants could not be considered commensurate with the impacts of the number of occupants that are proposed in the present application.

Submissions of the parties

1. The Council and UMA both submit that, on the basis of the expert evidence, development consent should be granted subject to the agreed conditions, including a trial period of 12 months and the requirement of the facility to operate in accordance with the Operational Plan of Management.
2. In particular, UMA submits that each of the issues raised on the original application have been resolved by a suite of conditions and the acceptance of a trial period of 12 months. It submits that the evidence is that the occupancy proposed can be accommodated on the site, that there is adequate car parking to accommodate the occupancy sought, and that BCA compliance can be achieved. Further, it submits that, based on the evidence of Ms Hall and Mr McCormack, the Court can be satisfied pursuant to cl 7(1) of SEPP 55 that the land will be suitable, after remediation, for the purpose for which the development is proposed to be carried out, and that if it is required to be remediated, that will occur before it is used.
3. Further, UMA submits that the concerns articulated by the objectors with respect to the past use of the premises, and its impact on traffic and parking, will not eventuate given the conditions limiting occupancy, the provision of car parking, and the requirement for management in accordance with the Operational Plan of Management. It submits that compliance with the occupancy limits and with the Operational Plan of Management is measurable and reportable, and that the Operational Plan of Management presents an effective way of managing the parking and occupancy. UMA says that the 12 month trial period will allow this to be tested. In that 12 month period, UMA is confident that they will be able to demonstrate that they can manage the occupancy of the Place of Public Worship through the management procedures set out in the Operational Plan of Management. UMA points out that if they are wrong, and they cannot effectively manage the capacity of the facility, then it may be that they will not get the benefit of a further development consent.

Development consent should be granted

1. On the basis of the expert evidence before the Court, I accept that it is appropriate for development consent to be granted, subject to the agreed conditions, including a trial period of 12 months. I have formed this view for the following reasons.
2. Firstly, I accept the evidence of Mr Barwick and Mr Betros that the proposed use of the prayer room as a place of public worship is not inconsistent with the zone objectives. It is a permissible use in the IN2 Light Industrial zone, and the use that is sought is constrained to a room within the existing community facility. No other room, area or portion of the community facility, other than the prayer room, will be used for the prayer services. Further, there is another separate place of public worship in operation adjacent to the site. I accept the evidence of Mr Barwick and Mr Betros that, with effective management, the proposed Place of Public Worship use would not impede or restrict the operation of existing surrounding land uses.
3. Secondly, I accept that the playgroup and the child minding uses are ancillary to the community facility use. These uses will not, with effective management, have any impact on the operation of existing surrounding land uses.
4. Thirdly, I accept the evidence of Mr McLaren and Mr Corbett that sufficient car parking is provided by the 155 car parking spaces, which will ensure that all of the car parking demand is accommodated on site. As such, the evidence is that there will be no need for on street parking to be utilised, which addresses the concerns of the residents with respect to parking availability on Enterprise Avenue. Similarly, contrary to the concerns of the objectors, Enterprise Avenue and the surrounding intersections have the capacity to accommodate the additional traffic generated by the proposed use of the prayer room and the proposed increase in capacity of the entire facility (during Ramadan) to 205 people. I accept the evidence of Mr McLaren and Mr Corbett in that regard.
5. Fourthly, I accept the evidence of Mr Corbett that the traffic movements for larger congregations (for the occasions of Friday prayer and Ramadan) will be effectively managed through the procedures outlined in the Operational Plan of Management. This includes the use of traffic controllers and the staging of inbound and outbound movements. Further, where the maximum occupancy could be reached, I accept that the Operational Plan of Management makes it clear that only the prayer room will be utilised for the prayer services, and that it establishes procedures for ensuring that the maximum occupancy is not exceeded. Those procedures involve keeping head counts, and then turning people away first through the SMS notification once capacity is reached, and second through communication to the traffic controllers so that vehicles are turned away and redirected to services at other facilities. Both of these methods will allow attendees to be turned away at an early stage and before they reach the entrance to the facility. I accept that, in doing so, this is an effective way of achieving compliance with the proposed maximum occupancy of the facility. This addresses the concerns of the objectors about the potential for additional capacity to be accommodated above the 205 sought. I consider that a trial period of 12 months is appropriate in order to measure the effectiveness of the procedures outlined the Operational Plan of Management to manage traffic movements and maintain attendance at or below the occupancy proposed. The trial period will also allow independent monitoring of attendance, parking demand, parking behaviour and traffic generation, and will enable the Council to consider any complaints concerning the operation of the facility and associated parking or traffic issues.
6. Fifthly, I accept that the proposed conditions concerning noise emission are appropriate to manage the acoustic impact on neighbouring land uses, and should be imposed on the grant of development consent. I accept the position of Mr Dang and Mr Cooper that a 12 month trial period will enable the acoustic impact of the proposal to be measured. I also consider that the trial period will ascertain the effectiveness of the conditions of consent to limit the acoustic impact of the use.
7. Fifthly, I accept the evidence of Mr Rosello and Mr Tatian that compliance with the BCA can be achieved, and that conditions requiring the same ought to be imposed on the grant of development consent.
8. Finally, the evidence before the Court is that the site can be made suitable, from a contamination perspective, for the proposed development. In order for this to occur, Ms Hall and Mr McCormack have agreed on deferred commencement conditions that require further investigative work and a Remediation Action Plan to be prepared depending on the outcome of that work. Based on the agreed evidence of Ms Hall and Mr McCormack, I am satisfied that the elements of cl 7(1) of SEPP 55 are met and that there is therefore power to grant development consent.

The final orders

1. For all of these reasons, I accept the submission of the parties that it is appropriate for development consent to be granted.
2. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for 15-19 Enterprise Avenue, Padstow, for the use of the approved prayer room in the existing community facility as a place of public worship, for the construction of car parking for 155 car spaces, for the use of structures within the building for the purpose of the community facility use, for the child minding use as set out in the Operational Plan of Management dated 19 October 2018, and for an increase in the capacity of the existing community facility use to 164 persons, subject to the conditions in Annexure A. 3. The exhibits are returned, except for Exhibits C, D, 6, 11 and 15.

Commissioner Gray Annexure A (including OPOM)

Amendments 23 November 2018 - Correction to quotation at [12]. 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: 23 November 2018