Land and Environment Court New South Wales Medium Neutral Citation: Hills Awqaf Pty Ltd v The Hills Shire Council [2022] NSWLEC 1103 Hearing dates: 13-16, 27 September 2021 Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court directs that: (1) The applicant is to prepare an updated Plan of Management and an updated Traffic Management Plan, and provide them to the respondent, by 10 March 2022. (2) The updated Plan of Management and Traffic Management Plan are to be lodged on the NSW Planning Portal and filed with the Court by 17 March 2022. (3) The respondent is to file, and provide by email in word version to Commissioner Support, updated conditions of development consent by 24 March 2022. (4) Pending the making of final orders, liberty is granted to restore the matter to the Court on 2 days notice. (5) The exhibits are returned, except for exhibits A and 16. Catchwords: APPEAL – development application – place of public worship – now a prohibited use – whether out of character – relevance of a change in character in a transition zone – whether excessive excavation – whether excessive site coverage – impact on intersection – adequacy of car parking arrangements – adequacy of plan of management Legislation Cited: Biodiversity Conservation Act 2016 Part 7 Environmental Planning and Assessment Act 1979 s 4.15 Protection of the Environment Operations Act 1997 State Environmental Planning Policy No 55 – Remediation of Land cl 7 State Environmental Planning Policy (State and Regional Development) 2011 cll 5, 20 The Hills Local Environmental Plan 2012 cll 2.3, 4.3, 7.4 The Hills Local Environmental Plan 2019 (Amendment No 20) The Hills Local Environmental Plan 2019 (Amendment No 7) The Hills Local Environmental Plan 2019 cl 1.8A Cases Cited: Ali v Liverpool City Council [2009] NSWLEC 1327 Holy Apostolic Catholic Assyrian Church Of The East Property Trust v Fairfield City Council [2018] NSWLEC 1521 Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160 Texts Cited: Austroads, Guide to Traffic Management Part 6: Intersections, Interchanges and Crossings Management, (2020) Department of Environment, Climate Change and Water NSW, NSW Road Noise Policy (March 2011) Environment Protection Authority NSW, Noise Policy for Industry (2017) The Hills Development Control Plan 2012 Category: Principal judgment Parties: Hills Awqaf Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: M Staunton (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/61406 Publication restriction: No Judgment 1. COMMISSIONER: Glenhaven Road, in Glenhaven, runs generally in an east-west direction between the Old Northern Road to the east, and Kellyville to the west. The area that it traverses comprises predominantly residential dwellings in residential subdivisions of varying ages, but a portion of Glenhaven Road contains dwellings on larger allotments with a rural residential character. Larapinta Place, where a number of large dwellings of this type are located, is accessed from Glenhaven Road. At 1 Larapinta Place, on the corner of Larapinta Place and Glenhaven Road, Hills Awqaf Pty Ltd (Awqaf) seeks development consent for the construction of a place of public worship for up to 250 attendees. They lodged a development application with The Hills Shire Council on 19 April 2018, which was subsequently refused following a decision of the Sydney Central City Planning Panel. The present proceedings are an appeal against the refusal of the development application. 2. The proposed development is for the demolition of the existing structures, the removal of trees and the construction of a two-storey place of public worship with basement car parking. Vehicular and pedestrian access is from Larapinta Place, with a drop off bay on the ground floor as well as the driveway ramp to the basement. The ground floor level comprises the main prayer hall, amenities, reception and child minding area, and the first floor level comprises amenities and a mezzanine level female prayer hall. An on-site wastewater treatment system is proposed, which includes a mound to the north of the building. The place of public worship is proposed to operate over the period from 5am to 10pm, with various services throughout that period. The proposed use of the place of public worship is such that, during a typical week, the maximum attendance at any one time is at the Midday Prayer Service, which has a maximum of 250 attendees on a Friday and 50 every other day. In addition, annual special services are sought to be held during Eid, on Easter Friday, and during Ramadan. The timing of the regular prayer services and the special events are set out below in Figure 1, noting that the timeslot of 2 hours allows flexibility to change the time of the service depending on daylight saving hours. 1. The Council remains opposed to the proposed development, largely on the basis that the intensity of the proposed development, by reason of its hours of operation, the number of people attending the site, and the number of cars accessing the site, is out of character in the area and antipathetic to the objectives of the zone. The Council also says that the Court ought to have regard to the fact that places of public worship are now prohibited in the zone. Further, the Council contends that the car parking is inadequate and that the parking demand and traffic generated by the development will have an unacceptable impact. 2. There were also a large number of community submissions concerning the proposed development. Those submissions raised a number of issues, which are discussed more fully below. Two of those issues were of particular concern to the local residents, namely, past fatalities on Glenhaven Road, and the current operation of prayer services at the Wrights Road community centre in Kellyville. However, in considering the proposed development, I am required to confine my consideration to what is proposed in the development application and its impacts. As such, past incidents along Glenhaven Road that do not relate to the relevant intersections, and the management of another place of public worship, are not relevant to my consideration of the impact of the proposed development. 3. For the reasons set out below, I have determined that the current prohibition on places of public worship ought not be considered. I also find that the proposed development is acceptable having regard to the absence of adverse impacts, the objectives of the zone and the character of the area, and that any change in character brought about by the proposed development is acceptable in the context of the RU6 Transition zone in which the site is located. I consider that the car parking arrangements are satisfactory, the intersection of Larapinta Place will continue to operate satisfactorily, and that the excavation and site coverage are acceptable in the circumstances. Further, subject to some alterations being made, the Plan of Management and the Traffic Management Plan are acceptable. I have therefore made directions for those documents to be updated, and for final conditions of development consent to be provided to the Court ahead of the grant of conditional development consent. The site and the locality 1. The site is legally described as Lot 7 DP 249716 and is known as 1 Larapinta Place, Glenhaven. It is an L shaped lot with a total area of 2.0261ha, a frontage of 74.12m to Glenhaven Road and 195.38m to Larapinta Place. The rear of the site is heavily vegetated with native bushland, and a watercourse is also located at the rear of the site. The site is not sewered but has access to potable water and electricity. An aerial photograph of the site is at Figure 2. 1. Larapinta Place services 7 single detached dwellings on large land holdings with a rural residential character, and is 300m in length. Beyond Larapinta Place, the surrounding area comprises a mix of residential and other uses. The planning controls 1. Section 4.15(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires the Court, in exercising the functions of the consent authority, to consider the provisions of any applicable environmental planning instrument, proposed instrument, development control plan, planning agreement, and regulation. Section 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 Hills Local Environmental Plan 2012 (HLEP 2012) was in operation at the time the development application was lodged with the Council. On 6 December 2019, The Hills Local Environmental Plan 2019 (HLEP 2019) commenced and repealed the HLEP 2012. Clause 1.8A of the HLEP 2019 provides that the development application must be determined as if the HLEP 2019 had not commenced. Specifically, it states: 1.8A Savings provisions relating to development applications (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 1. The site is zoned RU6 Transition pursuant to the HLEP 2012. Places of public worship are a permissible use in the zone, pursuant to the HLEP 2012. 2. The HLEP 2019 remains relevant as the current instrument that applies to the land, although the development application the subject of the appeal must be considered as if the HLEP 2019 had not commenced. A subsequent amendment to the HLEP 2019, The Hills Local Environmental Plan 2019 (Amendment No 7) removed places of public worship as a nominated permissible use. As a consequence, places of public worship are now prohibited in the zone. The applicable savings provision for that instrument is in cl 1.8A(3), which states that: (3) An amendment made to this plan by The Hills Local Environmental Plan 2019 (Amendment No 7) or The Hills Local Environmental Plan 2019 (Amendment No 18) does not apply to a development application made but not finally determined before the commencement of the amendment. 1. The objectives of the zone remained unchanged under the HLEP 2019 (as made), as did the applicable development standards. The objectives of the zone under the HLEP 2012, which are required to be considered in determining a development application, are as follows: 1 Objectives of zone • To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To encourage innovative and sustainable tourist development, sustainable agriculture and the provision of farm produce directly to the public. 1. The Hills Local Environmental Plan 2019 (Amendment No 20) inserted an additional objective, "To ensure that development does not have a detrimental impact on the rural and scenic character of the land." 2. Clause 4.3 of the HLEP 2012 imposes a height development standard of 10m, with which the proposed development complies. There is no floor space ratio (FSR) development standard that applies to the site. 3. The proposal has a capital investment value of more than $5 million, and is therefore a regionally significant development pursuant to cl 20 and Sch 7 cl 5(b) of the State Environmental Planning Policy (State and Regional Development) 2011. 4. The Hills Development Control Plan 2012 (HDCP) also applies to the site. Section 5.2 of Part A of the HDCP concerns achieving environmentally sustainable development, and includes the following: "In all aspects of the planning for, and development of, land, consideration must be given to achieving the ESD objectives listed." 1. The ESD objectives include the following: "ESD 1 – To apply the precautionary principle where development is likely to cause short or long-term irreversible or serious threats to the environment. … ESD 4 – To ensure that biodiversity and the integrity of ecological processes are not compromised by the development." 1. Part B Section 1 of the HDCP sets out controls with respect to site coverage, cut and fill, and waste water. In relation to site coverage, the applicable control in the HDCP for a site of this size is for a maximum site coverage of 15% or 2500m2, whichever is the lesser. The site coverage for the proposed development, including the basement footprint, is 2965.56m2. 2. In relation to the cut and fill, the controls are as follows: "• Cut shall not exceed 1m and fill shall not exceed 600mm. • Filling of land is to only be in conjunction with an approved land use or legitimate rural activity such as horse riding. • Fill shall be limited to the use of Virgin Excavated Material as defined under the Protection of the Environment Operations Act 1997" 1. The proposed development includes cut for the purpose of the basement car parking, and therefore exceeds the development control for cut not to exceed 1m. 2. The controls concerning waste water are as follows: "Proposals must demonstrate sufficient area is available for any proposed on-site sewerage management and effluent disposal areas. Proposals must ensure compliance with Council's applicable Local Approvals Policy. Wastewater and effluent disposal areas must be located on land that meets the following locational criteria: 40m from a dam or intermittent watercourse 100m from a permanent water course 6m from a structure, property boundary or native vegetation Not on slope greater than 15% Soil depth greater than 300mm" 1. The statement of outcomes for the controls concerning site coverage, cut and fill, and wastewater, are the following: "• The scale, siting and visual appearance of new development maintains the open rural feel of the landscape and preserves scenic and environmental qualities of the area. • The location of new rural/ residential development is to have regard to the potential impacts arising from existing adjacent rural business activities." 1. Part C Section 1 of the HDCP sets out the appropriate parking rates for different types of uses, and the control at 2.1.1 requires that the number of parking spaces "must be provided in accordance with Table 1." Table 1 includes the parking provision for places of public worship, which give a required minimum provision of "1 space per 5 seats". Resident objector evidence 1. The development application was originally lodged on 19 April 2018, and was notified for a period of 21 days from 14 May 2018. Following amendments to the development application, it was re-notified for 22 days from 5 February 2019 and again in 2021 following amendments made in the course of the appeal proceedings. A large number of submissions were received in response to each of the notification periods, some of which support the proposal. In addition, a number of local residents spoke at the commencement of the hearing. The issues raised in the submissions against the proposal and in the oral evidence given at the hearing, can be summarised as follows: * The unacceptable traffic impact given the current volume of traffic on Glenhaven Road and the quality of that road, which has resulted in fatalities along Glenhaven Road including within the vicinity of the site. * The unacceptable traffic impact on traffic within Larapinta Place. * Concerns with respect to whether the number of persons in attendance at the proposed development will be similar to the current operation of prayer services at the Wrights Road community centre in Kellyville, which is organised by the Hills District Muslim Society (HDMS). * The adequacy of car parking provided by the proposed development, particularly where there is no public transport available. * Acoustic impact of the proposed development. * The operating hours, scale and density is out of character in the rural residential area. * Risks associated with evacuation. * The visual impact of the proposed building and the excavated basement. 1. In support of its submissions concerning the current operation of prayer services at the Wrights Road community centre in Kellyville, the members of a community group named the Friends of Glenhaven Incorporated carried out surveillance operations on that centre, including parking counts and parking behaviour. As I indicated above and consistent with the agreed evidence of the town planners, the management of another place of public worship is not relevant to my consideration of the impact of the proposed development. I note, however, that I consider the booking system below in relation to whether the proposed development can comply with the capacity limits that it seeks for attendance and parking. 2. A number of residents have been greatly affected by fatalities on Glenhaven Road. However, in considering the proposed development, I am required to confine my consideration to what is proposed in the development application and its impacts. As such, past incidents along Glenhaven Road that do not relate to the relevant intersection or its projected operation once the proposed development is carried out, are not relevant to my consideration of the impact of the proposed development. My consideration with respect to the operation of the intersection of Larapinta Place and Glenhaven Road is set out further below. Expert evidence Acoustic evidence 1. Expert evidence on the acoustic impact of the proposed development was given by Mr Stephen Gauld, an acoustic engineer engaged by Awqaf, and Dr Renzo Tonin, an acoustic engineer engaged by the Council. 2. Mr Gauld and Dr Tonin agree that the noise generated from the use of the prayer hall will be inaudible if the external doors to the building are kept closed during the night time hours and the only access to the building is through the car park and the internal stairwell and lift. They also agree that an acoustic wall should be constructed within the site to limit noise from vehicles whilst on the site. As a result of their agreed evidence and the Amended Acoustic Report dated 31 August 2021, it is clear that the proposed development, including both its use and traffic generation, will generate noise within the limits established by the applicable criteria in the Department of Environment, Climate Change and Water NSW, NSW Road Noise Policy (March 2011) and the Environment Protection Authority NSW, Noise Policy for Industry (2017), and will therefore not cause unacceptable acoustic impacts on adjoining and nearby residents. 3. However, Dr Tonin seeks the imposition of a condition of consent that requires all noise from the prayer hall to be inaudible in the night-time acoustic period, which Mr Gauld does not agree is necessary. This is considered further below. Wastewater evidence 1. Expert opinion evidence on the wastewater disposal system was given in a joint report by Dr Daniel Martens, an engineer engaged by Awqaf, and Mr Daniel Giffney, an engineer engaged by the Council. 2. Their agreed evidence is that there is sufficient area available for the proposed effluent treatment and disposal, and that the inclusion of an overland flow diversion bund downslope of the mound resolves the contention raised by the Council concerning the minimum distance between the effluent disposal and the stormwater discharge pit. 3. As a result of their evidence, there is no issue that remains in dispute concerning the proposed effluent treatment and disposal system. Arboricultural evidence 1. Expert evidence on the arboricultural issues was given in a joint report by Mr Bradley Magus, an arborist engaged by Awqaf, and Ms Erin Roper, an ecologist employed by the Council. 2. Ms Roper and Mr Magus agree that the development application adequately addresses the impacts of the proposed development, that the Tree Management Plan shows all trees for removal except for one tree near the stormwater outlet, and that the stormwater headwall can be removed and the outlet moved to retain that tree. They also agree that the trees to be removed in the Asset Protection Zone should be firstly those considered of low retention value. Ms Roper opines that an updated Tree Removal Plan and Tree Management Plan ought to be prepared. 3. As a result of their evidence, and agreed conditions of development consent, the Council agrees that its contentions concerning the impact on trees have been resolved. Evidence on ecology 1. Expert evidence on the impact of the proposed development on ecology was given by Ms Katrina Wolf, an ecologist engaged by Awqaf, and Ms Roper. 2. Ms Wolf and Ms Roper agree that the Biodiversity Development Assessment Report dated 24 August 2021 (BDAR) addresses the matters required to be addressed under Part 7 of the Biodiversity Conservation Act 2016 (BC Act). They also agree that the Vegetation Management Plan dated 24 August 2021 addresses management in perpetuity, including the maintenance of the vegetation integrity score identified within the BDAR. 3. As a result of their evidence, and agreed conditions of development consent, the Council agrees that its contention concerning the impact on biodiversity has been resolved. Traffic evidence 1. Expert evidence on the impact of the proposed development on traffic, and the adequacy of the car parking, was given by Mr Brett Maynard, a traffic engineer engaged by Awqaf, and Mr Ken Hollyoak, a traffic engineer engaged by the Council. 2. Mr Maynard and Mr Hollyoak agree that if the requirement in the HDCP to provide one space for 5 seats equates to one space for 5 prayer mats, the parking provided meets this control. However, based on car parking occupancy for other places of public worship, they agree that accommodating 250 persons in the prayer hall (which is sought for the Friday prayer services and services during Ramadan) will generate a need for more car spaces than the number required under the HDCP, unless measures are in place to limit the number of vehicles that park on the site. Awqaf seeks to do so by using booking system (such as EventBrite). Both Mr Maynard and Mr Hollyoak agree that a booking system could be used so that car park entry is by booking only, and no further bookings will be received once its capacity has been booked. They also agree that allowing on-street parking on Larapinta Place for the proposed development is not appropriate or desirable, although their reasons differ. 3. However, Mr Hollyoak has concerns about the use of the booking system and about the Traffic Management Plan that is proposed to manage the vehicles on the site. Mr Hollyoak opines that the significant effort being proposed to manage traffic is "an admission that either the proposed population is too large or the number of parking spaces is too low". Mr Maynard does not share these concerns. 4. Mr Maynard and Mr Hollyoak agree that the intersection of Glenhaven Road and Larapinta Place would operate satisfactorily with existing traffic volumes and 100 vehicles departing the site. However, they disagree as to whether a channelised right turn access from Glenhaven Road should be constructed at the intersection. This is considered further below. Town planning evidence 1. Expert opinion evidence on the town planning issues was given by Mr Stuart Harding, a town planner engaged by Awqaf, and Ms Ellen Robertshaw, a town planner engaged by the Council. 2. They agree that the surrounding land uses are generally rural residential in nature, but that within a 1km radius of the site there are intermittent non-residential uses including a restaurant, a place of public worship, an early learning centre and a pony club. They also agree that in terms of its architectural scale, the proposed building is not out of character with other development in the vicinity of the site, and there are a number of elements of the building that are consistent with the character of surrounding residential development. However, they disagree on how the intensity of the proposed use impacts on the character of the area, and whether it results in a character that is incompatible with the zone and surrounding development. They also disagree as to whether the excavation for the basement is excessive. 3. Mr Harding and Ms Robertshaw agree that implementation of a booking system, such as Eventbrite, is a method of controlling the number of persons attending the place of public worship. Whilst they acknowledge that the booking system is in place at the Wrings Road facility, they agree that the operations of another facility are not determinative in assessing an application for another site. 4. Ms Robertshaw has concerns with respect to the operation of the Plan of Management, and opines that the need to have such a detailed and complex management system in order to control the number of attendees is an indication that the site is not a suitable location for a place of worship. This is disputed by Mr Harding. I consider this in more detail below. The current prohibition on Places of Public Worship 1. As set out above, s 4.15(1)(a)(i) of the EPA Act requires the Court, in exercising the functions of the consent authority, to consider the provisions of any environmental planning instrument. 2. One such environmental planning instrument is the HLEP 2019, as made on 6 December 2019. As made, places of public worship remain permissible in the RU6 Transition zone. The HLEP 2019 (as made) repeals the HLEP 2012 but also provides the savings provision in cl 1.8A set out above at [9], which means that the development application before the Court must be determined as if the HLEP 2019 had not commenced and, therefore, as if the HLEP 2012 had not been repealed. In considering the savings provision in cl 1.8A(1) with respect to another instrument, Pepper J found in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 that (at [29]): "cl 1.8A is a deeming provision that does no more than fictitiously set the 2012 LEP back to a point in time immediately before its commencement. At that moment the 2012 LEP is a "proposed instrument" and must be considered pursuant to s 79C(1)(a)(ii) of the EPAA. In other words, the LEP becomes a mandatory relevant consideration under that Act, assuming, of course, that the proposed instrument has been the subject of public consultation and proper notification to the consent authority, and failure to take it into account will give rise to jurisdictional error." 1. Accordingly, although the HLEP 2012 is the applicable instrument, the HLEP 2019 (as made) remains a mandatory matter that is required to be considered under s 4.15(1)(a) of the EPA Act. The same would apply to any environmental planning instruments that amend the HLEP 2019 (as made) that are covered by the savings provision in cl 1.8A(1). The HLEP 2019 (as made) maintains places of public worship as a permissible use in the RU6 Transition zone. 2. Another environmental planning instrument that is required to be considered is The Hills Local Environmental Plan 2019 (Amendment No 7), which removed places of public worship as a nominated permissible use. The applicable savings provision for that instrument is contained in cl 4(1) of the instrument, which inserted cl 1.8A(3) into the HLEP 2019. Clause 1.8A(3) has the effect that The Hills Local Environmental Plan 2019 (Amendment No 7) "does not apply" to the development application the subject of the appeal. In considering the effect of a savings provision in another environmental planning instrument that used the words "does not apply", Robson J found that, in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143, the clear language "does not apply" means that consideration of the instrument was precluded. Robson J found (at [20]): "while the SEPP would ordinarily be a relevant consideration pursuant to s 79C(1)(a)(i) of the Act, the SEPP does not to apply in relation to development applications such as the one currently before Court. This is made evident by the use of "clear language" in cl 1(1), Sch 5 of the SEPP, which, contrary to the legislation under consideration by Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, does preclude consideration of the SEPP." 1. Awqaf submits that the similar clear language in cl 1.8A(3) of the HLEP 2019 precludes consideration of The Hills Local Environmental Plan 2019 (Amendment No 7). 2. The Council nevertheless contends that the development application should be refused having regard to the current prohibition of places of public worship. It submits that, as a result of the prohibition, the proposed development is inconsistent with the likely future character of the locality and would not be in the public interest. The Council submits that it is contrary to the strategic direction intended for the RU6 Transition zone, which does not include places of public worship. 3. In support of its position, the Council relies upon the comments of Pepper J in Maygood Australia Pty Ltd v Willoughby City Council in which she considered that, even if the later environmental planning instrument is not a mandatory consideration under s 79C(1)(a)(ii) (now s 4.15(1)(a)(ii)), it is still a matter relevant to the public interest (see [34]) and a mandatory consideration on that basis. Further, even if it is not a mandatory consideration, Pepper J found that it is still a matter to which the consent authority may nevertheless have regard, and the savings provision does not exclude its consideration "absent clear language or necessary implication to this effect" (at [35]). The prohibition does not apply and is not relevant 1. There are two reasons why the prohibition on places of public worship in the RU6 Transition zone, which resulted from The Hills Local Environmental Plan 2019 (Amendment No 7), is not persuasive in determining the development application for the proposed development. 2. Firstly, as a matter of law, the clear language of the savings provision found at cl 1.8A(3) of the HLEP 2019 prevents consideration of The Hills Local Environmental Plan 2019 (Amendment No 7), in the same way that Robson J found the clear language in the savings provision precluded consideration of the particular instrument before his Honour in Omid Mohebati-Arani v Ku-ring-gai Council. The words "does not apply" is clear language that departs from the language in cl 1.8A(1) which allows the HLEP 2019 (as made) to be considered, and therefore, although The Hills Local Environmental Plan 2019 (Amendment No 7) would ordinarily be an environmental planning instrument that would be considered pursuant to s 4.15(1)(a)(i) of the EPA Act, an amendment to the HLEP 2019 contained therein "does not apply" and ought not be considered. To take into account the prohibition in the context of that clear language would be contrary to the savings provision, and would give the savings provision no work to do. 3. Secondly, in considering the public interest, I reject the Council's submission that the removal of places of public worship as a permissible use within the RU6 Transition zone was supported by a strategic planning purpose. Although the Council has the Rural Strategy of October 2019, which includes the intention to formulate a character statement for the RU6 Transition zone, there is no evidence of there being a strategic planning exercise that establishes a desired future built form or planning outcome for the RU6 zone that informs the amendment to remove places of public worship as a permissible use. Instead, the concern that caused the preparation of the planning proposal related to the impacts of such a use. The background in support of the notice of motion for review of RU6 transition zone, which is found in the minutes of the Ordinary Meeting of Council dated 24 October 2017, states the following: "There needs to more consideration of the impacts of certain land uses on the amenity and character of the rural area. The land uses currently permitted that have a high potential to result in land use conflict and impact on the lifestyle of residents in the rural area are cemeteries and places of public worship. The impacts could include dust, odour, noise, visual impacts and lack of privacy on adjoining properties, overshadowing and disturbance associated with lighting, traffic and operating hours. … Places of public worship, regardless of denomination, have the potential to cause amenity and traffic impacts in the surrounding area. Council currently receives complaints from resident's adjoining places of worship, particularly about noise and traffic congestion. This land use can also impact on resident's ability to park in their own street on weekends. These land uses are mandated as permissible in the R3 Medium Density Residential and the R4 High Density Residential zone. Council also permits places of worship in most other zones including the business zones, industrial zones as well as the RU2 Rural Landscape zone where the impacts can be better managed." 1. Further, in response to a request from the Department of Planning concerning the planning proposal, the response emphasises that places of public worship will remain permissible in other zones where amenity impacts can be better managed, and that their removal as a permissible use responds to "concerns regarding character and amenity". There is no elaboration of what the "concerns regarding character" constitute, and the emphasis was again on managing the impacts of such development. 2. Accordingly, there is no public interest basis upon which the prohibition of places of public worship in the RU6 Transition zone ought to be a consideration in determining the development application. Nevertheless, there remains a requirement, pursuant to cl 2.3(2) of the HLEP 2012 to consider the objectives of the zone. Further, Council has raised the question of compatibility of the proposed development with the character of the area, which I consider below. Similarly, the impacts of the proposed development are required to be considered pursuant to s 4.15(1)(b) of the EPA Act, and are considered below in relation to parking, traffic, excavation and site coverage. The character and the objectives of the zone 1. The Council contends that the proposed development is inconsistent with the objectives of the RU6 Transition zone, and is incompatible with the rural character of the area. 2. The Council relies, in particular, on the first two objectives of the zone, which are as follows: • To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities. • To minimise conflict between land uses within this zone and land uses within adjoining zones. 1. The Council's position is that the proposed development does not "protect and maintain" the land and its environmental sensitivities, as it is of an intensity that does not maintain the current low intensity uses of the land. The Council submits that in circumstances where the proposed development will operate at an intensity of 7 days per week, starting at 5am, with up to 190 people a day attending the premises and up to 375 people on Fridays, with the associated vehicles travelling up Larapinta Place, it does not "protect and maintain land that provides a transition between rural and other land uses". 2. Further, the Council submits that the second objective, above, has two limbs, the first of which is to "minimise conflict between land uses within this zone". The Council's position is that the intensity of the use does not minimise the conflict with surrounding land uses. 3. The Council also submits that the character of the area is one that is rural residential in nature. It points out that Larapinta Place is characterised by large residential properties on rural lots. The Council says that the intensity of the proposed development, and its "feel", is not consistent with that character, or with rural character generally. 4. The Council also points to a number of aspects of the built form that it says renders the development as one that is not in character with the rural residential character of the area. In particular, it says that the acoustic fence and driveway entrance are not characteristic in the area, and are a "sign" that too much is sought on the site. 5. The Council submits that the intensity of the use of the proposed development, including the increase in the number of vehicles moving along Larapinta Place, and its built form, imposes itself on the existing character and is not consistent with the desire for the RU6 Transition zone to maintain a rural character. The Council submits that these characteristics are more typical of an urban area, and that the character of an area ought not be changed unless there is a strategic direction for such a change to occur. 6. Awqaf takes a different view on the meaning of the first two objectives of the RU6 Transition zone. It submits that the first objective, to "protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities" is descriptive of what is sought by the zoning of the land and that the range of nominated permissible uses are those that provide that transition. Awqaf's position is that the second objective, to "minimise conflict between land uses within this zone and land uses within adjoining zones", is concerned with land uses in the zone not conflicting with land uses in adjoining zones. In that context, Awqaf submits that the proposed development is not antipathetic to the objectives. Even if its position on the interpretation of the objectives is wrong, Awqaf says that it has minimised any conflicts with surrounding land uses and maintains the land by limiting the extent of the asset protection zone, committing to a vegetation management plan, retaining sensitive flora, and not disturbing the bushland on the north of the site. Awqaf points out that the position of Ms Robertshaw is that there are no impacts from the activities on the site if they are compliant with acoustic criteria and traffic/parking requirements, other than what she describes as a "cumulative" impact. 7. With respect to character, Awqaf points out the range of uses of varying densities that already exist within close proximity of the site, including restaurants, a place of public worship, schools and a pony club. In that context, Awqaf says that the zone is not just rural residential, but accommodates a range of land uses of varying densities and intensities. Further, Awqaf submits that its management solution will reduce any conflict and protect the rural character of the area. Findings on character and the objectives of the zone 1. That a proposed development will alter the character of the area is not, of itself, a basis upon which to conclude that the development or the resulting change in character is unacceptable. Further, whilst cl 2.3 of the HLEP 2012 requires that the Court "have regard to" the objectives of the RU6 Transition zone, there is no requirement for the objectives to each be met by the proposed development. For the following reasons and in the context of the zone in which the site is located, I find that the proposed development is acceptable having regard to the objectives of the zone and the character of the area. 2. Firstly, I accept the submission made on behalf of Awqaf that the first objective of the RU6 Transition zone, to "protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities" is descriptive of what is sought to be achieved in the zone. That is, by zoning the land as RU6 Transition, there is land that is protected and maintained for the purpose of development that allows the transition described therein. In the particular circumstances, the transition is between the RU2 Rural Landscape zone to the north, and the urban zones (including low and medium density residential zones) to the south and south west. Consistent with the reasoning of Preston CJ in Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 at [61]-[63], there is an assumption that land uses that are compatible with the objectives of the zone, depending on how they are carried out, are those that are permitted with development consent. Consistent with the objective to provide a transition, the types of uses that are permissible with consent range from uses that are more urban in nature (such as dual occupancies, centre based child care facilities and community facilities) to some that are more rural in nature (such as agricultural produce industries). At the time that the land was zoned RU6 Transition and under the HLEP 2012, one such land use that was considered appropriate in a transition zone is places of public worship. Neither the type of use or its intensity is antipathetic to the zone achieving a transition between rural uses in the RU2 Rural Landscape zone and the urban development in the residential zones. 3. Secondly, and consistent with the above, I accept the construction of the second objective of the RU6 Transition zone advanced on behalf of Awqaf. The objective to "minimise conflict between land uses within this zone and land uses within adjoining zones" relates to land uses within the zone minimising conflict with land uses in adjoining zones. The interpretation advanced on behalf of the Council is not supported by a natural reading of the objective, as it would mean that the second limb would read as "minimise conflict between… land uses within adjoining zones", which would be an absurd outcome. Where there are two constructions available, that which leads to an absurd outcome ought to be avoided. Whilst the Council provided two prior decisions of the Court in support of its interpretation (Ali v Liverpool City Council [2009] NSWLEC 1327; Holy Apostolic Catholic Assyrian Church Of The East Property Trust v Fairfield City Council [2018] NSWLEC 1521), in neither of those decisions did the Court carry out the construction exercise in relation to the relevant objective. 4. On that reading of the second objective, I consider that the proposed development does not create any conflict with land uses in the adjoining zones. Neither the type of use in the proposed development or its intensity is antipathetic to the objective of minimising conflict between it and land uses in the adjoining zones. 5. Even if I am in error on the construction of the second objective, I cannot accept the Council's position that the proposed development does not "minimise conflict" between it and the neighbouring land uses. A conflict would arise if the proposed development actually had an unacceptable impact on those land uses. The mere fact that there will be more traffic along Larapinta Place, and a large number of people regularly 'coming and going' from the site during its operating hours, does not create a conflict with the residential properties. The mere presence of cars and the mere existence of a use does not create an unacceptable impact. There is no evidence of there being unacceptable traffic queuing within Larapinta Place (or even along Glenhaven Road), and it is agreed by the acoustic experts that the acoustic impact is acceptable subject to the imposition of conditions of consent. Accordingly, there are no impacts of the intensity of the development that can be cumulated to form a "cumulative impact" that is unacceptable. Instead, the proposed development minimises conflicts between it and the neighbouring land uses by proposing a plan of management and traffic management plan that will prevent vehicles from remaining parked on Larapinta Place and by ensuring that bookings do not exceed the capacity of the venue or for car parking. 6. Thirdly, in circumstances where the site is zoned RU6 Transition, in which a variety of uses are permissible, the introduction of a new use with a different intensity that has the potential to change the character of Larapinta Place is not a change in character that is unacceptable. Contrary to the Council's position, the land within Larapinta Place and surrounds is not zoned as rural, rural living, or rural residential. The zoning clearly allows a variety of uses, ranging from agricultural produce industries and dwelling houses, to uses such as restaurants or cafes, centre-based child care facilities, veterinary hospitals, community facilities and recreation facilities. It is not intended to be homogenous in land use type or land use intensities. In that context, it is acceptable for there to be a new use with a different intensity to that of the surrounding rural residential uses, even if that results in a change in character, as long as it has an acceptable impact. 7. Fourthly, the intensity of the proposed development is not out of character with the variety of uses that already exist within a 1km radius of the site. There already exist restaurants, a place of public worship, and schools. Each of these uses has a different intensity to that of a dwelling house, but contribute to the varied character intended for the RU6 Transition zone and reflected in the variety of uses that are permissible. 8. Finally, the built form of the proposed development and the positioning of the building toward Glenhaven Road, retaining the bushland to the north, is not out of character in the area and preserves the rural bushland setting. I accept the evidence of Mr Harding and Ms Robertshaw that in terms of its architectural style, the proposed building is not out of character with other development in the vicinity of the site and there are a number of elements of the building that are consistent with the character of surrounding residential development. Further, I accept their evidence that the setbacks and landscaping generally meet the objectives of the HDCP for character. I do not accept the Council's submission that the acoustic fence of 1.8m height is out of character in the area, given the presence of long lengths of side boundary fences on other properties to the west along Glenhaven Road (on both sides of the road, within 250m of the site). 9. Although the driveway entrance to the basement introduces a new element to the area, the Council has not identified what it is about that entrance (other than its existence) that renders it inappropriate in its context. The mere introduction of a new element, of itself, does not render the built form out of character. Instead, the architectural style draws on elements that exist in the rural residential dwellings. Additionally, given the landscaped setting of the built form and the landscaped batter and plantings around the protruding element of the basement at the north east, I accept Mr Harding's evidence that there will be no visual impact of any consequence from the protruding element and I consider that its landscaped setting is consistent with the character of the locality. Finally, a large area of bushland on the northern part of the site is being retained and managed through the proposed development, which retains the rural bushland setting of the site. 10. For those reasons, the proposed development is acceptable having regard to the objectives of the RU6 Transition zone, and, in the context of the zoning of the site, the development does not have an unacceptable impact on the character of the area. Car parking arrangements 1. The proposed development provides a total of 82 car parking spaces in the basement. For events where additional car parking spaces are required, there is capacity for 25 additional stacked spaces. However, a proposed condition of consent removes 8 of those spaces, to respond to Mr Hollyoak's concern with respect to blocking the exit of cars from marked car spaces. 2. As such, for the Friday midday prayer services and events in Ramadan and Eid, there will be 99 car parking spaces available. For all remaining events, there is sufficient capacity in the 82 car parking spaces. 3. As set out above, the HDCP requires the provision of one car parking space for each 5 seats. In the religion that seeks to use the proposed development, there are no chairs but worshippers are seated on a prayer mat. As such, in my view, the word "seats" in the HDCP should be read to extend to prayer mats, in the absence of specific words to the contrary. Accordingly, the number of car parking spaces required for the proposed development, which has the capacity for 250 prayer mats at its largest events, is 50. As the proposed development meets that requirement, s 4.15(3A)(a) of the EPA Act precludes more onerous standards being required with respect to the provision of car parking. 4. However, based on car occupancy rates at similar places of public worship and the absence of public transport to the site, Mr Hollyoak and Mr Maynard agree that more than 50 car parking spaces are required to accommodate the number of persons proposed to be in attendance. The car occupancy rates for similar types of places of public worship is 1.56. They also agree (for differing reasons) that car parking ought not take place on Larapinta Place. 5. As such, Awqaf proposes a number of ways in which car parking will be managed to ensure the entire car parking demand of the site will be accommodated within the basement. 6. The first is that they have provided a greater number of car parking spaces than what is required by the HDCP, and propose to use stacked car parking spaces for the events that are expected to exceed 50 people in attendance. The agreed evidence of Mr Hollyoak and Mr Maynard is that the basement car parking arrangement is suitable, and the stacked car parking arrangement satisfactory. An agreed condition of consent is proposed to limit the car parking spaces obstructed by the stacked parking to staff of the premises. 7. The second is that they will require the use of a booking system for the car parking spaces. That is, each person attending an event at the premises will be required to book a car space. 8. The third is that they will encourage and enforce car pooling by requiring each car that is booked, through the booking system, to have two event tickets issued. That is, each car will be required to have at least two occupants. 9. The fourth way that they will ensure that the car parking demand of the site will be accommodated within the basement is by proposing a Traffic Management Plan dated 28 July 2021 (TMP) that sets out how the booking system will operate, how stacked parking will operate, and the management of traffic entering and exiting the car park. For the Friday prayers and other events where attendance is expected to be greater than 50, this includes turning vehicles away if they do not have a booking, turning vehicles away if they have less than two occupants and putting procedures in place to prevent parking on Larapinta Place. There is a proposed condition of consent that requires operating the car parking in accordance with the TMP. The Council's concerns with the adequacy of the car parking 1. The Council submits that the rates in the HDCP are not relevant, and that the proposed development ought to cater for its parking demand of up to 160 spaces, based on a car occupancy rate of 1.56 persons per car and a total of 250 attendees. 2. The Council relies on the operation of Wrights Road Community Centre in support of its position that the booking system is not capable of limiting the number of cars on the premises, as the history of the booking system at that venue demonstrates that there have been persons in attendance at the venue without having a booking, notwithstanding the requirement to book. 3. The Council also submits that it is not consistent with the objectives of the EPA Act, for the orderly and economic development of land, for there to be a condition requiring two or more persons in each car. In support of this position, the Council points to the operation of the Wrights Road Community Centre, and says that despite a strongly worded requirement sent to its congregation members requiring members to carpool (Ex 13), the evidence is that 40% of people continued to arrive with only one person in the car. Accordingly, the Council submits that a condition requiring two or more people to occupy each car will not be workable or capable of compliance. 4. The Council further submits that the use of the booking system will create an external impact by causing queuing in Larapinta Place as vehicles enter the driveway, as each ticket is checked. 5. The Council's position is also that the booking system should be applied to all events at the premises. Mr Seton, on behalf of the Council, says that without it being required, there can be no assurance that there will be compliance with the car parking capacity and the attendance limits. The car parking arrangements are satisfactory 1. The car parking arrangements are satisfactory. Firstly, as set out above, I consider that the number of car parking spaces provided complies with the HDCP requirement for "1 space per 5 seats". Section 4.15(3A)(a) of the EPA Act precludes more onerous standards being required. 2. Secondly, the management processes and booking system are adequate to ensure that the number of cars that remain at the site will not exceed the spaces available. Both Mr Maynard and Mr Hollyoak agree, and I accept, that the Eventbrite booking system can be utilised to book in car spaces and stop bookings once the capacity is reached. In accordance with the TMP cars will be turned away that do not have a booking. I accept the evidence that those who attend the premises will be members of a single group, a proportion of which will attend the place of public worship for each event, so that those who are turned away without a car booking will learn in future not to attend without such a booking and, over time, there will be less cars turned away, if any. 3. Contrary to the Council's submission, the extent of the adherence to the booking system at the Wrights Road Community Centre is not relevant to the proposed development. The extent of compliant behaviour at one venue is irrelevant to whether another proposed venue will be compliant. Additionally, the booking system at the Wrights Road venue was used for different purpose (compliance with COVID-19 density limits) and compliance was not a requirement of a condition of consent. In the proposed development, the booking system will be enforced through the TMP and the TMP will be required to be complied with through conditions of development consent. 4. Further, there is no reason why a requirement for at least two persons in each car will not be able to be achieved through the booking system and enforced by those on site. However, even if such a condition is not adhered to, the result will cause the prayer room to be filled to less than its full capacity. That is, as additional cars are turned away, the result may be that only 100 persons are at the prayer service or event, rather than the 250 permitted by the consent. This is of little consequence to compliance with the remaining conditions, and will not create any impact. 5. Thirdly, there is no evidence to support the Council's submission that there will be unreasonable queuing that results from the checking of tickets as cars enter the driveway or the basement. Whilst there is evidence that queuing would be undesirable, this evidence is not sufficient to establish that there will actually be queuing and that the length of the queue will be unacceptable. As such, I do not accept that there will be an unreasonable impact arising from the car parking arrangements. 6. Finally, contrary to the Council's submission, there is no basis whatsoever to require a booking system for the smaller events where the capacity is not expected to exceed 50 persons on the premises. There is a proposed condition of consent that prevents the number of persons on the premises from being greater than that specified for each event. One must assume that there will be compliance with that condition (see TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160 at [13]). Where there is a risk that those numbers will result in an impact, which exists for the larger events based on the car occupancy rates of similar venues and the agreed evidence that on-street parking would create an unacceptable impact, it is reasonable to require management processes to be fixed through a condition of consent or otherwise to ensure that no such impact arises. However, there is not a skerrick of evidence to support there being an impact on Larapinta Place on the occasion of the events where the attendance will be 50 persons or less, and therefore no basis to require a booking system for attendance or car parking at those events. It will remain a matter for the operator to choose whether to utilise a booking system for those smaller events, and ought not be mandated by conditions of consent or a Plan of Management. 7. The Council has separately raised concerns with respect to the reasonableness of the Plan of Management and the TMP, which are dealt with below. The intersection of Larapinta Place and Glenhaven Road 1. The Council contends that the traffic generated by the use of the site will require an upgrade to the intersection of Larapinta Place and Glenhaven Road to include a channelised right turn access from Glenhaven Road. As this upgrade is not included in the proposed development, the Council says that this is a ground for the refusal of the development application. 2. The basis for the upgrade, on the evidence of Mr Hollyoak, is that the threshold for requiring a channelised right turn will be reached, pursuant to the Austroads Guide to Traffic Management Part 6: Intersections, Interchanges and Crossings Management (2020). This is based on the calculation that 24% of cars attending the site would travel from the east along Glenhaven Road and require a right turn into Larapinta Place, and on the existing traffic volume of Glenhaven Road. Given that this means greater than 24 vehicles will be turning right into Larapinta Place prior to an event that has up to 250 attendees, Mr Hollyoak says that the requirement for a channelised right hand turn under the Austroads Guide is triggered, in accordance with the figure shown below. 1. His evidence is that, as the traffic on the main road is likely to increase through background traffic growth, the need for the turn facility is reinforced. 2. Mr Hollyoak's modelling of intersection performance finds that the highest delay for 100 inbound vehicles (over a 15 minute interval) would be 16 seconds for the "right in" movement, which is "Level of Service B" and therefore still acceptable. This is consistent with the modelling by Mr Maynard, who found that the worst delay for the right hand turn is 15 seconds for 3 vehicles. Mr Hollyoak then carried out a sensitivity test and determined that for inbound vehicles, even 160 inbound vehicles on 15-minute modelling would result in the longest delay of 20 seconds, which is "Level of Service B" and therefore still acceptable. However, the sensitivity test for outbound vehicles found that once there were 125 vehicles departing the site over a 15min period, the intersection performance would drop to an unacceptable level based on the wait times and queuing for traffic turning right out of Larapinta Place. Further, based on 100 vehicles leaving the site and annual traffic growth of 2% on Glenhaven Road, Mr Hollyoak found that after 10 years the intersection performance would reduce to Level of Service F, which is similarly unacceptable. 3. Mr Hollyoak therefore opines that cars from 107 car parking spaces entering and leaving the facility within a 15min period will allow the intersection to continue to operate within its capacity at an acceptable service level, including the right turn queue before the service of 16m. 4. Mr Maynard agrees that, based on existing traffic volumes and the right turn volume of 2 existing vehicles plus 24 with the development, the intersection "technically" requires a channelised right hand treatment in accordance with the Austroad guidelines. However, his evidence is that, when considering that this traffic condition only occurs for one hour of a typical week and outside of the peak hour traffic period, the treatment is not required in response to this development alone, and that it would not achieve an appropriate cost-benefit under the Transport for NSW economic analysis criteria. 5. Based on the evidence of Mr Hollyoak concerning the modelling of intersection performance, Awqaf has limited the number of persons who can book in a ticket without a car parking space (and therefore for a person to be dropped to the site) to 8. This means that, at events of up to 200 or 250 attendees, a maximum of 107 cars will access the site. Of course, there will be the additional cars that will be turned away at the early stages of the operation of the place of public worship, but Awqaf submits that based on Mr Hollyoak's evidence there is a "buffer" of up to 125 cars (in total) before the intersection performance is unacceptably impacted. 6. Mr Maynard also gave evidence with respect to the history of traffic incidents along Glenhaven Road in close proximity to the site. For the period between 2015 to 2019, there were no incidents at the intersection, but there were two at around 100m to the west and additional incidents around the bend in Glenhaven Road and the fatality around 250m to the east. He considers that none of these are relevant matters to consider in the context of the intersection, as they relate to other geometrical features and challenges with Glenhaven Road, and that the approach to the intersection has appropriate sight lines in both directions. This evidence was not disputed by Mr Hollyoak. The performance of the intersection will remain acceptable 1. The Council's position is that a channelised right turn access is required based on the traffic generated by the use of the site. In my view, the only basis upon which this could warrant refusal of the development application is if the traffic generated by the use of the site would create unacceptable performance of the intersection. However, that is not the evidence before the Court. Instead, the performance of the intersection will remain acceptable, for the following reasons. 2. Firstly, I accept Mr Hollyoak's evidence that cars from 107 car parking spaces entering and leaving the facility within a 15min period will allow the intersection to continue to operate within its capacity at an acceptable service level, including the right turn queue before the service extending to 16m. 3. Secondly, the booking system will ensure that the number of cars leaving the site will remain below the 125 cars that Mr Hollyoak found to be the number at which the intersection performance starts deteriorating. 4. Thirdly, the sight lines on the approach to the intersection along Glenhaven Road are sufficient and meet the requirements of the Austroads Guide to Road Design, with a sight distance of over 250m available on the approach from the east, with the downhill grade assisting a driver's view of vehicles queuing and turning right into Larapinta Place. 5. Fourthly, the traffic condition that potentially triggers the Austroads Guide to Road Design requirement for a channelised right hand turn treatment only occurs for one hour of a typical week, for the Friday prayer services, and during the month of Ramadan and Eid services. As such, I accept the evidence of Mr Maynard that the treatment is not warranted in response to the development traffic alone. 6. Finally, the Council has a plan to upgrade Glenhaven Road in the future, including a four-lane cross-section at Larapinta Place. As such, the growth in road traffic forecast by Mr Hollyoak will eventually be accommodated by upgrades carried out by the Council, which is likely to be funded, in part, by development contributions. 7. Contrary to the Council's position, the evidence does not establish that the proposed development will have an unacceptable impact on the Glenhaven Road and Larapinta Place intersection. Whilst the intersection will require an upgrade in the future to accommodate the growth in traffic along Glenhaven Road, that requirement does not mean that the proposed development warrants refusal for not including an upgrade in the form sought by the Council. Excavation and site coverage 1. The Council also contends that the proposed development is unsatisfactory on the basis that it does not comply with the relevant controls in the HDCP concerning site coverage and excavation. As set out above, the proposed development exceeds the site coverage control and the control limiting the depth of cut in excavation. The site coverage for the proposed development, if the basement footprint is included, is 2965.56m2, which exceeds the control by 465.56m2. The Council submits that these exceedances are indicative that the site is not suitable for the development, and that the development is incompatible with the rural setting. 2. The Council's position is supported by the evidence of Ms Robertshaw, who opines that the need to provide a large basement car park is an indication that the scale of the use is not in keeping with the character of the area, and that the need to undertake extensive excavation to provide a basement car park indicates that the site is not suitable for the proposed use. 3. Ms Robertshaw also agrees with Mr Harding that the scale of the resultant built form is not at odds with the character of the area, and that the provision of basement car parking results in a superior built form and landscaped outcome than at-grade parking. Mr Harding opines that the basement does not manifest itself in a way that impacts on the character of the area, and that the provision of a basement that protects visual amenity is a superior outcome compared with at grade solutions, and compared with the open tennis courts and private soccer pitches that are a feature of dwelling houses in the area. 4. However, the Council submits that s 4.15(3A)(c) of the EPA Act, which confines the consideration of provisions of a development control plan to "only in connection with the assessment of that development application" operates to prevent having regard to the extent of excavation or site coverage of development in the locality. The excavation and site coverage are acceptable 1. I consider that the extent of excavation and the site coverage are acceptable in the circumstances. The exceedance of the site coverage arises from including the basement footprint in the calculation, and the exceedance in excavation results directly from the provision of basement car parking. 2. Where a development application does not comply with the standards in a development control plan, s 4.15(3A)(b) of the EPA Act requires that a consent authority "be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development." 3. The objects of the standards concerning site coverage and excavation are extracted above at [22] and relate to maintaining "the open rural feel of the landscape", and preserving "scenic and environmental qualities". The other object, for the location to "have regard to the potential impacts arising from existing adjacent rural business activities", is not relevant to these particular standards, as there are no adjacent rural business activities that will impact the proposed development. 4. I accept the evidence of Mr Harding, and the agreed position of Mr Harding and Ms Robertshaw, that the built form is not at odds with the character of the area. I also accept Mr Harding's evidence that the provision of a basement protects visual amenity and allows greater opportunity for a landscaped setting, when compared with at grade solution for car parking. As such, I find that the provision of the basement car parking in the built form proposed is an alternative solution that maintains the open rural feel and preserves the scenic and environmental qualities by facilitating a landscaped setting of the built form, which would not be achieved with at-grade parking that would need to be utilised if compliance with the maximum cut was maintained. Further, the fact that the resultant built form is not out of character in the area means that the site coverage exceedance (which includes the basement) is acceptable and the object of the control is met notwithstanding the non-compliance. 5. In reaching this conclusion, I do not accept that s 4.15(3A)(c) operates in the manner submitted by the Council, which would require the consent authority to ignore the existing built form in the area in order to determine whether the object of the HDCP, which concerns consideration of the existing landscape and its scenic and environmental qualities, is met. Section 4.15(3A)(c) instead prevents the consideration of how those controls have been applied to other development applications, and is not contravened by having regard to the existing built form in the area. The Plan of Management, the Traffic Management Plan and conditions of development consent 1. The Council contends that the Plan of Management and the TMP are unrealistic and compliance with them is not achievable. Again, the Council relies on the evidence of what has occurred at the Wrights Road Community facility, and submits that this supports its position that the booking system will not achieve compliance with the capacity limits for both car parking and attendance. Further, the Council says that both the Plan of Management and the TMP are complicated and implemented by volunteers, so are unlikely to be complied with. 2. The Council relies on the decision of Senior Commissioner Dixon in Holy Apostolic Catholic Assyrian Church Of The East Property Trust v Fairfield City Council [2018] NSWLEC 1521, in which the Senior Commissioner found that the use of a similar booking system in a Plan of Management was unacceptable. 3. Further, the Council says that the booking system should be in place for every event or service that occurs, to ensure compliance with the proposed attendance for each event, and the Plan of Management should be updated to require the same. 4. In order to meet various concerns of the Council, Awqaf has proposed a number of conditions of consent that require the Plan of Management and the TMP to be updated, and the implementation of the booking system. They are as follows: "2B. Amendment to the Traffic Management Plan The Traffic Management Plan dated 28 July 2021 is to be amended to include the following matters: a. Details of electronic ticket scanning by the Counters and Traffic Controllers. Traffic Controller 2 stationed as shown on the plan at Appendix A to the Traffic Management Plan is to scan and / or view all Event Brite tickets confirming that the person has booked a car space. If there is an issue with the ticket, Traffic Controller 2 is to direct the person to drive to Traffic Controller 1 who will motion them into a parking space or safe location clear of other entering vehicles to resolve the issue. If an issue remains with their ticket and / or they do not have a booked car space, then Traffic Controller 1 is to direct the person(s) to leave the premises. b. If a person has booked a car space, has parked in the basement, but does not have a ticket booked for every person in their vehicle, then Counter 1 or 2 is to direct all of the attendees (including those that have booked tickets) in that vehicle to leave the premises. c. Add an additional Traffic Controller 4 who has the same duties as Traffic Controllers 1 – 3, with an additional primary duty to patrol Larapinta Place and Glenhaven Road prior to the event to stop people parking on the street by encouraging them to either leave altogether, or park in the car park if they have booked a car space. Traffic Controller 4 is to record the details of the person(s) and the number plate of their vehicle and report their details to the Site Manager who will communicate with that person regarding compliance with the Plan of Management. d. The 2 banks of 4 stacked spaces numbered 2 and 4 on page 8 are to be removed. The same spaces are to be removed from the Traffic Control Plan in Appendix A. e. There is a maximum number of 99 tickets for carparking spaces plus 8 tickets for drop offs. f. At the end of the event where maximum numbers are anticipated, an announcement is to be made by staff requesting that those that parked in the stacked parking spaces are to leave promptly. g. Any persons who will be onsite on Fridays must book their attendance through the Event Brite system. h. Spaces nominated as 31 – 36 and 44 – 49 on Appendix A are to be used by any staff in attendance. 2C. Amendments to the Plan of Management The following amendments are to be made to the Plan of Management: a. The front gate must be opened by 30 mins prior to the first prayer session and shall be closed by 10pm. b. A volunteer shall be present at all prayer services for events with a maximum capacity for 50 or less to check tickets and direct persons without tickets to leave the premises. c. No counselling services on Fridays. … 84A. Management of on-site attendance – online booking system Attendance on site for staff, volunteers and worshippers is to be by ticket only managed through an online booking system (such as EventBrite or similar). The booking system will apply to all events or activities to be carried out on the site. The booking system must be configured so that it cannot issue more tickets than: a) the maximum number of persons specified as being permitted for each service or activity including staff; and b) 99 tickets for car parking spaces plus 8 tickets for drop off. The booking system is to close the event once either of the above capacity maximums is met and not allow any further bookings for that event. Upon either of the about capacity limits being met an email and / or text message is to be sent to all the registered congregation confirming that the event is full, no more tickets are available and that entry to the event requires a ticket. The system shall display that drop offs prior to 7am must take place in the basement. 84B. Booking of cars For events where the permitted maximum is over 50, the booking system must be configured so that no car booking will be accepted unless there is at least 2 persons nominated to travel in the car including the driver. The booking system must record the names of all persons travelling in the vehicle and issue a ticket for those persons and the car concurrently." 1. However, Mr Seton expressed concern about inconsistencies that may arise within each of the documents, and between the documents and the conditions, if the amendments to the Plan of Management and the TMP were required to be dealt with by condition. He submits that the plan of management and the TMP would need to be understood holistically and be capable of being read and understood by the Court before any approval is given. 2. Mr Staunton agreed that these proceedings would be appropriate circumstances in which, following findings delivered by the Court, the documents could be updated prior to the grant of development consent. The Plan of Management and the TMP are acceptable subject to amendments 1. I consider that, subject to the amendments being made as proposed by Awqaf, both the Plan of Management and the TMP are sufficiently clear and detailed to facilitate compliance with the capacity limits for attendance and car parking. 2. As set out above at [94], the extent of the adherence to the booking system at the Wrights Road Community Centre is not relevant to whether the proposed development will be compliant with the Plan of Management and the TMP. 3. Additionally, the mere fact that another Commissioner, in different proceedings, found a Plan of Management that utilised a booking system to be inadequate, is not a basis to reach the same conclusion with respect to the Plan of Management and the TMP that are presently before the Court. 4. With respect to the same, I consider that the Plan of Management and the TMP clearly deal with, inter alia: * The hours of operation, the schedule of services and the maximum occupancy for each service. * The manner in which the occupancy at the larger events will be managed, including the use of a booking system, and turning away those who do not have a booking. * The manner in which attendees will be managed, including communication with them and requiring new attendees to confirm receipt and acceptance of operational terms and conditions for attendance at the venue. * The manner in which car park entry and car park ticketing system will operate, including the layout of the stacked parking arrangements and the duties of traffic controllers. 1. In addition, the changes to the Plan of Management and the TMP, as proposed by Awqaf in the form of conditions of consent, provide additional detail on how issues with tickets will be dealt with, how parking on Larapinta Place will be avoided and managed, the number of tickets for drop offs, the manner in which people will be directed to leave the premises, the manner in which those in stacked parking spaces will be directed to leave first, additional duties for a traffic controller and the timing of gate opening and closing. 2. Consistent with the planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315, I consider that the Plan of Management and TPM relate specifically to the use of the premises as a Place of Public Worship, set out clear steps and requirements that ensure that impacts are managed appropriately and will be enforced by conditions of development consent. They do not include anything that requires people to act in a manner that is "unlikely or unreasonable", and breaches of them will be readily identified by the occupancy limits being exceeded and/or by cars parking in inappropriate locations. 3. For all these reasons, I consider that the Plan of Management and the TMP are acceptable, subject to the proposed changes being made. 4. Further, largely for the reasons expressed above at [97], there is no requirement for a booking system to be mandated for events other than the Friday prayer services and the Good Friday, Ramadan and Eid events. I reject the submission by the Council that conditions of consent should require booking systems to ensure venues do not breach other conditions of consent that limit attendance or capacity. Whether a venue needs to utilise a booking or ticketing system to achieve compliance with their attendance or capacity limits is, for the most part, a matter for them. In the present proceedings, Awqaf has proposed the use of a booking system to ensure compliance for the events where large numbers are anticipated and where there is a risk of unreasonable impacts if those (larger) attendance limits are not complied with. As set out above at [97], mandating the use of a booking system for the smaller events is unnecessary. However, I accept that all who attend on a Friday and who will be onsite during the time of the Friday prayer service must book in their attendance. The remaining conditions of consent 1. The remaining conditions of consent are agreed, save for the following condition, which is proposed by the Council: "73. Prayer Hall Use shall be Inaudible The use of the prayer hall shall not give rise to a sound which is audible in any habitable room of a residential premises between the hours 10:00pm (on the previous day) to 7:00am Monday to Saturday and from 10:00pm (on the previous day) to 8:00am Sundays and Public Holidays." 1. This condition is advanced on the evidence of Dr Tonin, who opines that such a condition is required. The basis for his opinion is that he considers that any noise that is audible from the prayer hall during this period would be considered "offensive noise" within the meaning of the Protection of the Environment Operations Act 1997 (PEO Act). He relies on Clause 9 of Part B1 of the HDCP, which requires proposals to demonstrate that they will not give rise to offensive noise as defined within the PEO Act. 2. There are two reasons why this condition is not required and ought not be imposed. The first is that it is superfluous. Both Mr Gauld and Dr Tonin agree that the noise generated from the use of the prayer hall will be inaudible if the external doors to the building are kept closed during the night time hours and the only access to the building is internal. This will be the subject of a condition of consent. 3. The second reason why the condition requiring inaudibility is not required is that there is no regulatory requirement in any acoustic guidelines or standards for noise generated on a place of public worship to be inaudible, and I do not accept that audibility is sufficient to constitute "offensive noise". I do not accept Dr Tonin's evidence that mere audibility of a religious service meets the definition of "offensive noise" within the PEO Act just by the nature of the noise emitted. There is no evidence whatsoever that supports his opinion that this type of noise meets the definition within the PEO Act for it to be "harmful to… a person who is outside the premises" or "[interfere] unreasonably with… the comfort or repose of a person who is outside the premises". 4. For those two reasons, the condition proposed by the Council requiring inaudibility ought not be imposed. The outcome of the appeal 1. For the reasons that are set out above, none of the contentions raised by the Council are made out or warrant refusal of the development application. The proposed development is permissible as a result of the operation of savings provisions, and the current prohibition on places of public worship ought not be persuasive in determining the development application. In light of the nature of the zone in which the site is located, the proposed development is acceptable having regard to the objectives of the zone and the character of the area. It has acceptable impacts and the design of the proposed development is responsive to the site conditions, by retaining the bushland to the north and positioning the built form toward Glenhaven Road. The inclusion of basement car parking ensures that an open landscape character setting can be maintained. 2. Additionally, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction have been satisfied: * The proposed development complies with the applicable development standards in the HLEP 2012. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The contamination assessment carried out by MEtech Consulting, dated 11 April 2018, concludes that the site is suitable for the proposed development, subject to the management of a stockpile identified on the site as containing a mixture of materials. * I am satisfied that the proposed development has been designed and sited to avoid any significant adverse environmental impact, consistent with the requirements of cl 7.4 of the HLEP 2012, and that, pursuant to the agreed evidence of the ecologists, the matters required to be addressed under Part 7 of the BC Act have been adequately addressed and the BDAR demonstrates the appropriate avoidance and minimisation measures. 1. Accordingly, development consent should be granted, subject to conditions. However, prior to the grant of development consent, changes to the Plan of Management and the TPM ought to be made so that they reflect the changes identified by Awqaf and recited above at [126] and amend the car stacking arrangement to remove the 8 spaces identified by Mr Hollyoak. Similarly, the conditions of consent are required to be updated to reflect the updated Plan of Management and TPM, to remove the condition concerning inaudibility, and to reflect my decision that a booking system is only required for the Friday prayer service and annual special events. Upon receipt of the updated Plan of Management and TPM, and of the conditions of consent, development consent can then be granted. 2. In making the directions below, I have also allowed a period of a week between the Council's receipt of the updated documents and their filing with the Court, so that any discrepancies identified by the Council can be rectified prior to their lodgement on the NSW Planning Portal and their filing with the Court. 3. The Court directs that: 1. The applicant is to prepare an updated Plan of Management and an updated Traffic Management Plan, and provide them to the respondent, by 10 March 2022. 2. The updated Plan of Management and Traffic Management Plan are to be lodged on the NSW Planning Portal and filed with the Court by 17 March 2022. 3. The respondent is to file, and provide by email in word version to Commissioner Support, updated conditions of development consent by 24 March 2022. 4. Pending the making of final orders, liberty is granted to restore the matter to the Court on 2 days notice. 5. The exhibits are returned, except for exhibits A and 16. ………………………. J Gray 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: 24 February 2022