Greek Orthodox Parish of Northern & Western Suburbs v Council of the Municipality of North Sydney [1988] NSWLEC 39

Land and Environment Court of New South Wales

CITATION : Greek Orthodox Parish of Northern & Western Suburbs v Council of the Municipality of North Sydney [1988] NSWLEC 39 APPLICANT Greek Orthodox Parish of Northern & Western Suburbs PARTIES : RESPONDENT Council of the Municipality of North Sydney

FILE NUMBER(S) : 10544 of 1987 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 05/03/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The Council of the Municipality of North Sydney on 19th December, 1986 gave notice of the refusal of a development application with respect to premises known as 59 Holtermann Street, Crows Nest ("the subject premises"). The application had been made on behalf of the Greek Orthodox Parish of Northern and Western Suburbs to use it for "church related uses", and which were more fully set out in a statement of environmental effects. The grounds for such refusal were:|CF2.|PSI

proposal is contrary to the Council's is zoned for residential use and will be 2. It will increase traffic generation in a street and, since there is car parking provision, it will 3. The proposed use of the premises during the and at weekends, particularly when are large gatherings of people, will be to the residential amenity, 4. The use of the building for general community is considered to be prohibited under the North Sydney Planning applicant now appeals to this Court pursuant to s.97 of the Environmental Planning and Assessment Act, 1979 (the "E.P.& A. Act").

The subject premises is one of four adjoining parcels in the ownership of the said Greek Orthodox Parish ("the Church"), and has frontage to Holtermann Street, Sophia Street and Ernest Lane. It was acquired in 1985 to provide accommodation for activities presently carried out in an adjoining pair of semi-detached dwellings at 53-55 Holtermann Street which were converted in 1976, with Council's consent, for use for a Sunday School and religious meetings in conjunction with an existing Church. In these proceedings, by consent, the development application was amended to include the use of premises Nos. 53 to 59 Holtermann Street inclusive. The subject premises comprises a large "L" shaped building which was used, prior to the sale to the Church, as a sheltered workshop by a group known as the Community Health and Anti TB Association. The subject premises is situate within a Residential 2(a) zone pursuant to the North Sydney Planning Scheme Ordinance, which is a deemed environmental planning instrument under the E.P.& A. Act. The proposed development would be prohibited pursuant to the provisions of a "Draft" Environmental Planning Instrument. It is common ground that the subject premises does not enjoy "existing use" rights thereunder, and that the proposed use is permissible under the provisions of the said Planning Scheme Ordinance with the consent of the Council. The respondent therefore does not now rely upon ground 4 of the reasons for refusal.