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. The Application was advertised and written notice was also given to adjoining premises. Council received a number of submissions, several of which supported the application. The respondent submits that the Application should be rejected owing to its likely adverse impact on the amenity of the neighbourhood as a consequence of: a) the inadequacy of off street car parking subject premises provides additional and accommodation for existing activities of Church with no increase or intensification of change, if any, in the impact upon the by the use of the subject premises in with the existing Church will be to the subject premises gave evidence of: a) The lack of kerbside parking space in the locality parking, alleged parking and traffic caused from time to time by Church carried on at the subject premises to have no relation to Church activities; receptions, dancing classes and language is to a large extent caused by a spill over from the immediately adjoining commercial centre. The large number of restaurants therein results in patrons parking in the locality at night and at weekends. Competition for such parking spaces is exacerbated by the lack of off street parking to many of the residences. All cars associated with the use of the building at 53-55 Holtermann Street are not accommodated on the site in accordance with the development approval. The existing buildings on the subject premises are substantial, having a floor area of "hall" space of approximately 300 square metres, well suited for use for the proposed purpose and in relatively good order and condition. It was conceded by the Assistant Director of Development and Planning of the respondent that it would be good planning, and achieve the objects of the E.P.& A. Act, to maintain the relevant buildings and put them to an appropriate use. However, he opposed the grant of approval to the subject application as he was of the opinion that the use would involve large gatherings of people therein, particularly during evenings and weekends. He was of the opinion that such use would be detrimental to adjoining residential amenity, particularly from noise nuisance and street car parking problems. Mr C.E. Hallam, a traffic consultant, inspected and assessed the traffic and car parking impact of the subject premises. He concluded that the likely traffic movement generated by the proposed use was acceptable, but off-street car parking facilities were inadequate. Such a conclusion with respect to car parking was obvious and inevitable because the combined lots provide only a maximum of about seventeen spaces even with "stack" parking and garages. Mr J.E. Coady, town planner and traffic consultant, surveyed the on- and off-street parking spaces available to the subject premises. In his opinion the operations of the Church and the proposed use of the subject premises are not considered to have any significant adverse traffic implications. He noted that the largest number of persons attending the premises was on Sunday morning when traffic and parking demand was light. There are off-street public car parking areas within reasonable walking distance of the Church. The use of the existing halls generated a small number of persons and therefore small numbers of motor vehicles. I note that in this regard his assessment is confirmed by Mr Hallam. Mr D. Brady, town planner of MSJ Keys Young Planners, emphasised the appropriateness of rehousing existing activities in adequate buildings on land adjoining the subject premises. He was of the opinion that the proposed use would not introduce any new or intensified uses to the locality. In such circumstances it was his opinion that the proposal would facilitate rationalisaton of the existing uses of the Church activities and not "degrade" the residential environment in the locality. The President of the Church, Mr Fred Sarlas, explained the nature and scope of all Church activities in the existing premises. Of significance was the formation and development of the Parish since its inception in 1962. It originally satisfied the needs of Orthodox Christians of Greek heritage living in the northern suburbs of Sydney, extending as far as Gosford. The Parish has been effectively reduced and continues to be reduced by the establishment of similar Churches within the region. As a consequence of the approval to alter substantially the two "semis" at Nos 53-55, accommodation was provided for a Sunday School and meeting rooms for the Men's Committee, (the administration), Church Committee, Ladies Auxiliary and Youth Committee. I am satisfied that the number of persons attending such meetings now, or likely to attend at the subject premises if approved, would be relatively small. Services are conducted in the Church every Sunday, and also on other occasions required by the Orthodox calendar. Marriage, baptism and funeral services are held there, and baptisms and weddings are usually held on the weekend. The principal activities in the semis are: i) Greek dancing classes ii) Greek language classes iii) Committee meetings iv) Aged parishioners meetings v) Youth group meetings and lectures vi) Sunday School vii) After Church gatherings. I note that the Parish does not propose to use the hall for other activities such as wedding receptions, christening parties or social gatherings other than referred to above. The hall will not be leased for use by any person, nor will its use be allowed other than for the specified purposes. If the subject application is approved, the Parish seeks to use the semis mainly as the Church office, library and storage area, and for Men's Committee meetings. The respondent submits that the Court should reject the application because it could not be satisfied that the provision of facilities for public assembly, so much larger than the existing facilities, would not inevitably lead to the congregation of increased numbers therein, and increased adverse impact. Alternatively, it is submitted that the application should only be approved subject to conditions which make it reasonably likely that an intensification of the use presently being carried out in the existing premises would be prohibited. In accordance with the practice of the Court, draft conditions of consent were prepared by each party. Notwithstanding evidence of cause for infrequent complaint, e.g. incinerators, I am satisfied that the existing Church is a "good neighbour" and fulfilling an important community function. I accept the evidence that whilst there is no problem from traffic movement associated with the present use, from time to time car parking is a problem. However, I am satisfied that the Church will encourage its parishioners to make better use of nearby public car parking facilities, and I note that peak demand for such spaces usually occurs for relatively short periods on weekends and at times when space is available in the nearby Council parking area. I am satisfied that by the approval of this application and the imposition of conditions, the setting down and picking up of children can be relocated to a more satisfactory position, and hours of operation can limit impact. I am satisfied, on the evidence, that the said Sunday School and religious meeting facility in the semis is inadequate in size and layout to provide for existing activities. I am satisfied on the evidence that parishioner numbers are static with the likelihood of a decline. I am unpersuaded that there is likely to be a significant increase in parishioner numbers on the premises at any one time if the use of the subject premises is regulated by appropriate conditions. In my opinion the integration of the subject site as a co-ordinated part of the existing facilities provides the best opportunity to promote the objects of the E.P.& A. Act. The structures thereon will be put to an economic use appropriate to their design and location, which will promote the social welfare of the community. In my opinion, if this application was refused, any likely use of the subject premises which was unrelated to the adjoining Church purposes would be more likely to injure the amenity of the neighbourhood. I am satisfied that, if limited by appropriate conditions, the approval of the subject premises will ensure a more orderly and integrated use of all of the parcels owned by the Church, and promote a better environment in the locality. To achieve this the applicant has offered to accept a condition to specify the only approved activities on the subject premises and also to expressly exclude therefrom receptions for such activities as baptisms, weddings and birthday parties. It agreed to in clude Nos. 53-55 in the development application, and to the surrender of Consent 76/3886 pursuant to s.91(3) of the E.P.& A. Act, provided that concurrently a consent was granted for the use of the building for specified Parish purposes. I am not persuaded that a further restriction should be placed upon the use of that building. The only other real dispute as to the conditions related to hours of operation of the premises. I have considered all of the evidence and, after giving what I understand to be due weight to matters of relevance to the development and notwithstanding the inadequacy of off-street car parking facilities on the subject premises, I am satisfied that a conditional development consent should be granted for the use of Nos. 53-59 Holtermann Street for the purpose of a place of public worship, subject to the conditions annexed hereto. I order that: 1. Appeal allowed. 2. Development approval granted subject to conditions annexed hereto. 3. Exhibits may be returned. 4. No order as to costs. GREEK ORTHODOX PARISH OF NORTHERN AND WESTERN SUBURBS v. COUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY SCHEDULE OF CONDITIONS OF DEVELOPMENT CONSENT D1 The premises 59 Holtermannn Street shall only be used pursuant to this consent as follows: a) Greek dancing classes; b) Greek language classes; c) Aged parishioners' meetings; d) Sunday School; e) Use immediately following Church services and memorial services; f) Lunch on Palm Sunday or the celebration of St Michaels Day (the Church's name day); g) Men's Committee; h) Church Committee; i) Ladies Auxiliary; j) Youth Committee; k) Parish Youth Group lectures; l) Library and associated reading room; and in particular so as not to include receptions hours of operation of the premises at 53-be other than by the Greek Orthodox Church. D4 The applicant shall deliver to the Council a of Consent No. 76/3886 in respect of the consent for 59 Holtermann Street coming operation, the buildings erected on 53-Street are only to be used for an for the Parish Priest, library, storage to Parish activities, and as a Sunday or for Parish Committee meetings not semi-circular driveway shall be constructed on Sophia Street side of 59 Holtermann Street separate ingress from and egress to Sophia and the satisfaction of the Director of set-down for 59 Holtermann Street (as provided in D6) advising visitors that car parking available at the rear of 53-59 Holtermann Holtermann Street (other than any tree required to be removed comply with Condition D6) shall be protected satisfaction the Parks and Gardens Manager, and a bond of shall be submitted to ensure compliance entrance to the Hall at 59 Holtermann shall only be gained via Sophia Street or western wall of the Hall at 59 Holtermann Street Street. at 53-55 Holtermann Street and the building at Street immedia tely to the north of link way between 53-55 Holtermann Street and MSJ Keys Young and dated 22nd April, 1988. These shall have a minimum height of 1.2 metres landscaped to the reasonable satisfaction of the Street boundaries of 59 Holtermann Street shall be be to a height of 1.2 metres above footpath fence along the Ernest Lane boundary of Street shall be of masonry and must be erected to a height of fencing materials shall be approved by the plane trees shall be planted and maintained and the Council's Director of Development. D15 The structure erected on 51 Holtermann Street dwelling house without the prior consent of the building erected on 59 Holtermann Street is to be used until all fencing and landscaping have been carried out to the reasonable of the Council's Director of only by occupants of, or visitors to the subject and the car parking shall not be used or to be used or leased as a commercial nine car parking spaces to be provided shall line marked as shown on the plan prepared by car parking area shall not be illuminated at and specifications shall be submitted for alterations. Such application and plans are to with the requirements of the Local 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.