Land and Environment Court of New South Wales CITATION : St Mary & St Sidholm Bishay Coptic, Orthodox Church, Dural v Hornsby Shire Council [2008] NSWLEC 1516 APPLICANT St Mary & St Sidholm Bishay Coptic, Orthodox Church, Dural PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10956 of 2008 CORAM: Bly C KEY ISSUES: Development Application - Section 96 Modification :- Application, Conditions of Consent, church LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Roads Act 1993 CASES CITED: Coptic Orthodox Church v Hornsby Shire Council, [2007] NSWLEC 546 DATES OF HEARING: 02/12/2008 and 03/12/2008 EX TEMPORE JUDGMENT DATE : 3 December 2008 APPLICANT Mr J. Hannaford, solicitor of Hannaford Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T. Howard, barrister Instructed by Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 3 December 2008 10956 of 2008 St Mary & St Sidholm Bishay Coptic, Orthodox Church, Dural v Hornsby Shire Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 On 17 March 2004, the Hornsby Shire Council determined that development application number 1021/03 for alterations and additions to an existing dwelling and the change of use to a church at 444 Galston Road, Dural, be granted conditional development consent. On 17 November 2005, an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979, to amend the above consent was lodged with the council and subsequently refused. 2 An appeal against this refusal was subsequently heard by Hoffman C and upheld on 30 August 2007 and the consent was modified. (See Coptic Orthodox Church v Hornsby Shire Council, [2007] NSWLEC 546.) 3 On 14 December 2007, a further s 96 application was lodged with the council seeking further modifications to the consent that, in essence, comprised the increase of the maximum congregation from 80 persons to 150 persons, consistent with the existing capacity of the church, the expansion of the existing car park from 23 parking spaces to 71 parking spaces including two disabled spaces. On 6 August 2008, following a lengthy process including public notification and mediation, the council approved the 2007 modification application by deleting certain conditions, replacing other conditions and including a number of new conditions. 4 By letter dated 3 October 2008, the applicant advised that the conditions the subject of the appeal are conditions 64A, 65A, 67C to 67F and 84. As for conditions 67C to 67F and 84, the applicant advises that these are not opposed in principle subject to the requisite approvals under the Roads Act 1993, being obtained for the sought works in the road reserve. 5 In response, a new condition 67G is proposed providing for the obtaining of an approval under s 138 of the Roads Act and I understand that that now resolves that particular concern. 6 Condition 65A limits the number of persons permissible in the church to 140 persons, reducing the number now sought by the applicant by ten persons. I understand that this reduction was introduced because 140 persons was the number considered by the applicant's noise consultant, Ms G Greer, in her report. Ms Greer has now prepared a supplementary report that deals with vehicle movements on the site, car parking activities and church service participation for a congregation of 150 persons. 7 The report indicates that whilst there will be some increase in noise levels, the noise emissions will comply with the relevantly applicable environmental noise emission criterion during daytime and evening and night-time periods. No additional measures are required to preserve the acoustic amenity of the adjoining and surrounding residences. There is now no opposition to the modification of condition 65A such that it refers to a maximum of 150 persons. 8 In this context, I note that the parties' single acoustic expert, Mr M Harrison, in the hearing before Hoffman C, was, in essence, satisfied that taking into account the existing, now extended, acoustic fence, the noise generated by 146 persons socialising in the backyard of the church would not be unreasonable in terms of impacts on the closest neighbour to the south. More particularly, the increased height of the fence would help to mitigate impacts associated with instantaneous noises such as a child screaming. 9 During the hearing there was much discussion, focussed mainly on condition 64 and condition 71A of the consent and condition 64A as now approved by the council. As a result, the respondent and the applicant each tendered alternative versions of these conditions, respectively exhibit 7 and exhibit F. These alternative conditions represent the remaining matters in dispute between the parties. The respondent now says that condition 64 should be as follows: "Except as provided in condition 64B, all church congregation activities approved by this consent are to be confined to the internal areas of the chapel, meeting room and residence." 10 The applicant says that it should be as follows: "The use approved under this consent is to use the land known as 444 Galston Road, Dural, for the purposes of a church and a residence." 11 Accepting as I do that the applicant's version is consistent with the consent as a whole, it is to be preferred. The additional matters raised in the respondent's version dealing with church congregation activities are dealt with in the context of the respondent's conditions 64A and 64B and the applicant's conditions 64A and 71A. 12 The respondent's condition 64B is as follows: The following Church congregation activities may be carried out outside the chapel, meeting room or residence:- (a) congregating and socialising reasonably incidental to Church services for weddings, funerals and baptisms and the conduct of bible study groups for members of the congregation within the following times:- o Monday to Saturday between 10am and 6pm and o Sundays between 11.30am and 3pm. provided that such activities are confined to the physical area of the rear curtilage of the chapel (as shown on the plan attached and marked "A"), (b) congregating, socialising and feasting activities associated with the breaking of the fast after Sunday mass but only between 11.30am and 3.pm on Sundays provided that such activities are confined to the physical area of the rear curtilage of the chapel (as shown on the plan attached and marked "A"), save that children may play in the front and rear yard areas. 13 In relation to this condition, I understand the applicant is concerned as to the time and the usage constraints sought to be imposed, preferring instead the more liberal arrangements in its condition 64A that is as follows: The consent to use the land for the purposes described in Condition 64 includes consent to use the land for the socialising by members of the congregation and their families including the breaking of fast and feasting and, the use of the land by the members of the congregation and their families for after Church service activities including, but not limited to, Sunday School, bible studies, and the playing of outdoor games and/or sports during the approved hours of operation. This condition is subject to the following restrictions: (i) The activities of breaking of fast, feasting and socialising are to be confined to the area hatched and marked in red on the plan numbered Sheet 1 DA/102/03C: Site Plan dated 14 December 2007 and (ii) There shall be no playing of outdoor games and/or sports after 8.30pm on weekdays and Saturdays. 14 It seems to me that the concerns of the council, taking into account the concerns of the neighbours, especially but not exclusively the closest neighbour's house to the south, involves the protection of residential amenity, particularly in relation to noise impacts that might arise from church activities outside the existing buildings. In this regard, I understand that the church's principal weekly activity is a Sunday mass that is preceded by fasting from the night before and following the service is the breaking of the fast and socialisation by the congregation. There was no evidence to suggest that the church's full capacity of about 150 people would be a frequent occurrence. Also occurring on a regular basis are bible study groups and associated social activities, including sports. Weddings, funerals and baptisms are conducted on an ad hoc basis, typically less than one per month. 15 The applicant's conditions require that following the mass, the breaking of the fast and the associated socialisation take place, weather permitting I presume, in the southern part of the red hatched area on the plan and should, in accordance with the proposed hours of operation, not commence before 8.30am and would conclude by 5.00pm. This is to be compared to the respondent's condition that would require that these activities take place between 11.30am and 3.00pm. 16 In my opinion, the respondent's constraints would be an unreasonable restriction in all of the circumstances, particularly taking into account the acoustic evidence. In this regard, I have also taken into account that the socialisation does not take place until after the Sunday mass is concluded. I thus in principle prefer the applicant's version of these conditions insofar as they relate to Sundays. Similarly, I accept in principle the applicant's regime in relation to the playing of outdoor games and/or sports that would otherwise have been effectively prohibited by the respondent's condition. 17 However, in order to provide for the reasonable protection of residential amenity, I believe it to be reasonable that on Sundays these events should cease by 3.00pm, particularly as the areas where the games are likely to be played are little protected by the acoustic screens. In my opinion and for the same reasons, a more suitable finishing time for the outdoor games and/or sports should, on all other days, be 7.30pm. 18 In reaching this conclusion, I have taken into account the likelihood that such games/sports will generally not occur over long periods or on an unreasonably frequent basis. Because the respondent has no concerns in relation to children playing in the front and rear yard areas, a proviso is to be added to condition 64A(ii) to allow informal children's play in the front and rear yard areas. 19 I have therefore decided to uphold the appeal and amend the consent in accordance with the agreed conditions including the more recently tendered exhibit 8 and in accordance with the conditions in exhibit F, subject to condition 64A(ii) being amended to refer to 7.30pm on weekdays and Saturdays and adding a reference to after 3.00pm on Sundays save that informal children's play may occur in the front and rear yard areas. 20 As for condition 71A, insofar as it deals with hours of operation, the only difference between the parties is whether, on Sundays and public holidays, activities should cease at 5.00pm or 6.30pm. The applicant has indicated its acceptance of the earlier time and this should be retained. 21 Taking into account what I have decided in relation to activities outside the chapel, the meeting room and the residence, there is no need for any reference to these activities in the condition. I have no objection to the condition being relocated such that it is inserted adjacent to condition 64A. 22 When his judgment was given I directed the parties to confer and provide the Court with a schedule of changes incorporating the agreed conditions and the amended conditions reflecting my decision. These have now been provided. 23 Exhibits 7, B and F are retained. ___________________ T A Bly Commissioner of the Court ljr 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.