Land and Environment Court of New South Wales CITATION : Afgan Community Support Association v Blacktown City Council [2008] NSWLEC 1357 APPLICANT Afgan Community Support Association PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10216 of 2008 CORAM: Tuor C KEY ISSUES: Development Application :- demolish an existing church and construct a two-storey mosque with basement parking whether adequate parking provided on site Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Blacktown Local Environmental Plan 1988 Blacktown Development Control Plan 2006 DATES OF HEARING: 04/07/08 EX TEMPORE JUDGMENT DATE : 4 July 2008 APPLICANT Mr Rigg, solicitor of Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr C Drury, solicitor of DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 4 July 2008 10216 of 2008 Afgan Community Support Association v Blacktown City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Blacktown City Council (the council) of the Development Application (066/180) to demolish an existing church and construct a two-storey mosque over basement parking at 15 Fourth Avenue, Blacktown (the site). 2 The key issues between the parties is whether adequate onsite parking is provided and whether the overshadowing was aceptable. The site and its context 3 The site is located on the corner of Fourth Avenue and Prince Street. It is rectangular in shape with an area of 969 square metres. It is occupied by a fibro-clad timber church which has been used as a place of public worship for 45 years and as a mosque since 1998. The building has a worship area of 135 square metres. There are out buildings on the site and two unapproved outdoor covered areas, which are also used for worship by the mosque. 4 The main activities of the mosque include five prayer sessions per day (up to 25 worshippers), the main weekly prayer session held on a Friday afternoon between 1.00pm to 2.00pm (up to 180 to 200 worshippers), four religious commemoration events per year and funerals. The twice yearly Eid prayer ceremony was previously held on the site but is now held elsewhere as it generates over 500 worshippers. The applicant accepted a condition of approval that would not permit the mosque to be used for the Eid prayer ceremony. 5 Women do not generally attend the current prayer services and ceremonies due to inadequate facilities on the site. Women use another property at 14 Fifth Avenue, diagonally opposite the site, for prayer sessions. This property also accommodates office facilities. There is currently no parking provided at either property. 6 The surrounding area is predominantly residential comprising a mix of older detached dwellings, villas, a dual occupancy and more recent residential flat buildings. Further to the north is Blacktown Boys High School and Blacktown Girls High School. Other development in the area includes light industrial activities, commercial activities, fast food restaurants and other places of worship. The proposal 7 The proposal is to demolish the existing buildings on site and construct a new mosque with a ground level worship area for males, a mezzanine worship area for females, administration and service areas and basement parking for 22 cars. The intention is to provide better accommodation for existing worshippers, both male and female, and not to attract new worshippers. The proposal will accommodate the functions currently held on the site and 14 Fifth Avenue. Planning framework 8 The site is zoned 5(a) Special Use - Church, under Blacktown Local Environmental Plan 1988 (LEP 1988). The proposal is permissible with consent. 9 Blacktown Development Control Plan 2006 (DCP 2006) applies to the site. The issues and evidence 10 The Court visited the site on 11 June 2008 and heard evidence from objectors to the proposal as well as representatives and attendees of the mosque who supported the proposal. The principal concern of the objectors related to the parking and traffic impacts of the proposal. They considered the existing services of the mosque on Friday afternoons generated unacceptable traffic and parking conditions and that this would be exacerbated by the proposal. 11 The Court heard expert evidence for the council from Mr Chris Hallam, traffic, and Mr G Apps, planning. Mr R Smyth provided both traffic and planning evidence for the applicant. 12 The applicant sought and was granted leave to prepare amended plans to address the concerns of the experts and objectors. The amended plans were considered at a further hearing on 4 July 2008. 13 The overshadowing issue related to impacts of the proposal on the unit in the southwest corner of the adjoining residential flat building in Fourth Avenue. The issue was resolved by amended plans which reduced the height of the mosque by 1,700 millimetres. The amended plans also reduced the first floor prayer area for women from 270 square metres to 100 square metres. The ground floor male prayer area remained at 310 square metres. 14 The principal concern of Mr Hallam related to the parking demand likely to be generated by the prayer session on Friday afternoons. Mr Hallam and Mr Smyth agreed that the other prayer sessions and four religious commemoration events would not generate an unreasonable demand for parking, taking into account the parking situation on the adjacent streets and the proposed basement parking facility. The experts also agreed that the ground floor worship area would have an acceptable impact on parking demand. 15 The main disagreement focussed on the additional demands that could be generated by the upper level worship area. Mr Hallam considered that the parking rate in DCP 2006 underestimates the actual demand for parking for the peak Friday afternoon prayer service which, based on the applicant's figures, generates a demand for 90 to 120 cars. 16 Mr Hallam was concerned that an increase in the floor area of the proposal would result in an increased patronage of the facility and place and unacceptable demand for on street parking. He noted that this peak traffic generation was not different to other places of public worship but stated that as these services were generally held on weekends, this would facilitate people travelling together and reduce likely car usage whereas on Fridays people would generally attend from work and travel separately. 17 Mr Hallam acknowledged that there was available on-street parking in the area for the current operation of the facility, but was concerned that additional patronage would likely result in people having to go more than 200 metres to find a parking space. 18 The reduction in the upper floor area with the amended plans and the applicant's agreement to a condition limiting the number of worshippers to a maximum of 250 people largely satisfied Mr Hallam's concerns. Findings 19 The mosque has been operating onsite since 1998 with an attendance similar to what is anticipated in the proposed building. The activities of the mosque, as with other places of public worship, fluctuate during the week. 20 For 34 out of the 35 prayer sessions for ceremonies and other activities, the experts agree that the mosque meets the likely demand for parking. The only time that is in contention is the Friday afternoon prayer session. Clearly, the 22 proposed basement spaces will not accommodate the demand for parking on site for the Friday prayer session and there will be a demand for parking on street. 21 This is the situation that currently exists. The question is whether the proposal will increase the on street demand to an unreasonable level. 22 The proposal increases the floor space over that which currently exists. There is now 135 square metres of approved worship area, although a significantly larger area is utilised in the covered outdoor areas, which are not approved. 23 The proposal will provide 410 square metres of worship area which, based on the requirements of DCP 2006 of one space per 10 square metres, would create a demand for 41 car spaces. 24 Council acknowledges a credit of 13 spaces should be permitted for the existing approved floor space resulting in a requirement for 28 spaces on site. The proposal provides 22 spaces. 25 Both experts agree that the rate in DCP 2006 does not reflect the actual demand for parking that is generated by the existing and future use of the proposal on Friday afternoons. 26 The applicant states that the proposal is needed to provide appropriate accommodation for their existing activities on the site and 14 Fifth Avenue for both men and women. An increase in patronage is not anticipated nor will it be encouraged. The applicant has reduced the upper worship area to a 100 square metres and has accepted condition that limits the number of worshippers to 250 people, except for funerals. This number is similar to that which currently attends the Friday afternoon prayer sessions. 27 Currently there is no parking on site, whereas the proposal will provide 22 spaces. The proposal is therefore not likely to increase the demand for on street parking beyond the current demand or result in a greater impact than already exists. This is a reasonable basis for assessment, given that the sites is zoned for church purposes and has been used as such for the past 45 years, including as a mosque since 1998. 28 The Friday afternoon prayer session is outside peak hour traffic volumes and avoids the peak generation periods for the Blacktown High Schools. The demand for parking is similar to that which currently exists and occurs when many residents of nearby properties are at work and there is adequate on street parking available. 29 The proposal therefore meets the objectives of cl 5.1(c) of DCP 2006 "to provide parking areas that are convenient and sufficient for the use of the employees and visitors generated by new development". Order 30 The orders of the Court are therefore: 1. The appeal is upheld. 2. Development application (06-680) to demolish an existing church and construct a two storey Mosque with basement parking for 22 cars at 15 Fourth Avenue, Blacktown is approved subject to the conditions in Annexure A. 3. The exhibits except Exhibits 5 and C may be returned. ___________________ Annelise Tuor 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.