Land and Environment Court New South Wales Medium Neutral Citation: Global Organisation for Divinity v Parramatta City Council [2011] NSWLEC 1027 Hearing dates: 1 and 2 December 2010; 19 - 21 January 2011 Decision date: 24 January 2011 Jurisdiction: Class 1 Before: Moore SC Decision: Appeal upheld subject to submission of revised settled plans and conditions to reflect the terms of this decision. Catchwords: Acceptability of acoustic shielding fence; heritage conditions; imminence and certainty of draft LEP and of a specific provision of that LEP Legislation Cited: Environmental Planning and Assessment Act 1979 Parramatta Draft Local Environmental Plan 2010 Parramatta Local Environmental Plan 2001 Parramatta Local Environmental Plan 1996 Heritage and Conservation (the Heritage LEP) Cases Cited: Cachia v Manly Council (No 2) [2009] NSWLEC 1107 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at para 97 Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Category: Principal judgment Parties: Global Organisation for Divinity (applicant) Parramatta City Council (respondent) Representation: Mr G McKee (Applicant) McKees Legal Solutions Mr P Marincowitz (Respondent) Sparke Helmore File Number(s): 10704 of 2010 Judgment 144 Oakes Road, Winston Hills is on the opposite side of Toongabbie Creek to one of the very early agricultural settlement areas of the colony of New South Wales. There is, in the evidence - in both the non-indigenous and indigenous archaeological evidence, a clear indication that it is reasonable to expect that there will be some relics of the early occupation of this area and possibly of contact between the European colonisers and the indigenous inhabitants of the area found on 44 Oakes Road. It is a matter that provides a considerable element of the controversy between the council and the applicant in these proceedings concerning the possible future development of this location. 2The applicant proposes to erect, if given development consent, a meditation centre (which would be a place of public worship) and an associated car park on the site. The hours of operation would be 9am to 11am and 6pm to 8pm Monday to Friday and 10am to 1pm and 4pm to 7pm on Saturdays and Sundays. 3During the course of the hearing, dealing with issues of conditions of consent, if there were to be a development consent given, it was agreed between the council and the applicant that there should be a short period for opening up of the premises prior to each of these operating periods and that there should be a short period after the operation of the earlier sessions of the operation of the premises as a closing up period but there should be no extension beyond the 8pm Monday to Friday and 7pm Saturday and Sunday for any purposes whatsoever. 4The proposed uses of the proposed building include the conducting of various activities such as spiritual education, meditation classes, yoga, group prayers and chanting. It is proposed that the maximum attendance in ordinary circumstances be limited to fifty persons (including children) and that on a limited number of occasions per year up to seventy persons (including children) could be in attendance. An agreed condition has been settled about the latter exceptions and their notification to residents in the area. It is proposed that the site will accommodate twenty-one vehicles. 5The site has an area of a little over 1,900 sq m with a frontage of a little under 60 m to Oakes Road. The immediate uphill boundary of the site is a public footpath and beyond that are premises fronting Goliath Street. To the lower side is an undeveloped residential allotment owned by Mr and Ms Farago and beyond that is a residence owned by the person who originally subdivided the various parcels. 6Along the uphill side of the site runs an Energy Australia transmission line reserve and that authority has provided commentary on the various elements of the proposed development and raises no objection that is not capable of being accommodated in the development, including the necessity, as was discussed during the hearing, of a further species selection for the landscaping that would not grow to a height exceeding 3 m on the electricity reserve. 7During the course of the proceedings, I had the opportunity to attend the site and hear extensive evidence from those who objected to the proposal; to walk down a series of steps in a reserve to the rear of the site toward Toongabbie Creek and to observe some convict steps on the bank of the creek; and to go to the vicinity of an area where the remnants of a convict weir may be located. 8The site is not identified on the map attaching to the draft Local Environmental Plan as a site of heritage significance (although there is such an area adjacent to the boundary of the site). 9The relevant planning regime that applies is Parramatta Local Environmental Plan 2001 (the LEP) where the site is zoned 2A and the use of the site for the erection of a place of public worship is permissible in the zone under that LEP. 10There are two provisions of the Parramatta Local Environmental Plan 1996 Heritage and Conservation (the Heritage LEP) that are potentially relevant in the proceedings, they are cll 15 and 16 that deal with development of known or potential archaeological sites of Aboriginal cultural significance and development of other potential archaeological sites, respectively. 11The Parramatta Draft Local Environmental Plan 2010 (the 2010 draft LEP), which is the draft local environmental plan being prepared pursuant to the Standard Instrument, is relevant, as is the question of its imminence and certainty, both generally and in two specific respects. The 2010 draft LEP will zone the site R2 Low Density Residential. The present drafting of the provisions of the land use table for this zone, proposed by the council, would prohibit the use of the site as a place of public worship. There is some controversy which I need to consider as to the imminence and certainty of that specific prohibition, as opposed to the imminence and certainty of the 2010 draft LEP as a whole. The 2010 draft LEP also contains in it provisions cl 5.10 relating to heritage conservation which is a compulsory provision and which it is common ground would not impact or place any impediment in the path of the proposal. 12I note, as it is a matter of relevance in my view, given the conclusion I have reached concerning the imminence and certainty of the 2010 draft LEP being made as a general proposition, that the terms of cl 5.10 are, with the exception of the insertion of the name of the local government area and the addition of notes to subcll 7 and 8 (which notes do not have any operative effect) that the terms of cl 5.10 are those that are contained in the template instrument. I therefore consider it entirely reasonable to conclude that it is improbable, in the extreme, that the Department or the Minister would raise any concerns with respect to the adoption of this standard wording in the Standard Instrument. 13There were a variety of other merit matters raised by the council initially, which have been dealt with by modification to the plans, leaving only one matter of design merit outstanding and that concerns the proposal that arises out of the acoustic evidence for a 2.4 m high fence to be erected between the proposed place of religious worship (particularly the hall area of the proposed building) and the car park, that being a metal wall required to be erected to 2.4 m above ground level in order to provide appropriate acoustic shielding to the property that is immediately uphill and fronting Goliath Place. 14All other acoustic issues have been resolved. I had the benefit in the initial phase of the proceedings to hear acoustic evidence from Ms Cho, who gave evidence in a forthright fashion and who, when asked to do so, undertook a number of calculations on the run about ameliorative measures. It was her evidence that, at the location that was now proposed for a 2.4 m fence, there would need to be a fence 1 m higher than any openable window on that side of the hall, that would have resulted in a fence, potentially, significantly higher than that which is now proposed. 15Supplementary acoustic testing was undertaken by Mr Grieve, an acoustic engineer of Benbow Environmental, who took over the research required for the proposal after Ms Cho transferred her employer to another consultancy between the various phases of the proceedings. It was Ms Cho's evidence, she having been invited to return to the witness box to assist us understand the potential conflict between her evidence and the evidence of Mr Grieve, that after considering the supplementary report prepared by Mr Grieve and understanding Mr Grieve's answers to various questions given in the witness box concurrently with her, that she accepted the accuracy and validity of his testing and his conclusions, therefore the necessity for a higher wall than that of 2.4 m has disappeared in the proceedings. 16Although the residents raised matters relating to parking, streetscape, compliance with the zone objectives and the like, it was the uncontradicted expert evidence of the traffic and parking engineers and the planners that there were no conflicts with any of these provisions. Although I understand the concerns that are expressed by the residents and I understand the fears that they express, many of which related to planning matters but some of which, such as those concerning loss of land value, do not, as discussed by the Preston CJ in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007], where he made it expressly clear that blight or alterations to property value as a result of permissible zoning uses did not constitute a basis that the Court could reconsider, modify or refuse a development application. 17Although I also accept that their fears are genuinely and honestly held, my review of the expert evidence, in light of the agreement between the experts, causes me to conclude that there is no reasonable basis upon which I could differ from the conclusions that the experts drew. Those concerns therefore do not provide any basis for refusal or requirement of further modification to the application. 18There is also a preliminary matter that I need to address relating to the question of the consequences of leave being granted to amend the application. The planners in their joint report proposed a number of modifications, all bar two of them were adopted by the applicant as was the proposal for the 2.5 m high acoustic barrier and a number of other modifications including the relocation of the fence on the uphill side of the car park in order to provide better acoustic shielding to the Goliath Street residence (in the event that there were the maximum potential number of persons and vehicles in the car park making the maximum likely noise, an unlikely event in my assessment). 19The application to amend was not opposed by the council. The consequence of that was twofold. First, leave was granted to amend, an uncontroversial outcome of such an application. Second, the provisions of s 97B of the Environmental Planning and Assessment Act 1979 were triggered that require me to consider whether or not the amendments that have been granted are minor, and if they are not minor, to make an order pursuant to s 97B(2) ordering costs be paid by the applicant to the council. When the matter was first canvassed, during the initial phase of the hearing, I indicated that the then proposed amendments were very close to tipping the balance in favour of them not constituting minor, but that they still remained minor. The applicant did not adopt the proposal for an increased setback, a matter that may have some significant consequences for the plans, and also did not adopt the proposal by the planners for some privacy screens to windows toward the rear of the proposed structure, that in itself being a matter, in my view, of trifling detail but one which is appropriate to be imposed and dealt with by a condition of consent. 20The amendments then did not encompass, as a consequence of the first phase, the proposed acoustic fence but they did encompass a fence some 1.8 m in height that was entirely along the length of the proposed public pathway, which when considered in the context of the fencing on the uphill side of the public pathway, would have created an alley like feel and a sense of enclosure and lack of overlooking (and thus lack of crime prevention by public supervision) of that area. It would also have created what was, in effect, a gun barrel like alleyway. 21The two additional changes which I need to contemplate as relevant to whether the balance has now been tipped in favour of an order pursuant to 97B(2) are: the incorporation of the proposal for the 2.4 m high wall for acoustic shielding on the increased impact; and the alteration adopted by the applicant to the boundary fencing along the uphill side that would have it follow the boundary of the car parking spaces rather than of the site (with the incorporation of additional landscaping and clear fencing on the area that followed the boundary of the private open space to the proposed development on its public pathway facing side). 22It is clear from the various discussions about whether or not amendments are minor for the purposes of 97B, going back to the first decision, one given by me in Cachia v Manly Council (No 2) [2009] NSWLEC 1107 , that the assessment is one which considers both the quantitative and qualitative nature of the amendments when added together. I am satisfied that, quantitatively, the proposed amendments now tip toward 97B(2) orders being required. However, I am satisfied that the qualitative changes are not sufficient to tip the balance even though one of them might be regarded as ameliorative and one of them of a more imposing and increased impact. I am of the view that, on a very fine balance, the combination of qualitative and quantitative assessment of the amendment means that the amendments still remain minor and that an order pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 is not required. 23I now proceed to consider first, before turning to the statutory framework, the only merit matter that remains outstanding and that is the question of whether a 2.4 m high metal fence at the location proposed is sufficiently out of character in a residential area to warrant the lowering of the top of the fence and the requirement that the windows on that side of the building be sealed during the operation of the facility. 24I am satisfied that there is no sufficient reason to require lowering of the wall. The wall is one that runs at right angles to the main public thoroughfare. It does not commence at this height until behind the front building line of the building, even with an increased setback (which I am satisfied it is appropriate to impose pursuant to the conditions of consent and to require revised plans reflecting the increase setback to be filed after settling with the council prior to any development consent being issued) as will follow from my analysis of the statutory provisions. 25The viewing of this fence from the public walkway will be against the faade of the building and will not be overly out of scale with the view of the building. The view from the roadway will be softened, in part, by the view of the landscaping in the vicinity of the car park but will also, in any event, be absorbed by the nature of the structure beyond. I am therefore satisfied that the 2.4 m high wall should be permitted. 26I now turn to consider the real issues, if I might put it in that fashion, of significant substance that are raised between the parties. They are effectively the application of the planning controls and the like. I have had tendered to me, in the proceedings, a bundle of documents relating to the planning controls and the matters that relate to the adoption of the new instrument (the 2010 draft LEP). 27It is clear in my view, for a variety of reasons, that I should regard adoption of the new instrument as being both imminent and certain. I have reached this conclusion having had regard to the adoption process followed by the council as set out in the various extracts of the council's minutes. I have also, consistent with what was said by the President of the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 , had regard to other publicly available, incontrovertible documents, one of which, from the Department of Planning, indicates that the implementation of the Standard Instrument Local Environment Plan Program for Parramatta is one of the plans listed on the program of prioritised local environmental plans for the Sydney Region West on the Department of Planning's website. I am therefore satisfied that the making of this plan is imminent and certain. 28As I have earlier observed as cl 5.10 of the Standard Instrument has been adopted effectively without change by the Parramatta Draft LEP , I am satisfied that that element of the 2010 draft LEP is also imminent and certain. The area where there is a matter of concern relates to the question of the imminence and certainty of the prohibition of places of public worship in the R2 zone. In this regard I have had documents relating to the Standard Instrument tendered. The first contains the history within the council of the determination to prohibit places of public worship in this zone, I have also had the Department's practice note concerning the Standard Instrument. 29The council proposes to prohibit the development of future places of public worship in the R2 zone. It proposes that all existing places of worship in the R2 zone be zoned SP1 Special Activities, that would permit them to continue to be used but would have the effect of excluding future places of public worship from within the zone. 30It is clear from the council's own document that, if all existing places of public worship to which it is proposed to apply the SP 1 special activities zone were to have that zoning imposed, there would be, on my count, thirty one such places to which it would be applied. It is clear from the departmental practice note that it is appropriate for a council to consider the range of uses within each zone to be permitted, with or without consent, or prohibited as a consequence of the development of the 2010 draft LEP. It is also to be noted on the first page of the practice note that the Department encourages the maximisation of the range of uses that are permissible, with or without consent. Clearly, activities would themselves have to be consistent with the objectives for that zone, as is here the case on the uncontradicted evidence (as I understand) it of the planners in these proceedings. It is also clear that the use of the SP 1 zone is one that is confined to, as is set out on p 4 of the practice note, as follows: "This zone is generally intended for special land uses or sites with special characteristics that cannot be accommodated in other zones. Some examples of where this zone may be suitable may include land on which there is, or is proposed to be, a major scientific research facility, a major defence or communications establishment or an international sporting facility. This zone should be used where the use cannot be provided in another zone. This zone is not the same as traditional special uses zones that appear in a number of existing LEPs, for example, a school or fire station, can generally be accommodated in a local centre, mixed use or infrastructure zone." 31It is my view that the Department's guidance makes it clear that the SP 1 zone is not one to be used as a general opt-out provision for a widely expressed category of uses within one or more of the otherwise proposed conventional zones. 32The position put to me by Mr Marincowitz would be that if I were to conclude that it was unlikely that the Department would permit the use of the SP 1 zone for places of religious worship in the zone where these premises are located, it was possible that the Department would simply permit them to be prohibited and in effect, place a non conforming existing use basis for these places of public worship. 33I do not consider it is reasonable to reach the conclusion that as a matter of imminence and certainty, particularly as to certainty, that the Department would accept such a proposition. 34I am therefore satisfied that I cannot conclude that the provision prohibiting places of public worship in this zone should be regarded as certain and therefore that provision is not imminent and certain, whereas 5.10 might so be. That is an entirely different proposition to the proposition as to whether overall the making of the 2010 draft LEP itself is imminent and certain. 35The new LEP contains cl 1.8(a) which has the effect of imposing what could be regarded as a minor saving for applications that had been made under the previous planning instrument but had not yet been determined. I am satisfied that the imminence and certainty of the making of the LEP and the comments (although they are dicta) of Craig J in Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at para 97 (where it is clear that, consistent with Terrace Tower Holdings , I should have regard to the terms of the LEP) that, in this case, the imminence and certainty of cl 5.10 sets aside any concern that I should have about cll 15 and 16 of the present LEP because I am satisfied that the work that might remain to be done by 15 and 16 is so small as not to warrant concern. 36I am satisfied that that is not the position with respect to the prohibition as I cannot be satisfied that the prohibition is imminent and certain as the use is permissible under the present zoning and the expert evidence is that the proposal is consistent with the objectives for the zone. I am satisfied that I should give greater weight to that in this context and be satisfied that on planning grounds there is no basis to refuse the application. 37That leaves me to turn to what, at least as I understood it, is the co-equal concern of the council and that relates to the necessary conditions that are required to be attached to deal with archaeological issues. There are two matters of concern on this basis. One is whether or not I should accept the council's position, that if a consent is to be issued, the archaeological condition should be a deferred development consent or the applicant's position, advanced by Mr McKee, solicitor for the applicant, that the archaeological condition should be an operative condition. 38I am satisfied in the first instance, given the evidence of Mr Lowe on the resumed hearing as to what he considered to be the almost certainty of the discovery of archaeological relics of a non indigenous nature on the site, that the requirement for archaeological testing should be a deferred commencement condition rather than an operative condition so that the condition can be satisfied prior to the carrying out of substantive works on site. 39The council prepared, following an iterative process, a deferred commencement condition that was in its final version contained in Exhibit 13 (this being the further draft without prejudice conditions provided by the council). There are two matters arising out of the condition. First is a comparatively minor matter as to whether or not throughout the testing a person with Aboriginal archaeological experience should be present or whether such a person should be on-call. In light of the uncontested evidence given by Mr Lowe and Ms Dallas, the applicant's indigenous archaeological expert, about the likelihood of the presence of both in non indigenous and indigenous relics, I am satisfied that prudence and a precautionary approach requires the presence of such a person throughout all phases of the test excavation process. 40The more serious matter raised by the council is whether or not the condition, if imposed, would lead to a development that had sufficient certainty not to offend the decision of the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 . The council proposed, as part of its conditions, paras (h) and (i), that it would have testing cease if, first in (h), a non indigenous relic were found with the Heritage Branch of the Department of Planning to be notified and, second, in (i), if an Aboriginal archaeological relic was discovered, the excavation should cease and the National Parks and Wildlife Service be notified. The parties agreed during the course of the hearing that the cessation should not be confined to merely the testing but to all work on the site. 41I have considered the drafting of this provision and its requirement during the period since the conclusion of the hearing on Friday and now. I am satisfied that it is appropriate to adopt a further modification - one not, in my view inconsistent with the provisions proposed by the council. This would have any work carried out in any trench, where a relic were found, cease but that further testing, in any proposed trench identified in the figure to sub para (f) of this condition, where no indigenous or indigenous archaeological relic had been discovered, might continue in that trench. Only if all trenches had had to have work in them ceased as a consequence of the discovery of archaeological relics and if no further test excavation trenches were available, would all work of any nature on the site pursuant to this consent cease. 42I have, for the assistance of the parties, prepared a draft of this condition to be consistent with my decision and I provide a copy of those to the parties for their assistance in understanding the condition that I consider should be imposed. However, I leave it to the parties to settle the terms of the condition between them. 43I now turn to the question of whether a deferred development consent, subject to the terms provided for in sub para (g) as I have upheld the council's position; with the matters contained in the document that I have just provided to the parties with respect to paras (h) and (i) together with the imposition of deferred commencement condition 2 would be appropriate. 44First, with respect to deferred commencement condition 2, a number of the matters have already been incorporated in the amended plans. The outstanding matters relate to the setback from the street and the external fixed privacy screens. They are not appropriate to be incorporated in a condition of consent but are to be the subject of revised plans settled between the parties and filed with the Court. I propose to give directions at the conclusion of my decision that will provide for that process so that, prior to the issuing of any consent, the plans will be certain with respect to the setback from the street and the location of the fixed privacy screens. 45The question, therefore, solely arises as to whether the first and now only deferred commencement condition offends the decision in Mison or not. It is clear from what was said by Priestley JA at p 351 LGRA that the test is whether, if it is followed, then it "would have the effect of significantly altering the development". 46The consequences of the conditions elements in the deferred commencement condition do not alter the nature of the development. They will, if no relics are found, permit the development to be constructed as otherwise approved. If relics are found, all substantive development work on the site will end up ceasing. There will be, in that consequence, a full stop to the development and the development will not go beyond testing. Whether or not such a condition is amenable to modification is a matter that warrants exploration on a modification application and is not a matter for speculation in these proceedings - given that the nature of any modification that might be required, if any relics were to be found, would be purely speculative. 47However, I am satisfied that the nature of the development that is permitted in light of the decision I have given, that is, if the development consent is operative and carried out, when complete the development will be required to be in accordance with the plans as they will now be modified with respect to setback and privacy screens, location of the car park perimeter fence and the like. That will be certain. 48What is set in place is a process to explore the site on the basis proposed by Mr Lowe and Ms Dallas in a fashion that is subject to the deferred commencement condition. The deferred commencement condition is certain as to its outcome. Firstly, a number of things may trigger cessation of working one or more exploration trenches. Second, reports will be provided to the council, and apart from exploration, if relics are found, no work will be carried out on the site. There is no uncertainty about that outcome either, nor in my view is there any uncertainty in the describing of that in these conditions (as opposed, for example, to issues that might arise if there were work being carried out on a site that may have had a history of contamination and contamination is discovered leading to a cessation of work on the site). 49It is not as if I would be leaving, through the terms of this development consent, some further known identified major matter to be determined by some other body. The outcome of this consent will be, if there are relics, then effectively work on the site will cease - a predictable, certain and obvious outcome under the circumstances. 50The consequence of all of the forgoing is that the appeal should be upheld, that development consent should be granted subject to the matters that I have dealt with in this decision for the erection of a place of public worship at the site known as 48 Oakes Road, Winston Hills and that the exhibits, other than Exhibits N, 1 and 13 are returned. 51It is necessary therefore for there to be revised plans settled with the council, filed by the applicant and for there to be revised settled terms of conditions provided by the council. I propose to make provision for those two steps to take place in a fashion that will have the matter set down for a further mention before me or before the Registrar if necessary on the basis that if revised settled plans and revised settled conditions of consent are filed I will make orders in chambers and vacate the further hearing of the matter. Tim Moore Senior Commissioner 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: 11 April 2011