Land and Environment Court New South Wales Medium Neutral Citation: Jardine & Anor v Campbelltown City Council [2013] NSWLEC 1164 Hearing dates: 20 June 2013 Decision date: 21 June 2013 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is dismissed. (2)The modification application is refused consent. (3)The exhibits are returned, apart from exhibits A and 2 Catchwords: Appeal - modification of development consent for place of worship to include a takeaway food shop; not substantially the same development Legislation Cited: Environmental Planning and Assessment Act 1979 Campbelltown Urban Area Local Environment Plan 2002 Cases Cited: Jardine v Campbelltown City Council (2008) Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; 106 LGERA 298 Category: Principal judgment Parties: Jardine, Ray & Precilla Eva (Applicant) Campbelltown City Council (Respondent) Representation: In person (Applicants) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10120 of 2013 Ex - tempore Judgment 1The applicants, Ray and Precilla Jardine, conduct a place of worship from a building within an industrial estate at 2 Somerset Road, Minto. They would like to expand their Christian outreach programme by opening a small take-away food shop within the front area of their building. The shop will provide light refreshments to their parishioners and sell light refreshments to workers and businesses within the surrounding industrial estate. 2Because the applicants, who are self represented, are unfamiliar with local planning laws they told me that they asked the Council's planning staff for advice about what they needed to do to obtain approval for their shop. Based on that advice they lodged a modification application under s96AA of the Environmental Planning and Assessment Act 1979 (the Act) with the Council on 30 October 2012. It sought the modification of their development consent for a place of worship to incorporate a takeaway food shop and a storeroom (although they did not press the store room in this appeal). 3Shortly after lodgement of their application they told me that the Council's planning staff advised them that their application would not be processed. . By letter dated 22 February 2013 they were told their plans lacked detail and that the Council had concerns about the introduction of a take away food shop to the premises through a modification application. 4Confused and frustrated by the Council's response to their application they lodged this appeal. 5The Council denies giving any advice to the applicants as claimed, particularly giving them advice to proceed under s 96AA of the Act. The Council contends that it has always been of the opinion that there is no jurisdiction to approve a take away food shop by way of a modification to the present consent under s 96AA of the EPA Act. 6Fortunately, I do not need to unravel or resolve the issue of how or why this matter came to be lodged as a modification application because that is not relevant. What is relevant, however, is whether I have power to approve the use of the shop under s96AA of the Act. And that in my opinion is the main problem for the applicants and the central issue of this appeal. Background 7The main facts and the statutory controls are set out in the Council's statement of facts and contentions (Exhibit 2). I understand them better because I have been to the site because the hearing commenced with a view. At that time the applicants showed me the location of the proposed shop and described how it would operate. 8I have also read the applicant's bundle of documents (Exhibit C), the statement of evidence prepared by the Council's planner, Mr Walker, dated 6 June together with the Council's bundle of documents (Exhibit 3). 9Because the applicants are self-represented I propose to deal with the central issue of jurisdiction and the sub issues by heading. What do the applicants currently have approval to do on their land? 10According to the evidence, the Court granted development consent to use the applicants' premises as a place of worship on 17 November 2008: Jardine v Campbelltown City Council (2008) NSWLEC 1504 (the original development consent). What do the applicants seeks approval to do? 11They now want consent to operate a takeaway food shop from within the building used as a place of worship. The exact location of the shop is identified on the plan that is Exhibit A. The layout of the shop is detailed in a basic form on the plan that is Exhibit B. It will contain a service takeaway area, two tables and some chairs for customers to use while they wait for their take away food. The shop will open between Monday to Friday but would not trade on the weekend. It will open at times when the palace of worship is not operating. What are the statutory controls that apply to this site? And is a shop a permissible separate use? 12The Campbelltown (Urban Area) Local Environment Plan 2002 (LEP) applies to the applicant's site. It is within the zone 4(b) - Industry B Zone. 13Relevantly, a shop (in this case a take away food shop) and a religious establishment (place of worship) are permissible uses with development consent. Have the applicant's applied for development consent under the Act? 14No. The application before the Court is made under s 96AA of the Act. It is an application to modify the present development consent. However, a development consent can only be modified if the consent authority (in this case the Court) "...is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all). (Emphasis added) 15The applicants submit that because there is no external physical change to the building by the incorporation of the proposed shop, the development (after modification) is substantially the same as that approved under the original development consent. 16However, the question posed by s96AA requires more than a physical assessment on a before and after basis. It must compare the two uses to determine whether the modified development is essentially or materially the same as the development originally approved. It is not simply a comparison of the physical features of both; there needs to be "a qualitative and quantitative comparison and assessment": Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; 106 LGERA 298 at [56]. 17While the moving of walls within the existing footprint of the premises does not necessarily mean that the development is not substantially the same after a holistic assessment both qualitative and quantitative I agree with Mr Walker, the Council's planner, that the introduction of a takeaway food shop to the premises does not result in substantially the same development as originally approved. The take away food shop is a new and separate use of the premises that will operate on days and times outside the approved operation of the place of worship. Does the Court have power (or jurisdiction) to approve this application? 18Because I have found that the development, if modified to include the shop, is not substantially the same development as originally approved, I have no power or jurisdiction to approve this application under s 96AA. 19I agree with the Council that any future application for a shop must be made by making a new development application under s78A of the Act. Matters that need to be addressed in any future development application for the take away food shop 20As the Council has indicated, the proposed take away food shop could fit within the definition of a "shop" under the current LEP provided the chairs and tables shown on the layout plan are not used as dine in facilities. However, any shop operating in this zone must primarily be intended to service people engaged in land uses permitted in the industrial zone. Although Mr Jardine told me that he had interviewed workers and businesses in the immediate industrial zone and that those interviewed supported the concept of his shop, he had no written record of his survey results to support his oral evidence. In order to satisfy the LEP requirement that "...any shop on this site must primarily be intended to service people employed or occupied in land uses permitted in industrial zones" independent evidence of this fact needs to be submitted with any application. Conclusion 21There is no doubt in my mind that the good works and Christian outreach programme the applicants carry out in their local area is well intentioned and commendable. I also understand that the activities associated with their place of worship cost money and that their religious establishment has limited financial resources. Therefore, I understand why they believed the incorporation of a shop into their premises was seen as a means to fund their programme in the area. 22However, for the reasons stated, I do not have any power under s 96AA of the Act to approve their application. I also note that apart from the jurisdictional impediment, the application is lacking essential information. As the Council has indicated to the applicant at the hearing any future development application for a take away food shop under the current controls would need to include: (1)A detailed plan of the shop showing the service area, floor plan and how many tables and chairs and a list of the items to be sold and how the shop will operate including the number of employees, the number of toilets and other facilities available. (2)Objective independent written evidence demonstrating that the shop will primarily serve people employed or occupied in land uses permitted in the industrial zone. 23Accordingly, the Court orders: (1)The appeal is dismissed. (2)The modification application is refused consent. (3)The exhibits are returned, except for exhibits A and exhibit 2 Susan Dixon Commissioner of the Court ******** 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: 29 August 2013