Holy Apostolic Catholic Assyrian Church Of The East Property Trust v Fairfield City Council [2018] NSWLEC 1521

Land and Environment Court New South Wales

Medium Neutral Citation: Holy Apostolic Catholic Assyrian Church Of The East Property Trust v Fairfield City Council [2018] NSWLEC 1521 Hearing dates: 5 – 6, 13 September 2018 Date of orders: 05 October 2018 Decision date: 05 October 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: The orders of the Court are: (1) The appeal is dismissed; (2) That the exhibits be returned, except for Exhibits B and 3. Catchwords: APPEAL – development application for place of worship – AMENITY IMPACTS – Rural Residential zone –control of the number of attendees at scheduled services – PLAN OF MANAGEMENT – adequacy of POM – complexity of operational controls – suitability of a pre-registration requirement for attendance at any particular service – use of a Church APP – refusal of entry to attendees – queuing and traffic impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013 Cases Cited: Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 Category: Principal judgment Parties: Holy Apostolic Catholic Assyrian Church of The East Property Trust (Applicant) Fairfield City Council (Respondent) Representation: Counsel: P McEwen SC with S Nash (Applicant)

Solicitors: David Legal (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2017/186578 Publication restriction: No

Judgment

Background 1. At the head of the cul-de-sac of Kosovich Close, Cecil Park at Lot 2134 DP 1133688 is the St Peter and Paul Parish Church (the Church). It is one of four Parish Churches in western Sydney which belong to the Holy Apostolic Catholic Assyrian Church of the East. The Church and its associated Assembly hall were built in 2011 pursuant to a conditional development consent (DA No 776.1/2009) granted by the Fairfield City Council on 16 March 2010. 2. When first proposed, it was expected that the Church would accommodate a relatively small number of parishioners. Therefore, the original development consent issued by the Council in 2010 included a condition which limited the number of parishioners attending the Church at one time to 80 people. It was also stipulated by a condition of the consent that the Church and Assembly hall could not be used concurrently. 3. In the seven years following, the Church's membership and attendees have grown significantly. Under its current onsite parking configuration, the Church cannot accommodate the parking demands which arise when all of the Church's parishioners attend Mass at the same time. The Church concedes that this has led to an untenable situation where extensive parking has occurred in Kosovich Place and has resulted in unreasonable interference with the rural residential environment within which the Church is located. 4. In an effort to address this situation, the Church has lodged a new development application seeking the concurrent use of the Church and the Assembly hall (in association with a single activity i.e. only Sunday Mass or wedding / baptism) to accommodate the increase in parishioner numbers. The background to the application, the statutory controls and the issues are set out in the Council's Statement of Facts and Contentions filed in this Class 1 appeal on 24 July 2018. I do not propose to repeat that detail, which I have read, save to note that the contentions identified have been reduced to a dispute about the applicant's ability to control the number of attendees to the site and the associated car parking through a Plan of Management (POM) - albeit one that incorporates a pre-registration system via a Church APP.