Land and Environment Court New South Wales Medium Neutral Citation: Islamic Association of Prospect v Blacktown City Council [2019] NSWLEC 1494 Hearing dates: 30 September 2019; 1 October 2019 Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application to rely on the amended plans referred to in condition 1 of Annexure A. (2) The appeal is upheld. (3) Development consent is granted to Development Application No. DA-16-04996 for demolition of existing structures and site preparation works and the construction of a place of public worship associated civil works, parking and landscaping at 420 Blacktown Road, Prospect (Lot 25 DP14084 and Lot 261 DP792897) subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – Place of public worship – traffic impacts – driveway access – pedestrian safety – drainage – public interest Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Cases Cited: Rahma Islamic Assoc of Australia Inc v Fairfield City Council [2011] NSWLEC 1362 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Dickinson Property Group Pty Ltd v Wollondilly Shire Council [2019] NSWLEC 1220 Texts Cited: Blacktown Council Development Control Plan 2015 Environmental Protection Authority, 'Industrial Noise Policy for Industry' (2017) Category: Principal judgment Parties: Islamic Association of Prospect (Applicant) Blacktown City Council (Respondent) Representation: Counsel: N Eastman (Applicant) M Seymour (Respondent) Solicitors: Mills Oakley (Applicant) Bartier Perry (Respondent) File Number(s): 2018/206023 Publication restriction: No Judgment Nature of the Appeal and Outcome 1. COMMISSIONER: The Applicant lodged Development Application No. DA-16-04996 with Blacktown City Council (the Respondent) on 27 October 2016. As amended, the application seeks consent for: * demolition of structures and removal of trees; * site preparation works; * construction of a place of public worship, including under-croft parking, a prayer hall, library, study, two entry areas, office kitchen and amenities; * onsite parking for 34 vehicles; and * operating hours of 5.30am to 9.00pm Monday to Sunday. 1. The Respondent refused consent on 3 January 2018 and the Applicant is appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). 2. With the consent of the Respondent, the Applicant was granted leave at the commencement of the hearing to amend the driveway access in response to expert evidence from the traffic engineers. The amended design incorporates: a reconfigured driveway to access the site, a consequential amendment to parking which reduces the overall onsite parking to 34 spaces; and an amendment to landscaping. 3. The Respondent maintains that the amended application should be refused for the following reasons: 1. the proposed development is inconsistent with the zone objectives; 2. the development provides insufficient onsite parking for the demand generated by the use, resulting in overflow parking in the surrounding streets; 3. that the increase in number of vehicles in the area and patrons having to cross Blacktown Road will present a serious pedestrian safety hazard; 4. that the proposed development is not in the public interest due to the inadequacies of the proposal, the unsuitable location and the issues raised in the public submissions. 1. Mr Seymour, in his submissions, broadly summarises the Respondent's case as being primarily that the subject site is unsuitable for the proposed development (s 4.15(1)(c) of the EPA Act) and that the impacts arising from the proposed development are unacceptable. 2. The Respondent no longer presses concern in regard to the proposed drainage of the site on the basis of the agreement of the drainage experts to the deferred commencement condition of consent included in Annexure A. 3. Following a consideration of the evidence presented, the submissions received from members of the public, my observations during the onsite view and the submissions of the parties, I have determined that the appeal should be upheld, and that development consent should be granted subject to conditions. My reasoning, against the contentions raised by the Respondent, is detailed in the following. The Site 1. The subject site is Lot 25 in DP 114084 and Lot 261 in DP 792897, with a street address of 420 Blacktown Road, Prospect. 2. The subject site has a fall of 2m towards the north-western corner of the site. There is existing vegetation on the subject site, which the Respondent's Statement of Facts and Contentions notes: 'does not contribute to the landscape quality of the subject site' (Exhibit 1). 3. Relevantly, the subject site is located on the western side of Blacktown Road, some 200m from the intersection of Blacktown Road and Great Western Highway. It is immediately adjacent a roundabout at the intersection of Blacktown Road and Metalla Road. 4. To the west and south of the site is the Blacktown Transmission Station; to the north are bulky good retail premises. To the south-east is the Ebenezer Christian College. The closest residential premises are to the east of the site, across Blacktown Road. Relevant Planning Controls 1. The proposed development is for the purposes of a 'place of public worship'. This is defined in the Blacktown Local Environmental Plan 2015 (LEP 2015) as: a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training. 1. Pursuant to LEP 2015, the site is zoned R2 Low Density Residential. Places of public worship are permissible in the R2 zone. The consent authority must have regard to the objectives of the zone when determining a development application (cl 2.3(2) of LEP 2015). The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood. 1. The Blacktown Council Development Control Plan 2015 (DCP 2015) applies to the proposed development. Relevant to the issues in dispute between the parties are the provisions of DCP 2015 at: Part A, Section 6: Car parking; and Part C, Section 8.2: Places of Public Worship and Educational Establishments. 2. The objectives of the car parking provisions in 6.1 of DCP 2015 are: "(a) Ensure adequate traffic safety and management (b) Ensure an adequate environmental quality of parking areas (both safety and amenity) (c) Provide parking areas that are convenient and sufficient for the use of employees and visitors generated by new developments." 1. The applicable parking rates for the development are contained in Table 6.1 of DCP 2015. Those rates are: "Community facility and Place of Public Worship: 1 space per 4 seats or 1space per 10 sqm of seating area whichever is greater." 1. It is accepted by both parties that the above parking rate is utilised as a proxy for headcount. 2. Part C, Section 8 addresses 'Non-residential uses in the residential zones'. Section 8.2.2 of DCP 2015 provides the following locations preferences for places of public worship and educational establishments: "… Such uses are preferably located where access to collector roads and public transport routes is readily available, and/or where there are other non-residential uses adjoining. Due to the nature of their usage, such developments should be sited on allotments which provide sufficient buffering from adjoining development so as to minimise possible impacts such as noise and invasion of privacy, …" (Exhibit 2) 1. A traffic report is required to accompany a development application for a place of public worship (DCP 2015, Section 8.2.3: Pedestrian Safety Measures). The relevant traffic report is included in the Class 1 application (Exhibit A). Public Submissions 1. In accordance with the provisions of DCP 2015, the development application was notified to adjoining and nearby properties. The Respondent received a total of 22 written submissions and three petitions objecting to the proposed development. The objections raised the following main issues: * traffic impacts * insufficient car parking * lack of overflow parking * proposed hours of operation * number of worshippers * noise impacts * safety * amenity 1. The amended plans were similarly notified and issues consistent with the preceding were raised in the submissions on the amended plans. 2. I have read and considered the submissions received from both notification periods. 3. At the commencement of the proceedings, onsite evidence was heard from a number of objectors to the application. The issues raised by these objections can be summarised as follows: * concern that the amended proposal does not address the communities concerns with the proposed development, * reliance on surrounding streets for off-street parking and increased traffic is a major concern, * concern for pedestrian safety for people seeking to cross Blacktown Road to access the development, * on-street parking in adjacent streets, such as Foxhills Crescent, reduces the capacity of the street and may inhibit emergency vehicle access, * the scale of the development is out of context with the locality, * the site should remain residential in use and a church of any denomination is inappropriate, * the application makes no allowance for the growth of the church and how that would be managed onsite and in terms of traffic and parking, * the commencement of the service at 5.30am in the morning will disturb local residents sleep, * the use has been operating on the site for two years and many of the vehicles accessing the site for the Friday service are large trucks and single occupant vehicles, * there is potential for overflow parking from the proposed use impacting customer parking at the adjacent bulky goods centre, impacting the centre, * management of access and parking for the use will be complex and difficult to manage. It will likely lead to blockage of through traffic on Blacktown Road, * the Plan of Management suggests that once the facility is at capacity people will be turned away, this seems impractical. Experts 1. The Court was assisted by the following experts: Area of Expertise Respondent Applicant Town Planning Mr Glenn Apps Mr Stuart Harding Drainage Engineering Mr Tony Merrilees Mr Ramakrishnan Baskaran Traffic Engineering Mr Ken Hollyoak Mr Brett Maynard 1. These experts participated in joint conferencing and prepared joint expert reports addressing the contentions in dispute. I have read and considered their reports. Does the development provide sufficient onsite parking or will the development result in unreasonable overflow parking in the surrounding streets? Patronage Numbers 1. In its Statement of Facts and Contentions, the Respondent broadly argues that the patronage numbers are under estimated and that the place of public worship has a maximum capacity of 236 patrons. The means of the Respondent arriving at this capacity focusses on the interpretation of the decision of the Court in Rahma Islamic Assoc of Australia Inc v Fairfield City Council [2011] NSWLEC1362 ('Rahma v Fairfield'). 2. The Respondent's submission is that Rahma v Fairfield adopted a figure of 1 person per 0.6m² as the measure of capacity of a worship hall. The Respondent argues that 182 car spaces are required by the proposed place of public worship by applying the rate of 1person/ 0.6m² and adopting a rate of 1.3 persons per vehicle (Exhibit 1). These submissions are maintained by the Respondent. 3. The development application proposed a maximum number of attendees as 113. Mr Maynard notes that the architectural plans "show a numbered internal layout with 1.2m² required per person" (Exhibit 3). Further, he notes that: "It is my understanding that the development application is for a place of public worship with a maximum number of patrons of 113 persons. This maximum capacity can be conditioned appropriately as part of any approval and it will be the responsibility of staff (as outlined in Section 6.1 of the Plan of Management) to ensure that [the] maximum number of occupants permitted in the premises at any one time is not exceeded." (Exhibit 3) 1. Mr Hollyoak accepts that a Plan of Management (POM) can be utilised to limit the number of attendees. However, he raises concern that a POM will not limit the number of people arriving at the site and those worshipers being 'turned away' will need to be safely managed. 2. The planners agreed evidence is that the POM specifies a maximum number of visitors of 113. Further, they agree that if the POM forms part of the consent conditions (as is agreed by the parties), the development would be bound by the maximum and that the Respondent has the power to monitor and seek enforcement if the maximum of 113 is exceeded (Exhibit 5). 3. However, Mr Apps argues that Rahma v Fairfield is an appropriate comparison to the subject development application and he raises the following concerns: 1. if the mosque was to allow worshippers to enter whilst space existed then a 0.6m² per person is an appropriate maximum to apply; 2. in his experience as both a consultant and as an employee of the Respondent, it is difficult to accurately monitor and enforce such a condition; 3. that there is potential for an expansion of attendance numbers through the conversion of rooms nominated as 'study' and 'library' on the architectural plans. 1. On the basis of the preceding, it is Mr Apps' view that the development could hold up to 236 worshippers (Exhibit 5). 2. Mr Harding disagrees with Mr Apps on the following basis: 1. the ratio of worshippers to floor area in the Rahma v Fairfield decision is closer to a person per 4.3m² (a total of 130 people within an area of 560m²), not 1 person per 0.6m² asserted by the Respondent. 2. adopting a 0.6m² density across the gross floor area of the prayer hall will result in a density of people significantly higher than the physical area available to accommodate them. 3. that the POM is an appropriate tool to "set the density of attendees so that there is relative comfort in undertaking prayer and so the number reflect the capacity of the facility" (Exhibit 5) Parking Demand 1. Mr Maynard notes that the development, as proposed, complies with the relevant control for the provision of onsite parking in DCP 2015. He notes that for the proposed number of people, DCP 2015 requires a total of 28 spaces and that the development proposes 34 onsite parking spaces. 2. In the joint report, Mr Maynard compares the parking assessments utilised on a number of other places of public worship. He finds that these surveys arrive at an "average parking demand of 0.35 spaces per person" (Exhibit 3). Utilising this analysis on the current proposal, he calculates: "Based on a maximum capacity of 113 persons: - a parking demand of 0.35 parking spaces per person equates to 40 spaces - a parking demand of 0.31 parking spaces per person equates to 35 spaces" 1. In conclusion, Mr Maynard argues that the western side of Blacktown Road immediately proximate to the subject site has capacity for off street parking for at least 15 vehicles, sufficient to accommodate any minor overflow at peak capacity and a total of 26 spaces along the frontage of the adjacent property (Exhibit 3). 2. In the alternative, Mr Hollyoak argues that the occupancy rate of 3 persons per vehicle adopted by the Traffic Impact Assessment is too high and does not accord with his experience undertaking reviews of other such facilities or with the observations of Council officers of the subject site. It is Mr Hollyoak's evidence that the occupancy rate of vehicles applied will materially affect the parking demand. His analysis is as follows: "Based on a patronage of 113 persons (i.e 108 car drivers/occupants) - a rate of 1.30 persons per vehicle equates to a parking requirement of 83 spaces. - a rate of 1.50 persons per vehicle equates to a parking requirement of 72 spaces. - a rate of 1.56 persons per vehicle equates to a parking requirement of 69 spaces. - a rate of 1.60 persons per vehicle equates to a parking requirement of 68 spaces." (Exhibit 3) 1. Mr Hollyoak repeated the preceding analysis on the assumption of a patronage of 236 persons. 2. Mr Hollyoak concludes that as the proposal only accommodates 34 parking spaces on site, the majority of patrons will need to find parking in surrounding residential streets. This overflow would range between 35 and 109 vehicles by utilising maximum patron numbers of 113 and 236 respectively. (Exhibit 3). Driveway Access 1. The traffic experts provided two expert reports for the assistance of the Court, Exhibits 3 and 8. The second joint report was directed the amended driveway configuration (refer to [3]) and the issues raised on site by the objectors in relation to the safety of pedestrians accessing the site by crossing Blacktown Road. 2. It is the agreed evidence of the traffic experts that the amended driveway configuration is acceptable. In the second joint report, Mr Hollyoak confirms that the amended design addresses his previous concerns with vehicular access to the site. Pedestrian Safety 1. Having considered the specifics of the context of the site and the concerns expressed about pedestrian safety, the traffic experts agree as follows: "KH and BM are of the view that pedestrians crossing from the west to east can wait upon the splitter island (which is of adequate width to accommodate able bodied pedestrians). The lack of a kerb ramp will make it more difficult for people pushing wheelchairs or prams to cross at this point. However, KH and BM are also cognisant of the school's efforts to direct their children to cross at the signalised pedestrian crossing at the intersection with Great Western Highway. The provision of a formal pedestrian crossing at the roundabout may encourage schoolchildren to choose this informal crossing as opposed to the signalised crossing. On this basis, KH and BM believe that no formal pedestrian crossing is required at the roundabout but if pedestrians choose to cross here, the width of the splitter island allows pedestrians to wait here whilst undertaking a staged crossing of Blacktown Road. BM recommends that the traffic management plan addresses a process for any mobility-impaired or special needs worshippers booking an on-site parking space. This can be addressed via a condition of consent." 1. The recommended amendment to the traffic management plan, to make provision for an onsite booking process for any mobility-impaired or special needs worshippers, is accepted by the Applicant. Such a condition is incorporated in the consent at 12.11.1 of Annexure A. Findings 1. I accept the agreed evidence of the planning experts that if the Court was to provide consent to the development the amended POM and the conditions of consent (condition 15.5) result in a limit to patronage of the site to 113 people. 2. Further, a practical approach to the evidence supports a conclusion that the provision of 1.2m² area per person to undertake worship that involves alternating kneeling and standing positions is a reasonable metric. On this basis, I prefer the evidence of Mr Harding at [33]. 3. I am satisfied that, in implementing the measures proposed in the POM, the patronage numbers will be able to be satisfactorily managed to not exceed the maximum of 113. I note that this maximum is enforced in condition 13.5.1 of the consent at Annexure A. 4. The Respondent argues that the proposed development will produce unacceptable impacts on the amenity of the immediate area on the basis that worshippers attending the place of public worship will park in surrounding streets. 5. As noted at [16], the applicable parking rate in DCP 2015 is 1 space per four seats. It is accepted by the parties that applying this rate, but substituting 'seat' for the 1.2m² occupied by each worshipper, derives a parking rate of 28.25 spaces. It is agreed that the development proposes 34 parking spaces on site. The development is compliant with DCP 2015. This accords with the evidence of Mr Maynard. 6. I accept the submission of Mr Eastman that to impose a requirement for provision of a number of onsite parking spaces greater than that which is sought by DCP 2015 is to impose a requirement that is a more onerous standard. 7. Section 4.15(3A) of the EPA Act provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. 1. I concur with the findings of Commissioner Gray in Dickinson Property Group Pty Ltd v Wollondilly Shire Council [2019] NSWLEC 1220 at [49]. Consistent with s 4.15(3A) of the EPA Act, I am satisfied that there is no legal basis in these proceedings to warrant a more onerous parking standard for the proposed development than that which is detailed in DCP 2015. 2. I accept the evidence of the traffic experts that the previous contentions in relation to the driveway design and concerns for pedestrian safety are addressed. Is the site suitable for the proposed development? 1. It is Mr Seymour's submission that the provisions of the POM and the traffic management plan are inappropriate tools to manage the poor location of the site for the proposed use and the acoustic and on-street parking impacts arising from it. 2. Mr Seymour notes that many of the objections received during the notification of the application, and orally at the commencement of the hearing, detail the impacts on the surrounding properties arising from on street parking. These include blockage of driveways, reduction of manoeuvrability in the local streets and queuing in Blacktown Road. 3. Further, a number of objections received from members of the public about the development raise concern about the impact of noise arising from the development, and the vehicle movements generated by it. Noise 1. An acoustic report was prepared by the Applicant in support of their application, which is filed in the proceedings as Exhibit J. 2. The acoustic report identifies the following measured rating background noise levels of the subject site and the adjoining residential development: "Early morning (5am to 7am): 51dBA Day (7am to 6pm): 55dBA Evening (6pm to 10pm): 52dBA Night (10pm to 7am): 46dBA" (Exhibit J) 1. The residential properties opposite the subject site are represented by the data logged at the boundary of 260 Metella Road and opposite 15 Fox Hill Road. Utilising this data, the report determines a set of Noise Criteria adopting the methodology in the Environment Protection Authority's Industrial Noise Policy for Industry 2017. The report also analyses the potential for the use, and associated vehicle movements, to result in sleep disturbance between 10pm and 7am. 2. The acoustic report concludes: "It is my opinion that the operation of the proposed Public Place of Worship, as proposed in DA-16-04996, together with the implementation of the Recommendations in this report, will not affect the acoustic amenity of the residential neighbours near the site" (Exhibit J). Those recommendations are: "I recommend a consent condition be imposed to require a detailed analysis be carried out once the mechanical plant selection is finalised, prior to the issue of a Construction Certificate." (Exhibit J) 1. The agreed consent conditions include the following conditions: "6.3 Noise 6.3.1 Prior to the release of the Construction Certification, the recommendations in the Acoustic Report prepared Day Design Pty Ltd, report number 6825-1.1R, dated 23 September 2019 shall be implemented. A statement of compliance from the Principal Certifying Authority shall be submitted to Council demonstrating the recommendations in the report. 6.3.2 A certificate must be provided by a qualified acoustic engineer stating that provision has been made in the design of all sound producing plant, equipment, machinery, mechanical ventilation system or refrigeration systems to ensure that it is acoustically attenuated so that the noise emitted: a) does not exceed an LAeq sound pressure level of 5dB (A) above the ambient background noise level when measured at the most effected point on or within any residential property boundary b) cannot be heard within a habitable room in any sole occupancy unit or other residential premises (regardless of whether any door or window to that room is open) between the hours of 10pm and 7am. The method of measurement of sound must be carried out in accordance with Australian Standard 1055.1." (Exhibit 6) 1. Mr Seymour argues that the findings and recommendations of the acoustic report are incorrect as Mr Gould was unable to confirm that his logged measurements did not include theoperation of the site as a Place of Public Worship during the logging period. He submits, therefore, that the measured noise results are inflated. 2. In the alternative, Mr Eastman argues that even if the assumption put by Mr Seymour is correct and the use was operating at the time of measurement, the acoustic report demonstrates that the sleep disturbance criteria are met. 3. Mr Eastman notes that Table 8 in the acoustic report demonstrates that the activity that generates the highest noise level at the nearest residential properties is the sound of a passenger door slam associated with a worshipper parking on the street. This generates a noise level of 69dBA. This noise does not arise directly from the operation of the facility, therefore whether it was operating, or not, is irrelevant. The frequency of this noise level being exceeded at each of the residential receivers was also measured and tabulated. 4. Mr Eastman notes the report concludes that the occurrence of cars parking before 7am is acoustically acceptable and "will be similar to the level of noise that the local residents are already exposed to which includes isolated noise events in the same range as those which may occasionally occur from the proposed mosque." (Exhibit 6) Plan of Management (POM) 1. It is Mr Seymour's submission that, applying the planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (Renaldo v Hurstville), absolute compliance with the proposed POM is required for the successful operation of the site. He argues that 'absolute compliance' is unlikely and that noncompliance will give rise to unacceptable impacts. Mr Seymour concludes that compliance is unlikely, broadly on the following grounds: * there is evidence of the impacts arising from the use of the site as a mosque, detailed in the residents submissions. In particular, the impact of on street parking on manoeuvrability and driveway access. * that the high level of management of people and vehicles required is symptomatic of the lack of suitability of the site for a place of public worship. * the roles allocated to the traffic controllers in the POM are substantial and unlikely to be able to be undertaken by the two nominated people. An additional person is required. * there is no allocation of staff to the management of on-streetparking impacts in the surrounding streets. * when the car park on site is full, a driver on Blacktown Road wishing to enter the site needs to identify the proposed traffic controller, understand their direction to not enter the site and continue on. This management approach is likely cause confusion and the bank up of traffic on Blacktown Road. 1. Further, Mr Seymour argues that the POM is too vague, too conceptual and lacks standards against which performance is measured and definitive tasks. He submits that additional certainty is required in the POM given the complexity of the use and the need for active management to address off-site impacts. 2. In conclusion, Mr Seymour seeks an amendment to the POM to require an additional traffic controller to address on street parking impacts in the surrounding streets. 3. In the alternative, Mr Eastman argues that the POM is "comprehensive and establishes management procedures and systems to ensure that the number of occupants of the site will not exceed 113 persons in 'peak' periods" (Applicant's written submissions 1 October 2019, p 3). Further, Mr Eastman notes that the peak attendance is likely to occur once a week at Friday lunchtime prayers, and at Eid prayer events twice a year. 1. Mr Eastman accepts that the planning principle in Renaldo v Hurstville is relevant and in his written submission provides a response to each of the questions in the planning principle. Relevantly, in response to the concerns of Mr Seymour about the need for absolute compliance, he states: "Renaldo question 2: Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? No. There are methods of managing the capacities of both the car park and the place of public worship itself. Turning away worshippers and cars is not unreasonable. Any place which has any sort of capacity must be capable of doing the same and this is no exception to that common place enough occurrence. Renaldo question 3: Can the source of any breaches of the Management Plan he readily identified to allow for any enforcement action'? Yes for three main reasons. The Applicant contends that the physical capacity it proposes of 1.2m2 per worshipper is reasonable and that capacity will ensure the limit can be effectively identified. Secondly, the potential impact from a car parking or noise perspective is readily observable externally. Thirdly, the conditions of consent require noise complaints to be followed up with measurable data (see condition 15.6.3). Renaldo question 4: Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? No. As is the purpose of a POM, the intent is to compliment the conditions and to demonstrate how an Applicant proposes to operate so that the proposal can be properly assessed (and for the Applicant to follow through on what it says to the consent authority on the application). However, any strict compliance that is not observed would not create significant or adverse amenity impacts. The POM is a tool, but it is not the only barrier between acceptability and detrimental amenity impact. That being said, a condition has been included at condition 15.6.1 that requires the consent holder to operate in accordance with the POM." (Applicant's written submissions, 1 October 2019, p 4). 1. Finally in relation to site suitability, Mr Eastman notes that the site is surrounded by non-residential uses and there is plentiful on street parking on the western side of Blacktown road in proximity of the site, prior to the access to the bulky goods centre (26 spaces). Findings 1. The Respondent argues that the site is unsuitable for the development proposed as it will give rise to adverse acoustic impacts and has the potential to generate further adverse impacts due to the uncertainty generated by the proposed POM. I am not persuaded by these arguments advanced by the Respondent and I am satisfied that the site is suitable for the proposed development. My reasoning follows. 2. The acoustic evidence of Mr Gould, and his acoustic report, demonstrate that the proposed development is unlikely to result in sleep disturbance. No alternative acoustic evidence is advanced by the Respondent. I accept Mr Gould's evidence. 3. I am satisfied it is unlikely residents will experience significant increases in early morning traffic movements and parking as a result of the development. Thus the likelihood of any acoustic impact is moderated. My reasoning is that: the site is compliant with the onsite parking requirements of DCP 2015; the POM identifies the maximum attendance on site occurs during the middle of the day; and that attendance in the early morning is proposed to be a maximum of 50 people. 4. However, recognising the concern expressed by the residents that their sleep will be disturbed by the operation of the development, I am satisfied it is appropriate to include the following condition in the consent: "13.5.1(a) The maximum attendance at the site shall not exceed 50 people prior to 7am." 1. The preceding condition will work in conjunction with a further condition which provides a restriction to operating hours of 5.30am to 9.00pm Monday to Sunday for the development – Condition 2.2(a): "2.2(a) This consent authorises the use of the completed approved buildings between the hours of 5.30am to 9.00pm Monday to Sunday." 1. The evidence of Mr Gould that the operation of the proposed Place of Public Worship will not affect the acoustic amenity of the residential neighbours near the site is not rebutted by the Respondent. 2. I am satisfied that the proposed development does not warrant refusal on the grounds of detrimental acoustic impacts. 3. The Applicant relies on a POM to control the operation of the proposed Place of Public Worship. The POM is detailed in Exhibit E and adopted in the conditions of consent at Annexure A. 4. I adopt the agreed position of the parties that it is relevant to consider the planning principle in Renaldo v Hurstville in determining whether the POM is appropriate for the proposed use and the particular location. 5. I am not persuaded by the submission of Mr Seymour (summarised at [65]) that 'absolute compliance' with the POM is required for the proposed development to be acceptable and not generate adverse impacts. I am satisfied that the on-street parking generated, if any, will be a result of the events detailed in the POM as having a maximum capacity of 113. These are principally Friday lunchtime prayers and the Eid prayer which occurs twice per year (Exhibit E). The Applicant has demonstrated that within the immediate proximity of the site, on-street parking exists for around 110 vehicles. For these limited events, I am satisfied that any impact arising from the use of on street parking is reasonable. 6. Further, at 2.12 of the POM, it states that part of the duties of the traffic controller is to "monitor on street parking behaviours and take names of offenders to be provided to the on site manager". I am satisfied that this provision of the POM, along with the inclusion of a complaints management process, will address the concerns of residents about poor parking behaviour arising from the development. 7. I accept the oral evidence of Mr Apps that the POM is adequate and the oral evidence of Mr Harding that the POM has been developed from experience of operating similar facilities and is informed by those learnings. On the basis of this evidence, I prefer the submission of Mr Eastman that the POM is comprehensive and will establish procedures and systems to control the operation of the Place of Public Worship on the site. 8. I am satisfied that the POM meets the planning principle in Renaldo v Hurstville and is an appropriate means of ensuring the development does not adversely impact on the amenity of the neighbourhood. 9. Further, I find that the likely impacts arising from any on street parking generated by the proposed development do not warrant the refusal of the application under s 4.15(1)(b) of the EPA Act. Is the development inconsistent with the R2 Low Density Residential zone objectives? 1. The Respondent submits that the proposed development is inconsistent with the following objectives of the R2 Low Density Residential Zone: To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood. 2. Pursuant to cl 2.3(2) of LEP 2015, a consent authority must have regard to these objectives when determining a development application in respect of land within the zone. 3. It is planning experts agree that in these proceedings the likely impacts on amenity arising from the proposed use are traffic, parking and noise. In particular, Mr Apps' evidence is that the proposed development would most likely impact parts of Fox Hill Crescent, Metella Road, Oakwood Road and Nairobi Place through additional on street parking and the noise associated with vehicles. 4. Mr Harding's evidence is that the due to the location of the site on the western side of Blacktown Road, it "will have the benefit of a higher threshold for measuring impacts to the neighbourhood" (Exhibit 5). 5. Mr Eastman argues that the objectives are "directed to the strategic planning decision in the selection of permissible uses in the zone" (Applicant's written submissions, 1 October 2019, p 2). It is his submission that the fact that the place of public worship is a permissible use itself achieves the objectives of the zone. Further, he submits on the evidence of the experts there is no adverse impact on the amenity of the neighbourhood arising from the proposed development. 6. Mr Seymour disagrees with the submissions of Mr Eastman and argues that pursuant to cl 2.3(2) of LEP 2015, the zone objectives are a matter for consideration in the assessment of the development application. Findings 1. Consistent with my findings earlier in the judgment, I am satisfied that the proposed development is consistent with the objectives of the R2 Low Density Residential Zone. Further, I am not persuaded that the development will generate an adverse impact to the amenity of the neighbourhood such to warrant the refusal of the application. Conclusion of Assessment 1. In undertaking the required assessment of the merit of the application, I have read and given consideration to the issues raised by the objectors to the proposal. Many of the proposed conditions of consent, and particularly the proposed controls within the POM are focussed on ameliorating the potential impacts of the development raised by the residents. I am satisfied that the proposed place of worship, subject to compliance with the conditions of consent and supplemented by the provisions of the POM can operate in a satisfactory manner without any adverse impacts on the amenity of adjacent properties. 2. Having determined that the use is consistent with the objectives of the zone, that the traffic and parking generated by the development can be satisfactorily accommodated on site and in the road network and that the use is not, having regard to the objections received, contrary to the public interest, there is no reason why consent should not be granted. Orders 1. The Court orders that: 1. The Applicant is granted leave to amend the development application to rely on the amended plans referred to in condition 1 of Annexure A. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA-16-04996 for demolition of existing structures and site preparation works and the construction of a place of public worship associated civil works, parking and landscaping at 420 Blacktown Road, Prospect (Lot 25 DP14084 and Lot 261 DP792897) subject to the conditions of consent at Annexure A. ………………………. D M Dickson Commissioner of the Court Annexure A (199 KB, pdf) 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: 17 October 2019