Pope Shenouda Coptic Church v Campbelltown City Council [2010] NSWLEC 1034

Land and Environment Court of New South Wales

CITATION : Pope Shenouda Coptic Church v Campbelltown City Council [2010] NSWLEC 1034

APPLICANT Pope Shenouda Coptic Church PARTIES : RESPONDENT Campbelltown City Council

FILE NUMBER(S) : 10700 of 2008

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT APPLICATION - LOCAL GOVERNMENT APPROVAL - THREATENED SPECIES :- Intensification of use of religious facility

Environmental Planning and Assessment Act 1979 Local Government Act 1993 IDO 13 – City of Campbelltown LEGISLATION CITED: Campbelltown (Sustainable City) Development Control Plan DCP No 49 Rural Environmental Sub-division Dwelling Policy DCP No 52 – Off-street Car Parking Policy; and DCP No 82 Campbelltown Council Religious Establishment Policy State Environment Planning Policy No 55 - Remediation of Land

DATES OF HEARING: 28, 29 and 30 September and 23, 24 and 25 November 2009

DATE OF JUDGMENT: 19 February 2010

APPLICANT Mr M Craig QC Mr S Flanigan, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Susan Hill & Associates Lawyers Pty Ltd

RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

19 February 2010

08/10700 Pope Shenouda Coptic Church v Campbelltown City Council

JUDGMENT

1 SENIOR COMMISSIONER: Long Point is a locality on a peninsula of land, some 2 km long, in a large bend in the Georges River. Across the river, in all directions, is bushland. A single road, Wills Road, runs along the spine of Long Point intersecting at a T-junction, at its southern end, with Kingdon Road, a short road running at right angles in either direction. Rural residential allotments front Wills Road and at its southern end, Kingdon Road. To the rear of each of the allotments along Wills Road at its southern end and of the allotments along Kingdon Road is bushland to the river punctuated by the occasional fire trial or access path. 2 Wills Road, although straight, has a number of undulations along its length so that, as a motorist proceeds from the more populated urban area of Macquarie Fields along Wills Road into Long Point, the peaks and troughs along the road mean that there are some constraints on visibility in the hollows. 3 Wills Road and Kingdon Road, although tarsealed, have comparatively narrow carriageways and have grassed shoulders and nature strips. There are no major footpaths and there is no kerb and guttering. Although Wills Road does not run in a precisely north-south direction and Kingdon Road does not run in a precisely east-west direction, it is convenient to treat them, for the purposes of referencing orientation in this decision, as if they did so. I have, therefore, adopted these notional orientations for the purposes of this decision. The site 4 At the intersection of Wills Road and Kingdon Road, a religious facility is located in the north-western elbow of the intersection. A christian church facility has been located on the site since 1959. This was owned by the Baptist Union until 1975 when it was purchased by the Coptic Church (the Church). The facility as operated by the Church is now known as the Pope Shenouda Coptic Christian Centre (the centre). The land upon which the centre is located (the site) is some 3.47 ha in area and is approximately rectangular with frontages of 160 m to Wills Road and 216 m to Kingdon Road respectively. The site comprises four largely cleared parcels of land. 5 However, within the site, along the frontage to Wills Road (particularly in the south-eastern corner) and returning a short distance along Kingdon Road are remnants of an endangered ecological community, Sandstone Shale Transition Forest. The remnants of the endangered ecological community are in varying conditions with that in at the south-eastern corner of being in best condition. The other elements along the Wills Road frontage have been significantly degraded, at least in their understorey, by being used as informal parking spaces during large gatherings of members of the Church. 6 At least some of the endangered ecological community, to the south of the driveway into the site from Wills Road, has been slashed, some of it in the recent past. As part of the joint ecological report on the endangered ecological community, the experts, Dr Robertson and Dr Mills, for the applicant and Campbelltown City Council (the council) respectively, have agreed that a marked air photograph produced by Dr Mills shows the extent of the endangered ecological community on the site.

7 The Wills Road frontage is fenced within a substantial low brick fence with brick pillars at regular intervals joined by steel picket infill panels. The fencing along the Kingdon Road frontage comprises a cyclone mesh metal fence some 2 m high. In this cyclone mesh fence, toward its western end, is located a pair of emergency access gates. 8 Although the Church originally proposed some form of masonry wall along this frontage earlier in the development application process, that is no longer part of the application and it is intended to retain the cyclone mesh fence (although a second pair of emergency gates is proposed closer towards the intersection with Wills Road with the existing emergency access gates to be relocated a little further to the west). 9 There are presently a number of structures located on the site of varying types with these structures, in varying combinations, in turn, hosting a range of activities conducted by the Church on the site. 10 As one enters the site from Wills Road and proceeds up the concrete driveway, there is an open wooded area immediately to the right and to the left of the driveway. Particularly to the right (or northern) side of the driveway but also to some extent to the left (or southern) side of the driveway, there is virtually no understorey growing as a consequence of this area being used as an informal parking area for spillover from the present gravelled parking area located to the west of the church building. In addition to the compaction that takes place as a consequence of this vehicle use, I understood that the areas used for this informal parking are also slashed on a regular basis as earlier noted. 11 To the right at the head of the made, concrete portion of the driveway, is the present church building. This is not the original church building on the site as that was destroyed by fire but was rebuilt, in its present form, with council consent. This rebuilt church building was consecrated in 1995. 12 To the west of the church building, along the boundary for ~ 15 m is a gravelled area where vehicles are parked, informally, in two rows separated by a central aisle. At approximately the midpoint in this car parking area, on the southern side, is located a metal shed with a substantial metal awning around it on part of its northern side and along the full length of its western side. It is currently used for food preparation and outdoor eating. This shed also houses the Church's bookshop. This structure is to be demolished as part of the proposal. Immediately to the west of the structure is located an in-ground swimming pool that is to be retained as part of the proposal. 13 At the head of the drive, to the south, an informal, gravel vehicle track turns to the left and runs some 25 m or so before turning to the west. The vehicle track then runs a further 25 m or so before turning to the north for a further 25 m or so where it joins the western head of the informal parking area earlier described. 14 The metal shed and swimming pool are joined, in the area enclosed by this vehicle track, by a dogleg shaped grassed area with the portion comprising the southern half of the grassed area having a number of poles that appeared capable of having basketball nets attached to them. In the area between the metal shed and the head of the driveway is located a somewhat dilapidated, unroofed gazebo-style structure. 15 To the south of the east-west running portion of the gravel track loop is located a less than full-size soccer field – the eastern end of which is above the natural ground level and is located on fill that must have been brought to the site at some time in the past. 16 Along the western edge of the site are located a variety of structures of varying ages. Commencing at the northern boundary, there is a small fibro-cement clad building that is used in for storage purposes. Almost immediately to the south of this building is a U-shaped building that is open in its eastern aspect towards Wills Road. This building is the present dormitory building used both by young people attending Church youth camps and by adults attending religious retreats. An open concrete basketball court is located within the U of this building. Use of the basketball court by exuberant young persons in the late evening or early hours of the morning causes noise impacts on local residents. 17 Both the fibro-cement clad building and the dormitory building are to be demolished as part of the proposal 18 Set back closer to the western boundary of the site (and to the south of the dormitory building) is located a large metal-clad service shed with a number of roller doors facing to Wills Road. The shed is to be retained as part of the proposal. 19 To the south-east of this service shed is a further fibro-cement clad building which is proposed to be demolished as part of the proposal. 20 Completing the range of structures presently on the site, located to the south of the fibro-cement clad building referred to immediately above, is located the caretaker's residence for the site. This residence is also proposed to be retained. This residence has a residential-scale curtilage fenced by a swimming pool-style fence. 21 To complete the picture of the site, the western edge of the site, beyond which is bushland that is part of the endangered ecological community, is an extension of the cyclone mesh fence running along the Kingdon Road frontage, apparently for the whole of the length of this western boundary. Along the northern frontage with the neighbouring rural residential property is constructed an agricultural style fence that is only ~1.2 m high. The proposal at the commencement of proceedings 22 The proposal has undergone a lengthy planning process with many revisions to the plans since a development application for the site (providing the formal basis for the present proposal) was originally lodged with the council in 2005. The council refused that application in July 2007. 23 The original 2005 development application plans have undergone considerable change since the application was lodged – including as recently as foreshadowed changes and revised plans being provided during the course of the site inspection. 24 To describe the proposal it is convenient to follow, in rough terms, the progression of the earlier description given of the existing buildings on the site. 25 For the church building to the right at the head of the drive, it is proposed to extend the area of this building by adding cloistered galleries along the northern and southern walls of the building. The western end of the church building is to be extended and, on the north-western and south-western corners, domed towers are proposed (each of which would be surmounted by an unlit cross). A mezzanine floor would be incorporated within the building, in its western quadrant – which mezzanine floor would be accessed by a staircase in the southern domed tower. The domed roof of each of these towers would be ~ 2.5 m higher at the top of each cross than the present curved church roof – a roof that is ~ 7.5 m above ground level at its western end (there being a gentle slope to the east toward Wills Road so that the eastern end of the church building is somewhat less than a metre above natural ground level). 26 The new internal vehicle movement pattern proposed for the site will also comprise a properly constructed loop road of greater dimensions than that presently operating, informally, with structured parking originally proposed on each side of this loop road with a circulation aisle down the centre. The circulation pattern and parking would, in lieu of being located adjacent to the northern boundary to the west of the church building, would run straight ahead through the area where the present metal shed structure is located and turning to the south adjacent to the present swimming pool. The informal use of the areas to the north and south of the concrete driveway is to cease and low barriers are to be erected to prevent vehicle access to these areas. 27 Where the present informal car park is located to the west of the church building, there is to be a pair of buildings with an open courtyard accompanied by a series of walls supporting sailcloth protective structures above. To the north of this courtyard is proposed to be located a library and bookshop or building and, to the south, a conference centre. 28 The soccer field, still at reduced scale, is to be relocated to run north-south in lieu of the present east-west orientation and is to be located at approximately the midpoint, along the north-south axis, of the western area of the site. 29 In the middle of the proposed new internal loop road, a new dormitory building is proposed to be constructed as a hollow rectangle. The centre of the rectangle is to accommodate a full-size basketball court. The whole of the dormitory and basketball complex is to be under a single roof. 30 It is also appropriate to observe that, at the commencement of the proceedings, some 59 trees were proposed to be removed. At the commencement of the proceedings, 133 parking spaces were proposed to be provided on the site together with the use of the relocated soccer field for overflow parking during the churches annual general meeting. The issues 31 Although the proposal involves construction of a significant number of buildings and a significant reorganisation of the applicant's activities on the site, the issues that were raised by the council in its Further Amended Statement of Facts and Contentions, although requiring detailed consideration during the course of the hearing, are comparatively easy to enumerate in general terms. The issues raised by the council were: o Insufficient on-site parking; o Incompatibility with the council's guidelines for the location of religious establishments; o Inconsistency with the character of the Scenic Protection Zone in IDO 13 – City of Campbelltown; o Inappropriate bulk and scale of the proposed buildings and unacceptable intensity of use; o Acceptability and extent of the proposed tree clearance on the site; o Impact on an endangered ecological community and other flora and fauna issues; o Acoustic impact acoustic, tree removal, general visual and traffic impacts on the amenity of surrounding residences; o The architectural style of the proposed development; o A range of inadequacies in the information provided; and o The undesirable precedential effect of such an approval. The planning framework 32 The site is located in the Scenic Protection Zone of IDO 13 – City of Campbelltown. Because of the significant extent of bushland in the vicinity and the associated bushfire risk, the proposal is integrated development requiring consent from the Rural Fire Service (RFS). 33 The planning instruments that arise for particular consideration in the context of the issues pressed by the council are: o IDO 13 – City of Campbelltown; o Campbelltown (Sustainable City) Development Control Plan; and o Three specific development control plans, No 49 Rural Environmental Sub-division Dwelling Policy; No 52 – Off-street Car Parking Policy; and No 82 Campbelltown Council Religious Establishment Policy. 34 Because there are elements of fill on the site, provisions of State Environment Planning Policy No 55 - Remediation of Land are also engaged. The site inspection 35 During the course of the site inspection, I heard informal evidence from 14 residents of either Wills Road or Kingdon Road; each of these witnesses reflected, in their own fashion, on the various planning issues raised by the council. 36 In addition, the matter of the impact on the proposed development on property values was raised by a number of objectors – however, this matter of concern is not a matter that can be taken into account in a planning merit review process through the Court. Notes were taken of the evidence given on site by the residents and these were subsequently transcribed, settled by the parties' legal representatives and tendered. 37 In addition to hearing this informal evidence, I had the opportunity to walk around the site to the location of the various elements of the proposal earlier discussed and along relevant parts of Wills Road and Kingdon Road. 38 To assist in understanding the proposal, the applicant had had a surveyor peg the four corners of the proposed central dormitory building (at the locations that were delineated on the plans for which leave was given to rely during the course of the first phase of the hearing – discussed immediately below). The first revision during the hearing 39 During the course of the site inspection, Mr Craig QC, for the applicant produced a further set of revised plans and foreshadowed that, when the matter returned to court, leave would be sought to rely on these further amended plans. 40 On the second day of the hearing, the applicant was granted leave to rely on these new amended plans that had been foreshadowed during the site inspection – subject to an undertaking given to the Court that the applicant would need the additional assessment costs of the council with respect to waste water disposal issues (as the revised plans, in their proposal for a parking and traffic corridor across the southern face of the dormitory building would encroach significantly on an area that had been designated for the irrigation of effluent).

Further evolution of the proposal 41 It was not possible to complete the hearing during the time originally allocated and a gap, evident from the dates disclosed on the cover of this judgment, permitted further consideration by the applicant of its proposal.

42 During the course of the period between the two hearing phases of this appeal, the applicant made significant further amendments to the plans in response to matters raised during questioning of expert witnesses. In the course of closing submissions, in addition, consistent with the approach of the Court in adopting an "amber light" approach to contested proposals, significant further agreement was reached between the parties during consideration of the council's without prejudice conditions consent.

43 Although, as is entirely appropriate for the council to do, the council maintained its opposition to the overall proposal, sufficient progress was made with the conditions of consent, as well as to the terms of a Plan of Management, that there remained comparatively few matters of conditions to be determined if the applicant were to be given development consent for the now amended proposal.

Consideration of the issues 44 Before turning to consider those issues that require comment or determination, it is appropriate that I make some observations concerning what unfolded during the course of the two phases of the hearing. 45 Consistent with the approach that the Court takes in seeking the best community outcome if a proposal were to be granted a development consent, an element of problem-solving is undertaken (and was undertaken in this case) by the groupings of expert witnesses called to give evidence about and respond to the issues raised in their respective areas of expertise. 46 In these proceedings, as discussed below, the various groupings of experts, across the two phases of the hearing process, resolved virtually the totality of the detail of matters put in issue by the council or addressed, appropriately, as was the case with traffic generation and the capacity of Wills Road, matters raised by the residents. 47 The consequence of this, although it is appropriate that I deal, briefly, with the various matters that were originally placed in contention by the council, is that, at the conclusion of the hearing, only one substantive issue remained as being pressed by the council as warranting refusal of the application, as I understood the council's case. That issue was that the proposed intensification of use that would arise if the development were to be approved was inappropriate in this rural residential location. 48 A number of other matters of a comparatively limited compass also remained to be determined arising out of matters where the parties were not able to agree on what would be appropriate conditions of consent if I were to determine that a consent should be granted. 49 I now turn to the specific matters raised by the council – although not in the order raised by the council in its Further Amended Statement of Facts and Contentions. Inconsistency with the character of the Scenic Protection Zone 50 I do not propose to deal with this topic, separately, at length. It is sufficient to note, in my view, that a number of specific matters that would have, in a technical sense, potentially impacted on the character of this area within the Scenic Protection Zone have been resolved, satisfactorily, during the course of the proceedings. These were technical matters such as traffic, parking and noise – subsequently discussed as separate topics that were dealt with and resolved during the course of the proceedings. This also applies to the question of the visual presentation, to the public domain, of the overall development when it is completed.

51 Of critical importance, in this regard, are provisions of the Plan of Management and various other operational plan elements required by the proposed conditions of consent. Warranting particular mention, in my view, is the question of staging of the development in a fashion to ensure that the potential for adverse and unacceptable impact on the surrounding community is eliminated by an orderly and predictable staging of the development – particularly as it is possible that the development, which is obviously an ambitious one for the Church community, may well be undertaken over a comparatively lengthy period of time.

52 In this regard, it is appropriate to note that one of the two significantly substantive matters contained in the council's without prejudice conditions of consent that remained in dispute between the parties concerned their alternative views of the staging of the proposed development. This is dealt with, expressly, later in my consideration of the contested conditions of consent. Bulk and scale 53 The matter relating to the bulk and scale of elements of the proposed development arose primarily in the context of the dormitory building proposed for the centre of the new loop road on the site. The proposed dimensions of this building also gave rise, in its originally proposed form at the commencement of the hearing, to a number of the key concerns relating to acoustic and visual impacts on neighbouring properties and the presentation of the proposed development to the public domain when viewed from Wills Road or Kingdon Road.

54 However, during the course of the hearings, this building was modified along its southern end as part of the process of modification of the internal loop road. The modifications to this building (which modifications had the effect of shortening its north-south axis and causing the southern facade of the building to retreat from the Kingdon Road frontage – providing more open space between that building and the boundary), when coupled with the removal of parking from along that section of the internal loop road, caused Mr Burton, the town planner for the council, to revisit his earlier expressed concerns and to conclude that there were now no adverse impacts on the properties in the vicinity and that the presentation of the dormitory building to both Wills Road and Kingdon Road was acceptable. This also resolved, as I understood the position, the concerns that were expressed by the council relating to the architectural style and appearance of this building.

55 A number of issues relating to the interface between the church building (and the games room building immediately to its west) with the residential property to the north of the site were also resolved by minor alterations to the proposed acoustic wall and minor amendments to the plans for the proposed new additions to the church building along its northern side.

56 As a consequence, there remained no unresolved issues of concern of this nature. Tree removal and protecting the endangered ecological community 57 Although there will be the necessity for removal of a significant number of trees along the north and south running eastern elements of the proposed internal loop road (trees that are associated with the endangered ecological community), the elements of the community on the site in the south-eastern corner will not merely be protected from the current intermittent slashing which occurs in part of the community along the northern portion (in the vicinity of the line marked on the air photo earlier noted) but will also be subject to a plan of management that will, over time, ensure ecological restoration of this area.

58 In addition, the landscaping along the southern boundary, an area which includes, at the present time, several scattered trees belonging to the endangered ecological community, will be able to be landscaped with plantings including species within this community.

59 Although there is likely to be the necessity for some initial and ongoing maintenance thinning of the canopy of the trees (forming part of the endangered ecological community) that are located to the north of the driveway between the church building and the Wills Road frontage – coupled with the necessity to keep the understorey of that portion of the site slashed (these measures being for fire protection purposes), the final position of the ecologists, as I understood it, was that the overall outcome was acceptable on an ecological basis. Policy for the location of religious premises 60 The council raised the question of the application of its policy for the location of religious premises (including the desirability of this facility being located in accordance with the policy), 61 However, this policy applies to the location of new religious facilities – not here applicable.

62 I do not consider that this stands in the way of the present proposal. I have reached this conclusion for the simple reason that the present facility exists at the site and has done so for a considerable period of time. This is not an application for the greenfields establishment of such a facility. It is, however, clearly a significant intensification of the use of an existing facility and this is a topic to be considered both in its general local context, as I do at the conclusion of this decision, and also in the specific context of what direct impacts, if any, that intensification might cause within the surrounding area.

63 However, the council's policy about the location of new facilities of this type cannot be applicable and does not stand as an impediment to approval of the present proposal. Bushfire 64 The proposal was referred to the RFS – with a response to the then proposal being received by letter dated 23 January 2009. In that letter, the RFS proposed that a number of conditions be imposed on the development but did not raise any objections to the development proposed in the then application.

65 Although compliance with the RFS's requirements for maintenance of appropriate asset protection zones will have some impact on the endangered ecological community remnants on the site (particularly in the north-eastern corner), the RFS raised no fundamental objection to the proposal.

66 Although there have been a number of modifications to the proposal since those comments were received, I am satisfied that, from my past experience in dealing with matters where bushfire issues were raised, that the nature of the amendments that have taken place to the proposal have not increased any bushfire risk or need further preventative measures. Indeed, to the extent that it should be noted, the alterations to the proposed to dormitory building, for example, will have the effect of lowering the maximum overall population that might stay overnight on the site and thus lower the number of persons who might, conceivably, need to be evacuated if circumstances arose requiring this. Inadequacy of information 67 As occurs from time to time in merit review proceedings in the Court, inadequacies exist in the information provided to the original consent authority; they also arise during the course of preparation for the hearing; and, less frequently, occur during the course of the hearing itself. Thus it was with the present proceedings.

68 However, by the time the hearing had concluded, sufficient information had been provided to enable earlier information deficiencies to have been cured. Whilst granting development consent will require the provision of further information, for example in support of the application for the on-site wastewater management system (being an application necessary pursuant to s 68 of the Local Government Act 1993, there is now no information deficiency that stands in the way of the determining the outcome of this appeal. Noise 69 For the very large part, the acoustic experts for the parties agreed on measures that would remedy not merely all the noise impacts from the proposal but also cure present unacceptable impacts (such as late night basketball noise). 70 Although it was initially disagreement between the traffic experts as to how the vehicle movement restriction proposed by the acoustic experts might be enforced (a matter resolved a chain and lock provision in the conditions of consent relating to the resultant final parking design), the acoustic experts did agree on the points to the south of which movement restrictions should apply and marked those on a plan in evidence. Traffic and parking 71 I also had the benefit of constructive concurrent evidence from the parties' traffic and parking experts.

72 During the course of their evidence, a number of matters were dealt with relating to parking demand on the site that would be expected to arise for the number of persons anticipated to attend various events or activities that had been specified in a series of tables appended to the draft Plan of Management (these limits being enforceable as conditions of consent). Traffic on Wills Road 73 I turn, first, to deal with the issue of the capacity of Wills Road to carry the necessary traffic from the various activities and events proposed to be conducted on the site.

74 Wills Road is a long straight road from the Macquarie Fields urban interface to its T intersection with Kingdon Road, a distance of several kilometres. The road traverses a number of gentle rises and hollows over this distance. The road has predominantly unmade verges that are predominantly grassed. Amongst the matters raised by the resident objectors was the question of safety if there were to be the increase in vehicle numbers that might arise from the development and if it were to be permitted. 75 There are two elements forming the response to these concerns that render them without foundation. 76 The first is that the traffic and parking experts agreed that Wills Road had the traffic capacity to absorb any increase in vehicle movements that would arise from the proposal without there being unacceptable adverse impacts on the local community. They also agreed that sightlines were such that the safety issues raised by the residents with respect to the undulations in the road were also not matters of concern. 77 Second, the applicant has agreed to a condition of consent that all persons attending activities that are to be conducted in the new dormitory building will arrive at and depart from the site by bus – thus avoiding what might have been an otherwise significant element of intensity of individual vehicle use generated by the proposal. 78 These agreements, in conjunction, cause me to conclude that there are no external traffic issues of concern. 79 As a consequence of the agreement of the experts that the permanent on-site parking (coupled with the annual use of the soccer field for overflow parking on the occasion of the maximum day of parking demand) will satisfy parking demand on site, I am satisfied that there is unlikely to be any spillover parking onto the surrounding streets or, if such spillover were to occur on an infrequent basis, it would be of such a low intensity as not to warrant concern.

Parking and internal movements on site 80 I now turn to deal with the question of the adequacy of on-site parking and internal traffic movement.

81 A largest event proposed to be undertaken on the site is the Church's annual general meeting at which it is expected there would be a maximum attendance of 500 persons.

82 To accommodate the parking demand for this number of people, on a once a year basis, it is neither possible or reasonable to require that the applicant provide permanent hardstand parking for this purpose for the number of vehicles expected for this event. As a result, in addition to the number of permanent parking spaces that will be necessary to accommodate the expected ordinary peak demand for the specific numbers attending the events identified in the tables to the Plan of Management, these experts have agreed on the number of vehicles that can be parked on the soccer field. 83 As I understand their evidence, they have agreed that the spaces on the soccer field (access for which requires the giving up of several permanent parking spaces on the loop road on the site for this purpose), when coupled with the remaining number of permanent parking spaces on the site, will be more than adequate provision of parking for this annual event.

84 At this point, I should note that parking on the soccer field will be available on a one-off, annual basis only is this space cannot be used for regular or frequent parking because of the compacting effect that such use would have on the soil of the soccer field by regular passage of vehicles across it. Compaction of the soil on the soccer field is unacceptable because the soccer field provides the major area to be irrigated for the purposes of the disposal of treated effluent on the site.

85 The relocated soccer field together with a landscaped area to the south of the dormitory building are the areas proposed by the applicant's effluent and wastewater consultant to be irrigated for disposal of effluent from the on-site treatment plant. It is necessary to have a sufficiently area (in total) available for this purpose. Provision of sufficient and acceptable (in all regards) space on the site is agreed to be available for this purpose.

Traffic circulation 86 The traffic experts agree that it is appropriate that there be clockwise circulation around the internal roadway for buses as this will permit buses that might need to be parked overnight on the site to reverse into the bus parking spaces in the south-western corner of the site adjacent to the proposed new priest's residence.

87 The acoustic experts had earlier agreed that there should be no bus movements to or within the site during the night hours to which the vehicle movement restrictions within 50 m of the southern boundary ought apply.

Effluent disposal 88 There is to be an on-site effluent treatment system to provide for effluent disposal of grey and black water generated by the total proposed development on the site. The treatment facility (other than its associated irrigation areas) is to be located to the east of the eastern element of the new proposed internal loop road. The facility is to be located approximately opposite the mid-point of the proposed dormitory building.

89 Effluent from this treatment plant is to be disposed of by irrigation onto the soccer field and onto an additional area on the site so that sufficient space is available to ensure the efficiency of the wastewater irrigation scheme.

The proposed new dormitory building 90 The proposed new dormitory building is by far the largest of the new structures proposed for the site. It takes up, effectively, the totality of the space within the proposed new loop road configuration but with a little landscaping around it. The building is to be constructed as a hollow rectangle with a new basketball court in a central courtyard. The totality of the building, including the basketball court, is to be roofed and the roof is to be acoustically treated to prevent reverberation noise being transmitted from within the building.

91 On the eastern, southern and western sides of this courtyard are to be constructed a series of small residential rooms and meeting or lounge areas. There is to be a dining space in the northern side with a commercial scale kitchen, in the north-eastern corner, rounding off the proposal for this building. The main ridge of the building, to give sufficient height for the basketball court, is some 11.5 m above ground level.

Visual impact of the final proposal 92 During the course of the evidence given by Mr Moody, town planner for the applicant, and Mr Burton, Mr Burton agreed that, as a consequence of the removal of parking between the dormitory building's southern face and Kingdon Road, together with the additional shortening of that building and the now proposed landscape treatment between this building and Kingdon Road, he now raised no objection to the visual presentation of that building on that elevation.

93 Similarly, with the more limited landscaping but the extensive vegetation enhancement by rehabilitation of the endangered ecological community, in the south-eastern corner of the site, Mr Burton now had no concerns about the presentation of the dormitory building as it would be viewed from the Wills Road perspective.

94 As these two roads are the only places from which there would be viewing from the public domain of the dormitory building (this building being the largest building proposed to be erected on the site), there was no streetscape presentation issue remaining in the proceedings.

95 However, Mr Burton remained of the opinion that the intensity of the development and the extent of the developed site coverage would be inappropriate. Mr Burton did not disagree with Mr Moody's estimate of a final proposed floor space coverage of approximately 15% of the site. However, Mr Burton did undertake a calculation that included not merely the existing retained buildings and proposed new buildings and/or hard surfaces (such as roads and footpaths) but also added the area required for subsurface wastewater irrigation area as part of the development footprint proposed for the site.

96 Using these areas, Mr Burton calculated a development coverage approaching a little less than 50% of the site's area.

97 The areas proposed to be used for effluent disposal include a less than full-sized soccer field. The other areas to be used for effluent disposal are landscaped areas. These other areas to be used for effluent disposal, which have been now located so that they will have no impact on the endangered ecological community remnants that will remain on the site or on any of the landscaped plantings (along the southern boundary) from suite of species in that endangered ecological community, will appear no visually different, whatsoever, from other open grassed or lightly vegetated areas on the site.

98 The consequence of this observation is that I am satisfied that it does not matter whether these areas should be regarded as developed or not in assessing whether the appearance of the site, as a developed area, is confined to the buildings and other hard surface areas, as calculated by Mr Moody, or whether the proposition advanced by Mr Burton should be adopted.

99 The easy resolution of the conundrum is the fact that if these areas are to be discarded, the appropriate approach to adopt is that advocated by Mr Moody on the floor space ratio of approximately 15% as a post development impact or, if Mr Burton's calculation were to be adopted, but on a basis where comparable present visual "apples" are compared with future, post-development, visual "apples", there is not much difference between them concerning that which is proposed and will exist in the future. If the soccer field is to be incorporated as a developed area in the future assessment, it would seem to me to be bizarre and illogical not to include it in the area to be regarded as developed at the present time. A similar position applies to any other landscaped areas required for effluent disposal where the subsurface irrigation piping for effluent disposal will be virtually invisible (if not entirely invisible) and un-intrusive.

100 Although there will be an increase in built form on the site, indisputably, a portion of the development also merely involves the rearrangement of open space areas such as the soccer field, and does so in a fashion that lessens the impact (of areas such as the soccer field) on residents of either Wills Road or Kingdon Road. Contested conditions of consent 101 By the stage when final submissions in the matter were completed, a significant number of the matters of detail in the without prejudice conditions of consent had been resolved. There were only four matters, two of which are linked, that remained in contention. The matters that remained in contention were: o Whether or not the obtaining of an approval pursuant to section 68 of the local government act 1993 for the installation of a wastewater management system should be a deferred condition of consent or an operational condition; o Within the matters otherwise agreed as requiring to be addressed in any such application pursuant to the local government act 1993, the applicant objected to the requirement for a further ecological report concerning the impact of the proposed waste water treatment system on any native vegetation or endangered ecological communities; o What should be the nature of the perimeter fencing, other than the existing masonry fencing along the Wills Road frontage; and o What should be the required staging for the development.

Local Government Act application 102 The council proposes that the application pursuant to s 68 of the Local Government Act 1993 for the installation of a wastewater management system should be required as a necessary prerequisite to the commencement of the development consent. The effect of agreeing to this proposal is that none of the works otherwise proposed to be undertaken on the site could commence until such an approval had been obtained. 103 Consideration of the two competing staging proposals, as discussed later, shows that the sequential installation of the proposed waste water treatment system would occur at the same time in each of the staging proposals. Each of the staging proposals effectively makes the installation of the proposed waste water treatment system the first major element of the works undertaken on the site – as each of the staging proposals limits the Stage 1 works to the erection of the proposed 2.5 m high temporary acoustic barrier along the northern boundary of the site. 104 As a consequence, in terms of what might be erected, whether there is a deferred commencement condition concerning the wastewater treatment system or an operational condition, there is no impact on the sequence of works and, as a consequence, in my view, no environmental impact on the land. 105 The sole effect of the deferred commencement condition is to require the planning and design work for the wastewater treatment system to be undertaken within 12 months rather than within what would otherwise be the longer life period of the consent. 106 Given that there is no physical impact of making it an operational condition, for the reasons set out above concerning the staging process, and as a consequence of this being a community-based organisation providing a facility for a full range of age groups within a faith community, dependent, it is reasonable to infer, on the fund raising activities of the congregation and its associated faith community to be able to bring this project to fruition, it is not unreasonable to make the process for approval under the Local Government Act 1993 for the wastewater treatment system one that could take place in the ordinary time available for the commencement of the development consent rather than within the more restrictive period of time proposed by the deferred commencement condition. 107 For these reasons, this condition should be an operational condition rather than a deferred commencement condition.

Additional ecological report 108 The course of the hearing, the final locations for the various effluent irrigation areas were derived from a combination of the consideration of not merely vacant spaces available for this purpose but also whether or not those spaces would have any impact on, particularly, the endangered ecological community located on the site. It is my understanding of the ecological evidence that the final areas designated for these purposes were accepted by the relevant experts as not having any potential impact on the endangered ecological community. 109 As a consequence, I do not consider that it is necessary that this additional report be provided. If, during the course of detailed planning for the application to be made pursuant to the Local Government Act 1993 for the final design of the wastewater treatment system, alterations of any significance are required to be made to the location of the various effluent irrigation areas, a modification application will be required and a further ecologist's report may be rendered appropriate if such circumstances were to arise. However I do not see that it is necessary that there should be a further report of this nature unless such changes were to occur. Perimeter fencing 110 The council proposes a condition concerning the perimeter fencing for the site that would be in the following terms: Perimeter fencing for the site is restricted to open style fencing of a rural character, comprising timber poles and wire strand or similar, except for the existing masonry fencing on the Wills Road frontage which may remain in place. 111 On the hand, the applicant proposes that this condition should read: Existing perimeter fencing for the site shall remain including the existing masonry fencing on the Wills Road frontage except for any sections of barbed wire which shall be replaced with matching cyclone fencing. 112 At the present time, as earlier described, a cyclone mesh fence some 2 m high with emergency egress gates is erected along the Kingdon Road frontage. There is a return element of fencing of this nature along the south-western element of the western boundary. 113 Some matters were raised concerning the possibility that the existing boundary fencing along the Kingdon Road frontage might act as a wildlife barrier, given the extensive bushland in the vicinity. However, given the extent of human settlement and number of persons who will occupy the site from time to time, I am satisfied that the appropriateness of a degree of security fencing along the primary road frontages is acceptable. The present style of fencing along the Wills Road frontage provides this to some extent as does the present fencing along the Kingdon Road frontage. I am not persuaded that, to the extent that there might be some interference with wildlife movement, this is not outweighed by the reasonable desirability for the applicant for security for its site. 114 As a consequence, the applicant's version of the proposed condition of consent is to be preferred except that, to the extent that there might be a degree of dilapidation in the rural fencing dividing the applicant's property from the residential property immediately to the north, the applicant should be required to replace or repair that fencing as part of this approval. As a consequence, the conditions of consent are to be altered to reflect this but only if the council considers that some replacement or renovation of the existing rural style fencing along the northern boundary warrants upgrading of the fencing along the boundary.

Staging 115 Given the extensive and varied nature of the works that will be carried out as a consequence of my approval of the project, it is necessary that there be a clearly defined staging of the total program of works to be implemented. The reason for this is to ensure that there is no undesirable impact on neighbouring properties occasioned by the carrying out of the work so that, for example, acoustic benefits to be obtained as a consequence of the works are not brought to fruition unacceptably late in the process. Further, it is necessary to limit any other impacts – for example, by ensuring that appropriate parking and internal road arrangements are established at an appropriate time in the staging, as there might also be unacceptable impacts on residences in the locality if this were not done. 116 As I do not have anything upon which to base my assessment of the competing staging proposals other than the bare bones of the staging proposals themselves, I have set these out, in tabular form, below, showing the competing propositions from the applicant and the respondent. With respect to each stage, were there is any difference requiring my determination, I have made such a determination. In some instances, I have not adopted the totality of either proposal. 117 A minor difficulty in undertaking this task is the fact that the parties do not proffer the same number of stages within which the works are proposed to be undertaken. I have, therefore, not regarded myself as bound by a total number of stages as it would be possible for the applicant effectively to merge two stages by conducting them in immediate sequence (if necessary for the efficient implementation of the consent).

Stage 1

Applicant's version Construct a 2.5m high temporary acoustic barrier.

Respondent's version Construction of a 2.5m high temporary acoustic barrier adjacent to the northern boundary of the land to shield the congregation area and the proposed building works for the canteen, church shop, games room building.

Determination and reasons There does not appear to be practical difference between the two proposals but the respondent's version provides greater certainty as to what is sought to be achieved by the barrier and is to be preferred.

Stage 2

Applicant's version o Obtain approval under s68 of the Local Government Act ("LGA") for the waste water treatment plant and associated works and install. o Relocation of existing soccer field to approved location with associated demolition works including existing house and part of the existing dormitory building required to be demolished for new soccer field.

o Installation of the waste water treatment plant and associated works, including the effluent application areas, as approved under section 68 of the Local Government Act ("LGA"). Respondent's version o Remediation works to be undertaken in accordance with the approved Remedial Action Plan by appropriately qualified persons and site validation report completed by a suitably qualified person verifying that the site complies with the relevant standards for the proposed use of the site, to be submitted to Council. o Relocation of existing soccer field to approved location with associated demolition works including existing house and that part of the existing dormitory building required to be demolished for new soccer field.

As a consequence of my determination concerning the proposed deferred commencement condition, the applicant's version of the first dot point is to be preferred.

Determination and reasons The council's staging proposal requires effectively that any site remediation be undertaken prior to any major works being undertaken on the site. The applicant is silent on this point. Given that condition 25 gives rise to the necessity for such works to be undertaken prior to the issuing of a construction certificate, the council's requirement for the incorporation of the second dot point in the staging process is entirely reasonable and is to be retained.

The third dot point is the same in each version except for the word that appearing at the end of the second line in the council's version. I do not believe that this is of any significance but, to the extent that it might be, the council's solution is to be preferred.

Stage 3

o Creation of internal driveway including loop road and associated kerb and stormwater facilities together with carparking spaces. Applicant's version o Establishment of chain wire barrier as required by condition 91. o Area occupied by approved carparking spaces to be constructed, until completion of new dormitory building, of compacted road base material

o Creation of internal driveway including loop road and associated kerb and stormwater facilities together with carparking spaces. Respondent's version o Establishment of chain wire barrier as required by condition 91. o Appointment on-site caretaker who is to reside within the designated caretaker's residence and be available to ensure the management of site in accordance with approved Plan of Management. o Establish phone complaint service/register and erect required sign as required by Plan of Management.

There are two distinctly separate differences between the applicants and the respondent's proposals for Stage 3.

Determination and reasons First, the applicant proposes that the internal road and associated works, including carparking works, should be undertaken on an interim basis, using compacted road base material, until the final stage of the proposal – that is the construction of the dormitory building. By necessary inference, the council requires that these be constructed to final standard at this stage. Given that it is the arrangement of these facilities rather than the standard of their construction that is of significant importance in dealing with possible impact of the proposal and as the construction traffic for the building of the dormitory building, a quite substantial structure, might cause significant damage to any finally finished internal roadway if this were to be required at an early stage thus occasioning additional and potentially unreasonable expense for the applicant, the applicant's version of this element of Stage 3is to be preferred.

Second, the council proposes that there be an on-site caretaker appointed to ensure implementation of the Plan of Management. The applicant's proposals for staging are silent on this point. The Plan of Management provides, in 2.6.3, that a Caretaker shall reside within the designated Caretaker's Residence and shall be available to ensure that the activities of the church are conducted in accordance with this Plan of Management. The council's staging requirement is consistent with that which is required in the Plan of Management and is to be incorporated in the staging plan.

Stage 4

Applicant's version Erect shop/games room building

Respondent's version Erection of the canteen, church shop, games room building and demolition of existing buildings used for those purposes within one month of commencing occupation of new canteen, church shop, games room building.

Determination and reasons The difference between the two versions for this stage is the requirement for the demolition of the existing structures that are being replaced within one month of commencing occupation of the new structures replacing them. Although the council's version is more expensively descriptive of the structures involved, I do not understand that there is any functional difference between these descriptions. As all the activities currently undertaken in the existing structures are to be accommodated in the new, it is appropriate that the old be demolished and I'm satisfied that one month is an appropriate period of time within which this should be achieved. As a consequence, the council's version of this stage is to be preferred.

Stage 5

Applicant's version o Erect required acoustic wall between church and games room building. o Demolish temporary acoustic barrier (refer to stage 1) behind shop/games room building but retain remainder (to east) for shielding of church extensions

Respondent's version o Erection of required acoustic wall between canteen, church shop, games room building. o Demolish temporary acoustic barrier (refer to stage 1) behind canteen, church shop. games room building

Determination and reasons The applicant's version appears to provide additional interim acoustic protection during the construction of church extensions. If that is what is intended, the applicant's version is to be preferred.

Stage 6 and all outstanding works are dealt with together as they are interlinked

Stage 6

Applicant's version Erect conference hall

Respondent's version The council offers no Stage 6 but incorporates the erection of the proposed conference hall in the Other Work stage.

Remaining work

The following works may be carried out in any sequence: o Erect priest's residence. o Extend church. Applicant's version (Stage 7) o Demolish existing conference hall and that part of existing dormitory building not yet demolished at stage 2. o Construct new dormitory building provided that the existing dormitory building will be completely demolished within one month from the date upon which an occupation certificate is issued for the new dormitory building. o Remainder of approved landscaping (other than perimeter landscaping undertaken at stage 2(iii) to be completed prior to occupation of new dormitory. o Final sealing of approved carparking spaces to be undertaken on completion of dormitory building.

The following may be carried out in any sequence after Stage 3 provided that all work (including demolition work) subject of this consent is completed prior to commencement of any occupation of the dormitory building: o Erection of conference hall and demolition of existing building used for that purpose (which must be done prior to commencing occupation of the new conference hall) Respondent's version (Other work) o Erection of new priest's residence o Extension of church building o Construction of new dormitory building and completion of demolition of that part of existing dormitory building and not yet demolished at stage 2 (which must be done prior to commencing occupation of the new dormitory building).

The remaining differences between the parties' versions relate to two demolition elements only as the question of sealing of the internal road and carparking spaces, although only described as a sealing of carparking spaces in the applicant's Stage 7, should take place on completion of the dormitory building and the conditions should so provide.

The council proposes that the two demolition elements should take place prior to the commencement of occupation of the new building that replaces the old building to be demolished

Determination and reasons The applicant proposes that the demolition of the residual element of the dormitory building should take place within one month of commencing occupation of that new building whilst there is no timeframe proffered for the demolition of the old conference hall after the erection of its replacement facility.

In stage four, the council proposed that the demolition consequent on that stage should take place within one month of the commencement of occupation of the new structure replacing that which is to be demolished.

I am satisfied that the council's early provision, favoured by the applicant in these latter provisions for the rebuilding, is appropriate and that one month after occupation should be allowed to the applicant to demolish either of these two structures proposed to be replaced. However, in order to ensure that there is no inappropriate intensification of use, the conditions should also provide that none of the structures required to be demolished within one month of the occupation of the new structure that replaces them is permitted to be used for any purpose during the period pending demolition.

The remaining major issue 118 Mr Seton, solicitor for the council, submitted that although the proposal might now be regarded as visually acceptable in a streetscape sense, nonetheless there would be a change in the intensity of activity that, in turn, would lead to a change of the character of the locality. 119 It was the council's position, in the final analysis, that that change in the character of the locality was unacceptable and provided an appropriate basis upon which the proposal should be refused. It is the council's position that the predominant character of the locality is that of a small-scale rural bushland residential area with, toward the interface with the urban area of Macquarie Fields, some intensive development of a plant nursery and some chicken sheds. There was, in addition, a little to the north of the site on Wills Road, another youth camp. However, it remains the council's position that that which is proposed will impact adversely on that small-scale rural bushland residential character. 120 Into that present character, of course, must be inserted, for assessment purposes, the presence of the existing Church facility and associated ancillary buildings. The Church and its predecessor religious facility, as discussed earlier, have had buildings on the site for nearly half a century. A religious facility, involving activities and limited accommodation for young people associated with that religious facility has been part of this site's life for very many years. That life, under either professing denomination also forms a significant part of the present and past character of the locality.

121 As a consequence of everything described earlier, the position that was reached at the conclusion of the hearing was that, with the exception of some conditions of consent in contention matters that would not warrant refusal of the proposal, the sole matter brought by the council as warranting refusal is intensification of the use of the site. 122 The various changes made to the proposal during the course of the two phases of the hearing, although leaving the proposal squarely within the broad parameters of the original concept thus permitting it to be considered in its amended form, has progressively addressed and resolved the issues of: o sufficiency and location of internal parking; o noise impacts on neighbours; o the future of the endangered ecological community; o on-site effluent disposal; and o visual impact when viewed from the public domain.

123 As a consequence, there are now no external unacceptable impacts of the proposal. On the proposal remains one to which consent can lawfully be given. 124 As to the question of intensification, the site of has, as earlier outlined, being used for religious purposes for ~ half a century and for purposes broadly analogous to the as now proposed for a quarter of a century. The intensification necessarily inherent in this application will have a number of beneficial effects in resolving impacts on neighbours from noise and on the broader environment by ensuring a managed and protective regime for the endangered ecological community. Although an intensification, undoubtedly of a significant nature as discussed, there are to be no discernible impacts save those that might be seen by an aerial observer when the proposal has been brought to completion. Such aerial observation could not form a basis for refusal. 125 Although the proposal, in the form at the commencement of the proceedings faced a wide range of obstacles that might have rendered it unacceptable, those obstacles were not insurmountable and have been resolved. As a consequence, I do not consider that there is any basis upon which the proposal, in its present form, could now be refused. Orders 126 The orders of the Court, therefore, are: 1. The appeal is upheld; 2. Development Application 3263/2005 for the demolition of existing structures, extension to the existing Church and the erection of new buildings together with an internal loop road and parking at Wills Road Long Point is determined by the granting of development consent subject to the conditions in Annexure A; and 3. The exhibits, other than Exhibits 1, G, U, V, Z, BB and CC, are returned.

Directions 127 To permit finalisation of these proceedings, I give the following directions: 1. The respondent is to file, in hard copy and electronically by e-mail to the Court (directed for my attention), settled conditions of consent to reflect this decision by the close of business on Wednesday, 10 March 2010; 2. The matter is listed for mention before me at 4.00 PM on Friday, 12 March 2010; and 3. If direction (1) is complied with, I will make orders in Chambers and vacate the mention.

Tim Moore Senior Commissioner

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