Re: Draft guidelines for Places of Public Worship (PoPW) within Georges River Local Government Area

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1 Our Ref: 563 Your Ref: Place of Public Worship Draft DCP Provisions 6 October 2017 The General Manager Georges River Council (By mail@georgesriver.nsw.gov.au) Attention: Catherine McMahon, Manager Strategic Planning (By cmcmahon@georgesriver.nsw.gov.au) Dear Ms McMahon, Re: Draft guidelines for Places of Public Worship (PoPW) within Georges River Local Government Area I make the following submissions on the instructions of South Hurstville Residents Association (SHRA) and Penshurst Action Group (PAG). This submission must be read together with the detailed submission of the Associations dated 6 October To the extent of any inconsistency the Associations dated 6 October 2017 should be the formal position of the Associations. I have reviewed the Draft DCP provisions. In the first instance, we say that PoPW should not be placed in R Zones given the impacts being experienced by existing PoPW in R zones that Council should discuss this in the context of the Standard Instrument LEP with the Department of Planning and Environment. PoPW should be prohibited in the R2 Zone. We understand that the Standard Instrument Principal Local Environmental Plan notes that PoPW must be included as either Permitted without consent or Permitted with consent within the R1 zone, R3 and R4 zones and Council s hands are tied in this regard. Nevertheless, they may otherwise be prohibited by the Council s LEP in the R2 zone. We submit that the LEP should be amended to prohibit them in R2 zones under both Hurstville Local Environmental Plan 2012 and Kogarah Local Environmental Plan Existing PoPW should be listed as additional permissible uses within both Hurstville Local Environmental Plan 2012 and Kogarah Local Environmental Plan 2012, where they are within the R2 zones. These existing PoPW must not benefit from existing use rights under the LEP. Existing Use Rights are often a back door to inappropriate intensification of use applying Part 4, Division 10, of the Environmental Planning and Assessment Act Applicants argue that LEP and DCP requirements that would derogate or have the effect of derogating from the existing use have no force or effect while the incorporated provisions remain in force. They are often supported by Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 at and Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 at 17. Daintry Associates Pty Ltd ABN Page 1 of 11

2 Determination of Capacity and Impacts The determination of the real traffic, parking, privacy (visual and acoustic) and noise impacts must be based upon the capacity, the hours of use proposed and detailed operational management plans and architectural design of the proposal. The PoM is critical and is discussed in detail below. We agree that the appropriate measure of the capacity is the area of assembly areas within the buildings and the site. We further agree that if the holding of religious services is proposed within external assembly areas, those areas must be counted. The total capacity inside and outside the building must be quantified. If external areas are not proposed to be used as detailed by the Plan of Management (PoM), development consent conditions must expressly prohibit the use of external areas or any portion of the adjoining public domain or any neighbouring land for worship. There is no reason why the DCP should not make this clear. Occupation Rates We submit that the occupancy rate for a church contained within the Building Code of Australia 1 (Clause D1.13 and Table D1.3), which is 1m 2 /person, is the most appropriate base line measurement of capacity, whether the assembly area is within or external too any building on the site. We also submit that where a higher capacity is achievable by the application of guidelines specific to a religious use, that it is appropriate to apply the higher of the two capacity figures as the maximum possible capacity of the site for worship. An example is a mosque where the area for a prayer mat is 0.6m x 1.2m which equates to 0.72m 2 /person 2. Even when allowing for a 0.75m wide clear perimeter under the relevant guide that has been applied by the Court, the capacity for prayer mats exceeds the 1m 2 /person. We also not that if a room s true capacity is greater than 1m 2 /person that additional requirements will apply. If the application of any specific and relevant guidelines of any religion, that results in an occupancy rate greater than 1/person per square metre of the assembly areas, it is then appropriate that the required PoM detail this, that sanitary facilities, ablutions and emergency egress systems must be designed to facilitate that higher capacity. Until the maximum capacity has been determined it is impossible to apply any numeric formula relating to provision of traffic generation, parking demand or for acoustic engineers to assess and address the likely impacts. The nature of different religious practices means that very different capacities, frequency of use, hours of use and special events (key religious events where the maximum capacity will be achieved) will result. The PoM must provide a detailed schedule for weekly events and a concise list of key religious events including the dates for those key religious events as planned for the next two years Daintry Associates Pty Ltd ABN Page 2 of 11

3 Parking Rates We object to the low parking rates of 1 parking space for every 5 seats. Firstly, there may be not seats in any case and the capacity could be based upon prayer mats of 0.6 x 1.2 or 0.72m 2 and 1 space for every 5 worshippers might be barely acceptable for a small PoPW and would be totally in adequate for a large PoPW. Evidence given to the Court in recent PoPW cases has disclosed that the appropriate parking generation rate for peak events can be as high as 1 parking space for every 1.5 worshippers. Where a proposal is received without a traffic engineering report that demonstrates parking requirements based upon traffic and parking surveys for similar PoPW, then the parking generation rate that should be applied to any application for a PoPW should be the higher amount of 1.5 parking spaces per person measured by the capacity of the PoPW proposed. Again, this reinforced the proper determination of the maximum capacity as the starting point as the real physical capacity is the determinative quantitative element that drives, traffic, parking and noise impacts. Statement of Environmental Effects (SoEE) The lodgement of a SoEE is required with every development application. The SEE must indicate the following matters: a) the environmental impacts of the development, (expert reports) b) how the environmental impacts of the development have been identified, (expert report) c) the steps to be taken to protect the environment or to lessen the expected harm to the environment (the PoM may fulfil this role), d) any matters required to be indicated by any guidelines issued by the Secretary for the purposes of this clause. It is our submission that these statutory requirements can only be satisfied when the operation of the proposed PoPW is adequately defined by a detailed PoPW Plan of Management (PoM), supported by Acoustic and Traffic Engineering reports that specifically cross reference the impacts arising from the proposed operation of the PoPW. Plan of Management (PoM) The NSW Land and Environment Court s planning principles for PoM must apply and the DCP provisions must is our opinion require a detailed PoM to be lodged with every DA or section 96 for any PoPW. The consent authority may require changes to the PoM prior to granting development consent or prior to modifying any existing development consent 3. Council should not be afraid to defer determination of any DA to require the PoM amended if required 4. 3 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 at and Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150 at 50 if a Plan of Management was proposed, its extent and possible measures to strengthen it were routinely considered as part of the question of whether or not a consent could be granted Daintry Associates Pty Ltd ABN Page 3 of 11

4 Special events like Easter, Christmas, Ramadan including all Tarawih, Yom Tov, High Holy Days and Pilgrimage Festivals and many more, from many more religions, must be detailed by the PoM events schedule, by date, start time, finish time, maximum occupancy and name for a rolling two-year calendar. The maximum occupancy or maximum capacity for each special event must form a conditions of development consent and be clearly scheduled in the PoM. The special events have the potential to cause the greatest impacts upon neighbouring land uses and the PoM must demonstrate how the impacts will be managed to ensure that the impacts upon neighbours are acceptable. Large events must be support by traffic and parking management plans, valet, RMS accredited traffic controls and other special requirements as may be approved by the Local Traffic Committee may be necessary for some special events. The PoM when updated must be printed in PDF, published on the PoPW s website, ed to the Council. Scale We agree that defining small PoPW and large PoPW is desirable. We agree that only small PoPW should be allowed within R1, R3, and R4 or mixed use zones. That is, we disagree that small PoPW should only be limited to the R2 zone and Large PoPW should be exclude from all R zones and mixed use zones give the potential for sleep disturbance caused by inappropriate house or use and traffic and parking impacts irrespective of hours of use. We agree that Small PoPW are required to service the needs of residents within walking catchments and do promote social wellbeing. There must also be very limited hours of use conditions placed upon small PoPW to prevent sleep disturbance. Put simply, a corner shop opening hours would be routinely limited by conditions to be 7am to 9pm within any general residential zone and the same approach should be taken to non-residential uses such a PoPW. Large PoPW with significantly greater impacts caused by their capacity or proposed hours of use should only be in the B3 commercial core or IN2 Light industrial zones. Definitions We believe the definitions, as exhibited, are too loose and ill defined. We believe they can be more concise and easily interpreted as follows: Assembly Area(s) Assembly Area means the Gross Floor Area 5 and any outdoor area proposed to be used for religious services, education or instruction and any outdoor area capable of being used for any religious services, education or instruction, but excludes ancillary areas. Note as to interpretation: Outdoor areas can be excluded where the PoM makes it clear that no outdoor areas are to be used at any time for religious services, education or instruction provided a development consent condition expressly prohibits the use of any outdoor area for any religious services, education or instruction. 5 Gross Floor Area as defined by the Standard Instrument Local Environmental Plan. Daintry Associates Pty Ltd ABN Page 4 of 11

5 Ancillary Area(s) Ancillary areas are a kitchen, sanitary facilities, ablutions, storerooms enclosed by fixed walls not exceeding 16m 2 and any office enclosed by fixed walls not exceeding 16m 2. Note as to interpretation: Any area that may be adapted or utilised or open for use as an assembly area will be an assembly area for determining the assembly area. Small PoPW A small PoPW is a PoPW that has a maximum capacity or occupancy for the total assembly areas of less than or equal to 75 people on any day, excluding up to 3 special events each calendar year as detailed by the consent and/or the PoM, where the maximum capacity of the assembly areas, permitted at a rate of 1 person per m 2 may occur as detailed by the POM. Note as to interpretation: If the PoM fails to identify special events then the total occupancy of all assembly areas will be limited by development consent conditions to less than or equal to 75 people at any time. Large PoPW A large PoPW is any PoPW that is not a small PoPW. Traffic & Parking Traffic and parking generation rates must be based upon traffic surveys of similar PoPW undertaken by professional engineers (traffic engineers). It is clear from evidence given to the Land and Environment Court 6 in numerous cases relating to PoPW that the nature of different religious practices means that very different capacities, frequency of use, hours of use and intensities of use drive different trip generation rates and therefore intersection service level impacts and parking demands can be highly variable. Every PoPW application must be accompanied by a professional engineer (traffic engineering) report that determines the trip generations rates, assesses intersection services levels near the site, traffic and pedestrian safety and parking demand created by each proposal, based upon traffic and parking surveys of similar PoPW. Where any proposal or a PoPW or application to amend any development consent for a PoPW is proposed we submit that without any traffic engineering analysis, and most probably even with such analysis that it is appropriate to adopt a requirement for 1.5 people average car occupancy overall 7. 6 Nasser Hussein v Georges River Council [2016] NSWLEC 1548 at 62 the 1.5 people average car occupancy overall 7 Ibid [6]. Daintry Associates Pty Ltd ABN Page 5 of 11

6 Noise The NSW Industrial Noise Policy (INP) states: Judicious land use and project planning can often prevent potential noise problems from occurring. This policy should be used to consider the implications of proposing or allowing new noise-sensitive developments near noise generators and of proposing or allowing new noise-generating developments near established noise-sensitive developments such as schools, hospitals or homes. The criteria will help in the first instance to identify sites where it would be difficult, if not impossible, to avoid noise impacts over time, and will therefore help in an informed process for making decisions about land-use zoning or site selection by developers. The criteria can also be used to identify the need for planning and building-design mitigation measures for managing the relationship between noise- generating activities and noise-sensitive developments In Stockland Developments v Wollongong Council and others [2004] NSWLEC 470 at 6 the court held: Planning principle: noise attenuation 6 As a general planning principle, where there is conflict between a noise source and a sensitive receptor preference should be given to the attenuation of any noise from the source rather than at the sensitive receptor. This is true whether the noise source generated by a proposal is a new noise and the receptor exists or the noise generator exists and the receptor is a proposed use. In deciding whether the noise should be attenuated at the source, consideration should be given to the degree of conflict between the appropriate noise goals, the difficulty and cost associated with treating the noise at the source, the willingness of the noise generator to be treated and the potential amenity impacts associated with noise attenuation at the receptor. Depending on the circumstances of the case, the cost of attenuation measures may be borne by either party or shared between them, irrespective of the location. The DCP should simply adopt the intrusive and amenity criteria within the INP. The intrusiveness criterion essentially means that the equivalent continuous (energyaverage) noise level of the source should not be more than 5 decibels (db) above the measured background level. Noise impacts are also a function of the design capacity and the hours of use. Capacity and hours of use must be limited by the PoM and development consent conditions in addition to any reliance given to the physical capacity of the buildings and the site. Every PoPW application must be accompanied by a professional engineer (acoustic engineering) report that determines the measured background level, the predicted equivalent continuous (energy-average) noise level of the source based upon the physical and proposed capacity (maximum occupancy) and must make firm recommendations as to: Appropriate limits upon the maximum capacity Appropriate limits upon the hours of use Attenuation measures (physical noise mitigation strategies) Daintry Associates Pty Ltd ABN Page 6 of 11

7 Management measures (behavioural noise mitigation strategies) These requirements must be reflected in the Draft Plan of Management and the Council s DCP should make clear that the Council is likely to require changes to the PoM where it considers that capacity limits or hours of use must change to make the development proposal acceptable in term of its impacts upon its neighbours and the public generally. Research on Assembly Areas a proportion of Gross Floor Area The Associations have undertaken research with respect to the relationship between Gross Floor Area as defined by the Standard Instrument LEP and the real-world outcomes of PoPW in the Georges River Local Government Area. Whilst we can provide that research if Council request it, in summary 50% to 70% of the typical PoPW s GFA is consumed by areas that would fall within the definition of assembly area under the Draft DCP. I have graphed the resultant outcomes by site area and floor area for FSR of 0.5:1 and 1:1 and then equate this to assembly area populations outcomes at 70% of the GFA. The result is that at the minimum 800m 2 site area the likely maximum population would be 280 people at 1 person/m 2. As the FSR increased up to say 1:1, the capacity and hence population of an 800m 2 site would be 560 people at 1 person/m 2 within 70% of the GFA. These capacities and likely population number simply double when the site area, as shown, is 1600m 2. Daintry Associates Pty Ltd ABN Page 7 of 11

8 In summary, the conclusion that is that the Assembly area should be limited by the DCP to less than 50% of the Gross floor area, being the lower end of PoPW analysed by The Association. These outcomes were demonstrated in the matter of Nasser Hussein v Georges River Council [2016] NSWLEC At par the Court summarised our very similar submissions: 35. Close to 20 experts were engaged by the Council or the residents associations to deal with planning, traffic and noise impacts. Detailed submissions by these experts were provided to the Court and to the Applicant. They included a submission by Daintry Associates (Daintry) summarising traffic, parking and noise impacts and informed by technical reports prepared by the Transport Planning Partnership (TPP) on traffic and parking and by The Acoustic Group on noise impacts. Mott McDonald were also engaged to peer review the Traffic Impact Assessment (TIA) prepared by the Applicant s expert and prepared a report on their findings. They concluded that there are clear implications associated with trip generation, residential amenity, network capacity, safety, parking and access to this site, which have not been identified, considered and addressed as part of this TIA. In particular, they were critical of the assumptions made about the mosque s operations which had the potential to understate and inadequately manage the impacts. 36. Daintry also undertook an analysis of likely worshipper numbers and mosque capacity based on the design of the mosque which concluded that the mosque, as it was originally proposed, could accommodate over 650 worshippers in, or waiting to enter, the mosque based on design guidance provided by Mosque Development Regulations, studies and architectural prototypes developed in Abu Dhabi. Daintry argued that, based on this analysis alone, the precautionary principle should apply and the application should be refused because of the impacts such a facility would generate. In Nasser Hussein v Georges River Council [2016] NSWLEC 1548 we submitted that the Capacity well exceed the stated maximum occupancy, that large areas shown as ancillary or class room areas (capable of consolidation for use as worshipping areas (assembly areas)) and the quantum of toilets and ablutions proposed would allow 650 worshippers within the building when the purported maximum populations was 76. In short, it is our opinion that the occupancy rates were false and misleading and that the capacity was so much higher than the stated maximum occupancy rates that the proposal was a sham application. Daintry Associates Pty Ltd ABN Page 8 of 11

9 Conclusion The modelling we have and the Associations have undertaken and the facts disclosed through our experience in Nasser Hussein v Georges River Council [2016] NSWLEC 1548 and since support submissions that: 1. The definitions of assembly and ancillary use must be revised and not open to interpretation. 2. PoPW should be prohibited in the R2 zone and existing PoPW listed as additional permissible uses so they don t benefit from existing use rights. 3. Small PoPW can be located within R1, R3, and R4 and B zones but Large PoPW must be in other non-residential zones (commercial core and industrial). 4. The minimum lots size should be 1,000m 2 with increased minimum 3m side and 6m rear setbacks. 5. The areas dedicate for assembly use must be limited to a maximum 50% of the permissible GFA of any site, consistent with historic PoPW in the local government area. 6. The quantum of GFA, assembly and ancillary floor areas must inform the real capacity. The capacity must be assumed to appropriately inform the maximum occupancy and must not be unreasonably understated by any proposal. 7. The PoM to be submitted by the applicant must set out in sufficient detail the proposed use, proposed occupancy including special events and how the PoPW will manage occupancy limits and other impacts. 8. a professional engineer (acoustic engineering) report that determines the measured background level, the predicted equivalent continuous (energy-average) noise level of the source based upon the physical and proposed capacity (maximum occupancy) and must make firm recommendations as to: a. Appropriate limits upon the maximum capacity b. Appropriate limits upon the hours of use c. Attenuation measures (physical noise mitigation strategies) d. Management measures (behavioural noise mitigation strategies) 9. The applicant must provide a professional engineer (traffic engineering) report that determines the trip generations rates, assesses intersection services levels near the site, traffic and pedestrian safety and parking demand created by each proposal, based upon traffic and parking surveys of similar PoPW. In the absence of any traffic report the site must provide 1 parking space for each 1.5 people calculated based on the total assembly area calculated, based on the 1 person/m 2. Smaller PoPW, down to minimum lot sizes of 600m 2, would appear acceptable in R1, R3 and R4 and B zones provided the capacity is limited to 75 persons and occupancy limits are control by the PoM and operational development consent condition. We do not support 1 parking space for every 5 people (seats) and the determination of seats is not appropriate to the determination of required parking. Daintry Associates Pty Ltd ABN Page 9 of 11

10 Daintry Associates Pty Ltd ABN Page 10 of 11

11 The DCP must refer to the maximum capacity when determining the number of occupants. Further, based upon Nasser Hussein v Georges River Council [2016] NSWLEC 1548, 1 parking space for each 1.5 people is, on the evidence provided to the Land and Environment Court, appropriate where the applicant has not justified otherwise. Please don't hesitate to contact me on or by brett@daintry.com.au. Yours faithfully, Brett Daintry, MPIA, MAIBS, MEHA Director Daintry Associates Pty Ltd ABN Page 11 of 11