Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 17:

1. This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order 1262/2023/N-EPA issued by the respondent under s 9.34 and Part 1 of Schedule 5 of the EPA Act to the applicant on 27 July 2023 (and modified on 21 August 2023), requiring the applicant to stop use of land identified as Lot 7 in Deposited Plan 39165, known as 13-17 Eagleview Road, Minto (Premises), as a place of public worship.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Premises is approximately 2.085 hectares and zoned C4 Environmental Living under the Campbelltown Local Environmental Plan 2015 (CLEP).

4. The applicant is the registered proprietor of the Premises.

5. The following development consents are relevant to the Premises:

1. 2118/2011-DA-O granted by the respondent in 2012 which approved the construction of an outbuilding and use of the building as a craft studio (2012 Consent). The 2012 Consent contained conditions limiting the use of the Premises to a maximum of five people and hours of operation from 9am to 5pm Monday to Friday and 9am to 1pm on Saturday. The 2012 Consent also contained a condition prohibiting the use of the Premises for any purpose other than a craft studio, including a religious establishment.

2. 3587/2017/DA-C granted by the respondent in 2018 which approved alterations and additions to the existing building for use as a community facility (2018 Consent). The 2018 Consent contained conditions including that the maximum attendance at the Premises for regular weekly activities was 50 (although may extend to a maximum of 150 people on average oncer per month, being a maximum of 12 times per year), and prohibited the use of the Premises as a place of public worship, amongst other uses.

3. 3587-2017-CPAN-382531 granted by the respondent on 11 July 2024 modifying the 2018 Consent (Modified Consent) to amongst other things:

1) increase the maximum number of people attending the Premises to 220 on Friday, Saturday and Sundays subject to conditions and otherwise a maximum of 100 people;

2) require 120 car parking spaces to be provided subject to prescribed specifications; and

3) require specified acoustic mitigation and minimisation measures to be implemented.

6. It is noted that the:

1) condition specifying that the use of the Premises as a place of public worship and other specified uses are prohibited is retained in the Modified Consent; and

2) ability to increase the maximum number of people attending the Premises is dependent on specified conditions being satisfied (including, for example, the requirement to provide the required car parking spaces).

7. It is the respondent's contention that the Premises is being used as a "place of public worship", being a prohibited use in the C4 zone under the CLEP. It is the applicant's position that the Premises is being used as a "community facility", being a permissible use in the in C4 zone.

8. The respondent gave the applicant a Notice of Proposed Development Control Order on 1 May 2023.

9. The respondent gave the applicant a new Notice of Proposed Development Control Order on 23 May 2023.

10. Following written representations from the applicant as to why an order should not be issued, the respondent issued the order to the applicant on 27 July 2023 pursuant to s 9.34 and Item 1 "Stop use order" in Part 1 of Schedule 5 of the EPA Act.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193be2960122c170a188431d)

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