Land and Environment Court New South Wales

• Medium Neutral Citation: Friends of Refugees of Eastern Europe v Waverley Council [2017] NSWLEC 1404
• Hearing dates: 19, 20 June 2017, 6 July 2017 (written submissions)
• Date of orders: 02 August 2017
• Decision date: 02 August 2017
• Jurisdiction: Class 1
• Before: Brown C

Decision

1. The appeal is dismissed.; 2. Development Application No. DA -134/2016 for the demolition of the existing commercial tennis courts and ancillary buildings and the construction of a place of public worship (synagogue) and the construction of two three storey residential flat buildings at 105 Wellington Street, Bondi is refused.; 3. The exhibits are returned with the exception of exhibits 1 and A.

• Catchwords: DEVELOPMENT APPLICATION: demolition of the existing commercial tennis courts and ancillary buildings and the construction of a place of public worship (synagogue) of two/three storeys and underground car park and the construction of two three storey residential flat buildings – whether appropriate in terms of context and character and streetscape of the area - unacceptable amenity impacts - suitability of site because of the potential risk to users and other members of the general public.
• Legislation Cited: Environmental Planning and Assessment Act 1979; State Environmental Planning Policy No. 65; Waverley Local Environmental Plan 2012
• Cases Cited: ISP Pty Limited v Valuer General [2006] NSWLEC 478; Telstra Corporation Limited v Hornsby Shire Council 67 NS WLR 256; Wehbe v Pittwater Council 156 LGERA 446
• Texts Cited: Crime Prevention Through Environmental Design; Practice Note – Class 1 Development Appeals
• Category: Principal judgment
• Parties: Friends of Refugees of Eastern Europe (Applicant); Waverley Council (Respondent)
• Representation: Counsel: Mr I Hemmings SC (Applicant); Mr C McEwen SC with Mr M Staunton (Respondent); Solicitors: Hones Lawyers (Applicant); Wilshire Webb Staunton Beattie Lawyers (Respondent)
• File Number(s): 2016/168565
• Publication restriction: No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA 134/2016 for the demolition of the existing commercial tennis courts and ancillary buildings and the construction of a place of public worship (synagogue) and underground car park and the construction of two three storey residential flat buildings with 32 units with basement car parking and landscaping at 105 Wellington Street, Bondi NSW (the site).

2. The council maintains that the application should be refused for the following reasons:

the proposal does not respond to the context and character and streetscape of the area or provide a sufficient residential identity,

unacceptable amenity impacts such as inadequate solar access, noise and loss of privacy, and

the site is unsuitable for a synagogue because of the potential risk to users and other members of the general public.

3. A number of residents provided evidence on the site inspection and agreed with the contentions raised by the council, as well as the following other matters:

• excessive height,

• drainage,

• high boundary fence,

• proximity of electrical sub-station,

• availability of other nearby synagogues, and

• additional traffic/on street parking.

The site

4. The site is Lots 15 and 16, Sec 4, DP 441, Lot 1 in DP 34144 and Lot 2 in DP 34144. It is rectangular in shape and has a total area of 4044 sqm (196 sqm of this area is associated with DP 34144 and is owned by Sydney Water).

5. The site is primarily occupied by hard surface tennis courts covered with synthetic grass which are netted and lit by high level lights. The development on the site includes an existing clubhouse that extends along the south western edge of the site. The clubhouse consists of a two/three storey brick building and accommodates a function room, kitchenette, gym and a viewing area located on the first floor. The site does not provide for vehicle access.

6. The site topography has been modified to accommodate the existing use as tennis courts, which comprise three level platforms which step down from north-west to south-east. The levels vary by approximately 10 m across the site, from a high point of 38.05 m, adjacent to Wellington Street in the north-west, to a low point of 28.28 m at the rear of the site (south east).

7. The locality is characterised by predominantly medium density residential flat buildings and detached dwellings.

Relevant planning controls

8. The site is zoned R3 - Medium Density Residential by Waverley Local Environmental Plan 2012 (Amendment No 6) following the rezoning of the site from RE2 Private Recreation in July 2015. The proposed development is permissible with consent in this zone as a “Places of public worship” and “Multi dwelling housing”. Clause 2.3(2) provides that the Court “must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

9. Waverly Development Control Plan 2012 (DCP 2012) applies to the site.

10. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).

Context, character, residential identity and streetscape of the area

The evidence

11. Expert evidence on this matter was provided by town planner Mr Stuart McDonald for the council and town planner Mr David Hoy and urban designer Mr Michael Neustein for the applicant.

12. Mr McDonald states that with the exception of the site containing tennis courts, Wellington Street is characterised by one and two storey detached and semi-detached residential buildings with a mix of single dwelling houses and older style residential flat buildings. The one exception in the block between O'Brien and Hail Streets is the more contemporary flat building immediately to the north of the site at 107 Wellington Street. The buildings located on the residential lots are characterised by landscaped front setbacks predominantly of 2-3 m on both sides of the street, again with the exception of 107 Wellington Street

13. On the eastern side of Wellington Street, where the site is located, there is a reasonably consistent rhythm of lot sizes and open, level landscaped setbacks and low fencing. Lot widths vary from a maximum of approximately 13m down to 6m, with the majority at 8-12m. The western side is characterised by a less consistent rhythm of lot sizes, with orientation skewing more to the north-east towards Hall Street, reflecting the bend in Hall Street to the north, but nonetheless the context and character is residential buildings. Lot widths vary from 6m to approximately 12m.

14. Consistent with the range of lot sizes, there is a range of building widths located on individual lots. These vary from approximately 5m to 12m, with the larger residential flat buildings predominantly in the order of 10-12m in width, with narrow side setbacks, which have no substantial landscaping.

15. Mr McDonald describes the site as an anomaly in the character of the neighbourhood in terms of land use, built form, site frontage and lot depth. Consequently, the majority of the site is likely to be of a different form and character to that existing in Wellington Street, as the opportunity exists for a substantial residential urban infill on the large site. Adjoining the site to the south and east are residential flat buildings with a greater scale of two to five storeys.

16. The desired character of multi-unit residential development with relevance to building design and streetscape is addressed in s 2.8 of Part C2 of DCP 2012. Given these requirements Mr McDonald states that any development on the site should have the following characteristics:

• open, level landscaped front setback in the order of 3-4 m deep,

• low height fencing,

• identifiable and direct pedestrian access from the street to the building entrance,

• freestanding buildings with a width of a maximum of 10-12m siting within the landscaped setting, and

• driveway and associated car parking as a subservient component in the ensemble of built form and landscaping.

17. The application proposes two permissible land uses in the form of a large synagogue building dominating the width of the 40m Wellington Street frontage and residential flat buildings behind, within the majority of the site. The synagogue building occupies an approximate width of 25.7m, with a front setback of 7m. The driveway is approximately 6.6m in width. The landscaped pedestrian entrance to the residential flat component of the development which occupies approximately 55-60% of the ground level of the site, is approximately 4.1m wide at the Wellington Street frontage.

18. It is Mr McDonald’s opinion that as the synagogue is to be located within a residential community and serving the needs of the local community it should ideally present as an open and welcoming presence in the street with direct and level access from the public domain to a readily identifiable front entrance. Mr McDonald agrees that a shop front form is not required or appropriate. He also acknowledges that a synagogue, as a community building at times accommodating large numbers of people, may reasonably require a greater building setback to the street than a residential building, in order to accommodate a more generous entrance and open presentation to the street. Within the context of the character of the street, low fencing within a level landscaped setback would also be the preferred design outcome. Mr McDonald acknowledges that the most recent amended drawings have sought to-reduce the previous dominance of previous high solid blast walls.

19. Mr Hoy and Mr Neustein state there is no obligation or need to give precedence to the residential part of the proposed development over the proposed synagogue as places of public worship have been an essential component of residential neighbourhoods since the earliest days of the colony. In response to Mr McDonald’s assessment of the character of Wellington Street, Mr Hoy and Mr Neustein state that there is no consistent setback on Wellington Street and the amended proposal represents a considered streetscape response that provides for a balance of landscape, vehicular and clearly defined pedestrian accesses to the two proposed uses.

20. Specifically, the amended design has made the synagogue more open to the street with high walls replaced by lower, open, palisade fencing with stepped landscaping. The location of the apartment buildings behind the synagogue is an appropriate site planning response. The design provides clear sight lines and legible pathways. The proposal includes a clearly defined pedestrian entrance to the apartments. The apartments at the rear will be partly visible from the street when viewed through "the aperture”. The extent of visibility and streetscape contribution is itself a function of the site being below street level, side building setbacks and the relationships to adjoining properties and landscaping.

Findings

21. With the benefit of a site inspection and an understanding of the amended plans, I agree with the conclusions of Mr Hoy and Mr Neustein. While I agree with the assessment undertaken by Mr McDonald of the characteristics of the streetscape of Wellington Street, I accept that it is not necessary or appropriate to have a non-residential land use that is permissible in the zone adopt the specific characteristics of the existing residential streetscape. Places of public worship are a land use that is appropriately and generally located in residential areas. While this should not be seen as giving unfettered freedom in design, I note that the proposed development satisfies the maximum height requirement and maximum floor space ratio requirement in LEP 2012 thereby providing an appropriate scale and bulk with existing and future development but in a compatible non-residential form.

22. Similarly, I am satisfied that it is not necessary for the residential component of the development to achieve greater prominence in the streetscape for similar reasons I have set out in the preceding paragraph. I agree that the proposal provides a clearly defined pedestrian entrance to the apartments from Wellington Road. I note that there was agreement between Mr Hoy and Mr McDonald that the most appropriate location for the synagogue was at the street frontage although I understand that the position of Mr McDonald was that it should have a greater presence in the streetscape.

23. For these reasons, I am satisfied that the proposed development does not unacceptably impact on the streetscape and character of the area and also does not require a greater residential presence in the streetscape.

Resident concerns

24. The concerns raised by residents were addressed by the town planning experts and it was agreed that there were no outstanding matters. I concur with this conclusion in that the height of the proposed development complies with the maximum height expected in a the residential zone, drainage has been considered by the council staff and found to be acceptable, subject to conditions, the high boundary fence has been reduced in height, the sub-station has been relocated and the on-site car parking complies with the council requirements. The availability of other synagogues in the local area is not a relevant consideration, in my view.

Security

25. Contention 3 in the council’s Statement of Facts and Contentions states:

Site Suitability

3. The proposed development should be refused as the site is not suitable for

the proposed synagogue use as the Preliminary Threat and Risk Analysis relied on by the Applicant raises concerns as to the safety and security of future users of the Synagogue, nearby residents, motorists and pedestrians in Wellington Street and the physical measures proposed to deal with the identified threats will have an unacceptable impact on the streetscape and adjoining properties.

Particulars

a) The applicant has submitted a report prepared by GK Solutions dated 1 March 2016 which indicates that the proposed synagogue is subject to a number of identified threats that warrant the construction of protective walls on the front and side boundaries to protect the synagogue.

b) The protective walls are designed to create a "controllable perimeter" with a view to protecting people inside the synagogue but this controllable perimeter will not protect people entering or exiting the synagogue or outside the synagogue.

c) The protective walls are large, high walls and are purported to be an integral requirement to safely accommodate the use of the site as a synagogue.

d) The stated need for protective walls raises concern as to the safety and security of people outside but near the synagogue.

e) The protective walls have an adverse impact on the streetscape.

f) The protective walls will create an undesirable precedent.

26. Following the submission of the amended plans, particulars e) and f) were not pressed by the council.

27. Written expert evidence on this contention was provided by Mr Rothchild, a security consultant, for the applicant (Exhibit H). Exhibit H included a separate document titled "Chabad Bondi (Wellington St) Synagogue -Preliminary Threat & Risk Analysis February 2016" (PTRA). A supplementary expert report was also provided (Exhibit J). The council provided no expert evidence and did not require Mr Rothchild for cross examination but relied on his evidence to maintain their objection to the proposal on security grounds. At the conclusion of the hearing, the parties were requested to provide written submissions on this contention. The applicant’s submissions attached a curriculum vitae (CV) for Mr Rothchild, not having been included in Exhibits H or J.

The council’s submissions

28. Mr McEwen SC submits that the contention clearly identifies two separate and different concerns. The first concern relates to the safety and security of future users of the synagogue, nearby residents, motorists and pedestrians in Wellington Street as a consequence of the threats identified in Exhibit H. The second concern is the impact on the streetscape and adjoining properties of the physical measures proposed to deal with the identified threats.

29. The concern with respect to suitability of the site having regard to impact on safety and security “of future users of the Synagogue, nearby residents, motorists and pedestrians in Wellington Street” is reinforced properly and appropriately by particulars (b) and (d) of Contention 3

30. Although the applicant amended its plans to remove the “large, high protective walls” referred to in particular c) of Contention 3, it did not, nor could it abandon the safety and security threat issue having regard to its own evidence. That evidence is contained in Exhibit J which concludes with the following sentence:

Having reviewed the amended drawings, I am satisfied that the wall of the synagogue could be engineered to provide a satisfactory level of security for the people within synagogue.

31. That sentence has to be read in conjunction with the rest of Exhibit J which was produced for a number of purposes. It was put before the Court as expert evidence from a qualified security consultant, namely Mr Rothchild. The council did not oppose the inclusion of Mr Rothchild's CV as it confirms Mr Rothchild is well qualified to advise the Court with respect to terrorism threats. The list of recent projects on his CV supports Mr Rothchild's evidence that potential terrorist attacks are a real threat and it is appropriate to consider them in the carrying out of development. Exhibit J also refers to and incorporates the opinions of Mr Rothchild.

32. Mr Rothchild expresses an opinion as set out in Exhibit H. Exhibit J does not recant the evidence in Exhibit H or seek to reduce or abandon this evidence but rather it acknowledges that the threats identified in Exhibit H to continue. He states that the threats will now be dealt with by way of engineered walls in the synagogue itself rather than by separate blast walls. The end result is that all of the evidence provided in Exhibit H remains a live issue in the proceedings for consideration by the Court.

33. Mr McEwen submits that Exhibit H is not contested by the council. The PTRA identifies a threat of terrorism to Australia and does this by noting under the heading "Threat" that Australia faces an ongoing threat of terrorism "at home", carried out by supporters of ISIS. It notes that countries involved in military operations against ISIS are subject to a greater threat than those not involved. It then refers to the Australian National Security Internet Website which evidences that the national terrorism threat advisory system is currently advising a threat level of "probable". The threat is then further qualified in Exhibit H where Mr Rothchild states:

"Unfortunately, strong antisemitic undertones pervade much of ISIS' online presence and literature.

34. This has manifested itself in both attacks and prevented attacks that have been aimed at Jewish communities in various parts of the world. Exhibit H also gives examples of recent terrorist attacks in Australia. The “Threat” section of Exhibit H finishes with the following statement:

Whilst ISIS represents the latest threat manifestation, Jewish communities in Australia and around the world are no strangers to the threat of violence and as such will generally take security measures into account when planning, constructing or renovating a building.

35. Mr McEwen notes that the PTRA "Threat Scenario differentiates between threats relevant to Australia" and other threats "which are considered unlikely or extreme". It identifies a number of possible scenarios, including a large car bomb (500kg), a small car bomb (100kg), a parcel bomb (10-15kg), a suicide bomber (10kg), a thrown object or hand grenade attack (thrown from public area into compound), small arms attack shooting at entrances, assembly areas or windows from street or neighbouring balconies, a Molotov Cocktail and arson (thrown from public area into compound), forced entry and organised riot , use of weapons and equipment to force entry and chemical and biological attack. The PTRA states:

"This Report relates to the security aspects of the synagogue and those elements shared by the synagogue and the apartment block only".

36. Mr McEwen submits that Exhibit H or Exhibit J or any other evidence before the Court contains no assessment whatsoever of the impact on nearby residents, motorists and pedestrians in Wellington Street as a consequence of the threats identified in the PTRA. He submits that this is at the heart of council's Contention 3.

37. Relevantly, local residents which include many directly adjoining property owners also expressed great concern for their own safety and that of their family and property in their correspondence to the council and their evidence on the site inspection. Those concerns arose from Exhibit H (which it must be remembered was commissioned on behalf of the applicant and lodged in support of the development application). Those public submissions are raised separately in Contention 14 under the heading "Public Interest". Contention 14 provides that where the residents raised concerns consistent with other contentions (i.e Contention 3) then the development should be refused for those reasons. The resident submissions, including the evidence given on site are consistent with and support Contention 3 and must be taken into account under s 79C(1)(d)&(e) of the Environmental Planning and Assessment Act 1979.

38. Mr McEwen rejects any reliance by the applicant on Crime Prevention Through Environmental Design (CPTED) as the matters raised in Contention 3 and the evidence of Mr Rothchild in Exhibit H and Exhibit J go well beyond the matters that need to be considered in CPTED.

The applicant’s submissions

39. Mr Hemmings SC submits that Contention 3 indicates that the site is not suitable because of the physical safety and security measures "will have an unacceptable impact on the streetscape and adjacent properties." However by the time of its closing submissions, Mr Hemmings states that the applicant’s view of Contention 3 had changed to allege that "the threat from the development" was such as to lead to the refusal of the application. Contention 3 does not suggest; expressly or impliedly; that there was an unacceptable risk of harm to neighbours because of perceived threats.

40. Simply put, the PTRA concludes nothing more than stating:

• western countries face a security threat, currently primarily from ISIS;

• the threat level in Australia is "probable";

• Jewish communities across the world are no stranger to the threat of violence and as such will generally take security measures into account when planning, constructing or renovating buildings;

• the CPTED design considers "potential possible threats" that are relevant to Australia; and

• the design measures focus on the persons inside the buildings only

41. The PTRA does not raise concerns as to the safety and security of future particularly users of the synagogue, nearby residents, motorists; or pedestrians in Wellington Street. Rather, in acknowledging a global risk it recommends an appropriate design response. The PTRA does not suggest that the synagogue is a target and it does not purport to quantify the risk of attack to the synagogue (even assuming it is a target). Finally, it does not suggest that firstly, if it is a target, secondly, there is a risk and thirdly, what the consequence of an attack might be. Mr Hemmings further submits that this is merely demonstrative of the foundation for the actual, planning based contentions, in that a CPTED design response (at one point in time) included high fences and walls on boundaries and within the streetscape.

42. Mr Hemmings principal submission is that Contention 3 raises nothing more than a streetscape/planning issue, however if the Court accepts that it goes further to include a "threat from the development" then it is necessary to properly identify that the contention is fundamental to litigation in merit appeals. To do so it must firstly, narrow the dispute. That is, not all matters that might need to be put before the council are live issues before the Court. Rather, it is a subset only that the council contends should lead to refusal. Secondly, it sets the framework for the briefing of experts and the preparation of evidence. Thirdly, it regulates the running of the hearing (timing, joint reporting and the like). Finally, it clarifies onus.

43. On the question of onus and because the rules of evidence do not apply, there is no technical onus of proof. It is occasionally said that there will be a practical evidentiary onus on each party to raise meaningful evidence to establish the essential facts of their case (ISP Pty Limited v Valuer General [2006] NSWLEC 478). Mr Hemmings submits that this onus can shift if necessary to satisfy some principle or legislative test. For example, the specific onus in s 40(2) of the Valuation of Land Act 1919 or the need for an applicant to satisfy SEPP 1 (as it was), because of the statutory requirement that the objection be well-founded (Wehbe v Pittwater Council 156 LGERA 446).

44. Another example is in the application of the precautionary principle. In those cases, there is a clear shift of onus. Firstly, the consent authority (or sometimes the objector appellant) must bear the onus of satisfying the conditions precedent i.e. a threat of serious or irreversible environmental damage and the requisite degree of scientific uncertainty. After that, the evidentiary burden shifts. That is because the precautionary principle is attracted and so the proponent must then demonstrate that the threat does not exist (Telstra Corporation Limited v Hornsby Shire Council 67 NS WLR 256 at [150]).

45. Secondly, and in the circumstances of what Mr Hemmings calls the “assumed” contention, the consequence of the Practice Note – Class 1 Development Appeals (the Practice Note) is that the council needs a basis for the contention and it has none. Further it has raised no evidence of firstly target, secondly risk, or thirdly harm. Mr Hemmings submits that the council has an onus to do so. However, in a matter such as this, there is no basis for such an assumption. It must fall on the council to contend, with sufficient particularity (which it has not) and then prove the essential facts it relies upon for the contention. At the very least, that would require the council to prove that the synagogue is a target of terrorist threats. He submits that the council has not done that. Consequently, the council would need to put on some evidence to identify the level of risk.

46. Thirdly, the council would need to identify (or, at the very least, identify) the nature of harm that it says may result. Only then would it shift to the applicant to firstly negative those facts and/or secondly to then take on the persuasive onus to convince the Court that the perceived risk and associated harm was so remote or so minor (or both) that it would not lead to refusal. The council failed in its onus to satisfy the Court that there is a concern that there will be harm from the development.

47. To the extent there is any evidence on this issue it comes from the applicant in the form of Exhibits H and J. A copy of Mr Rothschild's CV is available and the council does not object to those reports or to the author's expertise. Nor could it. As the council leads no evidence it must rely upon the reports to provide any support for its assumed contention. As already submitted above however, the council misreads, and misapplies, the reports. Further, it did not question Mr Rothschild about target, risk or harm.

48. Clearly, the applicant has not put on evidence to suggest that the synagogue is a target, that there is a level of risk or that there is harm. Rather the applicant has stated, through its experts that in this current day, in the western world, a responsible member of the Jewish community would design a synagogue using accepted principles of CPTED. Indeed, and has already been submitted, a well-considered well designed CPTED building makes it (and to the extent the Court could otherwise be satisfied it is a target) a "hard" target. As a result, the opportunistic terrorist, moves on to the soft target instead.

49. The Court would be persuaded by that evidence. It is an appropriate response: not to an identified and specific threat, but rather to a circumstance of our modern world.

Findings

50. The submissions raise a number of different questions which are best addressed separately. These questions are:

Does Contention 3 identify a potential unacceptable risk of harm to neighbours because of perceived threats or is it limited to a streetscape/planning issue?

51. On this question I agree with Mr McEwen that Contention 3 identifies two separate matters. The first matter relate to safety and security by the use of the words “the site is not suitable for the proposed synagogue use as the Preliminary Threat and Risk Analysis relied on by the Applicant raises concerns as to the safety and security of future users of the Synagogue, nearby residents, motorists and pedestrians in Wellington Street”. The words are clear and unambiguous. Exhibit H specifically takes into account (at [1]):

The threat situation with respect to Jewish communities around the world and Australia

52. The second separate matter in the contention is the impact on the streetscape and adjoining properties of the physical measures proposed to deal with the identified threats although this was ultimately not pressed when amendments were made to provide a more sympathetic streetscape appearance.

53. If there was any doubt, then particular a) refers specifically to the PTRA where general observations are made on terrorist threats and specific reference is made to the threat to synagogues. This is evidence produced by the applicant in direct response to Contention 3. Also, particulars b) and c) address the proposed “the protective walls” as a method to protect the synagogue and the worshipers in the building.

If so, is there a factual basis for Contention 3?

54. Clause 18 of Practice Note – Class 1 Development Appeals (the Practice Note) relevantly states:

Identifying the issues in dispute

18. The respondent consent authority is to file and serve a statement of facts and contentions in accordance with Schedule B before …

.

55. Schedule B at pars 5 and 6 of Part B of the Practice Note states:

5. In Part B Contentions, the respondent consent authority is to identify each fact, matter and circumstance that the respondent contends require or should cause the Court, in exercising the functions of the consent authority, to refuse the application or to impose certain conditions.

6. In Part B Contentions, the respondent consent authority is to:

(a) Focus on issues genuinely in dispute;

(b) Have a reasonable basis for its contentions;

(c) Present its contentions clearly, succinctly and without repetition;

(d) Where it contends that the application must be refused, identify the factual and/or legal basis for that contention. Any such contention is to be made at the beginning of Part B Contentions and is to be clearly identified as a contention that the application must be refused;

(e) Where the respondent consent authority contends there is insufficient information to assess the application, list the information it contends is required;

(f) where it contends that a proposal does not comply with provisions, including development standards, of an environmental planning instrument or provisions of a development control plan, identify the standard or provision that is breached and quantify the extent of the noncompliance (if necessary, in a diagrammatic form), grouping together provisions dealing with the same aspect (for example, height or density);

(G) Identify the nature and extent of each environmental impact relied upon to support any contention and, if practicable, quantify that impact; and

(h) Identify any contentions that may be resolved by conditions of consent.

56. In this case, the Practice Note relevantly requires Contention 3 to “focus on issues genuinely in dispute” (cl 6(a)) and “have a reasonable basis for its contentions” (cl 6(b)). I have little trouble in accepting that Contention 3 satisfies both requirements. While the contention was raised by the council, Exhibit H responds to the contention and confirms the need to address the security for the synagogue. Exhibit H makes no concession that the contention is not a genuine issue or is not reasonable. Exhibit H, in fact comes to the opposite conclusion by the following comments, under the heading of “Physical Security for the Proposed Wellington Street Synagogue”:

The developers / architects for the proposed synagogue have commissioned a preliminary physical security report to look at the best manner in which to secure the building.

With the understanding that maximizing setback is the best possible way to prevent blast damage and create a controllable perimeter, these aspects of security have been integrated into the new construction in such a way as to cause minimal impact to the casual observer or to the existing streetscape.

Using a Crime Prevention through Environmental Design (CPTED) approach, landscaping has been utilized as far as possible to soften the built form and where possible minimize the impact of security devices within the streetscape. Features such as the proposed landscaping will actually enhance the streetscape in front of the building while serving a serious security purpose.

There exists a range of possible solutions to achieve this, all of which will be taken into account in the overall security plan for the facility

What is the role of Crime Prevention through Environmental Design?

57. In April 2001, the NSW Department of Infrastructure, Planning and Natural Resources, as it was at the time, produced the document Crime Prevention and the assessment of development applications - Guidelines under section s 79C of the Environmental Planning and Assessment Act, 1979 (the Guidelines). The Guidelines require consent authorities to ensure that development provides safety and security to users and the community. If a development presents a crime risk, the guidelines can be used to justify modification of the development to minimise crime risk, or, refusal of the development on the grounds that crime risk cannot be appropriately minimised. The power in s79C comes from s79C(1)(c) and (e) which state:

(c) The suitability of the site for the development,

.

(e) The public interest.

58. The guidelines contain two parts. Part A details the need for a formal crime risk assessment (Safer By Design Evaluation) to be done in conjunction with trained police, and Part B outlines basic Crime Prevention Through Environmental Design (CPTED) principles and strategies that can be used by consent authorities to justify the modification proposals to minimise risk.

59. Mr Rothchild refers to using the CPTED approach (Exhibit H, p 3) by using landscaping to soften building form and minimize impact of security devices although the question that remains unanswered is a determination (and potentially quantification) of the risk and whether the proposed security devices respond appropriately to that risk. Without an answer to the first question, there can be no ability to answer the second question.

60. I do not accept that a simple reference to CPTED by Mr. Rothchild is a reasonable answer. Even if CPTED is the relevant mechanism to address the threat to the synagogue (and surrounding areas) Part A requires a crime risk assessment and (at p3) relevantly states:

What is a crime risk assessment?

A crime risk assessment is a systematic evaluation of the potential for crime in an area. It provides an indication of both the likely magnitude of crime and likely crime type The consideration of these dimensions (crime amount and type) will determine the choice and appropriate mix of CPTED strategies

61. While Exhibit H makes general comments on the risk of terrorist attacks internationally, nationally and to Jewish people, there is no specific risk assessment for the site (my emphasis). The PTRA makes no assessment of the risk to the site but under the heading of “Threat Scenario” lists a large number of threats and their definitions but fails to identify any particular risk to the site and consequently why the “Initial design recommendations” were proposed.

62. While the word “crime” encompasses a wide range of activities, it is also a valid question to ask whether the CPTED is the appropriate means to address a potential terrorist threat given that the CPTED identifies relevant development applications as:

a new/refurbished shopping centre or transport interchange

a large scale residential development (more than 20 new dwellings), or

the development or re-development of a mall or other public place, including the installation of new street furniture

63. It would seem that a more sophisticated risk assessment process could be required for matters such as a potential terrorist threat.

Who bears the onus of proof?

64. Having found that Contention 3 identifies a potential unacceptable risk of threat and there is a factual basis for the contention, the onus to address the contention rests with the applicant.

Is the evidence of Mr Rothchild sufficient to address Contention 3?

65. For reasons set out in the previous paragraphs I do not accept that Mr Rothchild has provided sufficient evidence to address Contention 3.

Orders

66. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. DA -134/2016 for the demolition of the existing commercial tennis courts and ancillary buildings and the construction of a place of public worship (synagogue) and the construction of two three storey residential flat buildings at 105 Wellington Street, Bondi is refused.

3. The exhibits are returned with the exception of exhibits 1, and A.

___________

G Brown

Commissioner of the Court

Decision last updated: 02 August 2017