The case of Salsabil Charitable Organisation Pty Ltd v Gold Coast City Council & Anors  QPEC 17 concerned an appeal in the Planning and Environment Court commenced by Salsabil Charitable Organisation Pty Ltd against the Gold Coast City Council's decision to refuse a development application for material change of use for a Place of Worship, specifically, a mosque on land situated at Currumbin Waters.
Although there was a clear community need for the proposed development, the Council refused the development application on the basis that it was in conflict with specific planning scheme provisions designed to protect the amenity of the surrounding industrial estate and adjoining residential estate from off-site car parking and overflow parking during peak worship hours.
The Court found that the development application was in conflict with both the Gold Coast Planning Scheme 2003 and the City Plan 2016 and in the absence of sufficient grounds to justify an approval despite the conflict, the Court dismissed the appeal.
Due to the extent of the likely increase in the Islamic population, Court found that there was a clear community need for the proposed mosque
Salsabil, through its planning need expert, submitted that although a mosque at Worongary had been approved, it was only going to contribute a minor role in catering for the future growth of the Islamic population in terms of their need for another mosque. Accordingly, with the nearest mosque being 36.6 km of driving distance away from the subject site and a predicted annual growth of 8.8% in the Islamic population, the establishment of the proposed mosque would meet a clear community need.
Through their social planner, the Council disagreed, submitting that this need did not appear to be evident in the southern part of the Gold Coast area. However, each of the town planners acknowledged that there was a community need for the proposed mosque which led the Court to accept the evidence of Salsabil's planning need expert that there was a clear community need for the proposed mosque.
Court found the proposed mosque would create a massive demand for off-site car parking and the overflow parking would have a detrimental impact on the surrounding amenity
The Court then considered the issue of traffic and availability of parking. In the first joint report, the traffic expert for Salsabil concluded that there were alternative options available which, if implemented, would manage the parking demands without creating an adverse impact on the surrounding area.
The traffic expert for the Council disagreed with this conclusion and considered that the alternative options would have limited utility. The Court preferred the evidence of the Council's traffic expert and rejected the alternative options.
In the second joint report, the experts reached an agreement in relation to the use of public transport and the demand for parking. However, this was overshadowed by Salsabil's traffic expert conducting their own surveys after the second joint expert report process had concluded.
The Court accepted the Council's expert's criticism of these surveys as well as the limited statistical relevance they represented.
In addition to this, there was the consideration of a potential future development application which would result in the creation of between 40 and 47 extra parking spaces nearby. The Court preferred the evidence of the Council's traffic expert which specified that only 40 extra car parks would be provided for and nonetheless found that the overflow parking issue would remain having a detrimental impact on the surrounding amenity.
Court considered the impacts of the proposed mosque based on the peak operation levels of the proposed use
In considering the parking demands of the proposed mosque, the Court considered it appropriate to evaluate the impact on traffic and parking based on the peak operation of the proposed use, that was, Friday worship times with a maximum occupancy of 650 people as provided by Salsabil.
Accordingly, the Court preferred the evidence of the council's traffic expert that with 650 worshippers during Friday prayers, the proposed mosque would require 201 on-street parking space, which included consideration of the 40 car parks provided for under the potential future development application if approved by the council.
In addition to this, the town planning experts for the Council and the submitters considered the appropriateness of the proposed mosque and its "use related to its scale and consequential impacts." The experts concluded that due to the adverse impacts, the proposed mosque was not an appropriate use for the location and that the need should be met elsewhere.
Although the proposed use was contemplated for the site, the predicted impacts of the proposed mosque were just too great
The Court then considered the nature and extent of the conflicts with the Gold Coast Planning Scheme 2003 and whether there were sufficient grounds to justify an approval despite the conflict.
Although a Place of Worship was a use contemplated for the site, it was subject to impact assessment under the Gold Coast Planning Scheme 2003 which had a broad strategy of promoting business activity whilst protecting amenity.
Salsabil submitted that the peak demand during Friday prayers would not impact the surrounding industrial area and neighbouring businesses as well as not creating any unacceptable noise or hard amenity impacts. However, the Council argued the contrary which was accepted by the Court.
There was a clear and demonstrable planning and community need for the proposed mosque, however the Court found that the proposed use was simply inappropriate for the site
The Court believed that "significant weight" should be given to the City Plan 2016 as it represented the latest planning intent of the Council . In considering the conflicts, it was observed that the need to protect amenity in the City Plan 2016 was similar, if not greater, to that contained in the Gold Coast Planning Scheme 2003. As such the Court determined that the conflicts concerning the off-site parking demand were even greater under the City Plan 2016.
The amenity impacts of the off-site parking arising from the proposed mosque were contrary to the reasonable expectations of nearby residents and surrounding businesses under both planning schemes.
Accordingly, the Court found that although there was a strong planning and community need for the proposed mosque, the impact of the extent of the off-site parking demand would result in "significant impacts on the amenity of both the industrial estate and the adjoining residential area." Therefore, the Court concluded that the planning need for the proposed mosque was insufficient on balance to justify an approval of the proposed mosque despite these conflicts.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.