In brief

The case of Friends of Refugees of Eastern Europe v Waverley Council [2017] NSWLEC 1404 concerned an appeal commenced in the Land and Environment Court of New South Wales against the Waverley Council’s decision to refuse a development application for the demolition of synthetic tennis courts and ancillary buildings, and the construction of multiple dwellings, an underground car park and a Jewish synagogue.

The key issues before the Court were whether the site was unsuitable to accommodate the proposed synagogue because of potential risks to future users and the general public, and whether the proposed development appropriately responded to the context and character of the existing residential streetscape.

To determine the matter the Court had regard to written submissions from both parties, including evidence from experts in the fields of town planning, urban design and security.

The Court found that the proposed development was not obligated to adopt the characteristics of the existing residential streetscape but dismissed the appeal and upheld the Council’s decision to refuse the development application on the basis that the Applicant failed to sufficiently consider potential terrorist threats against the proposed synagogue, adjoining properties and the public.

The Council refused the Applicant's development application

The Applicant lodged a development application with the Council seeking approval for the demolition of tennis courts and ancillary buildings, and the construction of a proposed synagogue, underground car park and two, three-storey multiple dwellings containing 32 units.

The site, located at 105 Wellington Street, Bondi, was included within the R3 - medium density residential zone of the Waverley Local Environmental Plan 2012. The proposed synagogue, being a "place of public worship", and the proposed multiple dwellings were both permissible land uses within this zone.

The Council refused the development application for the following reasons:
  • the proposal did not respond to the context, character and streetscape of the area or provide for an appropriate residential identity;
  • unacceptable amenity impacts, including loss of solar access, noise and privacy; and
  • potential risk to users and other members of the general public.

The Court held that it was not necessary or appropriate to require the proposed synagogue to adopt the characteristics of the existing residential streetscape

The proposed development positioned multiple dwellings at the rear of the site and behind the proposed synagogue, which dominated the site's frontage to Wellington Street.

A town planning expert for the Council stated that the proposed development's land use, frontage, lot depth and built form would create an anomaly as Wellington Street was otherwise characterised by a consistent rhythm of lot sizes, setbacks and one and two-storey detached and semi-detached residential buildings with interspersed houses.

The Council's expert was also of the opinion that as the proposed synagogue was to be located within an existing residential neighbourhood and was intended to serve the local community, it should present an open frontage with a readily identifiable and level access.

Town planning and urban design experts for the Applicant stated that the proposed development was not obligated to prioritise residential land uses over the proposed synagogue as places of worship have long been an essential element of residential neighbourhoods.

The Applicant's experts found no consistent setback along Wellington Street and highlighted that amendments to the proposed development, including the removal of high perimeter walls, allowed for a balanced streetscape with clearly defined and landscaped pedestrian and vehicle access points.

The Court found that it was neither necessary nor appropriate for a non-residential land use that is otherwise permissible within the zone to have to adopt the characteristics of the existing residential streetscape. The Court was satisfied that the proposed synagogue would not unacceptably impact on the streetscape and character of the local area.

The Council submitted that evidence relied upon by the Applicant confirmed the proposed synagogue posed a potential unacceptable threat to future users and the local community

The Applicant commissioned a Preliminary Threat and Risk Analysis (PTRA) to support the construction of protective walls on the front and side boundaries to protect the proposed synagogue.

The protective walls were ultimately replaced with lower, open, palisade fencing.

However, the Council relied on the contents of the PTRA to contend that the proposed synagogue posed a potential safety and security risk to future users, nearby residents and pedestrians in Wellington Street and should therefore be refused.

The Council submitted that the PTRA identified that Australia faced an ongoing threat of "at home" terrorism as a consequence of its military operations against ISIS and that anti-semitic undertones pervaded much of ISIS’ literature. The Council also argued that the PTRA identified the risk of a number of possible scenarios, including car bombings, parcel bombs, suicide bombers, small arms attacks and riots.

However, and most importantly, the Council argued that whilst the PTRA identified a number of potential threats, it failed to assess the impact on nearby residents, motorists and pedestrians in Wellington Street as a consequence of the identified potential threats. In support of its contention, the Council relied upon the concerns of local residents who had “expressed great concern for their own safety and that of their family and property” (at [37]).

The Applicant argued that the evidence did not raise any specific safety and security concerns as a result of the proposed synagogue

In response, the Applicant contended that the PTRA did nothing more than relevantly state that Jewish communities worldwide are “no stranger to the threat of violence” and, as such, “security measures [are taken] into account when planning, constructing and renovating buildings” (at [40]). In particular, the Applicant argued that the Council misread and misapplied the evidence before the Court in that it mistakenly argued that the evidence identified the proposed synagogue as a threat, and that there was consequential risk and likely harm.

The Court held that there was a potential unacceptable risk of harm

The Court was persuaded that there was no evidence to suggest that the proposed synagogue was a specific target for attacks. Rather, it held that the PTRA identified a potential unacceptable risk of harm to Jewish communities around the world and in Australia which, in turn, was enough to confirm the need to address security for the proposed synagogue.

The Court held that using Crime Prevention Through Environmental Design (CPTED) strategies was not a reasonable response and greater consideration of the risk and risk response was required

The Court had regard to guidelines produced by the New South Wales Department of Infrastructure, Planning and Natural Resources under section 79C of the Environmental Planning and Assessment Act 1979. Section 79C relevantly provides that consent authorities may refuse or modify a development application where the risk of crime cannot be minimised. Relevantly, the guidelines require that development be subjected to a formal crime risk assessment in conjunction with police before consideration be given to CPTED strategies.

The Court found that, whilst the Applicant's security expert had considered the threat of terrorist attacks on the Jewish people at an international and national level, insufficient consideration had been given to site specific threats or to the protection of the local community. The Court also noted that whilst "crime" encompasses many activities, CPTED may be an inappropriate response to terrorism. The Court went so far as to say that a more sophisticated risk assessment process may be required where a potential terrorist threat is identified.

Outcome of the appeal

Whilst the Court was satisfied that design amendments had resolved concerns about the proposed synagogue's physical impacts, it found that a more sophisticated assessment was required to address potential threats to safety and security.

The Court ordered that the appeal be dismissed and that the development application be refused.

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 2021.

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