What has happened?
In Misra v Campbelltown City Council [2025] NSWLEC 1744, Senior Commissioner Dixon upheld an appeal and approved the use of part of an existing house in Minto as a "community facility". The rest of the building continues to be used as a family home. Final orders and conditions followed in Misra v Campbelltown City Council (No 2) [2025] NSWLEC 1835.
Our firm acted for the successful applicant.
Context
The site is zoned C4 Environmental Living. In that zone, a "community facility" and a "dwelling house" are both permissible with consent, but a "place of public worship" is prohibited.
The community facility would be run by a registered charity whose charitable purpose is advancing religion. The proposed activities included religious education, choral classes, meditation, yoga, counselling, language classes and community events, under a Plan of Management.
The Council argued the development was prohibited, for two reasons:
the definition of "community facility" excludes "residential accommodation", and the facility would share some areas (an office, library, amenities and entry) with the house; and
given the operator's religious purpose, the activities would in substance be religious worship, making the development a "place of public worship".
Sharing a building does not change the use
Applying the Court of Appeal's approach in Council of the City of Ryde v Haddad [2018] NSWCA 35, the Court found that the exclusion means only that a building or place used for residential accommodation cannot be a community facility. It does not prevent a community facility where another part of the same building is a dwelling.
The shared areas simply provide access to two separate, lawful uses. The Senior Commissioner compared this to a building where a shop, a council community centre and apartments share a foyer and lift. Each use keeps its own identity. The remaining residential part would still be a "dwelling house", being a building containing only one dwelling.
Charitable purpose does not make every venue a place of worship
The Court also rejected the argument about worship:
The application did not seek consent for a place of public worship. The application marks out the boundaries of the consent sought.
Being registered as a charity for "advancing religion" does not mean that every place where the organisation meets is a place of public worship. The question is what activities will actually be carried on.
The Court must assume that the operator will comply with the consent and the Plan of Management.
Other points
The fact that some existing works had been built without approval did not prevent a merit assessment of the new proposal.
Fire safety and building upgrades were dealt with by conditions. A deferred commencement condition gives the applicant 24 months to confirm water supply for fire hydrants.
In the second judgment, the Court accepted the Council's condition requiring the earlier 1996 consent for the house to be modified. This keeps a clear dividing line between the two uses. It rejected two other Council conditions as unnecessary.
How will this affect you?
Two permissible uses can co-exist in one building, even with shared access areas, provided the uses are clearly delineated in the plans.
Characterisation depends on what the application seeks and the activities proposed, not on the identity or beliefs of the operator.
A well-drafted application and Plan of Management are critical where a council argues that a proposal is "really" a prohibited use.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.