BCE Investments Pty Ltd v Ku-ring-gai Council

[2006] NSWLEC 437

Land and Environment Court

of New South Wales

CITATION:

Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 437

PARTIES:

APPLICANT
Jonah Pty Ltd

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10284 of 2000

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Alterations to existing consent for restaurant/motel, outdoor seating, noise impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

30/10/2006

EX TEMPORE JUDGMENT DATE:

10/30/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister

RESPONDENT
Mr M Causer, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

30 October 2006

10284 of 2000 Jonah Pty Ltd v Pittwater Council

JUDGMENT

This decision was given extemporaneously on site

and has been revised and edited prior to publication.

1 On the 30th April 2001 the Court granted Consent Orders for alterations and additions to Jonahs Restaurant/Motel at 69 Bynya Road, Palm Beach, subject to a number of conditions. Those conditions include:

D226. Restaurant seating numbers are not to exceed 100
D227. No tables or chairs or similar structure of any type are to be permitted on the new terrace area adjacent to and on the eastern side of the existing outdoor dinning area. That area maybe used for other than dinning provided that no seating or tables are to be provided on that area.

2 The applicant has now submitted an application to modify this consent so as to enable the outer terrace (referred to in condition D227 as the new terrace area) for the seating of a maximum of 60 restaurant patrons.

3 The application was advertised and a number of objections were received from residents of the immediate locality. Whilst concerns were expressed in those objections in relation to the activities of the restaurant generally those matters are not matters that form part of this appeal. Other concerns were expressed particularly in relation to the proposal and those concerns were essentially explained by three residents who gave evidence during these proceedings:

· Mrs L. Brandon of No. 64 Bynya Road was concerned that the added flexibility resulting from the use of the outer terrace will make the premises more attractive and thus likely attract more patrons notwithstanding the patron limits. These additional patrons will cause in the surrounding area to be adversely affected by additional noise as well as additional traffic in the street.

· Mr L. Panozzo of No. 226 Whale Beach Road, explained that he had carried out noise measurements in various locations surrounding the site and was of the opinion that the expert acoustic report provided was not correctly founded and should not be relied upon. He was also concerned at the inadequacy of community consultation processes to properly deal with complaints about the activities of the restaurant.

· Ms S. Gold of No. 35 Pacific Road, had a number of concerns. She asserted that the restaurant regularly failed to comply with the 100 patrons maximum and that if this were taken into account the noise impacts would be greater and hence the noise assessment would be or is flawed. Like many other residents she was concerned about the impact of the restaurant on the surrounding neighbourhood including matters of traffic and noise that would result from the utilisation of the outer terrace for dinning purposes.

4 The principal issue in this matter involves noise impacts that might result from the proposed utilisation of the outer terrace. Expert acoustic evidence was provided by Mr S. Cooper on behalf of the respondent council and by Mr B. Clarke for the applicant. These two experts provided, for the assistance of the council and the Court, a joint report which concluded that subject to a number of conditions particularly in relation to an operational management plan that the noise impacts would be within reason.

5 The council has now decided, having taken into account the resident objections, and the advice of its officers and the joint report of the acoustic consultants that the application can be approved and that, in consultation with the applicant, agreement has been reached that consent orders can be made by the Court.

6 This application is about the reconfiguration of how the existing approved restaurant can operate and the application will allow the utilisation of an existing outer terrace for dinning but will not increase the 100 patron capacity. Having considered the materials before me including the agreed noise management plan, it is plain that the only potential matter of concern involves noise that might be generated by patrons dinning on the outer terrace. I have had the opportunity to read the joint report of the acoustic experts and notwithstanding suggestions that their evidence might be ill founded I accept it. I do not accept the suggestion that this report is flawed because to do so I would need expert evidence which has been made available to the parties and where such evidence has been properly tested.

7 I am also satisfied that the flexibility for the utilisation of the premises that will result from the sought amendment will cause changes of any significance regarding the overall utilisation of the restaurant. As a consequence I do not see that there will be any adverse effects resulting from additional traffic.

8 The existing consent has a 100 patron maximum capacity and that potential can be utilised at any time within the constraints of the consent. Matters of non-compliance with existing conditions are not matters that I can take into account in the absence of persuasive evidence that this has and is happening.

9 In all of the circumstances and accepting that the council and the applicant have invited the Court to enter into consent orders I have decided to make the orders as contained in Exhibit 1 which I will retain. I also note that the parties have agreed that there be no order as to costs. Finally I will defer the orders for one week to enable the finalisation of the operational noise management plan including consultation with the council and the preparation of a final set of orders as discussed.

___________________
T A Bly
Commissioner of the Court
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