Charlie Lovett Pty Ltd v Hurstville City Council
[2014] NSWLEC 1146
•25 July 2014
Land and Environment Court
New South Wales
Case Title: Charlie Lovett Pty Ltd v Hurstville City Council Medium Neutral Citation: [2014] NSWLEC 1146 Hearing Date(s): 28 April, 23 June 2014 Decision Date: 25 July 2014 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed
Catchwords: DEVELOPMENT MODIFICATION - Whether development as modified substantially the same - Impact on amenity Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Hurstville Local Environmental Plan 1994
Hurstville Local Environmental Plan 2012Cases Cited: Auburn Municipal Council v Szabo (1989) 67 LGRA 427
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321
Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342
Stebbins v Lismore City Council [1988] NSWCA 146
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46
Zhang v Canterbury City Council (2001) 115 LGERA 373Category: Principal judgment Parties: Charlie Lovett Pty Ltd (Applicant)
Hurstville City Council (Respondent)Representation - Counsel: Mr C Ireland (Applicant)
Mr M Seymour (Respondent)- Solicitors: Mr D Newhouse, Newhouse & Arnold Solicitors (Applicant)
Ms J Ware, Hurstville City Council (Respondent)File Number(s): 10873 of 2013
JUDGMENT
This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed, and subsequent actual, refusal by the respondent Council of an application under s 96(1A) of the Act (MOD2013/0030) to modify development consent 11/DA-268 granted on 16 November 2011 in relation to premises at 2 Stanley Street Peakhurst (the site).
The site is located at the corner of Stanley Street and Boundary Road with an approximate area of 1,087 sqm. The primary frontage is to Stanley Street. Vehicle access is from Stanley Street. There are various industrial uses in the immediate vicinity of the site on the western side of Boundary Road; the eastern side of Boundary Road is residential. There are two take away cafes in the immediate vicinity, Stanley Street Gourmet at 33-35 Stanley Street, and St Peters Café at 113 Boundary Road.
At the time the consent 11/DA-268 was granted the site was used as a Kennards Hire Outlet with a single storey building and parking. The Statement of Environmental Effects (SEE) provided with the development application described the development proposal to be a "new fit-out and occupation of the subject premises for various operations listed as warehousing, coffee/food manufacturing as well as a takeaway eatery" (p3), and (at p 1), identified that the premises would be a warehouse and logistics centre for "Charlie Lovett", a coffee roasting, manufacturing and takeaway premise with outdoor dining, and include "Ocean 7", a takeaway eatery.
The modification proposal is to combine the two retail tenancies into one "Charlie Lovett", to extend the trading hours to allow trading from 6.00am to 12 midnight Monday to Sunday, and to delete condition 4 which imposed a 12 month trial period for the operation of the "Coffee Shop and Ocean 7".
Issues
The Council contends that the development as modified would not be substantially the same development as the development for which consent was originally granted, on the basis that the original consent was for a combination of uses including warehousing, storage, processing, refreshment room and takeaway premises while the proposed modification application is for a use not permitted in the zone as consent is sought primarily for a "restaurant or café". The Council further contends that the proposed operating hours and increase in patron numbers would be contrary to the objectives of the applicable planning controls, and would detrimentally impact on the amenity of the adjoining low density residential area. That contention includes the particulars that extended hours would impact on residents in relation to noise, and that the Hurstville Development Control Plan No 1 (the DCP) would require 34 parking spaces to accommodate the proposed maximum patronage of 100 persons, and that the proposal has 13 spaces which is deficient. The Council further contends that the proposed modification is not consistent with the original approval and will detrimentally impact on the adjoining residents.
The applicant contends that the development the subject of the modification application is for the same use and purpose of use as the development the subject of the consent, and remains for a purpose permissible with consent, and that even if it were prohibited that would not preclude the modification of the consent; that the development as modified is consistent with the zone objectives and would not detrimentally impact on the amenity of the adjoining residential area; and that a proposed modification is not required to be consistent with the original approval, rather that the development as modified be substantially the same as the development for which consent was originally granted.
Planning controls
At the time of the grant of development consent 11/DA-268 the site was in Zone No 4 (Light Industrial Zone) under the Hurstville Local Environmental Plan 1994 (1994 LEP). The zone objectives and the development control table were:
Zone objectives
The objectives of this zone are:
(a) to accommodate both traditional and modern forms of light industrial, warehousing and like development outside areas used or zoned for residential or business purposes and so encourage economic and employment growth in Hurstville,
(b) to ensure industrial development creates areas which are pleasant to work in, safe and efficient in terms of transportation, land utilisation and service distribution,
(c) to encourage development of, and accommodate innovation in, the sources of economic growth,
(d) to enhance and improve the physical environment of the city by minimising disturbances caused by air pollutants, water pollutants, noise pollutants and other pollutants,
(e) to enable limited retailing for bulky goods where, in the opinion of the Council, this is unlikely to detract from the role and function of land zoned for business purposes,
(f) to enable development for the purposes of retailing only where it is associated with, and ancillary to, manufacturing purposes on the same land or where it serves the daily convenience needs of the local workforce,
(g) to enable development for the purposes of commercial offices only where it is associated with, and ancillary to, industrial, warehousing or like purposes on the same land or where it serves the daily convenience needs of the local workforce, and
(h) to enable development for the purposes of community facilities such as child care facilities either in association with or independently of other permitted development to serve the needs of the workforce of the area.1 Without development consent
Exempt development; public utility undertakings other than gas holders or generating works.
2 Only with development consent
Any purpose other than a purpose included in item 1 or 3.
3 Prohibited
Boarding houses; business premises, office premises and shops (other than those ordinarily incidental or subsidiary to industry, or which are primarily intended to serve persons occupied or employed in uses otherwise permitted in this zone, or which by virtue of their nature, the services provided, or the products produced, distributed or sold are, in the opinion of the council, appropriately located in an industrial zone); caravan parks; dual occupancies; dwellings (other than those attached to and ancillary to other buildings permitted in this zone); educational establishments; group homes; hazardous industries; hazardous storage establishments; hospitals; industries other than light industries; institutions; liquid fuel depots; multiple dwellings; mines; motels; offensive industries; offensive storage establishments; residential flat buildings; transport depots.
Clause 16(1) of the 1994 LEP provided that the Council could grant consent for development in Zone 4 for the purpose of shops (other than bulky goods salesrooms or showrooms) or for commercial purposes only where it was satisfied that:
(a) where the proposed development may otherwise have been carried out within a business centre in the locality, suitable land for the development is not available in that business centre, and
(b) the proposed development is of a type appropriate to an industrial zone, or to the general character of existing structures or uses within the industrial zone.The Hurstville Local Environmental Plan 2012 (the 2012 LEP) commenced on 7 December 2012. Under the 2012 LEP the site is zoned IN2 Light Industrial. The zone objectives and Land Use Table are:
1 Objectives of zone
· To provide a wide range of light industrial, warehouse and related land uses.
· To encourage employment opportunities and to support the viability of centres.
· To minimise any adverse effect of industry on other land uses.
· To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.
· To support and protect industrial land for industrial uses.
· To enable industrial development which does not pollute or adversely affect adjoining land, air or water.
· To ensure industrial development creates areas that are pleasant to work in, safe and efficient in terms of transportation, land utilisation and service distribution.
2 Permitted without consent
Home occupations
3 Permitted with consent
Depots; Garden centres; Hardware and building supplies; Industrial training facilities; Kiosks; Landscaping material supplies; Light industries; Neighbourhood shops; Plant nurseries; Roads; Take away food and drink premises; Timber yards; Vehicle sales or hire premises; Warehouse or distribution centres; Water recycling facilities; Any other development not specified in item 2 or 4
4 Prohibited
Agriculture; Air transport facilities; Airstrips; Amusement centres; Biosolids treatment facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Child care centres; Commercial premises; Community facilities; Correctional centres; Crematoria; Eco-tourist facilities; Educational establishments; Entertainment facilities; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Function centres; Health services facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Information and education facilities; Industries; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Passenger transport facilities; Public administration buildings; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Research stations; Residential accommodation; Respite day care centres; Rural industries; Sewage treatment plants; Tourist and visitor accommodation; Water recreation structures; Water supply systems; Wholesale supplies
The term "commercial premises" is defined in the 2012 LEP to mean any of the following:
(a) business premises,
(b) office premises,
(c) retail premises.The term "retail premises" is defined:
retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following:
...
(c) food and drink premises,
...The term "food and drink premises" is defined:
food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following:
(a) a restaurant or cafe,
(b) take away food and drink premises,
(c) a pub,
(d) a small bar.Note. Food and drink premises are a type of retail premises-see the definition of that term in this Dictionary.
A "restaurant or café" is defined:
restaurant or cafe means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, take away meals and drinks or entertainment are also provided.
Note. Restaurants or cafes are a type of food and drink premises-see the definition of that term in this Dictionary.
A "take away food and drink premises" is defined:
take away food and drink premises means premises that are predominantly used for the preparation and retail sale of food or drink (or both) for immediate consumption away from the premises.
Note. Take away food and drink premises are a type of food and drink premises-see the definition of that term in this Dictionary.
While "take away food and drink premises" are included in "food and drink premises", and would thereby, as "retail premises", be "commercial premises" and thus prohibited in the IN2 zone, development for the purpose of a "take away food and drink premises" is a nominate form of development specified as permissible with development consent in the IN2 Light Industrial zone.
The Hurstville Development Control Plan No 1 - Hurstville LGA Wide (the DCP) applies. Section 3.1 Car Parking includes the following provisions:
3.1.4 Parking Provision
Objective
To provide sufficient, safe and convenient parking facilities meeting user requirements including pedestrians, cyclists and vehicles.
Performance Criteria
(a) Parking and service vehicle areas are provided according to projected needs and provide pleasant areas in which to park.
(b) Parking that is safe, easily accessible, does not obstruct the passage of vehicles or create traffic conflicts, impact pedestrians or cyclists and does not result in detrimental affects to adjoining or nearby properties.Controls
3.1.4.1 Table of Parking Requirements
(a) In determining the prescriptive parking requirements for each type of land use, Council has adopted guidelines from the Roads and Traffic Authority Guide to Traffic Generating Developments, October 2002. It must be emphasised, however that Council uses this guide on a discretionary basis only, and may be flexible in establishing parking conditions according to expert reports on the existing parking and traffic conditions in the vicinity of the subject site.(b) In calculating the number of car spaces required, Council takes into consideration:
(i) The type of development (or land use) proposed;
(ii) The size and scale of the development;
(iii) The intensity of the development;
(iv) Street hierarchy and existing traffic situation.(c) Where a building alternates between any of the following uses:
(i) Within an existing premises where a change of use is proposed from one type of refreshment room/takeaway food outlet to another refreshment room/takeaway food outlet, no additional parking is required;
(ii) Within an existing premises where a change of use is proposed from a shop/business premise to a refreshment room/takeaway food outlet, the following parking requirements will apply:
Where the public area in the proposed use is <100 sqm no additional parking is required.
Where the public area in the proposed use is 100-150 sqm the existing parking requirements in this Section will continue to apply.
Council will consider waiving increased parking requirements, where the gross leasable floor area (GLFA) is not proposed to be increased.Note: Gross Leasable Floor Area (GLFA) means the total floor area contained within the internal face of the external enclosing walls of a building, excluding stairs, lifts, public arcades, public foyers, public toilets, plant rooms, loading areas and car parking areas, and any other areas in communal uses the existing parking provisions in Section 3.1 continue to apply to new development that incorporate a refreshment room/takeaway food outlet;
(d) The following table provides on-site parking requirements for each specific land use. Where parking calculations produce a fraction, the requirement is rounded up e.g. 3.2 spaces = 4 spaces.
The Table includes:
Development Parking Spaces Required (on site) Fast Food Restaurants
Developments with on-site seating
12 spaces per 100m2 GFA and
1 space per 5 seats (internal & external) or 1 space per 2 seats (internal)
Development with on-site seating & drive-through facilities Greater of 1 space per 2 seats (internal) or 1 space per 3 seats (internal & external) + queue space for drive through:
...
Development without seating or drive through facilities Council to determine Refreshment Rooms (including cafes, restaurants etc) 15 spaces per 100m2 GFA or 1 space per 3 seats Light Industry
Manufacturing (factory)Warehouse (storage)
1 space per 100m2 GFA
1 space per 300m2 GFA
Development consent 11/DA-268
The Development Application form identified the proposed development as "use of land or building for warehousing, logistics, manufacturing & retail", and described the work to be carried out as "new fit out construction to an existing building with various operations/use", and identified (in Attachment 3) the proposed commercial, industrial use as "industrial/retail".
The Statement of Environmental Effects accompanying the development application (DA SEE) included the following (at p 1):
The development proposal is for fit-out and occupation (use) of the existing ground flor premises for a warehouse and logistics centre for 'Charlie Lovett', which is a coffee roasting, manufacturing and takeaway premise with outdoor dining. The premise will also include 'Ocean 7' which is a takeaway eatery. The ground floor currently contains one (1) premises which was a 'Kennards Hire' outlet. The proposed segmentation will be as follows:
'Charlie Lovett' Warehouse: approximate floor area of 66 sqm
'Charlie Lovett' Roasting and Manufacturing: approximate floor area of 95.3 sqm
'Ocean 7': approximate floor area of 71.7 sqmThis proposal intends to retain the existing car parking spaces and signage within the site boundaries.
...
At p 3 the proposed development was described in the following terms:
3.0 DEVELOPMENT PROPOSAL
The development proposal is for a new fit-out and occupation of the subject premises for various operations listed as warehousing, coffee/food manufacturing as well as a takeaway eatery. The proposed fit-out and use is described as follows:
Fit Out Works
...
Type of Goods Prepared
'Charlie Lovett' Roasting, Manufacturing and café:
Roasting and manufacturing of coffee beans will take place for distribution, pre-packaged retail and for use in the corresponding café. The Charlie Lovett café will produce onsite; baked goods such as but not limited to bread, pastries and cakes, pre made sandwiches, salads and pastas (made off site and delivered to the premise) as well as coffee.'Ocean 7' and café:
The café will produce take away style fish burgers, oven baked fish fillets and chips with the sale of soft drinks, water and salads.
The seafood is prepared offsite and stored frozen as well as thawed on site in appropriate freezers and refrigeration prior to cooking.
No deep frying will take place on the premise....
The DA SEE addressed the provisions of the 1994 LEP in the following terms (p5) (emphasis in original):
The proposed occupation and fit-out of the subject premises is defined as a development with an industrial zone permissible with Council consent.
"Zone No 4 (Light Industrial Zone)
The objectives of this zone are:
...(f) to enable development for the purposes of retailing only where it is associated with, and ancillary to, manufacturing purposes on the same land or where it serves the daily convenience needs of the local workforce.
...3 Prohibited
Boarding houses; business premises, office premises and shops (other than those ordinarily incidental or subsidiary to industry, or which are primarily intended to serve persons occupied or employed in uses otherwise permitted in this zone, or which by virtue of their nature, the services provided, or the products produced, distributed or sold are, in the opinion of the council, appropriately located in an industrial zone)..."
(Source: extract above (taken from Part 2.8 of the LEP) demonstrates compliance of the proposed eatery use. We draw particular reference to the close proximity of the surrounding factories, manufacturers and other light industrial suppliers and demonstrate a need to service the daily convenience of the local workforce.
The retail/eatery occupation and use of the premise satisfies Part 3.16.1a & Part 3.16.1b of the LEP and it is in our opinion that consent be granted for the above outlined proposal.
The DA SEE referred to cl 16(1) of the 1994 LEP and stated (at p6):
In addition, the extract above further highlights compliance of the proposed use, as the need to house a warehouse and logistics hub, as well as a centralised manufacturing, roasting and storage area could not have been undertaken within a standard 'business centre' or 'retail area'.
At p 6 the DA SEE calculated car parking required under section 3.1 of the DCP by reference to the floor area breakdown to be 20 spaces, and noted service of the site by public transport, parking restrictions in Stanley Street and Boundary Road, and that there was no increase in gross leasable floor area.
The Notice of Determination dated 1 December 2011 granting consent described the development as "Commercial - Alterations and change of use", and included the following conditions:
2. Approved plans - The development shall be carried out in accordance with the details set out on the application form, supporting information received with the application and the schedule of plans and details below, except as amended by the conditions of this consent.
....
4. The Coffee Shop and Ocean 7 are restricted to a twelve (12) month trial period after issue of Occupation certificate.
...85. Storage of goods - There shall be no storage of any goods external to the building, the "Warehouse Storage and Logistics" area is to only be used to store coffee beans.
...93. Cooking and food service- No deep frying is to take place on the premises, all food is to be served in takeaway containers.
Reason: This condition has been imposed to ensure fats, grease, oil and dirt do not enter the sink as it is not designed to handle such impurities.
...98. The approved use being conducted only between the hours as follows:
Charlie Lovett Manufacturing: 7.00am-7.00pm (Monday to Sunday)
Coffee Shop and Ocean 7: 7.00am-9.00pm (Monday to Sunday)Condition 105 specified that 11 car parking spaces are to be provided "in accordance with the approved plans".
The approved plans show on drawing AA003 (Rev C 20 September 2011) a wall separating the area marked "Warehouse Storage & Logistics" on the western side of the building from the central part of the building which includes "Roasting Manufacturing Area" and a "Roasting Storage Area", and a wall between that section and the eastern part of the building. Both the central and eastern parts of the building include a "Food Manufacturing & Back of House Area", a "Service Area", and internal seating; and both open on to the external seating area at the front of the building. Three toilets are included in front of the central part of the building, accessed from the external seating area. Drawing AA002A Rev C 20 September 2011 shows 11 car parking spaces including one disabled space, along the southern and eastern boundaries of the site.
A Construction Certificate (CC) was issued on 5 March 2012. The plans included with the CC (exhibit B, tab 10) show an internal layout of the building in the form observed on the view, with an opening between the Warehouse Storage & Logistics section on the western side and the central kitchen, customer service, and seating area; the toilets located at the rear of the building accessed from outside the eastern side of the building; and a Meeting Room in the location of the toilets as shown on the approved plans. The eastern section of the building is labelled on the CC plans "Charlie Lovett Warehouse" with no kitchen or serving area.
MOD2013/0030
The modification application (exhibit B tab 2) described the modification in the following terms:
Existing DA is for 2 retail tenancies. Sect 96 for this to become one retail tenancy. Vary existing trading hours.
A separate Development Application form was also completed with an Attachment that described the development as "Internal extension to existing retail tenancy vary existing trading hours". That form provided the following additional information:
Internal changes to existing structure only changing the already approved two retail tenancies to one existing with expansion.
...
No changes to current business details. Currently approved DA for two retail tenancies changing to one thereby any occupancy & staff expansion already taken into account. Variation to existing trading hours.
A Plan of Management, and Statement of Environmental Effects were attached. The Plan of Management included the statement that the application sought to vary the trading hours to 6.00am to midnight Monday to Sunday, and included the following:
Total number of patrons permitted on the proposed licensed premises is (_)
The Plan of Management referred to the subject premises as a "café", noting that it had been operated for the past 15 months without complaint, and that it is "a popular eating establishment and cater to local residents and business people alike".
There were two documents headed Statement of Environment Effects attached to the modification application (Modification SEE). One of those documents stated that the requested modification was to vary the existing hours of operation and to combine the two separate retail tenancies, including the statement:
In support of the change in trading hours I might inform Council that we have had numerous requests from our customers to open the restaurant beyond the hours of 9pm. Our diners tend to come into restaurant for dinner and like to relax during their meal and into the evening after their meal, they don't appreciate being hurried out by 9pm.
The second document adds a request to delete condition 4 relating to the trial period, noting that "we have been trading for 15 months now with no complaint from local residents, Police or Council".
Drawing AA003 (Rev D 23 December 2011) Proposed Floor Plan shows the removal of the two internal walls separating the three areas of the building, relocation of the toilets to the rear (northern) side of the building, addition of a grease trap area at the north eastern corner of the site, extension of the central display and serving area into the eastern part of the building, and one entry into the central part of the building from the outdoor seating area. Drawing AA002A (Rev F 1 March 2013) Landscaping Plan shows the outline of the building and the parking area: no car parking spaces were identified on that drawing.
The modification application was assessed by Council staff and a report provided to the Council on 5 March 2014 (exhibit 1, tab 6). The assessment report noted (p 10) that 36 adjoining owners/residents had been notified and no submissions were received in reply.
Evidence
The hearing commenced on 28 April 2014 on site with a view. Evidence was given on site by Mr Glen Power, who runs a community centre at 23 Stanley Street, and who spoke in support of the application to extend the trading hours.
Expert planning evidence was provided by Mr David Ryan on behalf of the Council and Mr Dan Brindle on behalf of the applicant. Mr Ryan and Mr Brindle prepared individual Statements of Evidence (exhibits 2 and C), and a joint report (exhibit 3). As part of the joint report Mr Brindle prepared a plan showing the existing seating of the premises, and a plan of the proposed car parking (Appendix 1). Those plans (the modification plans) are exhibit A. The planners gave oral evidence on 23 June 2014.
On 28 April 2014 the Council sought leave to amend its Statement of Facts and Contentions to include in contention 2 increase in maximum patron numbers, and reference to the requirement for 34 parking spaces under the DCP. Leave was granted, and the hearing was adjourned to enable the applicant to obtain traffic and parking evidence, and to serve a notice to produce to obtain details of development consents in the surrounding area. The matter was listed for hearing on 28 May 2014.
On 16 May 2014 the Council filed a notice of motion seeking to vacate the hearing date, and sought directions relating to provision of expert acoustic evidence, response to a bundle of documents on which the applicant proposed to rely, service of a traffic/parking report, and conferral by the expert planners. By consent the hearing date was vacated and the agreed directions for further progress of the matter were made. The matter was listed for hearing on 23 and 24 June 2014.
On resumption of the hearing the applicant tendered a Statement of Evidence prepared by Mr Craig McLaren on traffic and parking issues (exhibit E). Mr McLaren gave oral evidence. The applicant also tendered a Statement of Evidence prepared by Mr Nick Koikas on acoustic issues (exhibit G). Mr Koikas was not required to give oral evidence.
A supplementary bundle of documents, containing documents relating to 11 development consents granted by the Council in relation to other properties in the local government area, was tendered by the applicant (exhibit F).
Consideration
Section 96(1A) of the Act enables modification of a development if the consent authority is satisfied that the proposed modification is of minimal environmental impact, and that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, and if the application has been properly notified and any submissions are considered. Section 96(3) provides that in determining an application for modification of a consent, the consent authority must take into consideration such of the matters referred to in s 79C (1) of the Act as are of relevance to the development the subject of the application.
Whether the development as modified is substantially the same as the development for which consent was granted
The requirement that the consent authority be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted is a condition precedent to the exercise of the power to modify a consent: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342 at 347. The parties were in agreement as to the approach to be adopted to consideration of whether the threshold requirement of s 96(1A)(b) is met, while differing as to the outcome in the circumstances of this application.
The power to modify a consent is a power "to alter without radical transformation" the consent: Scrap Realty at 347; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474. The focus is on "the development", making a comparison between the development as modified and the development as originally granted: Scrap Realty. The result of the comparison must be a finding that the modified development is "essentially" or "materially" the same as the approved development: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309; Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8. Both a qualitative and quantitative comparison is required, and the comparison involves an appreciation of the developments being compared in their proper contexts, which includes the circumstances in which the development consent was granted: MotoProjects at 309.
The applicant submits that the Council's approach in its contention which contrasts the original consent for a combination of uses with its characterisation of the proposed use to be carried out by the same business in an expanded area as a "restaurant and café" is incorrect. In artificially "slicing and dicing" the uses approved in the original approval the Council has contravened the fundamental principle that in characterising a use the overall purpose of use governs, and does not characterise the approved operation at a sufficient level of generality, rather it focuses impermissibly on component parts of the overall purpose of use. Although the area occupied by certain components of use has changed the overall use of the premises as a whole has not: it was and is as a café, with cakes pastries and coffee now served across the whole premises instead of in one part and fish and chips in the remainder under the original approval. There is no additional and distinct use added here. The approved use was for a restaurant or café and the use sought in the modification is exactly that. The internal rearrangement of the adjoining tenancies does not represent a substantial qualitative change to the development, nor is the increase in available seats from 66 to over 100. The physical changes, being removal of walls, relocation of the parking, and increase in seating, are discrete and confined. Even if there is a difference in character from the Ocean 7 to the Charlie Lovett coffee and warehouse elements, incorporating the 71 sqm Ocean 7 area into the Charlie Lovett operation would not effect a substantial change. The applicant submits that it would be no legal bar to the approval of the modification even if the use as a café was prohibited in the IN2 zone as a s 96 modification is not a grant of consent, and the 2012 LEP provisions are taken into account as non-binding relevant considerations under s 96(3) of the Act. In reply, the applicant submitted that there remains a manufacturing element, given the evidence as to the quantity of coffee beans processed, while the café is the dominant use. The evidence as to lack of impact in itself suggests that there is no substantial change.
The Council submits that the increase in seating, extension of trading hours, and consolidation of floor space will result in a greater number of people eating and being supplied with products, and that is not substantially the same as the approved development when qualitative and quantitative aspects of the use are considered. The development consent has to be construed by reference to the transactions, activities and processes approved, rather than looking broadly for a label. The approved plans show three separate places with different activities in each and the Ocean 7 part separately tenanted. The western and middle components may be one co-ordinated operation, however there are two different ranges of transactions, activities and processes. If the proposal is for "food and drink premises" it is prohibited and cannot be consistent with the zone objectives. What was approved in the development consent was a take away and so what can be approved must also be a take away and not a café, and there is no power to approve a prohibited development in a s96 modification. In qualitative terms, there were three separate forms of activity and one is now proposed. In considering whether the proposal is for a take away, some seating would be acceptable, however there would be a point at which the use is not "predominantly" for take away. The changes to trading hours, number of seats, and the consolidation of floor space are all directed to getting more people into the space, and are all elements taking the use away from a take away. In quantitative terms, the number of tables and the increase in floor space used for commercial purposes which are prohibited is significant.
Considering first the physical changes proposed in the modification application, the approved plans for 11/DA-268 show on drawing AA003 walls separating the building into three sections, each with an opening to the front of the building. The western area is identified as "Warehouse Storage & Logistics", accessible at the front through an existing roller shutter; and the central area and the eastern areas open on to the "External Seating Area". The DA SEE stated that the floor area for those three parts was approximately 66m2 for the (western) "Charlie Lovett" Warehouse; 95.3m2 for the (central) "Charlie Lovett" Roasting and Manufacturing; and 71.7m2 for the (eastern) "Ocean 7". The modification plans (exhibit A) show removal of the central part of the wall previously separating the western and central parts of the building; relocation of the Roasting Work Bench and Destoner from the central part to the western part; removal of the wall separating the central and eastern part of the building and extension of the bench separating the kitchen and baking area from the seating area into the eastern part of the building. The planning experts agreed that the proposal does not result in any increase in gross floor area; Mr Ryan noted, however (exhibit 3 p4) that the operational characteristics of the floor area approved as "external seating area" would be different to and potentially less intensively used than the area shown as indoor seating due to the greater exposure to the elements when the roller shutters are opened.
In quantitative terms, the most significant change is an increase in the seating. The expert planners agreed that the approved plans for 11/DA-268 indicate approximately 66 seats. The experts were in agreement that 36 of those seats were within the "External Seating Area", which they both noted was within the building being inside the roller shutters. The plans submitted with the modification application show, on Mr Ryan's calculation, 157 seats; and on Mr Brindle's calculation, 148 seats. Mr Brindle calculated that 48 of those seats would be within the existing Charlie Lovett area, 50 in the adjoining tenancy, and 50 would be external to the building. Mr Brindle noted (exhibit C, para 52) that the layout and seating within the existing Charlie Lovett tenancy reflects the proposed layout and seating under the modification application.
The planning experts disagreed as to the number of patrons that could be expected to patronise the site. The development consent 11/DA-268 did not specify a maximum number of patrons permitted on the premises. The Without Prejudice Conditions of Consent filed by the applicant on 24 April 2014 (exhibit D) include proposed condition 3, stating that "no more than 100 patrons shall be permitted on the premises at any one time"; the applicant's position in the hearing is that it seeks approval for no more than this number of patrons.
Mr Brindle's evidence was that there are presently 93 seats (50 internal and 43 external), and that the number of seats as proposed would be between 140 and 150 seats. The seating arrangement is flexible and moveable, is in a variety of forms and with a number of different types of tables or benches. In his opinion the provision of additional seating increases the intensity of the use, but does not radically transform the development into something of a different character (exhibit C, para 59, 61).
Mr Ryan accepted Mr Brindle's calculation of 93 seats at present. He was of the opinion that there would be increased patronage associated with the significantly increased seating capacity of a single large restaurant (exhibit 2, para 25). In oral evidence Mr Ryan stated that there would be a change in the nature of usage with people sitting for longer and the extension of trading hours. He based his assessment of increase in patron numbers on the number of seats shown on the plans.
The applicant relies on the evidence of Mr McLaren to support the submission that with 148 seats as proposed maximum peak usage would be around 70 patrons, and that because simply increasing the number of seats available to customers does not as a matter of course or necessarily lead to a similar increase in patron numbers, the actual increase in patron numbers is likely to be somewhat less. Mr McLaren's survey (exhibit E) showed a maximum of 40 patrons at Saturday lunch. Mr McLaren's statement of evidence (exhibit E p4) includes information as to peak trades, with Sunday lunch as the peak (at 1) with Saturday lunch at 0.72. That would indicate, as submitted by the applicant (written submissions para 47), that there are at present 55-56 patrons at the peak, with 82 seats (on Mr McLaren's calculation). The applicant draws from that information the submission that with 148 seats as proposed the maximum would be around 70 patrons.
I accept the applicant's submission that the proposal is not in terms a proposal to increase maximum patron numbers from 66 to 100. There is no limit on the number of patrons specified in the development consent. However, in my view, the likelihood is that the consequence of the increase in seating provided in the expanded public area will be an increase patron numbers. It is unrealistic to assume that a proprietor would undertake the work envisaged in the proposal unless it was with the expectation, or hope, of increasing patronage and thereby business. The plans propose an increase in the number of seats from the approved 66 to 148 or 157, more than double the presently approved number. On Mr Brindle's numbers, the increase in internal seats is from 30 to 98 seats, a threefold increase. I accept Mr Brindle's evidence as to the nature of the seating, which as observed on the view is mostly moveable and with a variety of seating types, including benches, capable of accommodating two or three people, or at times one customer. While there is flexibility in seating arrangements, and it may be that the seats may not be fully occupied, an overall increase in the number of seats would enable an increase in the number of patrons able to consume food and drink at the premises, subject to the limit of 100 proposed in the draft Conditions. Whether or not the numbers reach the 100 maximum agreed to by the applicant, or are in the order of 70 at the peak as submitted by the applicant, I am satisfied that there is the capacity, and the likelihood, for an increase in the number of patrons. Whether or not that would have the impact on amenity as contended for by the Council is considered below. For the purposes of the threshold issue, what is relevant is that there is a material increase in the capacity of the premises.
The proposal now includes an increase in parking spaces from the approved 11 to 18, as proposed by Mr McLaren (discussed further below). There is no proposal to increase the maximum number of staff (20). The hours of operation of the manufacturing (coffee roasting) component of the premises is unchanged.
The presently approved trading hours for Charlie Lovett and Ocean 7 are 7.00am to 9.00pm Monday to Sunday. The applicant is seeking approval for trading hours from 6.00am to 12 midnight Monday to Sunday. The planning experts agreed that the additional hour in the morning is acceptable (exhibit 3, p4). The Council does not oppose the extension of trading hours from 9pm to midnight for a trial period of 12 months from the date of issue of an occupation certificate (proposed condition 98); the applicant does not oppose the imposition of a trial period. The intention of the applicant is, as reflected in the extracts above from the Modification SEE, that patrons will stay longer in the evenings with the extended trading hours.
In undertaking a qualitative assessment, I accept that whether or not the present built form and layout (with removal of most of the wall dividing the western and central parts of the building, location of the roasting work area in the western part of the building, and the additional seating above the approved 66) is consistent with the development consent, the present operation provides an indication of the outcome envisaged by the modification application. I accept Mr Brindle's evidence that the existing layout and seating reflect what is proposed (exhibit C, para 52).
The modification proposes the retention of "Warehouse, Storage & Logistics" in the western part of the building, with pallet racking, storage containers, and a roaster, the relocation of the roasting work bench and destoner, and the opening up of that area to the central part of the building (exhibit A). Mr Brindle's evidence (exhibit C, para 40), based on information from the applicant's business manager, was that approximately 2.6 tonnes of coffee per month are processed in the warehouse and roasting area; coffee beans are stored on site after roasting for a short time; approximately 350kg of coffee per month is sold through the café, and coffee is also retailed from the café in small bags up to 1kg; and the remainder and vast majority of the coffee is distributed to customers including other Charlie Lovett outlets and other coffee shops and retailers. Based on that evidence, even if the amount of coffee sold through the café doubles as a result of the present application, it would still represent a small percentage of the coffee throughput from the manufacturing area. I accept Mr Brindle's evidence that the removal of the wall facilitates staff movement between the warehouse storage and logistics area and the other part of Charlie Lovett (exhibit C, para 57).I note that the appreciation of the coffee roasting process to which he also referred would have been available had the roasting and manufacturing area been located as shown on the approved plans. While there is some change to the physical layout, in my view the coffee manufacturing and storage element of the approved development, which is related to, but not directly part of, the adjoining café operation, is not materially changed from the development as approved.
Mr Brindle described (exhibit C) the current use of the site in the following terms:
38. Charlie Lovett is an integrated coffee related business comprising two main elements:
a. coffee storage, roasting and distribution which takes place primarily in the warehouse storage and logistics area as approved and as modified;
b. a café which includes back of house areas and public areas. The café also includes a bench with a small roaster currently used as a sampling bench.
...
41. The café serves coffee and a range of foods including bakery items baked on the premises. Other food and snacks are sold including pizzas, frozen pastas which reheated and the like. There are no commercial cooktops, fryers or steamers.
42. Customers order at the cash register and then take a seat for the coffee or food to be served to the table or seat or to wait for takeaway.
Mr Brindle's description of the present operation was not disputed, and based on the view I accept it as an accurate description of food service part of the business. The planning experts were in agreement that the current use of the middle area of the premises and the outdoor seating area has the appearance of a café. I accept that evidence, which is consistent with the view where patrons were seated in varying numbers both at the internal and external seating, a variety of food was on display, and staff were serving behind the counter or working in the rear kitchen area. On that basis, it is in my view appropriate to describe the nature of the development as proposed to be modified for the central and eastern sections of the building as a café. It is not inconsistent with that description that there are no tablecloths, or table settings.
The planners agreed that the proposed use of the central and eastern parts of the building is for "food and drink premises" and not "take away food premises" under the 2012 LEP. The key difference between a "restaurant or café" and a "take away food and drink premises" as defined is whether consumption of food and drink is predominantly on the premises as opposed to away from the premises. A "restaurant or café" can provide some take away, and a "take away food and drink premises" can provide for some consumption on the premises. Having regard to the significant additional provision of internal seating and the expectation that patrons will stay longer over their meals in the extended evening hours, in the context of Mr Brindle's description of the operation of the café, I agree that if the purpose of the development as proposed to be modified is to be considered against the definitions and controls in the 2012 LEP, the food premises part of the premises would be characterised as a "restaurant or café".
The planners disagreed as to how the use as approved in consent 11/DA-268 should be characterised. Both experts agreed that it was necessary to have regard to the consent, the approved plans and the documents referred to in the development consent in construing the consent and identifying the development as approved. That approach to construction of development consent 11/DA-268 accords with the authorities. In circumstances where the notice of determination did not specify the approved use, and condition 2 required that the development be carried out in accordance with the details in the application form, the supporting information received, and the plans, except as amended by the conditions of consent, the documents and the plans identified in condition 2 are incorporated in the consent: Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; Auburn Municipal Council v Szabo (1989) 67 LGRA 427; Stebbins v Lismore City Council [1988] NSWCA 146.
Mr Brindle was of the opinion that the approved use was not for "take away food and drink premises" as defined in the LEP. The elements of the approval that led him to that view include the amount of public area containing tables and chairs for eating relative to back of house areas, the maximum number of employees allowed on the site, the provision of toilet facilities, the lack of a hot food bar and a deep fryer, and the hours of operation. The other takeaway food premises in the vicinity of the site are generally smaller, contain very few seats inside, have small public areas, close at approximately 2.30pm and focus on takeaway sandwiches and hot foods displayed in hot food bars. In his opinion condition 93 of the development consent deals with environmental health issues and is not a restriction on land use, and does not alter the nature of the approved development. In his contribution to the joint report, Mr Brindle noted (at 2.1.3(a), (b)) that the approved development is significantly different from a takeaway food outlet, on the basis of the significant area of seating, the trading hours, provision of toilet facilities, and absence of hot food bar and deep frying. In his opinion the provision of a café to provide a place for workers in the industrial estate to meet, work or eat is appropriate and consistent with the consent.
Mr Ryan considered (exhibit 2, para 27) the essential elements of the approved use to be a site chosen so as to enable a separate coffee manufacturing and storage function; a relatively small takeaway food outlet separate from but associated with the manufacturing business, including some outdoor seating; a separate take away food outlet apparently not associated with the coffee businesses including internal and external seating; and the take away food outlets were to principally serve the local industrial workforce. In his contribution to the joint report (exhibit 3, p 4) Mr Ryan relied upon the reference in the DA SEE to the use of the central and eastern parts of the premises as "takeaway premises" and "takeaway eatery", and the limitation in condition 93 to service in takeaway containers. While he accepted that some "on premises dining" might occur, he considered that the self-description by the applicant of the use as takeaway serving the "daily convenience of the local workforce" described the nature of the use as primarily takeaway with ancillary "on premises dining".
As noted by Mr Brindle (exhibit C paragraph 23), there is no reference to the terms "takeaway food outlet" or "takeaway food and drink premises" in the DA SEE or the development application. However, in my view recourse to defined terms in the current planning controls would not provide much assistance in deriving an understanding of the "essence" of the development as approved. The planning controls at the time of the development application did not include development for purposes described in those terms. The 1994 LEP did not distinguish, as the 2012 LEP does, between "a restaurant or café", on the one hand, and a "take away food and drink premises" on the other, as different forms of "food and drink premises". The Council's assessment documents describe the proposed development as refreshment rooms, which was the relevant term used in the 1994 LEP to include "a restaurant, café, tea room, eating house or the like". However, that term was not used in either the DA SEE or the development application, and its use in the Council's assessment is reflective of the label attached to what was then accepted to fall within the range of innominate uses permissible with development consent. Neither planner considered it appropriate to rely on the assessment report in construing the development consent.
The development application form makes no reference to any particular kind of food premises, referring instead to "manufacturing & retail" and "industrial/retail". Neither do the approved plans. The layout of the premises as shown on the approved plans is described above at paragraph [26]; those plans show equipment and fittings consistent with food preparation and service, including refrigerated displays, with the notations "Food Manufacturing & Back of House Area" and "Service Area" for the central and eastern section of the building. The descriptions used in the DA SEE for the food service parts of the proposed development are as "takeaway premise" (p1), "takeaway eatery" (p3), "eatery" (p3, 4, 5) and "eateries" (p7), and "café" (p3, under the heading Types of Goods Prepared; p6 referring to floor area). The clearest indication as to what kind of food premises was proposed comes in part 3.0 Development Proposal at p 3, and at p5 in the reference to objective (f) of the Light Industrial zone and the exception for business premises, office premises or shops in parentheses in the development control table (quoted above at paragraphs [20], [21]).
Based on those documents, those parts of the premises not used for coffee manufacturing and storage could best be described as a takeaway premises. While there are some references to "café", the majority of the references in the DA SEE are to "takeaway". That description of the approved development is supported by the discussion of objective (f) of the Light Industrial zone at p 5, and the specification in condition 93 that food and drink be served only in takeaway containers. It may be, as stated by Mr Brindle, that this condition arose from internal Council consideration of environmental health issues, however a restriction to the use of takeaway food containers supports a finding that the nature of the food and drink services to be provided was that of a take away. The provision of some seating, and toilets, would not detract from that understanding. The two take away establishments in the locality, which are significantly smaller premises than the subject site (65.585sqm and 45sqm) also provide some seating (16 and 10 seats respectively as observed by Mr McLaren).
The characterisation of the purpose of a use of land must be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 at [36]. Having regard to the description of the proposed development in the DA SEE, including the summary at p 3 as "various operations listed as warehousing, coffee/food manufacturing as well as a takeaway eatery", and the plans which show the separation between the various elements, in my view Mr Ryan's description better captures the essence of the development as approved than that of Mr Brindle. I agree with Mr Ryan that the essential elements of the approved development are a coffee manufacturing and storage operation, a relatively small take away food and drink outlet separate from but associated with the manufacturing business, and a separate take away food outlet not associated with that coffee business. To describe the development in those terms is not to "slice and dice" it, but reflects the distinction drawn both in terms of the physical layout and the proposed activities, transactions and processes in the description of the development as a whole as understood from the DA SEE and the approved plans.
The approved use of the central and eastern parts of the premises as take away food premises is different to the use as a café. Different forms of food premises have different characteristics, including for example factors such as how long patrons stay and whether they sit down to dine or consume their meal away from the premises. That difference is reflected in Mr McLaren's contrast between the café use of Charlie Lovett to a "typical restaurant" with three course meals and table service (exhibit E, p4) in support of a variation from the required car parking spaces under section 3.1 of the DCP. The difference in types of food premises is also now reflected in the inclusion within the general term "food and drink premises" under the 2012 LEP of four different, and separately defined, types of premises where food is prepared and sold for consumption on and off the premises.
Both in quantitative and qualitative terms there are in my view material changes that mean that the development as modified is not "essentially or materially" the same as the approved development. The substantial increase in the number of seats, with the expectation that patrons will stay longer when dining in the extended hours in the evening, in an expanded Charlie Lovett café operating in association with the processing warehouse and storage area, when compared with the approved development on a smaller scale for a coffee processing and storage area together with two take away premises, is in my view an alteration that radically transforms the development. I am not satisfied that the development to which the consent as modified relates can be regarded as substantially the same development as the development for which the consent was originally granted. Accordingly, there is no power to modify the consent, whether or not the application might be worthy of approval on the merits (Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46). The modification application must be refused.
Whether the application should be approved on the merits
Even if there is power to modify the consent, the Council contends that the application should be refused on the basis that the proposed operating hours and increase in patron numbers contrary to the objectives of the DCP for the immediate area and the objectives of the IN2 Light Industrial zone would detrimentally impact on the amenity of the adjoining low density residential area. Two specific impacts were identified, being noise associated with the café use as well as cars going to and leaving the site, and the number of car parking spaces required. While my conclusion on s 96(1A)(b) makes it unnecessary to determine whether the modification should be approved, given that the matter was fully argued it is appropriate to address the evidence on those issues.
The applicant submits that the absence of objections from adjoining residents is not indicative of a proposal with a perceived significant impact on the amenity of adjoining residents. There is no evidence of any material noise impact on the residential properties across Boundary Road and no reason to infer that use between 9pm to midnight would be different to that currently occurring at around 9pm. The applicant relies on the expert evidence of Mr Koikas, whose acoustic assessment was based on conservative assumptions of patron numbers. The applicant submits that the proposal does not involve a change from one type of food refreshment room to another and so cl 3.1.4.1(c)(ii) of the DCP provides that no additional parking is required; that the 18 spaces proposed by Mr McLaren are within two spaces of the 20 required under the required 15 spaces per 100sqm GFA and within 5 of the required 1 space per 3 seats; the level of parking provision is ample, as is the current car provision of 13 spaces; there has been a regular application of the cl 3.1.4.1 exemptions under the DCP as demonstrated in the approvals contained in Exhibit F; and applying the DCP consistently would suggest that no more parking spaces would be required; and there would be no amenity impacts on the neighbouring road system, relying on the evidence of Mr McLaren.
The Council accepts the acoustic assessment of Mr Koikas that the changes in hours and numbers would not create an amenity impact. In relation to traffic and parking, the Council relies on Mr Ryan's reservations as to assessment of impacts, given that Mr McLaren assessed this on the basis that the premises were a takeaway and therefore would have high turnover, which is inconsistent with Mr Brindle's evidence that the current and proposed use is a restaurant. The Council accepts that the numbers stated in the DCP are very high and cannot be met, and submits that the application needs to be considered on its merits.
Acoustic impacts
The Statement of Evidence prepared by Mr Koikas (exhibit G) assessed noise impact based on the assumption that maximum patron numbers may vary between 157 and 187, and assessed three noise sources: two airconditioning units located on the southern façade of the building; patrons talking/eating and serving of food indoors and outdoors; and vehicular movements on the subject site. An unattended noise survey was conducted on 23 - 24 April 2014. Mr Koikas concluded that the noise levels for the proposed additional hours of operation would be less than the nominated noise criterion for the intrusive noise criterion of the EPA Industrial Noise Policy and less than the sleep disturbance criterion of background + 15dB outside a bedroom window. Mr Koikas recommended that in order to minimise noise of patrons, the PVC curtain fronting Boundary Road should not be opened, and that no additional noise mitigation measures were warranted. The Council and the applicant agreed on a condition requiring the PVC curtain not be opened during the extended hours between 9.00pm to midnight would be appropriate.
There is no evidence of material noise impacts on the residential properties on the other side of Boundary Road from the present operations. Based on Mr Koikas' evidence, which was not contested, and to which the planners deferred, I accept that it has not been established that noise associated with the extended trading hours and number of patrons would give rise to adverse amenity impacts on the residential uses in the locality.
Traffic and parking
The approved plans for the consent 11/DA-268 show (drawing AA002A) show 11 parking spaces on the eastern and southern sides of the site. The parking arrangements observed on the site view differ from those shown on the approved plans. In their joint report (exhibit 3) Mr Ryan and Mr Brindle agreed that the current parking arrangement accommodates at least 13 cars, and that the plans for the modification application do not show the proposed car parking layout. Mr Brindle prepared a plan (Appendix 1 to the joint report) with two loading zones and four car spaces (including one disabled) immediately in front of the building, and seven car spaces on the Stanley Street frontage.
In his Statement of Evidence (exhibit E) Mr McLaren noted that applying the DCP to the consent 11/DA-268 and submitted DA SEE, the original approval would have required 23 parking spaces (based on seating) or 20 (based on GFA), whereas the approval was for 11 car parking spaces. Mr McLaren noted (p4) that the extension of Charlie Lovett café into the approved Ocean 7 space was "not a change of use as Ocean 7 was approved as a café/refreshment outlet", and referred to section 3.1.4.1(c) in the DCP. Mr McLaren noted that:
The operation of the Charlie Lovett café is not a typical restaurant which relies on food sales and long stay customers (ie three course meals with table service); rather the café serves the surrounding industrial precinct for workers within walking distance and general passing customers for takeaway orders of coffee and food.
Mr McLaren noted that the two nearby takeaway/cafes have no off-street customer car parking provision. There are a number of half hourly and hourly time limited kerbside parking spaces on Boundary Street that apply on weekdays and Saturdays during business hours, and two time limited kerbside spaces immediately in front of the Stanley Street Gourmet restricted to 15 minutes on weekdays between 6.00am to 5.30pm. There is no kerbside parking permitted directly along the two Charlie Lovett site frontages.
Mr McLaren stated that application of a lower rate parking rate applied to the takeaway food outlets in the order of 1 space per 65m2 for staff and approximately 1 space per 22.5m2 for customers to the café component of Charlie Lovett and Ocean 7 yields a parking result of 6 spaces compared to the inflated "restaurant" type result of 11 spaces for customers and 2 staff parking spaces; the single car spaces associated with the warehouse and manufacturing components would not strictly apply as that could be subject to a management plan such as to avoid those two spaces being used for those components at peak customer times, which would yield a further two spaces on site. Mr McLaren noted that the car parking is not adequately linemarked at present and the loading bay is infrequently used, and in his opinion the car park capacity could be further increased with relocation of the disabled space and reduction from two to one loading zone spaces. Mr McLaren prepared a revised parking layout for 18 spaces which in his opinion would better utilise/optimise the current car parking arrangements (Annexure B, exhibit E). The Council's draft Conditions (exhibit 5) incorporate that revised layout plan (condition 105).
Mr McLaren was of the opinion that the current parking supply and any additional on-site parking achieved through the recommended modifications and management plan would not create any adverse effects in terms of parking usage and traffic flow impacts both within the site or external to it. Mr McLaren referred to on-site surveys conducted at Thursday lunch, Friday breakfast and Saturday lunch periods, which showed the peak of 40 patrons (average 31 patrons) for Saturday lunch, and a Thursday lunch peak of 19 patrons (average 15 patrons) and Friday breakfast 18 patrons (average 9 patrons). Based on availability of 82 seats, the surveys reflected a usage of approximately 50%.
In oral evidence Mr McLaren stated that in his opinion the parking demand specified in the DCP is addressing uses where customers stay for a longer duration, with proper restaurant service, and the seating does not drive parking demand. For most takeaway premises, if customers sit it would be for a shorter duration. He agreed that in the evenings there would be a component of people who would sit for longer, but most would not. Based on the survey the primary drivers are the lunch and breakfast. During the extended hours in the evenings there would be parking on the street. The Council considered that 11 spaces was adequate for the Charlie Lovett and Ocean 7, and in his opinion only about 11 would be required with the expansion, however it is better to provide more parking and reposition the disabled parking space closer to the entrance. His opinion that there was adequate parking was based on the rigid numbers not being relevant rather than an application of section 3.1.4.1(c) of the DCP.
The applicant did not press reliance on a Notice to Admit Facts relating to the Council's imposition of conditions for parking requirements for new, or alterations to, refreshment rooms or cafés in the last five years. The applicant submitted that the documents in exhibit F establish that the Council has not applied the DCP in a way that would require the provision of 34 parking spaces, and that applying the DCP consistently would suggest that Council would require no more parking spaces than are presently provided. The applicant accepted the Council's proposed condition requiring compliance with Mr McLaren's redesigned traffic and parking layout and lodgement of a management plan for the use of the loading spaces.
Exhibit F contains documents relating to 11 development consents granted for properties in the Hurstville LGA, prepared following production of documents by the Council to the applicant in response to a Notice to Produce as foreshadowed on 28 April 2014. The uses include café/deli, coffee shop, restaurant, café, and café/patisserie, and the properties are variously in the 3(a) Neighbourhood Business, 3(b) City Centre Business, or 3(c) Business Centre zones under the 1994 LEP. For three of the properties, the documents relate to applications considered before the commencement of the DCP in April 2007. For those applications considered under the provisions of the DCP, the documents relating to five properties (in Lugarno, Peakhurst, Hurstville, Narwee and Mortdale) include consideration of the car parking requirements of the DCP. None of those applications applied the numerical calculations in the Table to cl 3.1.4.1, and no requirement for additional parking was imposed. In each case, the assessment applied the approach specified in cl 3.1.4.1(c) of the DCP, considering whether there was a change of use; whether the public area in the proposed use was less than 1000sqm; and whether gross leasable floor area was proposed to be increased. One application (Narwee) included detailed consideration of the proposed use against the objectives of the DCP, noting that the proposed cafe was expected to serve local residents rather than attract and intensify traffic, and that it would not function in the way of a restaurant.
The Court's consideration of the provisions of the DCP, as required by s 96(3) and s 79C(1)(a)(iii) of the Act, is not limited to how the Council has applied those provisions in its determination of applications for other sites. Whether or not the routine, or consistent, practice of the Council is not to apply the numerical calculations for on-site parking requirements specified in the Table in the DCP, does not govern the assessment of this application. In any event, it is apparent that the approach to the applications included in exhibit F conforms both with the discretionary basis stated in cl 3.1.4.1(a) of the DCP, and the approach to provisions of a DCP adopted in Zhang v Canterbury City Council (2001) 115 LGERA 373, and now required under s 79C(3A) of the Act. The Council approved 11/DA-268 notwithstanding the identification in the assessment report that there was a shortfall in required number of car parking spaces. In his assessment of this application, Mr McLaren took into account the nature of the proposed use and the availability of parking on the street for the extended hours in the evenings, to support his opinion that the numerical requirements of the Table are not relevant in that assessment and that the proposed 18 spaces would be adequate in meeting the objectives in 3.1.4.1. I accept that evidence, and accept that provision of fewer spaces than the number required under cl 3.1.4.1 would not be inconsistent with the objectives of those controls. There is no evidence that the present parking provision for the present operation is generating adverse impacts on amenity. If approval were to be granted, I consider that it would be appropriate to impose proposed conditions 68A and 105. On that basis I agree with the applicant that the evidence before the Court does not establish that the modified development would result in adverse impacts on amenity by reason of traffic.
The 2012 LEP and the zone objectives
For the reasons above, I agree with the expert planners that the appropriate characterisation of the modified development is as a café. The applicant's intention is to enable patrons to stay longer and relax during and after their meal in the evenings, in contrast to a take away use where consumption of food occurs primarily away from the premises. The expert planners agreed that the proposed use is for "food and drink premises" and not "take away food premises" as defined in the 2012 LEP. I agree with the Council that the proposed use would be as a "restaurant or café" as defined in the 2012 LEP, which would be a "food and drink premises", which are a form of "retail premises". As "retail premises", the proposed use would be "commercial premises", and prohibited in the IN2 zone. While the manufacturing and warehousing use will continue, there is no submission that the café use could regarded as subsidiary to that use in the development as modified. The applicant submits that the 2012 LEP provisions are to be taken into account as non-binding relevant considerations under s 96(3), and relies on the decision of the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 for support for its submission that it would be no legal bar to the approval of the modification even if the use were prohibited, on the basis that a s96 modification is not the grant a grant of consent (s 96(4)).
The issue before the Court of Appeal in Michael Standley was whether a modification involving the breach of a development standard applicable to the site could be approved. Breach of a development standard results in a prohibition that may, for an original development application, be overcome by an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1), or an exception under cl 4.6 of local environmental plans adopting the standard template, as does the 2012 LEP. At p481 Mason P (with whom Stein JA and Sheppard AJA agreed on this issue) held that former s 102 (now s 96) would lift "the prima facie prohibitory operation" of s 76(3) of the Act, and that a modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application; the former s 102(3A) (now s96(3)) would control the way in which the consent authority would take into account relevant development standards. On one view, the prohibition of "commercial premises" provided in the Land Use Table for the IN2 zone in a planning instrument that came into effect before the modification application was lodged would be similar to a development standard introduced before a modification application, as in one of the examples addressed in Michael Standley. Neither party was able to identify any authorities that have considered this point. It is not necessary, given the conclusion reached on s96(1A)(b), to express a concluded view on this issue. However, I note that if the prohibition under the 2012 LEP would not of itself be a barrier to approval of a modification application, it would have to be taken into account in the s 96(3) assessment. In that regard, consideration of the objectives of IN2 zone as required by cl 2.3(2) of the 2012 LEP would have to include that only one form of food and drink premises, namely a take away premises, is now regarded as appropriate in the Light Industrial zone. That would a relevant factor, along with the continued provision of employment, and the provision of a facility that would appear to meet the needs of workers in the area, both also matters addressed in the zone objectives.
Conclusion
The development to which the consent as modified relates is not substantially the same as the development for which development consent 11/DA-268 was originally granted, and s 96(1A)(b) of the Act is not satisfied. Regardless of whether on a consideration of the relevant matters in accordance with s 96(3) the application could properly be approved on its merits, the application to modify development consent 11/DA-268 must be refused.
The orders of the Court are:
1. The appeal is dismissed.
2. The application under s 96(1A) of the Environmental Planning and Assessment Act 1979 (MOD2013/0030) to modify development consent 11/DA-268 granted on 16 November 2011 in relation to premises at 2 Stanley Street Peakhurst is refused.
3. The exhibits are returned except for exhibits 4, 5 and 6.Linda Pearson
Commissioner of the Court
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