Constantinidies v Waverley Council
[2012] NSWLEC 1351
•30 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Constantinidies v Waverley Council [2012] NSWLEC 1351 Hearing dates: 30 November 2012 Decision date: 30 November 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld.
2. DA-556/2011 for the use of the first floor area of 279 Bondi Road Bondi for a restaurant is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits 2, A, and B.
Catchwords: DEVELOPMENT APPLICATION: use of an unused first floor area for extension of an existing restaurant - noise - amenity impacts Legislation Cited: Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2010
Waverley Local Environmental Plan 1996
Waverley Local Environmental Plan 2012Category: Principal judgment Parties: John Constantinidies (Applicant)
Waverley Council (Respondent)Representation: Ms H Irish, barrister (Applicant)
Ms C Morton, solicitor (Respondent)
Solicitors
Susan Hill & Associates Lawyers (Applicant)
Sparke Helmore (Respondent)
File Number(s): 10884 of 2012
Judgment
COMMISSIONER: This is an appeal against the refusal by Waverley Council of DA 556/2011 for the use of an unused first floor area of the shop at 279 Bondi Road, Bondi for a restaurant to operate between 7 am and 11 pm seven days a week. The use of the first floor area is to be used in conjunction with an existing takeaway food shop operating at ground floor level. The first floor area is to contain eight tables and 34 seats. The area is not to be licensed but BYO alcohol is permitted. This shop operates between 10 am and midnight Monday to Saturday and 10 am to 9 pm Sundays and provides for BYO alcohol.
A Plan of Management also accompanies the application and contains requirements relating to:
1. supervision and compliance with the conditions of consent,
2. maximum number of patrons,
3. hours of operation,
4. noise control,
5. bottle recycling and pickup times,
6. rubbish collection and storage, and
7. complaint management.
Relevant planning controls
The site is currently within Zone B4-Mixed Use under Waverley Local Environmental Plan 2012 (LEP 2012), which was gazetted on 26 October 2012. The proposed use is permissible with consent in this zone. The objectives for Zone B4 are;
• To provide a mixture of compatible land uses.
• To integrate suitable business office, residential, retail and other developments in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
• To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core.
Waverley Development Control Plan 2012 has been adopted by the council to operate in conjunction with LEP 2012.
The application was lodged on 18 November 2011 and was determined by the council on 16 February 2012 and as such the application is captured by the savings provisions in cl 1.8A of LEP 2012. This requires the development application to be determined "as if this plan has not commenced." The effect of cl 1.8A is that the principal planning instrument for the determination of a development application is Waverley Local Environmental Plan1996 (LEP 1996), the precursor to LEP 2012.
The site is zoned 3(c) Business Neighbourhood under LEP 1996. The proposed use is permissible with consent in this zone. The contentions raised by the council relate to firstly, the inconsistency with both 3(c) zone objectives, (a) and (b) which state;
(a) to provide a range of shops and low intensity commercial uses that serve the daily needs of adjacent residential neighbourhoods and
(b) to encourage the mixing of residential development with those uses.
Clause 10(2) provides that consent must not be granted unless the development meets one or more of the zone objectives.
Waverley Development Control Plan 2010 (DCP 2010) applies to the site. The second contention relates to amenity impacts and specifically unacceptable noise impacts and the consequent inconsistency with noise control provisions in D1 5.6 and E1 2.3 and 2.5 of DCP 2010.
D1 5.6 addresses privacy and noise control and objective (c) relevantly states:
(c) Ensure development minimises noise impacts to an acceptable level.
E1 2.3 addresses hours of operation for commercial and retail uses. For Type B premises such as restaurants and land within the 3(c) zone, the hours of operation are:
(a) General maximum hours: 7am to 10pm seven days a week
(b) One year trial hours:
(i) 7am to midnight 7 days a week. E extended late night trading may be considered on a trial basis; or
(ii) Where residential uses are in proximity; 7am to 11pm Thursday, Friday and Saturday only.
E 2.5 addresses amenity with E2.5.2 providing general requirements for noise.
Noise
Expert town planning evidence was provided by Mr Kerry Nash for the council and Mr Tony Moody for the applicant. Their evidence addressed the potential noise impacts that may affect on the amenity of the adjoining and nearby residential premises. To fully understand their evidence it is necessary to consider the expert acoustic evidence provided by Dr Renzo Tonin for the council and Mr Neil Gross for the applicant. The acoustic experts identified the potential noise sources as arising from;
1. transmission of patron noise from the restaurant to the adjacent residential building at 277 Bondi Road through the common wall.
2. transmission of patron from the restaurant to the adjacent residential building at 277 Bondi Road via the balconies.
3. transmission of footfall noise to 277 Bondi Road, and
4. noise impacts from bottle recycling.
The acoustic experts are of the opinion that item 3 can be addressed by the provision of carpet on the floor and stairs of the proposed restaurant and item 4 may be addressed by a suitable time restriction for bottle recycling or the requirement to recycle bottles inside the premises and to restrict pickup times to daytime hours. These can be included in the Plan of Management and by way of a condition of consent.
After jointly addressing the potential acoustic issues Dr Tonin and Mr Gross conclude that:
A comprehensive noise assessment was undertaken for the proposed restaurant on the first floor of No 277 Bondi Road, Bondi. We conclude that if the restaurant is BYO and therefore unlicensed that noise levels comply with the selected criterion provided that any background music is played at a level not exceeding 75 dB(A) L10. If the restaurant is licensed then a stud wall must be constructed on the common boundary.
Provided these recommendations are implemented noise transmission to the adjacent tenancy will be acceptable although it may be audible at times.
As I understand the concerns expressed by Mr Nash over noise are largely addressed by the expert acoustic report of Mr Gross and Dr Tonin, including his concern that the adjoining residential property at 36 Denham Street had not been considered in the acoustic assessment. Mr Nash, however, maintains that while it was agreed that the acoustic impacts were acceptable on the adjoining first floor residential property at 277 Bondi Road, noise was still audible and as such his concerns over noise transmission through the common wall remain.
The concerns of Mr Nash focus on the difference between the use of the premises as a licensed premises or as a restaurant with a BYO facility. Mr Nash maintains that as the opportunity is available for patrons to consume alcohol, even by BYO, it should be categorised as a licensed premises and at a minimum, a stud wall provided in accordance with the acoustic report. This was an approach rejected by the acoustic experts as the acoustic criteria for licensed premises include hotel style operations, often with large numbers of patrons and music. The acoustic experts agree that the application of the licensed premises acoustic criteria is inappropriate for the proposed use even though this level of acoustic attenuation could be satisfied by the erection of an acoustically treated stud wall on the common boundary with 277 Bondi Road.
Notwithstanding the operating hours sought in the development application of 7 am to 11 pm, seven days a week, Mr Moody accepted that, consistent with DCP 2010, the operating hours should be 7 am to 10 pm Sunday to Wednesday and 7 am to 11 pm Thursday to Saturday and a one year trial period between 10 pm and 11 pm.. I agree with the revision of the operating hours and trial period suggested by Mr Moody. If approval was to be granted Mr Nash preferred the revised operating hours suggested by Mr Moody.
While I understand the basis for Mr Nash's concerns, I am not satisfied that the additional acoustic treatment of the stud wall is necessary given firstly, the compliance with the relevant noise criteria and the Noise Guide for Local Government for premises not categorised as "licensed premises" secondly, the satisfaction of objective (c) in D1 5.6, thirdly, the compliance with the hours of operation in DCP 2010 and fourthly, the 1 year trial period.
Resident evidence
A number of residents provided evidence on site and supported the council's concern over noise together with other concerns relating to noise of patrons from existing restaurants and licensed premises in the area, noise from bottle recycling and the precedent for further similar developments.
I am satisfied that the proposed development is acceptable and that any concerns over noise have been properly addressed through the joint acoustic report, the proposed Plan of Management and the trial period for the time between 10 pm and 11 pm.
The other concerns raised by the residents cannot support the refusal of the application. I am mindful of the zoning of the site that anticipates development of the nature proposed in this application. I note that there are a number of licensed premises including a hotel within the immediate location of the site, including the use of the first floor areas of some premises. In my view, care needs to be taken in assuming that new developments will have an unacceptable amenity impact simply because other developments in the area may create adverse impacts. There was no evidence to suggest that the applicants, who have operated from the ground floor business for some 30 years, have been the subject of any complaints over the life of their operations from the site.
I have little trouble in concluding that the proposal will satisfy cl 10(2) of LEP 1996 and as far as it is relevant, the objectives for Zone B4 in LEP 2012.
I have given no weight to the concerns expressed by local residents that the proposed development will ultimately lead to an application for licensed premises. If this occurs, and there was no evidence to suggest it would occur, it would need considered at the time it is lodged with the council.
Similarly, I do not accept that any weight should be given to the concern of precedent. The proposal is a permissible use in the zone and any application of a similar nature must be considered on its individual merits. If the application is unacceptable when considered on its merits it should be refused and conversely if it is acceptable on its merits it should be approved.
Conditions
Deferred commencement condition - I accept that the deferred commencement condition requiring the Plan of Management is appropriate as an operation of condition of consent condition given the relatively uncomplicated use proposed in the application and the agreement by the acoustic experts.
Condition 6 - the applicant raises objection to the last sentence of condition 6 that required "if so directed by council, the management is to employ private security staff to ensure that this condition is complied with." I agree with the applicant's submission that this sentence can be deleted
as there is no evidence that it is likely or there has been events that required the need for a private security guard to control patrons at the site.
Condition 12- this condition places requirements for mechanical plant. I agree with the applicant's submission that this condition can be deleted, as the application does not propose any new mechanical plant.
Condition 14 - this condition requires that all new refrigeration, motor units and other mechanical plant that are to be installed in the building are to be located in an acoustically treated plant room. I accept that as the application does not seek the provision of any new refrigeration units or mechanical plant, the condition can be deleted.
Condition 20 - this condition requires a contribution under s 94A. I agree with the submission of the applicant that the condition can be deleted on the basis that it has not been established that the proposed development will increase the demand for public facilities in accordance with s 94.
Condition 39 - this condition provides requirements for waste storage. I accept the applicant's submission that the condition may remain but the condition should contain an alternative that allows the bins to be cleaned in the manner currently undertaken by the applicant within the premises.
Orders
The orders of the Court are;
1. The appeal is upheld.
2. DA-556/2011 for the use of the first floor area of 279 Bondi Road Bondi for a restaurant is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits 2, A, and B.
_____________
G T Brown
Commissioner of the Court
Decision last updated: 20 December 2012
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