Cthurmer v Waverley Council

[2012] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cthurmer v Waverley Council [2012] NSWLEC 1258

Hearing dates:

23 August 2012

Decision date:

11 September 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

(1)The appeal is upheld.

(2)The development application to extend the trading hours of a café/restaurant at Shop 7 & 8, 767-771 Old South Head Road, Vaucluse, is approved subject to the conditions in Annexure A.

(3)The exhibits, except Exhibit B, may be returned.

Catchwords:

DEVELOPMENT APPLICATION - trading hours, impact on residential amenity.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

Category:

Principal judgment

Parties:

Mr Michael Cthurmer (Applicant)

Waverley Council (Respondent)

Representation:

Mr P Rigg, solicitor (Applicant)

Mr K Webber, solicitor (Respondent)
Solicitors
Norton Rose (Applicant)

Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10550 of 2012

Judgment

1. This is an appeal against the refusal by Waverley Council (council) of a development application (17/2012) for an extension of trading hours for Shops 7 and 8, 767-771 Old South Head Road, Vaucluse (site).

1. A development application (93/2012) for the use of Shops 7 and 8 as a café/restaurant was approved on 2 June 2012 subject to conditions, including approved hours of operation from 7 am to 7 pm Monday to Friday and 9 am to 4 pm Saturday and Sunday.

1. The development application (17/2012) seeks to change the approved hours of Shop 7 and 8 to be 7 am to 9 pm Monday to Sunday.

Site and Locality

1. The site is located on the eastern side of New South Head Road. It is occupied by a part 1 part 3 storey building with three ground floor shops and five dwellings. Shop 6, known as the "Grumpy Baker", does not form part of this application but is also owned by the applicant and shares a kitchen with Shops 7 and 8.

1. Adjoining the site to the north is a mixed use development which is under construction. To the south and rear is residential flat development and opposite are dwelling houses. The surrounding area is predominantly residential development. Christison Park and Old South Head Cemetery are near the site.

Planning controls

1. The site is zoned Residential 2(c1) under Waverley Local Environmental Plan1996 (LEP 1996). Refreshment rooms are prohibited in the zone, however, the site enjoys existing use rights and the café/restaurant use was approved on this basis under development application (93/2012).

1. Part E2.3 of Waverley Development Control Plan 2010 (DCP 2010) provides maximum hours of operation of retail premises in various zones. It provides:

Type -Premise	Zones	Hours of operation
Type B Residential Zone	• 2(a) Residential •2(b) Residential • 2(c1) Residential • 2(c2) Residential • R3 Residential • R4 Residential	(a) General maximum hours: 7.00am to 9.00pm 7 days a week; or (b) 1 year trial hours for extended trading hours; or (c) Where residential uses are in close proximity, Council may restrict trial hours accordingly; or (d) Provision may be made for restaurant and café uses to trade 1 hour beyond the general maximum hours on a permanent basis during (summer) day light saving hours only, to allow for a viable dinner service.

1. Draft Waverley Local Environmental Plan 2011 and Draft Waverley Development Control Plan 2011 have been exhibited but the parties did not make any submissions regarding these documents.

Evidence

1. The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). The parties reached agreement in principle but council did not have delegation to enter into an agreement. The conciliation conference was terminated and the proceedings were disposed of as a hearing under s 34(2)(b)(i). The parties agreed that the evidence and site view in the s 34 conciliation conference would be admissible as evidence in the hearing.

1. The Court heard evidence from objectors and supporters of the proposal both on site and in Court. The key concerns of the residents were that the use of the café/restaurant in the evening was incompatible with the residential character of the area. They considered that the extended trading hours would exacerbate the already inadequate parking in the area and result in unacceptable amenity impacts, particularly noise from patrons leaving the premises and anti social behaviour. They raised concerns about the proposed Plan of Management (PoM) being too broad, with inconsistencies and being difficult to enforce.

1. The supporters considered that a restaurant would provide a service to the local area which would be used by local residents and would not result in unacceptable impacts.

1. The Court heard expert planning evidence during the hearing from Mr G Boston for the council. Mr Boston considered that as the café/restaurant use is prohibited in the zone there is a heightened level of sensitivity between the use and nearby residential development. In his opinion, the standard hours in DCP 2010 should not be imposed without a trial period. He recommended approval of core hours from 7 am to 8 pm Monday to Sunday with a 1 year trial period of extended hours to 9 pm. Mr Boston did not object, in principle, to a trial period to 10 pm but considered that this would not be appropriate without further notification of residents.

1. Mr Boston considered the format and structure of the PoM was acceptable but that it, and the conditions of consent, needed to be amended to remove the inconsistencies and provide more detail on matters such as "Opening and Closing Procedures". In his opinion, a PoM was an appropriate measure to enable reasonable development of the site while protecting amenity for residents.

1. Agreed conditions and amended PoM and conditions were filed on 31 August 2012.

Findings

1. Mr Webber, for the council, submitted that subject to an appropriate PoM and acceptance of conditions, the council did not press the contentions in relation to intensification of the use of the site (Contention 1), residential amenity impacts (Contention 2) or inadequacy of information (Contention 3). However, he submitted that the public interest (Contention 4) remained in issue, as the residents were concerned about the proposed hours. However, there is no expert evidence to support the concerns of the residents in relation to parking, noise and anti social behaviour and council does not press these issues.

1. The use of Shop 7 and 8 for a café/restaurant and the use of shop 6 and its hours of operation have been approved under separate development applications.

1. I accept Mr Boston's evidence that with the trial period and the PoM, the extension of hours is reasonable and will not adversely affect the amenity of the residents to the extent that would warrant refusal of the application.

1. The approval of core hours from 7 am to 8 pm Monday to Sunday with a trial period until 9 pm is consistent with the requirements of DCP 2010 and recognises that residential uses are in close proximity to the approved café/restaurant. The trial period will enable the operation and the PoM to be monitored and amended if required.

Orders

(1)   The appeal is upheld.

(2)   The development application to extend the trading hours of a café/restaurant at Shop 7 & 8, 767-771 Old South Head Road, Vaucluse, is approved subject to the conditions in Annexure A.

(3)   The exhibits, except Exhibit B, may be returned.

________________________

Annelise Tuor

Commissioner of the Court

ANNEXURE A

Decision last updated: 12 September 2012