Elefteria Pty Ltd v Newcastle Council - [2008] NSWLEC 1510

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Elefteria Pty Ltd v Newcastle Council [2008] NSWLEC 1510

PARTIES:
APPLICANT
Elefteria Pty Ltd
RESPONDENT
Newcastle Council

FILE NUMBER(S): 10680 of 2008

CORAM: Hoffman C

KEY ISSUES: Appeal :- Restaurant and takeaway; amenity impacts on adjoining and adjacent residents, noise, fumes, odours, anti social behaviour; reduction of width in foreshore promenade shared cycleway, pathway; streetscape; operational need to use public lands beyond the subject site; carpark; facilities and services contribution under S94.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Newcastle Local Environmental Plan 2003
Newcastle City Centre Local Environmental Plan 2008
Newcastle Development Control Plan 2005.

DATES OF HEARING: 17/11/2008-18/11/2008

DATE OF JUDGMENT:
31 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan, Barrister
instructed by Spiegel & Associates
RESPONDENT
Mr T Robertson, SC
instructed by Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

31 December 2008

10680 of 2008 Elefteria Pty Ltd v Newcastle Council

JUDGMENT

1 Commissioner: This is a Class 1 Appeal in regard to the refusal of a proposal to demolish an existing commercial one storey building on the foreshore promenade of Newcastle Harbour, and replace it with a restaurant of two storeys above a basement and having a deck fronting the promenade and a take-away servery facing the road behind.

2 The site is known as No.292 Wharf Road, Newcastle and has frontage to that road on the south, the foreshore park on the east, the promenade on the north and a four storey block of units on the west called “Breakwater Apartments”.

3 The land is owned by the Council but the council acts only as the Local Government Authority in this matter.

4 The site is a small irregular-shaped parcel totalling 380 sq m. There is about 20 m frontage to the promenade, 29 m frontage to the road, about 13 m frontage to the park and about 20 m long common boundary with “Breakwater”.

5 The site is relatively flat and currently contains a small vacant single-storey hexagonal-shaped building (approximately 20 sq m in area) and attached refrigeration block. The site and existing buildings were formerly occupied by 'Lynch's Prawns', a retailer of seafood and fishing bait, and most recently was used as a seafood cafe/takeaway food outlet.

6 The northern boundary of the site overlaps partway onto the existing paved pedestrian walkway of the foreshore promenade.

7 The five-storey 'Nautilos' residential apartment building is opposite the site, on the southern side of Wharf Road. The general form of development in the immediate area consists of a mixture of medium-density residential and business and office uses. To the south-west of the site along Wharf Road is a multi-storey car park and Fanny's Nightclub, the Crown Plaza hotel and new multi-storey buildings. To the south-east along Wharf Road are two two-storey office buildings above a raised semi-basement car-park and then a ground level public car-park.

8 Eastwards past the site the foreshore park widens out to about 20 m and the promenade continues alongside the seawall.

9 The relevant planning instruments are:

Newcastle Local Environmental Plan 20

LEP 2003)

Newcastle City Centre Local Environmental Plan 2008

(LEP 2008).

LEP 2008,

LEP

10 The relevant Development Control Plan is the Newcastle Development Control Plan 2005.

The Contentions

LEP 2003

Aims and Objectives

Newcastle Local Environmental Plan 2003 (LEP 2003)

Particulars

LEP 2003.

Particulars

LEP 2008

LEP 2008

Particulars

(a) The proposed development is not consistent with Aim 2(c) of the LEP 2008 because it has the potential to create adverse social and amenity impacts on the local community and adjoining residents.
(b) The proposed development is not consistent with Aim 2(e) of the LEP 2008 as the design of the proposal will not make a positive contribution to the public domain for such a visually prominent site on Wharf Road and the foreshore promenade.

LEP 2008

Particulars

To provide a mixture of compatible land uses.
To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
To encourage a diverse and compatible range of activities including: commercial and retail development, and cultural and entertainment facilities, and tourism, leisure and recreation facilities, and social, education and health services, and higher density residential development.
To allow development along the coastline to take advantage of and retain view corridors whilst avoiding a continuous built edge along the waterfront.
To create opportunities to improve the public domain and pedestrian links within the Mixed Use zone .
To protect and enhance the unique qualities and character of special areas within the Newcastle city centre.

LEP 2008

Particulars

(a) The design of the proposed buildings does not satisfy the provisions in cl 36(3)(a), (b), (c), (d)(iii), (d)(vii) and (d)(viii), particularly in terms of the elevational treatment to Wharf Road, lack of elevational modulation and articulation impact on pedestrian and cycle use of the northern footpath of Wharf Road and adverse visual and amenity impacts on the public domain.

LEP 2008

Particulars

(a) The proposal does not satisfy objectives embodied in cl 41 (I), (b )(iii) and (v) in respect to adverse impacts on pedestrian public access and protecting the amenity and scenic qualities of the site and locality.

(b) The proposal does not satisfy the provisions of cl 41 (2)(a), (b) and (c)(iii) of the LEP 2008 given the likely adverse impacts on pedestrians using the northern footpath of Wharf Road. and the foreshore promenade, the intensity of the proposed use and its impact on existing residential uses and lack of building separation in order to maintain public view corridor to water views from Wharf Road.

Newcastle DCP 2005

Newcastle Development Control Plan 2005.

(b) The proposed development is not consistent with the objectives and does not comply with the specific provisions in 6.1.8(b) to provide acoustic design for residents and ensure development does not emit offensive noise levels because the proposed development will have an adverse noise impact on adjoining and nearby residential flat buildings at 304 and 265 Wharf Road due to the inadequate building separation and proposed outdoor terraces to the north (ground floor) and south (first floor).
(c) The proposed development is not consistent with the objectives and specific provisions in 6.1.8(e) and 6.3.2(c) relating to safety and security because the design will not enhance the safety and security of public and private areas surrounding the development including the shared public I private toilet facilities. In particular, the proposed development does not clearly delineate the change from public to private space and is not designed to maximize casual surveillance of public and communal spaces ie. the shared access to the toilet facilities).
(d) The proposed development is not consistent with the objectives in 6.1.9 because the proposed development will have an adverse social impact due to the potential increase in anti-social behaviour generated by the presence of and the proposed hours of operation of the takeaway food outlet and the public toilet facilities.
(e) The proposed development is not consistent with the objectives and specific provisions in the Honeysuckle Special Area for building exteriors in 6.3.2(g) as the design of the Wharf Road and side elevations will not complement nor make a positive contribution to the streetscape and public domain.
(f) The proposed development does not satisfy the objectives and specific provisions in the Honeysuckle Special Area of 6.3.2(i) in relation to enhancing views to Newcastle Harbour from Wharf Road due to the inadequate building separation proposed between 304 Wharf Road and the subject site.
(g) The proposed development does not satisfy the objectives and specific provisions of 6.3.3(a) in terms of ensuring safe and convenient access to the building, in particular disabled access and main building entry points.
(h) The proposed development does not comply with the specific provision in 6.3.3(c) relating to car-parking and servicing because the proposal does not make any provision for off-street parking or servicing to Wharf Road and is inadequate with regard to car parking rates.
(i) The proposed development is not consistent with the objectives and specific provisions of 6.3.3(d) in respect to the location of the waste/garbage area and the provision of adequate facilities for the loading and unloading of service/delivery vehicles..
(j) The proposed development is not consistent with the objective and specific provisions in 6.3.6(b)(i) and (v) because the design of the proposed development does not address the principal roads, has inadequate building articulation, lacks an adequate pedestrian entry and will have adverse impacts on pedestrian and cycle access on the northern footpath of Wharf Road.

(k) The proposed development does not comply with the specific provisions in 6.3.6(b )(vi) relating to the public domain because the design of the proposed development does not provide adequate pedestrian access on Wharf Road, does not allow for adequate building separation to maintain public view corridor and has inadequate setback of buildings to the foreshore promenade.

(I) The proposed development does not comply with the objectives and specific provisions in 4.1 of the DCP relating to car parking because the proposal does not make any provision for off-street parking or servicing. The historical deficiencies calculated in the traffic assessment provided by the Applicant have been calculated incorrectly due to the misinterpretation of the definition of 'gross floor area'.
(m) The location of the proposed waste management area is not compatible with the objectives for waste management in 4.6 of the DCP or the general principles for location and design of waste management facilities in 4.6.3 because the proposed location of the waste storage area is located within 2.4 m of the common boundary with the residential flat building at 304 Wharf Road and within 6 m of habitable rooms and private open space of dwelling units at 304 Wharf Road.

Amenity

Particulars

Streetscape and Context

Particulars

involves removal

viewed

Particulars

development

have

elevational

Parkinq and Servicinq

Disabled Access

Particulars

RL

AHD

RL

Inadequacy of Submitted Drawings

AHD

Public Interest

DCP 2005

The Evidence

11 Amended plans were tendered being Drawings Nos DA00-H, DA01-I, DA02-I, DA03-M, DA04-K, DA05-J.

12 These were explained to the objectors. The main differences are:

Raising the floor level above the 1:100 year flood,
An acoustic treatment of the servery shutter
Extending the disable access ramp,
Relocating the garbage storage to the east end of the building
Converting what had been part of the first floor dining room overlooking Wharf Road into a Store Room,
Moving the public toilet into the main building and putting its door directly adjoining the Wharf Rd footpath instead of being recessed a couple of metres
Removing the platform outside the servery that was on the footpath

13 The Hearing commenced on-site and evidence was taken from objectors:

Mr D Owers of 15 Binbae Cl, Dudley. His reason for giving evidence is as a cyclist and a member of the Newcastle Cycleways Movement that he said has been going for 30 years and has 400 members. He said a team of 30-50 persons ride the promenade 2 days per week and fewer riders on other days. He drew attention to the north west corner of the site where the promenade outside the site joins a wider section of the promenade outside “Breakwater”. Across the water side of the site the promenade is 4m wide and at the northwest boundary it ends against a park seat and garden bed for part of its width, and the width remaining connects to the standard 6m wide promenade continuing west past “Breakwater”. Cyclists who usually ride two abreast have to split at that point to get through the gap especially when pedestrians are there also. The dog-leg of the pavement requires an S-turn that needs room to manoeuvre. Mr Owers classifies the promenade as “Busy shared path” under Figure 6.6 of Part 14 Austroads Guide to Traffic Engineers Practice.
That means it requires 3 m minimum width carriageway plus 0.2 m - 0.5 m clearance (absolute minimum and desirable minimum respectively) to solid objects on the sides of the carriageway. He noted the promenade has a seawall on the harbour side and on the other side the raised terrace and columns of the proposed structure and trees to be planted between the columns within part of the existing pavement such that the minima will not be complied with. He said, with the heavy 2-way use of the promenade by pedestrians, skaters, prams, wheelchairs, children’s cycles, and bikes, narrowing the promenade below the desirable minima is unsafe and unacceptable.
Mr L Marshall of 75A Laman St Cooks Hill is President of the cycleway movement and said the narrowing would mean that the promenade in front of the proposal will not even meet the Austroads desirable standard for a “less busy shared path” for a single cyclist to pass a single pedestrian. That requires a 2.5m carriageway where the path is clear of obstructions (e.g. with parkland both sides to provide “run-off” space), or in the subject proposal 2.5 m plus the 0.2 m - 0.5 m clearances added both sides.

14 Mr Marshall was asked if there are other places along the promenade where there are “pinch-points”. He said very few, but one is at the Queens Wharf Brewery where the promenade is intruded upon by tables and chairs, and waiters and customers have to cross through pedestrians. He said that cyclists avoid the promenade there and take a path behind it alongside Wharf Rd that gives a safe bypass. This proposal would create a similar obstruction but there is no suitable bypass. If they divert along Wharf Rd footpath it is too narrow to be a shareway and has trees in the footway and the servery customers would block it anyway. Cyclists avoid the roadway as much as possible due to the danger of drivers and passengers opening car doors and bikes crashing into them. The foreshore is so popular Wharf Rd is “parked out” regularly both weekdays and weekends, so the danger is present.

15 Mr A Sullivan of No 3/304 Wharf Rd, “Breakwater” said his unit is the third along from the boundary with the site. Looking from his balcony along the foreshore he can see Fort Scratchley that is a local landmark on a headland above Nobby’s Beach. He said it is especially attractive at night when the Fort is illuminated. He said the height and bulk of the proposed building will block his view of the Fort.

16 Another concern is the take-away servery of the proposal that is directly on the public footpath of Wharf Rd. The proposed building has none or little setback to the Wharf Rd boundary. The footpath is not wide and people queuing for service or waiting for food will block other pedestrians from getting past. He was told the servery customers would be asked to wait for their food on the parkland just east of the site and come back to collect when an electronic sign on the east of the proposed building calls them. He was not sure if there would be an amplified voice call as well as the sign.

17 On the harbourside promenade dogleg outside the proposal, his observations from his balcony gave the impression it is dangerous now when the volume of users builds up. Narrowing it further would make it more dangerous. Also he noted the plans show an area over the seawall above the water opposite the restaurant outlined as “Future deck”, that would mean customers and waiters crossing amongst the pedestrians/cyclists/skaters/prams/wheelchairs etc. He thought that would be totally unacceptable.

18 The applicant said that had been deleted from the proposal and showed Exhibit H that listed one of the amendments as “Deck to future submission pending Maritime Services approval deleted”.

19 Another concern of Mr Sullivan is cooking fumes. At the moment he gets some fumes from a restaurant further east on the foreshore about 150 m away. Having kitchen fumes from a 120 seat restaurant only 20 m or so away would be intolerable in summer. He said the predominant breeze in summer is from the east and it would blow all the fumes both sides of “Breakwater”, so there would be no escape for residents, and the balconies would be unuseable at those times.

20 Night time activity is another nuisance that would be made worse by the proposal he thought. At the moment his sleep is disturbed after about 11.30 pm on popular nights as people move along Wharf Rd between Queens Wharf Brewery and Fanny’s nightclub, or arrive and depart in cars. There is much slamming of car doors, revving of engines, people yelling to one another. The restaurant customers would add to the latter nuisances, but the design of the building with a public toilet in it and the servery causing people to congregate for take-way food at night would probably be worse. It is those people at the moment who defecate, fornicate, urinate, throw rubbish, do drugs and vomit in Wharf Rd and along the promenade. The proposal will encourage them to congregate there, and the spaces left around the proposal could provide secluded nooks for them to use. It is not a good design he said.

21 In Mr Sullivan’s opinion, many of the restaurants that have opened along the foreshore initially claimed to be for “fine dining” and customers who will be well behaved. But most of them have closed and turned into bars that attract the people who become not well behaved or anti-social when intoxicated. He fears that will happen to this proposal as well.

22 Ms M Clair of No 5 “Breakwater” said she had not sent a written objection as she thought she had the option of that or appearance at the hearing. Her apartment is two units from the proposal. Already due to night activity in the area she and her child put up with profanity, broken bottles, fornication, vomiting, urination, naked swimming outside her dwelling. Her young child has nightmares from noises/violence/bad language/police activity and sleep disturbance. This locality has problems of alcohol abuse and drug use, the latter seems to happen around public toilets, and the problems start before 8 pm some nights she said. Security staff at “Nautilos” can only act on its premises, not in the street. She assumed the same would apply to any security staff of the restaurant.

23 Mr E White of No 32 “Breakwater” said his unit is on the top floor but in the second building from the proposal. Already he had nuisance noise from the Brewery music that carries across the water, particularly base drums when the easterly breezes are blowing. At the rear of his unit the bedrooms are across Wharf Rd from Fanny’s nightclub. The base drum noise carries from there too. In regard to Fanny’s security staff he has seen them actually fight anti-social perpetrators during patrol. In trying to stop the problems they can be one source of disturbances and cause mates of the perpetrators to join the fight.

24 He agreed with the other objectors, but his main concerns are:

the public toilet and the servery in the proposal that will attract anti-social activity,
the fact that the public toilet is on the west side of the proposal close to the master bedrooms of the adjoining units in “Breakwater”
the fumes from the kitchen exhausts.
The restaurant has a lot of space between tables and still seats 120, so it does not need to be as large as proposed for that number of customers.
He fears the large floorspace will allow more customers than 120 and therefore more nuisances especially if it fails as “fine dining” and becomes a bar.
Apart from there being no spare capacity for on-street parking most days and nights, the proposal has no loading bay and will use the existing drive crossing for service/deliveries. Will the vehicles block the footpath or will there be a loading zone created.
He noted the garbage storage area is now moved from adjoining “Breakwater” to the east end of the building facing the parkland. That moves the potential for smells away from “Breakwater’, but garbage would still have to be collected. Since there is no loading bay the trucks will have to come late at night or early morning when the kerbside areas are not parked out. The bins will have to be rolled to the kerb and back again. That will be more noise for the residents.
Even though his apartment is further away from the proposal he will get increased noise/activity/violence/security/anti-social behaviour impacts due to the proposal.

25 Mr A Fairhall of No 4/304 Wharf Rd, “Breakwater” said he and his wife would get the most impact from the proposal because they are directly adjoining it on the first floor. The public toilet will be directly below his master bedroom as well as the garden space on the subject site between the boundary and the proposed building that will provide a secluded nook for anti-social things to happen. The design of the building will attract, to the area outside his bedroom, unpleasant smells, noise and activity at the least, and at worst profanity, urination, vomit, defecation (if someone cannot get into the toilet, or it is occupied) and drug use and fornication. At least those things happen away from near his bedroom now.

26 The design of the building and the location of the public toilet and the servery will cause people to congregate where it will cause the most nuisance to the four apartments at the east end of “Breakwater’. They all have their master bedrooms directly adjoining the subject site.

27 Mr Fairhall agreed with the objections of others. He thought any narrowing of the promenade would restrict the existing use of it by police cars/fire engines/ambulances that either patrol or have cause to use it from time to time.

28 He said the fumes from the kitchen and air-conditioning and refrigeration equipment must cause smells and audible noises that will have unacceptable amenity impacts for the residents. The noise of the customers of the servery and the restaurant even if only enjoying themselves without misbehaving must add to the adverse impacts on residential amenity.

29 On scenic views, Mr Fairhall said the building will block views he has over the existing building to the harbour breakwaters, Nobby’s light house and part of Fort Scratchley. All of them are local landmarks and their loss would be a huge amenity impact.

30 He added that the basement excavation in the restaurant will be into the water table and may affect the “Breakwater” foundations.

31 Mr N Cann of No 7/304 Wharf Rd “Breakwater” said his unit is on the east end of the building on the top floor. He supported the other objections. He would retain his views over the top of the proposal but all of the other impacts would occur to his dwelling too. His balcony is used more or less as part of the living room, with substantial furniture for eating and relaxing on the balcony. The fumes from the kitchen exhausts would coat it all with grease and smells. His windows and the external walls of the building must also get coated and need constant cleaning. His windows and sliding doors are usually wide open, but the proposal will mean closing them whenever there is an easterly breeze. In summer the easterly is the cooling breeze.

32 The plan the council had on its original Registration of Interest for the subject site was a third of the size of the proposal he said. The residents who live here have to accept in some measure the noise and activity and other things that happen, but they do not have to accept this proposal that would make it all much worse.

33 Mr Cann is also concerned about smokers of the restaurant adding that to the kitchen and toilet odours with an easterly breeze. The applicant said the upper floor had been made non-smoking. During the view of the objector’s apartments an easterly breeze was blowing. I drew the parties attention to one smoker seen by the inspection party on the promenade three storeys below outside the subject site. The smoke could be observed swirling upwards towards the building and smelled on Mr Cann’s balcony.

34 Mrs M Farragher of No 104/265 Wharf Rd, “Nautilos” agreed her building had a security guard, and one guard had been taken to hospital after trying to stop street revelers from smashing the front door of the building. Three nights of the week on average one only got disturbed sleep until 4 am, after that things quietened down. The noise and activity, usually caused by intoxicated people moving from one night venue to another along Wharf Rd, started about 11 pm she said. Being on the first floor and directly opposite the subject site, Mrs Farragher would lose the view she currently gets over the roof of the existing building, even though she does not see much water, she does see the port facilities and horizon in the distance. Another of her main concerns was the blank façade of the proposal as she described it on the Wharf Rd frontage. She thought any building there should look better.

35 Other main concerns are the public toilet and servery that would be directly across the street from her living room and bedroom. At present she has privacy from the street enough to leave all her blinds open most of the time. She believes she would have to close them if people congregate outside the servery and the public toilet at night. While they are standing around they would be able to see her in the lights of her apartment. At the moment mostly people just walk past along the street. It was put to her the servery and the public toilet would close at 8-9 pm. She thought that would reduce the expected impacts after the toilet/servery close, but the problems before then, referred to by the other objectors, still apply. The restaurant would have 120 customers staying inside later up until midnight and leaving via the entry opposite her unit. It would add to the nuisance activity and possibly restaurant customers would conflict with the rowdy people going between venues.

The applicant said the Plan of Management provided for “final” patrons to leave via the entry door to the promenade, not the Wharf Rd entry. Security guards would be employed on busy nights until closing.

36 Mr B Wade of No 204/265 Wharf Rd is directly above Mrs Farragher. He thought the proposal would become a half-way house between the Queen’s Wharf Brewery and Fanny’s for the late night “mullet run” of people between venues. He agreed the nuisance disturbances late at night occur on average three nights per week. In his opinion the “run” starts around 9 pm and is in full cry by 11 pm.

37 He is very concerned the deleted future deck over the water will become a reality eventually and increase the restaurant customers way above 120. He also thought there is a lot of un-necessary floor space around the tables shown on the plans, and it could accommodate more than 120 diners easily with more tables fitted in. That meant that the building should be much smaller than proposed and still seat 120 comfortably. The proposed building is too big for the site and this results in the need for a basement, having no loading bay, putting public toilets and garbage near residents etc.

38 Mr Wade is particularly concerned about the kitchen exhausts. They are shown on the Wharf Road elevation, four of them, rising up inside the building and then turned to exhaust horizontally directly across the road from his and Mrs Farragher’s apartments.

39 He would lose harbour views to the north that he currently has over the roof of the existing building, but retain views to the northeast over the park.

40 Mr A Christie is owner and part-time resident of No 103/265 Wharf Rd. He and his family will return there in 2009. He said his objections are similar to all the others. The building is a size that will accommodate more than 120 diners so its impacts will be worse than the applicant says. He was told the applicant agreed to a condition of a maximum 120 people inside.

41 Another concern to Mr Christie is the location of his unit being opposite the existing gap between “Breakwater’ and the existing building. He was told there would be a 6 m gap between the proposal and “Breakwater” to ensure his existing view to Dyke End across the harbour is retained. He was told the plans kept the gap.

42 He was pleased at that, but agreed with the other objectors it left a “hidey-hole” where all sorts of unsavory activities the residents currently observe will be facilitated. The fence shown on the plans is totally inadequate to stop people getting into the gap, in his opinion.

43 Also on the promenade side, the open dining deck is not secured by any fence and revelers or others will be able to get onto it after the restaurant is shut late at night. It is not a good design he said, and will have “add-ons” later to try to fix things and may well become even less attractive.

44 On the Wharf Rd façade, he agreed with others that it is a blank look, without articulation. It turns its back on Wharf Rd and points its exhausts at residents across the street. He had thought the council brief required an attractive articulated treatment, but the building goes right up to its street boundary without any garden beds as other sites have done to make it more attractive.

45 The applicant pointed out that there is a recess of about 300 mm in the centre of the façade on the ground floor and a hood above the servery and goods/staff entry. These give articulation it is said, and the façade has horizontal timber battens across the first floor level that will give it texture. The entry at the east end faces Wharf Rd and is set back about 2.5 m. On the east elevation the mid-stair landing and garbage and air-conditioning rooms project out. Seen in the round from Wharf Rd, the applicant put that there is articulation.

46 Mr Medi of No 202/265 Wharf Rd said his unit looks directly at the site and he agreed with the other objectors that his residential amenity would be severely impacted. Increased noise and activity, seven days and nights per week, the kitchen exhausts pointing directly at him with odours and noise, then mechanical plant, air-conditioning and refrigeration equipment not shown on the plans would probably also point at units across Wharf Rd. He agreed with Mr Wade that the “mullet run” starts around 9 pm and gets worse into the night. The public toilet and the servery must attract people to congregate around them and focus anti-social behaviour, or perhaps just rowdy behaviour directly across the street from “Nautilos”. He estimated the ground and first floors of the building to be 560 sq m, and that could accommodate more than 120. The open able glass walls on the north side must generate noise outside and it will be heard at his unit on quiet nights at least. The “Breakwater” residents must get more noise than “Nautilos” all the time.

47 The applicant said the amended plans deleted the openable glass wall on the first floor and put a two storey high glass wall on the west side of the deck and deleted a ground floor opening on the west side. As a result the applicant put the noise levels from inside the restaurant would be kept to acceptable levels.

48 Mr A Davidson of No 105/265 Wharf Rd is chair of the “Nautilos” corporate body. He endorsed the objections of the others. The consensus of the residents is that the proposal is much too big for the site. It was a coffee shop/lunch/take-away in the existing one storey building and that is appropriate. What replaces it should be a more attractive addition to the foreshore and be a similar size and services to that existing building and the previous use.

49 Mr G Bromilow of No 4/6A Kemp St said he spoke on behalf of his parents who are away and live in No 1 at “Breakwater”. They are on the ground floor at the east end directly adjoining the proposal. As with the other units above the master bedroom at the east end adjoins the proposed public toilet and the garden that could be accessed for unsavoury and nuisance activity. Those impacts are totally unacceptable, but even if it is possible to fix them, the fact remains that the proposal is a restaurant for 120 people right beside their apartment. It must have unacceptable impacts on their residential amenity. There are the things that everyone complains about now that have adverse amenity impacts on the quality of life of residents. The proposal can only make it worse just because of the noise created by 120 diners, the cooking and toilet fumes, the air-conditioning and refrigeration plant noise, the servicing and supply requirements and the coming and going of 120 patrons at a time

50 The town planning witnesses Mr Darroch for the applicant and Mr Nash for the respondent had produced a joint report, and gave evidence.

51 One matter that arose in oral evidence is the function of collecting garbage. From the new location on the east end of the building the doors to the bin room open onto the disable access ramp. Because the ramp goes north to the promenade the bins would have to be rolled down that way and then return to Wharf Rd. A new path way is therefore needed through the park from the promenade to the street footpath. The ramp now ends 1.5 m to 3.5 m outside the site on the promenade, and the return path is proposed along the east boundary of the site and within the park. There had previously been a stepping stone informal path proposed within the site.

52 In regard to the issue of noise of refuse being put into the bins disturbing residential neighbours, they agreed the relocation to the east end of the building and an internal access door to the bins resolved that concern. I note to bring refuse to the bins staff would have to carry it through the ground floor dining room into the public entry lobby from Wharf Rd where the door into the garbage room is proposed. That and how to prevent garbage smells in the entry lobby are not relevant to the determinative contentions of this appeal.

53 On the revised public toilet, Mr Nash still preferred it to be moved to the east end of the building rather than left at the west end adjoining the “Breakwater” residents bedrooms. He agreed reducing the size of the public toilet to a single uni-sex disable access facility instead of a Male and a Female section, and closing it when the servery is closed would be better for management of anti-social behaviour.

54 The planners agreed that the closing of the takeaway servery and the public toilet at 9 pm each night summer and 8 pm winter should address the concerns about their attracting rowdy groups during the migration between late night venues.

55 The raising of the floor above 1:100 year flood level resolved that issue.

56 On the disable access issue the new ramp addresses that, but by delivering the person onto the promenade, the return path to Wharf Rd needed for the garbage bins is also needed for disable persons if that is their direction of approach and departure.

57 The town planners did not have a joint report from the acoustic experts so they presumed the noise nuisances to the residents could be satisfactorily addressed. In particular the conversion of the Wharf Rd first floor dining room section to a Storeroom should fix the noise issue in regard to the Wharf Rd side of the original proposal.

58 The objectors had questioned the need for a Storeroom of that size when none was needed before, and suggested the store should be deleted altogether, and that would give the Wharf Rd elevation some articulation.

59 Mr Nash agreed with this suggestion, but Mr Darroch thought the design is satisfactory on the Wharf Rd elevation as proposed.

60 They had agreed that the issue of tree removal in the Wharf Rd footpath could be resolved by retaining the trees. The removal of the platform outside the servery would leave the footpath there unrestricted. However the trees and people standing inline awaiting service on the footpath and returning to collect would forestall its use as a cycleway bypass of the reduced promenade width.

61 Mr Nash still preferred the servery to be relocated to the east end of the building, but agreed the servery as now proposed would work.

62 They agreed the fences to the garden between the building and the west boundary with “Breakwater” are shown 1 m high on the amended plans and would be completely inadequate for security. The fences should be at least 2 m high but palisade or similar style to permit observation from Wharf Rd and the promenade.

63 The parking generation issue remained a disagreement, mainly about the monetary contribution required in lieu. They agreed that the generation of the proposal at 120 seats is 40 car spaces. If Lynch’s Prawns was classified as retail it would allow a credit of 4 spaces, if takeaway it may have a credit of 25 spaces. So the disagreement is over any contribution being for 36 spaces or 15. Mr Darroch also held there should be no contribution. Mr Nash noted that the approval for Lynch’s in 1983 was retail, and council served an order to close an illegal takeaway and café on the site. He said to resolve the issue a contribution under a S94A of the Environmental Planning and Assessment Act 1979 may be appropriate.

64 The respondent noted that the application now extends onto The Wharf Rd footpath and Lot 55 DP791037 and Lot 2 DP552290 that is council owned parkland, and there is no owner’s consent for that. The respondent put that it is usual for a proposal to contain all its functions on its own property, in this case the leasehold from council. At this stage of the Hearing it became clear that:

servery customers queuing for service would be on the public Wharf Rd footpath,
customers awaiting collection of their takeaway orders would also wait on the footpath, or
if they accept the invitation of the operator, wait in the park to the east of the building and go back when signalled to collect
customers of the takeaway are likely to sit in the park and consume the food and create a rubbish problem unless rubbish bins are provided or regular collections done. The Plan of Management says staff will do a collection every hour the servery is open.
goods delivery and service vehicles would park on Wharf Rd, and goods and personnel would cross the footpath to and from the service entry
the garbage bins would need to be wheeled out onto the foreshore promenade, and back across the park outside the site to stand for pickup somewhere on the Wharf Rd footpath, probably at the Loading Zone adjacent the takeaway servery.
disable persons would need to approach and depart via the promenade and also cross the park outside the site if going to or from Wharf Rd.
the ramp for the disable persons and the garbage bins is partly off the site

65 The applicant said the Court can act as the council and grant owner’s consent to the proposed use of the council land for these facilities.

66 A joint report came from the acoustic consultants Mr Brady for the applicant and Mr Tumney for the respondent. They agreed that conditions and amendments now proposed should address the potential acoustic nuisances to nearby residents. The changes include:

Takeaway and public toilet to close 9 pm summer and 8 pm winter.
A six (6) m high glass western wall to the outdoor dining terrace to protect “Breakwater”.
The first floor Wharf Rd side of the upstairs dining changed to a Storeroom.
Garbage bins moved to the east end and have an internal access door.
Kitchen exhausts either to have an acoustic barrier to shield Nautilos, or, to have directional cowls exhausting to the north.
Takeaway window to be heavy glass with speech holes and service slots.
No access or opening to western garden from the outdoor terrace.
Upstairs northern windows to be fixed glazed all lower panels. Upper panels to be fixed glazing for a distance of 4 meters from the west end.
Mechanical equipment to comply with conditions for noise limits.

67 The experts did not say these controls would eliminate any noise nuisance from the apartments adjacent. The noise would be at reasonable levels but still audible.

68 Mr Tumney still maintained the public toilet at the west end of the building is not sympathetically located with respect to the residential receptors (the residents). He said there are few practical means of preventing noise nuisance at such facilities as it depends very much on how people behave. Also there would be noise of blow dryers and exhaust fans that could not be completely silenced. As well as being shut when the takeaway is closed, he maintained the public toilet should be away from Wharf Rd and residences. Mr Brady thought that responsible staff could reduce noise impacts.

69 On the question of how well the overall design has considered and resolved potential acoustic impacts on neighbours, Mr Tumney maintained: the proponent……has not seen fit to substantially amend the basic layout to address major issues but, rather has chosen to make minor changes that represent, in my opinion, a poor compromise and fail to adequately come to grips with the fundamental issues”.

Mr Brady said his responsibility is to assess the proposal on acoustic matters, and he is satisfied they have been adequately dealt with.

70 Mr Tumney said that the proposed changes would be satisfactory for “fine dining” with the tables widely spaced and groups of 4 to 6 diners. However he is of the opinion the proposal lends itself to larger groups and functions in which case the noise generation is substantially more than the acoustic measures would cope with, and “offensive noise” is likely to be heard at the adjacent residential units. If any groups larger than 15 persons are intended the outdoor terrace needs to be roofed in and all the upstairs windows kept closed. Mr Brady had done calculations to show that the current proposals would accept groups of 15 or more and still control noise satisfactorily.

71 The applicant accepted a condition to roof in the outdoor terrace and fix the upstairs windows. This meant the 6 m high glass acoustic barrier on the west end of the dining terrace could be reduced just to close in the west end of the ground floor.

72 In submissions the respondent made the points that the area of parkland shown on drawing DA03-M that would be used as a waiting area and pathway outside the site is about half the area of the site itself. The respondent’s evidence was prepared on the basis of only the site and has not considered in detail the impacts of using the other areas. The applicant submitted that only a licence from council is needed to allow use of the park and the Wharf Rd footpath and the promenade for such facilities, in a similar way to council granting footpath licences for tables and chairs outside restaurants.

73 The respondent also submitted Mr Nash’s evidence that although the maps showing boundaries of City East and City West are fuzzy in relation to this site, the intent of cl 35(2) of LEP2003 (continued in LEP 2008) is that the promenade should be 6 m wide along its entire length. One could interpret the controls to require a 6 m promenade and a 2.5 m cycleway. This is continued in the applicable DCP’s and the Commercial Technical Manual cl 4.1.3. Reducing from 4 m to 2.5 m is unacceptable. Mr Nash said he had not put this in issue previously because he had always assumed until this Hearing that the edge of the existing promenade is the boundary of the site. The applicant noted notwithstanding that, the promenade in front of the site is 4 m wide existing and the boundary of the subject site overlaps it, and that should have been considered if it is important, when council put the site up for development as operational land.

74 The respondent said the objectors concerns were in Contentions and they had raised it, but the respondent only sought to keep the existing 4 m width.

75 A social impact joint report was in evidence from Mr Nash for the respondent and Ms Davis-Meehan for the applicant. They agreed in principle that a restaurant on the site is an appropriate use, and the reduced hours of the takeaway and public toilet should prevent contribution to the existing late night anti-social behaviour in the area, also that a condition preventing conversion to a hotelier’s licence or bar is important and the deletion of the first floor Wharf Rd side dining area is a benefit.

Conclusions

76 At the end of the hearing the draft conditions for any approval were still in dispute so the parties were invited to make written submissions on them. In considering all the evidence, there is no great need to go to them. Even though they seek to fix some of the problems created by the proposal, I do not believe they solve the fundamental matters.

77 Even though the Court could give owners consent to the use of council land beyond the subject site, I do not believe it is warranted for several reasons:

The operational requirements of the proposal virtually annex adjoining public lands to enable a greater capacity/intensity of use than the site allows, to the detriment of the public interest and amenity.
The operation of the servery requires queuing on the public footpath that is 3.5 m wide at a point where the Loading Zone is located, and garbage pickup and goods and services deliveries have to be made during opening hours of the takeaway. The general public using the Wharf Rd footpath have to get through the same location. Whilst it may “operate”, it is not desirable or appropriate in a new development to create such obvious potential for conflict.
The operation of the takeaway intends to invite customers once having given an order to wait in public parkland off site. Many customers may choose to stay around the servery to wait, adding to congestion on the Wharf Rd footpath. If they do wait in the parkland, it is obvious that it becomes part of the functional “site” of the development, and as the respondent submitted, it appears to be an area about half as big as the site itself. The merits or that have not been considered by the respondent as that land has not been involved in the application. The Plan of Management assumes that after being served some customers may choose to use the same section of park to sit and eat (that is part of its purpose) and any merit concern can be resolved so long as the operator does a regular garbage pickup.
The main garbage bins for the restaurant will have to be rolled, not bumped down the stairs for truck collection. As a result they have to go down the ramp that is partly off-site but essential to the operation of the restaurant, onto the promenade and then go across the park via a new path, also off-site, to the Wharf Rd footpath and most likely (due to daytime “park out” of Wharf Rd), be left for pickup at the Loading Zone outside the takeaway servery. This adds to the public footpath obstruction for the operation of the proposal.

78 Another impact of concern to the public interest, amenity and safety is the reduction of the foreshore promenade. Although the subject site goes onto the promenade, that does not justify the reduction when all evidence is considered. The promenade is a major feature of the Honeysuckle area redevelopment. It is the principal public recreational access along the foreshore. It runs for kilometres and is a heavily used facility, that must be expected to become more used in the future, as population grows and more development occurs in Honeysuckle and the inner city areas. Reducing its width at a place where it is already acknowledged as a “choke point” is bad planning and a poor outcome for the community safety and amenity.

79 The above impacts alone demonstrate the proposal is an overdevelopment of a small site in a sensitive and important location, and are sufficient for its refusal.

80 Turning to other matters in contention, it is true that the site is at the eastern end of a long set of buildings. It is the commencement feature of that line of buildings when approaching from the east and therefore occupies an important position in the streetscape. Approaching from the west it is at the point where the observer comes into full view of the harbour and the foreshore park so any building on the site is the introductory feature to that vista. In Wharf Rd I accept Mr Nash’s evidence that supports the objectors’ opinions that the Wharf Rd façade is bland with only 300 mm articulation in a central section of the main visible façade punctuated by service doors, kitchen exhausts, and a servery window with hood over set right on the street boundary. Coming from the west along Wharf Rd, or living directly opposite, the building would be bland. This façade is treated as the “service area” of the building with the public toilet thrown in, and it will look like the service area.

81 Coming from the east along Wharf Rd there is considerable articulation and as seen from the promenade even more. Saying that the building should be considered “in the round” and the other facades justify the Wharf Rd appearance is a disservice to the importance of the site. Reducing the size of the building to give the space for a better functional layout and a more skilful design would provide the opportunity for a better feature in the public domain.

82 The evidence that the building is considerably larger than needed for 120 seats was not disputed, and the plans show table and chair settings with 1 m, 2 m and 3 m spacing in places. In the end even the applicant conceded that the first floor large Storeroom could be deleted if the Court so chose. If I were to approve the proposal I would delete that room to obtain some more articulation on the Wharf Rd façade and to reduce the bulk of the building. However I have formed the opinion that the ground floor layout needs considerable reduction as well so that the functions of the development can be contained within its own site, and maintain at least the 4m wide foreshore promenade.

83 In turning to the residents issues the respondent put that the location of the public toilet adjacent the master bedrooms of the adjoining apartments is unacceptable and I agree the toilet needs to be at the east end of any redesign where it is visible to the park and the promenade and the wharf Rd footpath. There is weight to the respondent’s submission that if the toilet remains at the west end of the building and is signposted as proposed, individuals will go to it even when it is closed. Finding it locked, the obvious practise at night for those in nature’s call is to use the wall or the side garden adjoining the toilet and adjoining the “Breakwater” bedrooms. Even though this locality is known as highly active at night and that affects existing residential amenity, putting the public toilet in this location is unacceptable.

84 It would seem that acoustic impacts on the residents can be dealt with one way or another, and the parties assured me that a condition of “no odours being sensed in adjoining apartments” could be met by modern charcoal filter kitchen exhausts. That does not deal with smokers, however the Plan of Management says that smokers and mobile phone users will be encouraged to use the promenade and the park at the east end of the building to keep them away from the apartments. That may work, but does that not add another extension of the site onto public land for the operation of the proposal?

85 The proposal has the potential on a popular day with two sittings at lunch and dinner to bring 480 diners and an unknown number of takeaway customers in close proximity to residential dwellings. In considering the need for excellent control of noise, fumes and activity resulting from the proposal, it is relevant to balance it against the existing urban life, day and night, that goes on around the site. Those residents who have chosen to live in this locality must have expected a more lively amenity than quiet suburbia. Nevertheless given the evidence on the activity currently occurring and its impacts any proposal on the site needs to provide on-site facilities that will minimise any worsening of the current situation.

86 Overall I have formed the opinion this proposal is unsatisfactory as outlined above and in conflict with Contentions 1, 2, 3, 6, 7, 8(c) (e) (i) (j) (k), 11, 12 (in regard to conflicts between servicing, goods, garbage, servery customers, pedestrians) and 15.

87 Therefore the Orders of the Court are;

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 2, 5, B and H.

K G Hoffman

Commissioner of the Court

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Elefteria Pty Ltd v Newcastle Council [2008] NSWLEC 1510

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CITATION:	Elefteria Pty Ltd v Newcastle Council [2008] NSWLEC 1510
PARTIES:	APPLICANT Elefteria Pty Ltd RESPONDENT Newcastle Council
FILE NUMBER(S):	10680 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Appeal :- Restaurant and takeaway; amenity impacts on adjoining and adjacent residents, noise, fumes, odours, anti social behaviour; reduction of width in foreshore promenade shared cycleway, pathway; streetscape; operational need to use public lands beyond the subject site; carpark; facilities and services contribution under S94.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Newcastle Local Environmental Plan 2003 Newcastle City Centre Local Environmental Plan 2008 Newcastle Development Control Plan 2005.
DATES OF HEARING:	17/11/2008-18/11/2008
DATE OF JUDGMENT:	31 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, Barrister instructed by Spiegel & Associates RESPONDENT Mr T Robertson, SC instructed by Sparke Helmore