Heracleous v Manly Council
[2015] NSWLEC 1004
•20 January 2015
|
New South Wales |
Case Name: | Heracleous & Anor v Manly Council |
Medium Neutral Citation: | [2015] NSWLEC 1004 |
Hearing Date(s): | 15 January 2015 |
Decision Date: | 20 January 2015 |
Jurisdiction: | Class 1 |
Before: | Brown C |
Decision: | 1. The appeal is upheld. |
Catchwords: | APPEAL: conditions of consent for approved restaurant relating to hours of operation – whether hours of operation should be extended from 10pm to 12 midnight |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Category: | Principal judgment |
Parties: | Angela Heracleous and Rodney Walsh (Applicants) |
Representation: | Counsel: |
File Number(s): | 10683 of 2014 |
Publication Restriction: | No |
JUDGMENT
COMMISSIONER: On 16 October 2014 Manly Council granted Development Consent No. 127/2014, subject to conditions, for a change of use from an existing retail premises to a restaurant including fit-out and signage at 92-94 Pittwater Road, Manly.
This is an appeal against conditions ANS01, ANS03, 36(6NL05), 37 (6NL07) and 39 (6NL09) imposed on the consent by the council. These conditions state:
ANS01
The trading hours of the premises shall not exceed 10.00am to 10.00pm on any day.
The use of the premises outside trading hours shall be restricted as follows:
a. Non trading operations are permitted between 8.00am to 10.00am
b. Upon expiration of the trading hours, all restaurant service shall immediately cease and all staff on premises shall be required to leave within the following half hour.
Reason: To ensure that the amenity of the surrounding area is maintained
ANS03
Mechanical plant situated on the roof area of the premises must be acoustically treated to ensure noise emissions are not audible at the nearest residential boundary. Details are to be submitted to the Council prior to the issue of the Construction Certificate.
Reason: To protect the acoustic amenity of neighbouring properties
36 (6NL05)
The use of amplified sound equipment and public address systems is not permitted, unless located entirely within the shop and used in such a manner that the noise cannot be heard in any public place.
Reason: To ensure compliance with legislation and to protect public health and amenity.
37 (6NL07)
• Noise associated with any entertainment within the premises including but not limited to live music, amplified music, background acoustic music, recording, comedy, dance, artistic expression or otherwise must not be audible within any residential habitable room at any time.
Reason: To minimise noise disturbance to neighbouring residential properties.
39 (6NL09)
Patron noise must be controlled so as not to disturb or intrude upon the surrounding residential community. Noise arising from patrons located within the grounds of the premises whether indoors, in the courtyard or within any approved outdoor dining of Sydney Road must not be audible within any residential habitable room at any time.
Reason: To minimise noise disturbance to neighbouring residential properties.
In general terms, the applicant sought trading hours until 12 midnight and also other variations to the wording of the conditions in dispute.
A joint report on the acoustic issues was provided by acoustical engineers,Mr Thomas Taylor for the council and Mr Glenn Wheatley for the applicant. Mr Taylor and Mr Wheatley agree that the council’s concerns over potential acoustic issues can be described in the following general terms:
a. Appropriateness of recorded long-term background noise levels for assessment at 71Pittwater Road.
b. The DA Acoustic Report did not include assessment to Level 2 and 3 of 71 Pittwater Road
c. Use of outdoor seating beyond 10pm not justified by applicant's acoustic report
d. Adoption of OLGR criteria (background + 5) in respect of internal noise transmission to adjacent residents of 5A Carlton Street
e. Assessment of noise and vibration transmission into 5A Carlton Street via the common wall.
f. Noise impact from patrons leaving the premise, particularly after 12 midnight
g. Management of waste (garbage and bottle collection)
Their joint report provided the following comments on the council’s potential acoustic issues :
Background noise and assessment to Level 2 and 3 of 71 Pittwater Road – additional noise monitoring was undertaken to the satisfaction of Mr Taylor and Mr Wheatley from an elevated location at 71 Pittwater Road and a location that acoustically shielded ocean noise. The noise monitoring resulted in marginally higher background noise levels so Mr Taylor and Mr Wheatley agreed that the noise goals in the acoustic report submitted with the development application were appropriate for the assessment of noise nearby sensitive receptors along Pittwater Road.
Outdoor dining after 10pm: Mr Taylor and Mr Wheatley accepted that if the outdoor seating was not used after 11pm, the patron numbers do not exceed 18, acoustic lining to the walls of the outdoor dining area is provided and there is no music played in this area then there is no acoustic reason why the outdoor dining area cannot be used.
Appropriate noise criteria: Mr Taylor and Mr Wheatley reviewed the acoustic criteria in council conditions ANS03, ANS04, 36 (6NL05), 37 (6NL07) and 39(6NLO7) and agreed that the most appropriate criteria are found in the NSW EPA Industrial Noise Policy (EPA) and the standard noise criteria applied by the Office of Liquor, Gaming and Racing (OLGR). This requires the amendment, redrafting and the removal of redundant conditions without affecting the ability of the conditions to properly control noise from the premises.
Noise and vibration transmission into 5A Carlton Street via the common wall: Mr Taylor and Mr Wheatley agree on the building treatment required to prevent footfall and other vibration transmission to the adjoining property through the common wall. These measures include modification to the floor structure so that there is no connection to the adjoining premises, an independently supported steel stud wall that does not touch the common wall and impact resistant flooring. The full requirements are imposed as conditions of consent.
Patrons leaving the premises: Mr Taylor and Mr Wheatley agree that the EPA and OLGR acoustic criteria are not strictly applicable to areas outside the premises and if patrons leave in an orderly manner then noise levels would not likely exceed EPA criteria for sleep disturbance. However, if patrons leave in a disorderly manner there is the potential for sleep disturbance. In addition to signage that advises patrons to leave in an orderly manner, Mr Taylor and Mr Wheatley recommend a 1-year trial period for the 10pm to 11pm period to consider any noise impacts.
Waste management: the applicant proposes the following procedure for waste disposal during the night time period (after 10pm):
a. Waste will be stored inside the premise.
b. Bins will be moved inside the toilet area of the premises, near or immediately after close.
c. Transfer of all waste to bins will occur within the premise with doors and windows closed.
d. Bins will be taken to Pittwater Rd frontage for collection.
e. Bins will be returned to the rear yard the following morning. Bins will not be returned to the rear yard after 10pm.
Mr Taylor and Mr Wheatley recommend that to minimise noise emission from the toilet area to adjacent residential premises at 5A Carlton Street, all windows shall be acoustically sealed fixed pane windows and solid core door with acoustic seals installed for exterior door. These measures will also control noise from patrons in the area. Acoustic design of any toilet exhaust fan, refrigeration equipment or air-conditioning equipment with the potential to be heard at the rear yard of 5A Carlton Street must be conducted based on ambient noise data collected specifically for the back yard area, and not based on the Pittwater logging data.
Mr Taylor and Mr Wheatley agree that the proposed management methodology and acoustic design measures are appropriate for the management of noise from waste disposal.
I note that the applicant will provide a Plan of Management that will prohibit staff access to the back yard area between 10 pm to 11pm.
As I understand, the joint acoustic report satisfactorily addressed the issues raised by the council although a number of local residents maintained their concern over the proposed development at the site inspection, including the more recent changes, such as the procedures for waste disposal after 10pm. While the residents raised a range of issues, the practical consideration for the Court, in this matter, centres on the potential impacts associated with the extended trading hours. These related largely, if not exclusively, to noise. The council originally maintained that 10 pm was the appropriate closing time, the applicant sought 12 midnight and the acoustic experts recommended 11 pm with a 1-year trial period of the 10 pm to 11 pm trading.
It is not necessary to fully describe the planning regime for the site given that the use of the site for a restaurant has been approved by the council but Manly Development Control Plan 2013 Amendment 4 is relevant. Clause 4.2.8 addresses Zone B1 Neighbourhood Centre, where the site is located. Clause 4.2.8.6 addresses hours of operation in the B1 zone and states:
4.2.8.6 Hours of Operation:
a) Consideration will be given to the protection of acoustical privacy and the amenity of the residential neighbourhood in the determination and approval of hours of operation including hours for service deliveries and collections.
b) The appropriate hours of operation will be assessed and determined in the DA process stage with particular regard to the proximity to, and the likely impacts on residential accommodation. Also applicants may be required to provide supporting documentation and/or mitigation measures with a DA to justify hours of operation that are considered by the Council to potentially impact on the neighbourhood.
I am satisfied that the hours of operation (and consequent mitigation measures) recommended by Mr Taylor and Mr Wheatley are reasonable and acceptable in the circumstances of this application and will adequately provide for “the protection of acoustical privacy and the amenity of the residential neighbourhood”. Their support is correctly based on the acoustic report submitted with the development application; further acoustic testing that was addressed in the joint report and the accepted EPA and OLGR criteria. The necessary mitigation measures are clear and are accepted by the applicant. The agreement by both acoustic experts to an approach that should be adopted is, in my view, is a good indicator that the proposed development is acceptable, subject to recommendations of Mr Taylor and Mr Wheatley.
As there is no reason why development consent should not be granted, the Orders of the Court are:
(1)The appeal is upheld.
(2)Development Application No. 127/2014 for a change of use from an existing retail premises to a restaurant including fit-out and signage at 92-94 Pittwater Road, Manly is approved subject to the conditions in Annexure A.
(3)The exhibits are returned with the exception of exhibits 4, 5, A, C and D.
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G T Brown
Commissioner of the Court
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Heracleous v Manly Council [2015] NSWLEC 1004
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