Jellyfish Cafe Manly Pty Ltd v Manly C
[2006] NSWLEC 188
•28 March 2006
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Jellyfish Cafe Manly Pty Ltd v Manly C [2006] NSWLEC 188
PARTIES:
APPLICANT
Jellyfish Cafe Manly Pty Limited
RESPONDENT
Manly Council
CASE NUMBER: 10624 of 2005
CATCH WORDS: Development Consent
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 1988
CORAM: Bly C
DATES OF HEARING: 28/03/06
EX TEMPORE DATE: 28/03/2006
LEGAL REPRESENTATIVES
APPLICANT
Mr M. Staunton, solicitor
of Staunton Beattie
RESPONDENT
Mr R. Graham, solicitor
of Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
28 March 2006
10624 of 2005 Jellyfish Café Manly Pty Limited v
Manly Council
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
On the 24 October 1991 Strata Plan No. 40022 was issued for a building at No. 93 North Steyne Manly. That plan of subdivision provided for 19 dwellings generally above 6 commercial tenancies fronting North Steyne. The building was I understand the subject of an earlier development consent that provided for the use of the commercial tenancies as refreshment rooms.
On 1 November 1999 the Council granted Development Consent No. 433/99 for the refurbishment of café/restaurant located within shop 5 being one of these commercial tenancies. This tenancy is currently occupied by a café/restaurant known as “Jellyfish”.
The conditions of development consent include condition 28 which sets out the hours of operation of the premises which are between 8:00am to 10:30pm Tuesday to Saturday and between 8:00am to 9:00pm on Sundays. The condition also provides that the premises are to be closed on Mondays.
The premises hold an on-license (restaurant), license under the Liquor Act, which was issued on 30 September 1996.
The Applicant has now lodged a Section 96 application to change the hours of operation, by modifying the existing consent as follows:
The deletion of condition 28 and its replacement with the following:
28(a)The hours of operation of the premises shall not exceed 7:00am to 11pm 7 days a week.
(b) All furniture and equipment shall not be taken outside before 7:00am and shall be taken inside before 11:00pm.
Adding a new condition 32 as follows:
32 The premises shall operate in accordance with the Plan of Management comprising annexure “A” hereto.
I now understand the council’s position is that following the amendment to the Plan of Management it no longer objects to the application subject to the Court taking into consideration the resident’s objections.
The site is zoned Residential under Manly Local Environmental Plan 1988 and is also included within a designated Tourist Area. Refreshment rooms which include a café/restaurant are permissible with development consent.
The application and the Plan of Management have been the subject of notifications and consultations with residents and this process resulted in 4 resident objections, 3 from within the development itself and 1 from an immediate neighbour. Three of these residents Mrs S. Main, Mr P. Amstrong and Ms L. Rapone gave oral evidence explaining their concerns during the site inspection. In addition the chairman of the body corporate wrote a letter of objection attaching a number of form letters that support the objection.
The residents’ concerns and those of the body corporate include: failure to comply with the existing conditions of development consent, particularly the trading hours; noise generated by late night patrons; garbage collection and bottle recycling and exhaust fans; inappropriate use of the laneway and common property; exceedence of the 50 person patron limit; out of hours deliveries; and use of allocated car space for storage.
Mr Amstrong whose home adjoins the site was particularly concerned that his residential amenity was affected by noise and odours associated with exhaust fans.
As already referred to, the Plan of Management has been the subject of an extensive reworking in response to the concerns not only of the council but also of the residents. This was detailed in a schedule of objections and responses provided by the applicant to show now the particular matters of concern were incorporated into the Plan of Management.
Having considered the revised Plan of Management in the light of the matters of concern to the residents and leaving aside for the moment the concerns of Mr Amstrong, I am satisfied that those concerns are properly and reasonably accommodated by the Plan of Management. I accept that if the provisions of the plan are complied with this will result in a reasonable balance between the activities of the café/restaurant and the amenity of the residential dwellings in the building, notwithstanding that the hours will be somewhat longer than presently approved.
In reaching this conclusion I have also taken into account the existence of two other cafes on either side of the subject premises. The Honolulu Grill has approved hours between 7:00am and 11:00pm 7 days per week, the other premises known as Angela’s Table has hours of operation similar to the subject premises, although an application has been lodged to extend its hours of operation to be the same as these presently sought in this application.
Of particular importance in reaching my conclusion that the application warrants approval is the complaints mechanism in Section 9 of the Plan of Management which makes available a telephone number to which complaints can be made. It also importantly requires that the operator keep a daily log of any complaints of incidents and that the log is to be made available to the council and the New South Wales Police. Any complaint is required to be acted upon immediately and if appropriate, complaints are to be referred to the appropriate authorities such as the New South Wales Police and the council. In the event that the council is not satisfied with the actions taken by the operator, compliance with reasonable directions of the council will be required.
Also, in the context of dealing with complaints the plan of management provides for opportunities for its review. Such a review can be initiated by the council and by the operator of the premises.
Finally, as for the concerns expressed by Mr Amstrong in relation to noise and odours from exhaust fans, I note that these are matters, which he is continuing to pursue with the council. These are matters, which in my opinion, do not arise out of this particular application. His other concerns are adequately addressed by the Plan of Management.
The orders of the Court will therefore be:
The Appeal is upheld.
Development Application No. 433/99 is amended by:
The deletion of condition 28 and its replacement with the following:
28(a)The hours of operation of the premises shall not exceed 7:00am to 11pm 7 days a week.
(b) All furniture and equipment shall not be taken outside before 7:00am and shall be taken inside before 11:00pm.
Adding a new condition 32 as follows:
32 The premises shall operate in accordance with the Plan of Management comprising annexure “A” hereto.
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Commissioner of the CourtGbv/ljr
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