Malouf v Manly Council - [2009] NSWLEC 1379

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Malouf v Manly Council [2009] NSWLEC 1379

PARTIES:
APPLICANT
Michael Malouf
RESPONDENT
Manly Council

FILE NUMBER(S): 11277 of 2008 and 10192 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Amenity impacts of conversion of basement car park space for use as storage for cafe. Issue of Building Certificate.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 1988

CASES CITED: Super Studio v Waverley Council [2004] NSWLEC 91
Waverley Council v C M Harris Architects [2002] NSWLEC 180
Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99

DATES OF HEARING: 27 October 2009 and 30 November 2009

DATE OF JUDGMENT:
30 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Staunton (barrister)
SOLICITOR
Sattler & Associates Pty Ltd
RESPONDENT
Mr R Graham (solicitor)
SOLICITOR
HWL Ebsworth Lawyer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

30 November 2009

11277 of 2008 and Michael Malouf v Manly Council
10192 of 2009
JUDGMENT

1 These proceedings relate to part of the operations of the Fusion Point café, which is located within the “Peninsula Building” at Wentworth Street, Manly and involve the following two appeals:

Appeal No 11277/2008; which is an appeal against council’s deemed refusal of a development application to allow the conversion of a basement car parking space into a storeroom for the use of storage & refrigeration for retail food items.
Appeal No 10192/2009; which is an appeal against council’s deemed refusal of a Building Certificate application for approval to enclose of part of the car parking bay 146, to contain a cold storage area for products used in the operation of the Fusion Point café.

2 The café is contained within strata lot 12 SP 63766, which is part of the mixed-use development known as the Peninsular Building. The café is located in Wentworth Street adjacent to the mall in Rialto Square. This lot incorporates 5 car parking bays (including Lot 146) in the basement level No 2. Consequently, the owner has been using parking bay 146 as a temporary cold storage area to service the café. However, this has involved the use of the Wentworth Street footpath and main entry foyer as the transfer route for the various products, which is considered unsatisfactory by council and residents.

3 For the appeal, a number of issues were identified, which are summarised as follows:

Parking/access; in terms of the acceptability of the reduced car parking availability and impacts on other residents.
Suitability of the use; in terms of whether the connection between the storage area and the restaurant is satisfactory.
Building amenity;
Health risks; any imposed due to the food storage location in the basement.
Public interest matters; including the objections raised by other residents.

4 This proposal is for the change in use of the car parking space 146, for its containment to allow the storage and refrigeration of retail food items in connection with the Fusion Point restaurant.

5 The proposal includes restricting all deliveries to this storage area to outside the peak vehicular movement times being 7.00am to 9.00am and 5.00pm to 7.00pm Monday to Friday.

6 The transfer of the foodstuff is to be on a specified trolley and via a designated route through the basement level car park to the western fire, exiting through lifts 3 and 4 into the mall area, where it is conveyed to the café. This transfer is limited to a maximum of 2 movements per day. These operating restrictions to be controlled by a Plan of Management (POM).

7 The relevant control is the Manly Local Environmental Plan 1988, under which the site is within the Zone No 3 – Business zone. Clause 10(3) restricts the granting of consent to the carrying out of development unless the consent authority is satisfied the carrying out of the development is consistent with the objectives of the zone. The stated Zone No 3 Business objectives are:

(a) to provide for and encourage the development and expansion of business activities which will contribute to the economic growth and employment opportunities within the Municipality.

(b) to accommodate retail, commercial and professional services in established residential neighbourhoods where such development is compatible with the amenity of the surrounding areas.

(c) to ensure there is adequate provision for car parking in future development in the business area.

d) to minimise conflicts between pedestrians and vehicular movement systems within the business area.

8 The associated development controls are contained in the Manly DCP for the Business Zone 1989 (Amendment 6). Of relevance, the general aims and objectives provide:

(3) To introduce car parking standards relating to required car parking spaces for particular uses, and policies relating to the preferred location of such spaces within a particular centre in order to optimise the use of car parking spaces and control traffic movements.

9 Other relevant controls include:

Manly DCP for the Residential Zone 2007.
The Food Act 2003, section 21.

10 The aforementioned issues were addressed by:

Mr J Cother; Council’s senior development assessment planner.
Mr G Goodyer; Consulting planner for the applicant.
Ms L White; Council’s senior environmental health officer.
Ms K Howse; Consulting architect for the applicant.

Parking/access

11 This issue concerns potential inconvenience and adverse amenity arising from the conversion of Lot 146 from its approved car parking use to a storage area, in the context of the general shortage of parking spaces in the Manly town centre. It also concerns an inconsistency with the original conditions of consent, which required:

30. Loading and unloading of vehicles and delivery of goods to the land shall at all times be carried out within the site to the satisfaction of the Group Manager, Land Use Management. The area set aside for carparking as shown on the plan shall be used for parking of vehicles and for no other purpose.

12 The council’s position is that due to the high demand for parking in the town centre, the conversion of the car parking space into a locked storage and refrigeration room would be an unacceptable loss of car parking space and likely to set an undesirable precedent for the reduction of on-site spaces in other developments. It was also contended that the proposal unreasonably inhibits access to the adjoining residential spaces, particularly when delivery vehicles are unloading in the circulation lane.

13 This position was generally supported by a number of the residents, who have apparently experienced some inconvenience when unloading and transfer operations into the refrigeration unit has been undertaken.

14 In response to this issue involving the reduction in car parking space, the planners referred to the development consent No 261/00 granted on 18 August 2000 for the café, retail fit-out and shop use. It did not include any specific requirement for car parking, even though the assessment made reference to the availability of 1 parking space in the basement. Notwithstanding this, the application was to make available 4 spaces, on the basis of 1 x storage and 3 x car parking.

15 However, Mr Cother noted that the SEE for this application indicated that the 4 basement car parking spaces were intended for staff usage, which would range from 6 to 10 persons. He calculated that as the original tenancy had a gross floor area of 134sq m, it required 2 car spaces based on the DCP control of 1 space/70sq m of gross floor. Accordingly, he says the reference to the1 car space was underestimated.

16 Mr Cother also reviewed the approved intensity of use comprising seating for 23 persons indoors and a licence for 42 external seats in the Rialto Square, plus 10 seats in Wentworth Street, to allow a total of 52 external seats. Consequently, he says it is appropriate to have regard to cl 1.5.1 of the DCP 1989, whereby the additional 23sq m of storage space would generate a demand of 4 spaces, based on the requirement of 15 spaces/100sq m of GFA. Furthermore, 50% of those spaces are to be provided on site with rest by way of a s 94 contribution.

17 Therefore, Mr Colter says that the actual car parking demand generated by the original café was 2 spaces, plus a further 2 spaces are required (plus a s94 contribution), giving a total of 4 on-site spaces. He considers all 4 existing spaces should remain available for car parking. Otherwise there will be a parking spill over into the streets or external car parks. Such outcome being inconsistent cl 10(3), which aims to ensure there is adequate car parking in future developments.

18 Against this, Mr Goodyer says that is it illogical to consider the café/shop required only 1 space when originally approved but now, with the addition of a relatively small storage area, this can generate the need for more than the 3 spaces that are available.

19 Having considered these competing positions, I am satisfied that this proposal does not alter the number of seats in the café or the number of employees and therefore the consequential demand for car parking spaces. In this regard, I also note the evidence that due to the building security arrangements, no customer car parking is contained in this basement. It is external or patrons use alternative forms of access.

20 In these circumstances, I consider it reasonable to apply the car parking controls applicable at the time of the consent. That results in a requirement of 2 spaces (as corrected). I then accept Mr Goodyer’s opinion that the conversion of the 23sq m car space for storage does not create a demand for additional staff parking for this approved development. Consequently, I am satisfied that the conversion of car space (lot 146) for storage still leaves 3 car spaces, which is adequate and consistent with the more recent café consent and the LEP objectives in cl 10(3).

21 An associated traffic/access concern relates to problems experienced in vehicles unloading goods when the existing outward opening doors of the storage area protrude into the driveway lane. I accept the applicant’s agreement to adopt a Plan of Management (POM), which restricts unloading to outside the peak hours and to provide if necessary, the swinging of the gate inwards, or install sliding gates to prevent such intrusion. This should address this concern to a reasonable extent.

Unsuitable use/building amenity.

22 This issue primarily arose because of the separation distance from the café to the storage area, which resulted in laden trolleys being taken along Wentworth Street and through the main entry foyer of the Peninsula Apartments. This caused adverse amenity for the residents and was considered not consistent with the orderly operation of the café.

23 According to Mr Cother, this location and separation of the storage area from the café is unsatisfactory because of:

24 In support of this position, Mr Cother refers to the planning principle in Super Studio v Waverley Council [2004] NSWLEC 91, which states that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. On this basis, Mr Cother considers that scale of the café operation should be such that it is contained within the commercial premises and not extend to the car park.

25 Mt Cother also relies on the planning principle in Renaldo Plus 3 PtyLimited v Hurstville City Council [2005] NSWLEC 315 where 8 points were identified concerning the appropriateness of reliance on a POM. Having considered the concerns raised by Mr Cother, I am otherwise satisfied that the scale of the impacts in the current circumstances are such that they can be satisfactorily managed within the provisions of the POM. In this regard, the adequacy of the POM can be reviewed during a 6-month trial period.

26 In this regard, I have given consideration to the discussions during the hearing concerning a possible trial period. Whilst this was not required initially by council, or thought necessary by the applicant, I am satisfied that if the café staff do not follow the POM controls, then some adverse amenity could arise. In these circumstances, I consider it reasonable to require a 6-month trial period condition to ensure the procedures are successfully implemented and this somewhat unusual development is compatible with the appropriate amenity in this development. In this regard, I note that there is CCTV in the basement, which will be useful in monitoring the proposal.

27 Notwithstanding this, Mr Goodyer supports the proposal on the basis that the property owner is entitled to use the car parking lot in conjunction with the café. As the use of this proposed storage space is of low intensity, the updated POM provisions should satisfactorily control any impacts. These provisions prevent the trolley path through the main entry foyer. And the alternative route through the car park via the western fire door and transfer to the café via the lift is to be limited to a maximum of 2 movements per day.

28 Whilst I am inclined to accept that the proposal now appears to be a low intensity impact, as compared to the evidence that more transfers have previously been undertaken, I still consider the 6-month trial period reasonable, to ensure compliance is achieved with the restrictive conditions of consent.

29 Insofar as there is an apparent breach of the original conditions of consent, that is not something that is a relevant consideration matter in the subject case, based on the following authority stated by Preston C J in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99:

35. Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully.

30 In any case, it is possible to lodge a new development application to deal with changing circumstances, which can then be assessed on its merits. This approach was stated by Talbot J in Waverley Council v C M Harris Architects [2002] NSWLEC 180 as follows:

30 There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land. A shopping centre complex is a demonstrative example of the way in which there can be a mosaic of development consents extending around the different parts or sections of a single site. Section 80A(1)(b) of the EP&A Act provides a facility for the consent authority to insist on the surrender of an existing development consent. It follows that the Act contemplates there can be more than one valid and operating consent in existence at the one time…

31 Accordingly, it seems to me that pursuant to s 80A(1)(b) of the EPA & Act, any inconsistencies with the original conditions of consent can now be modified. Consequently, condition 26 is imposed in order to avoid confusion.

32 In terms of merits of this application, I am satisfied to rely on the opinion of Mr Goodyer that the 4 concerns raised by Mr Cother are adequately addressed in the conditions. Importantly, this includes restricting the proposed use for a trial period of 6-months to effectively monitor its performance.

33 Having considered these competing positions, I accept that the clarification and restrictions on the intensity of use and that with careful adherence to the provisions of the POM, then any opportunities creating adverse amenity would be limited to a reasonable extent. In this regard, I particularly note that the path of travel for the trolley specifically excludes use of the main entry foyer, which caused the most concern to the residents.

Health risks

34 This contention was raised because the unauthorised use of the cool room and storage area failed to meet the provisions of the Food Standards Code (FSC). These environmental health issues were assessed by the respective experts, who agreed that:

Compliance with their prescribed conditions would satisfy the FSC requirements, including covering and sealing storage food, avoiding box storage on the floor, no food to be stored outside the protection of the cool room and all transported food must be covered and protected.
These conditions also include specific requirements for regular cleaning of the storage area to ensure adequate cleanliness is maintained.

35 Consequently, I rely on the agreement of these experts that the health and safety issues can be satisfactorily addressed by compliance with conditions of consent. This includes the upgrading of the waste water disposal system.

Public interest

36 There were a considerable number of objections raised to this change of use application. These were detailed in the overall objection presented by Mr McMahon on behalf of the owner’s corporation. My assessment of the relevant objections is:

Building Management Committee (BMC) authorisation; I accept the submission on behalf of the applicant that it is entitled to lodge a development application in respect of the use its land, which is then considered on merit. Such consideration includes the objections.
Conversion of the car space; this objection is made in regard to the non-compliance with condition 30 of the development consent. However, as I have stated development consents may be amended, subject to merit considerations, which is the current situation.
Non-compliance with condition 45 of Development Consent DA 261/00, which basically states that food associated with the café is to be stored/confined to the café area. However I have dealt with this matter on the aforementioned basis.
Contravention of conditions of consent. I have dealt with this on the basis of the submissions regarding the authority expressed in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99.
Nuisance; this objection primarily concerns problems created by up to 12 trolleys per day apparently using the main entry foyer and lifts. However the revised travel routes and limitation on the number of trolley trips have addressed this matter, which will be under review during the 6-month trial period.

Conclusions

37 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this land use application merits conditional consent. Importantly, I rely on the evidence that this represents a low intensity use and that the conditions provide for a time limit for a 6-month trial period, during which the operations can be carefully monitored. This should enable careful assessment to ensure that any amenity impacts in the subject environment are reasonable.

38 In reaching this overall conclusion, I have give particular weight to the revised method of operation, especially the proposed travel route, which diverts the trolley away from the main entry foyer and through the basement car park. Also, the number of trolley movements being limited to 2/day. This should address a considerable amount of the past objections. I do not consider there was any compelling evidence to reject the application on this basis.

39 Insofar as health risks were fairly raised as an issue, the respective health experts have jointly considered this matter and agree that the adherence to their stipulated conditions can satisfactorily address this issue. In the absence of any other compelling evidence, I rely on their opinions in this regard.

40 With regard to the traffic/access issue, I note initially that the applicant has 5 basement car spaces as part of Lot 12, including the somewhat larger car parking lot 146. Insofar as these lots are designated for car parking, it is on the basis of reservation for staff car parking, as any car parking for patrons is outside this secured basement car park.

41 When the café use was assessed under DA 261/00, it was apparently not considered necessary to impose specific parking conditions. But on review, I am satisfied that the floor area for the café warrants the provision of 2 car spaces, for staff parking. As the café operator can effectively manage this staff car parking, I am satisfied that the 2 remaining car spaces are adequate for the staff parking in conjunction with the café and unlikely to cause parking disamenity.

42 Insofar as there have been breaches of the consent in the past, they are an irrelevant consideration based on the previously stated authority in the Jonah case.

43 I have also considered Mr Cother’s reference to the Super Studio planning principle that:

15. Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies.

44 From the consideration of this principle, I note that it was formulated with regard to impacts from balconies and I consider that any impact outcomes are somewhat different in the current matter. Nevertheless, applying this principle, I am satisfied that providing the use is carried out in accordance with the conditions of consent, as substantially agreed by the experts, then the amenity impacts will be within reasonable limits and not such as to warrant refusal.

45 In the ultimate then, I am satisfied that the relevant aims and objectives, particularly the requirements of cl 10(3) of the LEP, will be reasonably satisfied so as to merit the granting of conditional consent for the use of the car space for storage purposes, on a 6-month trial period. The planners considered the relevant objectives and raised no objections about any inconsistencies and I rely on these opinions.

46 Flowing from this is the separate Building Certificate appeal. This certificate is to regularise the constructed enclosure and ancillary works. However, some additional works are required as part of the development consent. This includes the conversion of the outward swinging gate to swing inwards or to be sliding to avoid intrusion into the transit lane and make this aspect safer.

47 Also, satisfactory arrangements have to be made for the control of trade waste and waste water in the storage area. I understand that there are various design options that include installation of a floor waste, or protection of the stormwater drains to provide protection from pollution. This can be covered by a performance-based condition.

48 In these circumstances where further works are required and the trial period performance then has to be assessed, the issue of the building certificate would seem to be contingent on a satisfactory outcome on these matters, including the 6-month trial period.

49 Subject to the satisfactory compliance with the conditions of consent, the council is to issue the Building Certificate, on the grant of any permanent consent. At that stage, the applicant is directed to make the necessary arrangements to modify the inconsistent conditions of consent.

50 The Court orders that:

Annexure ‘A’

Conditions of Consent

Michael Malouf v Manly Council

DA No.: 66/07

Proposal: Use of converted car parking space into a store area with refrigeration room

1. This approval, subject to the conditions of this consent, relates to the following drawings/plans and associated documentation copies of which are attached to these conditions:

plan prepared by Ian Bonfield No. 0905:B2:01 A dated 19.09.09
“Plan of Management — Fusion Point Lifestyle Café Manly”, version 4.0 dated 14 August 2009. (Exhibit C)

To limit nuisance to occupiers of the building and persons using the

Wentworth Street footpath.

To maintain a free flow of traffic in the basement car parking area.

To maintain three (3) car parking spaces adjacent to the storage area

To maintain a free flow of traffic in the basement car parking area

Food Act 2003
Food Regulations 2004
Australian Standard A S4674-2004: Construction and fit out of food premises
Australia and New Zealand Food Standards Code 3.2.3: Food Premises and Equipment
Australia and New Zealand Food Standards Code 3.2.2: Food Safety Practices and General Requirements

Environmental Planning

Assessment Regulation

Certifying Authority

Construction Certificate

Reason: To ensure compliance with legislation and to protect public health and safety.

Reason: To ensure compliance with legislation and to protect public health and safety.

Reason: To ensure compliance with legislation and to protect public health and safety.

Reason: To ensure compliance with legislation and to protect public health and safety.

Reason: To ensure compliance with legislation and to protect public health and safety.

The floor waste drainage is to be provided in accordance with AS 4674-2004 and located in a position to ensure all waste water within the food storage area is adequately disposed of so as not to have the potential to cause pollution to the stormwater. Any such work is to be in accordance with details approved by council.

Alternatively all stormwater drains are to be adequately protected so as not to pollute waters. Methods of protection include but are not limited to: bunding and the provision of a spill kit so as not to cause or be likely to cause pollution of stormwater in accordance with the protection of the Environment Operations Act (1997).

Reason: To ensure compliance with legislation and to protect public health and safety.

Reason: To comply with the requirements of the BCA.

Reason: To protect public health and amenity.

21. The self closing doors to the fire stairs must not be wedged or otherwise held open during the transport of food from the cool room to the café.
22. There shall be no handling, preparation and/or storage of food and/or food contact items within the open car park.
23. Food shall only be stored wholly within the coolroom located within the basement carpark and the Fusion Point Café at all times.
24. The transportation of food between the coolroom food storage area and food premises trading as Fusion Point Lifestyle Café shall be suitably protected by way of an enclosed trolley.
25. The transportation of potentially hazardous food shall be kept under temperature control to ensure the integrity of the food in accordance with the Food Standards Code.
26. Pursuant to Section 80A(1)(b) of the Environmental Planning and Assessment Act 1979, Development Consent D77/98 shall be modified after the application is finally determined following the trial period in the following manner:

“Notwithstanding condition 30 of this consent the carspace numbered 146 (being part of lot 12 in SP 63766) may be used in accordance with development consent no. DA 66/07 approved by the Land and Environment Court of NSW in proceedings No. 11277 of 2008.”

This consent is subject to a trial period of 6 months. Any application to modify this condition is to be lodged 1 month prior to the expiry of the trial period. The consent will remain operative until the modification application is finally determined.

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Citations

Malouf v Manly Council [2009] NSWLEC 1379

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

2

Super Studio v Waverley Council [2004] NSWLEC 91

Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315

Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99

CITATION:	Malouf v Manly Council [2009] NSWLEC 1379
PARTIES:	APPLICANT Michael Malouf RESPONDENT Manly Council
FILE NUMBER(S):	11277 of 2008 and 10192 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Amenity impacts of conversion of basement car park space for use as storage for cafe. Issue of Building Certificate.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988
CASES CITED:	Super Studio v Waverley Council [2004] NSWLEC 91 Waverley Council v C M Harris Architects [2002] NSWLEC 180 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99
DATES OF HEARING:	27 October 2009 and 30 November 2009
DATE OF JUDGMENT:	30 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Staunton (barrister) SOLICITOR Sattler & Associates Pty Ltd RESPONDENT Mr R Graham (solicitor) SOLICITOR HWL Ebsworth Lawyer