McGregor Westlake Architecture Pty Ltd v Randwick City Council

[2015] NSWLEC 1249

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McGregor Westlake Architecture Pty Ltd v Randwick City Council [2015] NSWLEC 1249
Hearing dates:	11 May 2015
Decision date:	06 July 2015
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	1. The appeal is upheld; 2. Development application (116/2014), as amended, for alterations and additions to the existing flat building including a new café is approved, subject to the conditions in Annexure A; and 3. The exhibits, except Exhibits A and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION – Alterations and additions to a residential flat building including new café; view impacts; café opening hours and patron numbers
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings Randwick Local Environmental Plan 2012
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	McGregor Westlake Architecture Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr I Pickles (Applicant) Mr J Robson (Respondent) Solicitors: Mr G Christmas of Apex Law (Applicant) Mr S Patterson of Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	10828 of 2014

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application (DA) No. 116/2014 for alterations and additions to a residential flat building and construction of a new café on land known as 58-60 Carr Street, Coogee.

2. The development the subject of the DA specifically comprises;

a café/restaurant above an existing car park fronting Carr Street with service area at street level;

a new entry from Kurrawa Avenue;

a new car park gate on Carr Street frontage;

alterations to the car park configuration including extensions to a car port at the rear;

addition of a ground floor storeroom;

extension of first floor terraces to the front of the building; and

extension of balconies on the eastern and western sides.

3. The Council’s Design Review Panel supported the DA and was critical of a number of the site specific DCP controls for the site.

4. The DA was advertised between March 14 and March 26, 2014. Thirty two objections were lodged raising the following concerns:

• unacceptable view impacts,

• bulk and scale,

• attraction of undesirable elements,

• inadequate waste management,

• noise impacts from larger balconies and the café area,

• overshadowing, and

• undesirable development on the foreshore and in this part of Coogee.

5. The DA was refused by Randwick City Council (“the Council”) on 2 September 2014. The grounds for refusal were as follows:

1. The proposal does not comply with the Floor Space Ratio standard under the Randwick Local Environmental Plan 2012 (RLEP) and the Clause 4.6 exception is not well founded.

2. The proposed development does not comply with the objectives and relevant controls under section 8.2 of the Randwick Development Control Plan 2013 (RDCP).

3. The proposal will adversely impact on the amenity of surrounding residential properties and the public domain.

6. The appeal was the subject of a conciliation conference on 30 January 2015 under s 34 of the Land and Environment Court Act1979 (the Court Act). Some adjoining properties, as well as the site, were inspected and viewed at the onsite conference and the objections of neighbouring residents heard.

7. The conference was adjourned to allow the applicant to consider amendments to the plan to satisfy the concerns of the Council and adjoining residents. The resumed s 34 conference was held on 6 March 2014 and, as no agreement was reached, the conciliation conference was terminated pursuant to s34(4)(a). The matter was then listed for hearing.

8. Prior to the hearing, leave was granted by the Court on March 20, 2015 for the applicant to rely on amended plans developed during the conciliation process.

9. The amendments made to the original application were proposed by the applicant in order to lessen the impact on neighbours and address a number of the Council’s concerns. The applicant advised that the changes to the plans have the following effect:

1. the impacts on the view from the neighbouring residential flat building are reduced by the lowering of the height of the café building and increasing the setback of the upper level of the café to 9.82 metres from Carr Street thereby improving the view corridor;

2. reducing the width of the balcony within the view corridor;

3. revising the balustrade material from metal to glass to reduce the view impact from the neighbouring residential flat building; and

4. reducing the size of the garbage room and car port in the south eastern corner of the site providing a greater setback to the neighbouring building.

10. Notwithstanding the modifications undertaken to the application, a number of neighbours attended at the commencement of the hearing onsite to raise continuing concerns with the development. The Council also noted that there had been significant opposition to the development amongst the residents.

11. Neighbouring residents at the commencement of the hearing re-iterated issues raised in submissions on the DA in terms of view impacts, bulk and scale and noise impacts but also raised concern in terms of:

• traffic and servicing/delivery vehicles

• changes to the balconies and how they would be viewed from the beach,

• disabled access to the cafe,

• inappropriateness of a bar in this location,

• establishing a precedence for other commercial development in the area, and

• the development was not in accordance with advice the Council had provided when the LEP amendment was undertaken and DCP controls prepared to permit a café on the site, which was supposed to be small and located at street level.

12. A representative of the Strata Body for the subject site also spoke and advised that Council Planners had suggested the café at the front of the building when their original intent had been to only upgrade the residential aspect of the building.

13. The adjoining café, Barzura, was also visited on the first day of the hearing. The proprietor of Barzura advised that the café was licensed for 90 patrons, including 30 in the footpath dining area.

14. In their Joint Report, the Planning experts agreed that the bulk and scale of the development was no longer an issue as the amended plans reduced both bulk and scale, particularly along the eastern boundary, significantly reducing the potential amenity impacts resulting from development. It was also acknowledged by the Council that:

1. whilst the proposed Floor Space Ratio (FSR) exceeded the development standard for the site, this was largely attributable to the residential tower component that has been in existence for some time and which already exceeded the FSR;

2. a recent amendment to the Randwick Local Environmental Plan facilitated a cafe/restaurant use on the site and the proposal is consistent with the change that was made to accommodate that use. That amendment foreshadowed additional gross floor area to accommodate the new use; and

3. The net change in gross floor area is not significant in numeric terms.

15. Further amended plans were filed during the hearing. The key issues that remain in dispute at the hearing were:

1. Whether further modifications to the development should be required to further minimise view impacts; and

2. The required conditions to be imposed on the operation of the café to address neighbours’ concerns and preserve amenity, specifically in terms of number of patrons and hours of operation.

16. The Council accepted that what was proposed in the revised development scheme was generally not inappropriate and they supported the proposed improvements to the building. However, they were seeking the imposition of “relatively modest” conditions to ensure residents’ amenity was maintained.

17. Expert Planning evidence was provided to the hearing by Mr Stuart Harding for the applicant and Mr Jeffrey Mead for the Council.

The Site

18. The site is legally described as SP 2004. It has a frontage to Carr Street of 18.04m, with a splayed corner, and a 32.64m boundary to Kurrawa Avenue. The southern boundary is 32.41m and the eastern boundary is irregular. The total site area is 836m².

19. The site is currently used for residential purposes. It contains a seven storey residential flat building with a total of 28 units. The building has parking split across a ground floor, rear podium and sub-basement level. The parking is predominantly not enclosed. There are driveways from both Carr Street and Kurrawa Avenue. Pedestrian access is from Kurrawa Avenue.

The Locality

20. The site is located at the southern end of Coogee Beach, directly opposite Goldstein Reserve. Development in the vicinity is mixed use: predominantly residential and commercial. Commercial uses include cafes, hotels, restaurants and retail outlets. Residential development in the locality is generally medium density with a number of large mixed use buildings in the area.

21. Adjoining the site to the east is a two storey commercial building containing a restaurant/café (“Barzura”) at ground floor level and a health (yoga) studio on the first floor. To the rear, the site adjoins a two storey residential flat building which has frontage to Beach Street to the east and rear access from Kurrawa Avenue. There are also a number of residential flat buildings further to the south along Kurrawa Avenue.

22. The western boundary of the site adjoins Kurrawa Avenue. Opposite the site is a six storey residential flat building with retail, commercial and restaurant uses on the ground floor and frontage to Kurrawa Avenue, Carr Street and Arden Street (to the rear).

The Statutory Controls

23. The statutory instruments and policies applicable to the proposed development of relevance to this appeal are:

• Environmental Planning and Assessment Act 1979, as amended

• State Environmental Planning Policy No. 65 Design Quality of Residential Flat Development

• Randwick Local Environmental Plan 2012

• Randwick Development Control Plan.

24. The site is located in the R3 Medium Density Residential zone under the Randwick Local Environmental Plan (“the LEP”) and the proposed uses are permissible in the LEP.

25. Specific provisions for 58-64 Carr Street, which comprises the subject site and two adjoining lots including the café next door at 62 Carr Street (Barzura), are contained in section 8.2 of Part C2 of the Randwick Development Control Plan (“the DCP”). The local context for this area as described in the DCP is:

“the northern and eastern sections of the business centre providing an active street edge of commercial, retail and food related uses which services resident and visitor needs”.

26. Site specific controls are included in the DCP

“to ensure that any development of these sites for restaurant or café use does not adversely impact on residential amenity of surrounding residences”

27. Section 8.2 of Part C2 of the DCP also includes:

1. a diagram showing the developable area for any proposed neighbourhood shop, restaurant or café at 58-60 Carr Street, and a requirement that any new non-residential development is to be contained within this developable area;

2. objectives advising that permissible uses include ground level small scale neighbourhood shops, restaurants and cafes, and development generally which improves the public domain of Carr Street (including by promoting pedestrian activity and safety) and enhances the street frontages of buildings;

3. a control which limits commercial development to the ground floor with active frontages to Carr Street and outdoor seating limited to Carr Street;

4. a control requiring proposals to specify likely sources of noise and measures to minimise these;

5. a limit on standard hours of operation for non-residential uses of 7am to 10pm;

6. a requirement for high quality awnings along Carr Street; and

7. a requirement that any development on the subject site be referred to Council’s Design Review Panel.

Consideration of Issues

Views

28. Whilst a number of adjoining residents’ raised a concern with the impact of the proposal on view corridors, the experts agreed that the amended plans largely addressed this concern.

29. In this regard, it was agreed that there had been significant changes to the scale and form of the building adjoining the eastern boundary where view corridors were potentially affected.

30. The only remaining view impacts related to unit 4/138 Beach Street and this property was visited at the commencement of the hearing. The view that is most impacted by the proposal is from a sitting position within an informal dining area adjoining the kitchen of this unit through a corridor between existing buildings to the street and Coogee Beach beyond.

31. Both Mr Harding and Mr Mead agreed that the majority of this view is maintained and that the reduction in the "base" of the view was reasonable and acceptable having regard to the relevant matters when considering view loss: namely, the reasonableness of the development proposal, the value of the view, the extent to which view is lost, and the extent and quality of views that remain available from the affected site.

32. The experts disagreed as to whether further modifications to the proposed water closet (WC) within the eastern setback of the proposed development, and to an awning on the ground floor, should be required by way of a condition to further minimise view impacts by lowering these structures.

33. The Council referenced Tenacity Consulting v Warringah Council [2004] NSWLEC 140 and specifically whether a more skilful design could further reduce view impacts.

34. Specifically, Mr Mead argued that there would appear to be no technical or other impediment to further reducing the height of the structures and thus the degree of view lost whilst maintaining function and amenity of the awning and the WC. This, he considered, would represent a more skilful design that balanced development potential with neighbour amenity.

35. A condition of consent to the amended plan was therefore proposed by the Council to include the following:

“the maximum height of the accessible wc on the ground floor plan does not exceed RL 15.1at its northern side and RL 15.25 at its southern side. The awning shown on the ground floor plan must also not exceed RL 15.1”.

36. Mr Harding objected to this condition. He claimed there were technical reasons related to construction of the roof over the WC area which precluded the required modification which, in his opinion, along with the lowering of the awning, had no discernible benefit in preserving views.

37. Both Planning experts agreed they were not qualified to comment on the construction implications of amending the height of the WC. They also agreed that minor adjustments to the WC or awning height are not required to overcome a significant view loss issue or are ‘fatal’ to the application. The Council ‘simply wanted to ensure’ that these structures were as low as possible to minimise view impacts and a lowering by a further 150mm of the WC roof seemed achievable to the Council.

38. Mr Harding advised the Court that, in conversations with the architect, the floor to ceiling height of the WC had to be maintained at 2.1m. The area required above the ceiling is comprised of 250mm of concrete slab on top of which is placed a protective membrane and then a pebble finish for aesthetic and maintenance reasons. The height included an allowance for a small upturn on the slab to protect the membrane and pebble finish from exposure (given its coastal location). The applicant considered that the improved aesthetics of this roof given its high level of visibility from occupants of the subject site and the objector to the south is an important consideration.

39. Mr Mead was not convinced that this approach to construction was the only option. He advised that the applicant's initial feedback in relation to this structure was that the roof level was set to allow installation of services/pipes however Mr Harding had indicated that this is now not the case. Given that the structure contains only one accessible toilet, Mr Mead was of the view that:

1. The floor to ceiling height at 2.1m may not be necessary for the entire enclosed space under the BCA. That is, it could slope to the north towards the "leading edge".

2. It is questionable that a 250mm slab thickness is necessary for a WC roof and there are likely alternatives to a concrete slab.

3. Given the size of the structure, as long as the roof finish is non-reflective, it is unnecessary to provide a structure that can have a "pebble finish".

4. The Council’s proposed condition sets a maximum RL to the structure and therefore a combination of changes to the design could arrive at that outcome. This could include to the slab on which the WC sits.

5. Based on the information that had been provided, there would appear to be no compelling reason why alternative construction approaches could not be pursued in the interests of a more skilful design that minimises view impacts as far as practicable.

40. The applicant maintained however, that:

1. The ceiling above the WC is already minimal at 2.1m and allowance needs to be made for the slab roof and upturn beam, waterproof membrane and pebbles. Lowering the height was therefore not possible.

2. Even if the WC slab was lower, the height reduction would be minimal, it would only reduce a view impact from “negligible” to “nil”, side views are always difficult to protect and it will not impact on an iconic view.

3. The plans had already been modified to minimise view impacts with the result that there is no loss of view to the beach and only part of the footpath and adjacent wall would be lost to view. No further design modifications were considered reasonable or necessary.

41. Expert evidence was not available to the Court as to the achievability of reducing the height of the WC or of the awning. Given the experts agreed that the current proposal results in no material or significant view loss, I am therefore not prepared to impose a condition requiring the further changes to the proposal as sought by the Council

42. Having seen the likely view impact and having regard to how the proposal has been modified to minimise view impacts, I am satisfied that the view sharing principles of Tenacity have been met without the need for further design changes as sought by the Council’s condition.

43. I accept the applicant’s argument that any resultant improvement in terms of view loss which may arise from the changes sought by the Council would be limited if not negligible and is therefore not warranted. Also that the view impacts of the development as now proposed are, in my opinion and in the circumstances, acceptable.

Public Interest – Café Hours of Operation and Patron Numbers

44. The proposed café comprises a number of different seating areas, namely an internal area, an upper level terrace with an outdoor area, and a footpath dining area.

45. The applicant sought approval for the proposed café comprising all of these areas to be open from 7am to 10pm Monday to Sunday. This, the applicant argued, would be in accordance with the DCP specified hours for any cafes in the area and was the same as for the existing café, Barzura, on the adjoining property (which comprised indoor and footpath dining).

46. In order to address a concern with possible adverse noise impacts on adjoining residents, the Council sought to limit the hours of operation of the café and the number of patrons which could be accommodated in outdoor dining areas. The opening hours were proposed by the Council to be adjusted by condition in the following circumstances:

1. Internal areas – 8am to 9pm on Sundays

2. Outdoor terrace areas – 8am to 9pm Monday to Sunday

3. Footpath/footway dining area – 7am to 9pm.

47. The Council also sought to reduce the maximum number of patrons permitted in the outdoor portions of the café from that proposed by the applicant; namely from 20 to 12 for the outdoor terrace area and from 35 to 16 for the footpath dining area.

47. Mr Mead considered it unusual that an application such as this, seeking consent for a cumulative total of 55 outdoor patrons with residential use above and adjoining, would not be accompanied by an acoustic report. However, the applicant argued the Council had not required one prior to considering the DA.

48. The applicant also argued that a fair and reasonable approach would be café opening hours that were consistent with those for the same (café) use on the adjoining property, as was proposed. Mr Harding further argued that the height of the podium and the beachside location of the use were such that the patrons using the footpath dining area were likely to have minimal impact on nearby residential properties. He also noted that the temporary awning provided will not facilitate all-weather use of the outdoor dining area in contrast to the adjoining café.

49. Mr Mead acknowledged that neither Planning expert had acoustic expertise. Therefore the Council preferred to adopt a cautious approach to hours of operation and extent of outdoor dining. He argued that, subject to the appropriate acoustic testing and reporting being completed, it would be open to the applicant to submit a further application to extend hours or increase patron numbers which could then be given proper consideration.

50. Mr Mead did not agree with Mr Harding that the operational conditions for the neighbouring property should simply be applied to the subject proposal. Inspection of the adjoining Barzura cafe highlighted a distinctly different design and relationship to neighbouring uses. Barzura is at street level where outdoor tables are generally covered by a substantial awning. Although not an acoustic expert, Mr Mead was of the view that the awning is likely to act as an acoustic barrier of sorts to residential uses above and behind in contrast to the proposal which does not provide this style of awning, and has a terrace which, in part, has no covering that would assist with noise mitigation.

51. The fact that residential use above is part of the same Strata Plan does not in Mr Mead’s view negate the need to consider the acceptability of the relationship between these uses and he thought it likely that residential use to the east and south on neighbouring properties will be affected by noise from the open terrace. For this reason, Mr Mead supported restricting hours of operation and patron numbers in outdoor areas until such time as the acoustic impacts are tested and considered.

52. The applicant’s approach to the amount of footpath dining was to propose a pro rata limit based on the allowable seating at Barzura which resulted in up to 35 patrons in the footpath dining area. In Mr Harding’s view the limited opening hours are such that the use of this area and of the outdoor terrace at the upper level (by up to 20 patrons) is reasonable. Further the footpath dining area would be partially shielded and noise deflected by the café structure itself including the WC. He also noted that the proposed 10pm closing time is also the time when acoustic assessment changes from a day time calculation to a night time calculation. He re-iterated that the Council did not require an acoustics report to be submitted with the DA although conceding that this may have been because the terrace was originally all proposed to be covered although the footpath dining area had not changed.

53. In relation to the open terrace, Mr Mead argued that a maximum of 12 patrons would limit the likelihood of large groups using this area and, whilst agreeing with the applicant that "noise disturbance" criteria does not generally apply until 10pm, this did not mean that any noise level is acceptable up until that time.

54. In Mr Mead’s view, a 9pm cessation of trade in the outdoor areas represented a reasonable balance between differing land uses until specific evidence is provided supporting a relaxation of these restrictions.

55. In submissions, the applicant argued:

1. There is no justification for the Council imposing different operating hours to those proposed for cafes/restaurants in the area under specific DCP provisions. The DCP allows neighbourhood shops, cafes and restaurants and set these hours having regard to the amenity of nearby residents. It is assumed that these hours which apply to Barzura were determined on the same basis.

2. Section 79C (3A) of the Act precludes the Council imposing more stringent standards than are contained in the DCP.

3. No consideration appears to be given by Mr Mead to the fact that the hours proposed are entirely consistent with daytime and evening hours under the Industrial Noise Policy. Night time hours are not sought. An acoustic report would only be justifiable for cafes, bars and restaurants extending into night time hours.

4. The residents most likely to be affected by the activity in the proposed cafe are those in the residential apartments above on the same site. If the residents on the site agree to a cafe with the hours and patron numbers as proposed there is no reason to impose more restrictive hours of operation or patron numbers.

5. The Court could be satisfied that the development as proposed is appropriate because the specific DCP controls for the site are met in terms of proposed hours of operation, extent of developable area, and outdoor seating confined to Carr Street. Technically the applicant could have applied for full use of the Carr Street frontage for outdoor seating but based seating numbers on those approved pro rata next door by the Council for Barzura.

6. The DCP contemplates a café in this location and does not restrict patron numbers.

7. The Council had not previously raised noise concerns or the size of the café and the onus is on the Council to provide the required justification and expert evidence if more stringent controls are sought than the DCP requires.

57. In considering the issue of appropriate hours of operation and patron numbers, I have first had regard to the specific provisions for the area under Section 8.2 of C2 of the DCP. As indicated, it contains a control which states “the standard hours of operation for non-residential uses will be limited to 7am to 10pm”. The only non residential uses which the DCP refers to for the area are shops, cafes and restaurants. Therefore I accept the applicant’s argument that the intended and reasonable hours of operation for the proposed café are 7am to 10pm and that any more restrictive hours than required by the DCP for this specific locality need to be justified by expert evidence.

58. The Planning experts are not Acoustics experts and no acoustic evidence was presented to the Court indicating more restrictive hours are warranted. The parties agreed that more stringent noise controls would apply after 10pm however it is proposed that the café will then be closed. As the Council is seeking more stringent controls than are required by the DCP, expert evidence on the basis of the Council’s concern regarding possible noise impacts to adjoining residents should have been provided to justify these more stringent controls. In the absence of this, I do not agree with a condition on operating hours that is more stringent than required by the DCP.

59. In terms of the number of patrons, I accept that the more diners there are, the more noise is likely to be generated with outdoor diners having the most potential impact. However I have difficulty in accepting what an appropriate number is in the absence of evidence about potential noise impacts given the hours of operation proposed are, in my view, relatively benign. The applicant has proposed outdoor footpath dining numbers which don’t exceed, on a pro rata basis, the numbers of footpath diners approved for the adjoining existing café. I also fail to see how reducing the number of outdoor terrace patrons by 8 would have a material impact on noise levels in the area.

60. Finally, I agree that the residents most likely to experience noise impacts from the café are those living in the apartments immediately above the café. It is within the power of the Strata Plan owners of those apartments through bylaws to reduce both the number of patrons and the hours of operation of the café if the impacts on their own residents prove adverse. It is also within the interests of the owners of these apartment to ensure the café is well managed and operated.

61. In summary, the Council’s justifications for requiring the restricted conditions sought on the café’s operation have not been adequately made by the expert evidence provided to the Court and the conditions sought by the applicant are supported accordingly.

62. Therefore the development is approved with the following conditions:

“The hours of operation of the café are limited to 7.00am to 10.00pm on Monday to Sunday.”; and

“The patron numbers on the outdoor terrace areas shall be limited to a maximum of 20 and a maximum of 35 for the footway dining area.”

Findings on Objectors Issues

63. The objectors’ issues in terms of view and noise impacts and the nature and scale of development have already been addressed and I will therefore turn to issues not otherwise addressed in this appeal which remain relevant in terms of the amended application.

64. I accept a number of adjoining residents have concerns with the development which relate to the way the controls for the site were developed. However, the Court is bound to consider the development’s compliance with those controls as they exist and the expert advice provided in that regard.

65. The applicant argued that the “ground level” requirement is met by the ground level frontage of the café to Kurrawa Avenue and the Council did not consider this to be a determinative matter. In my view, it is arguable that this condition is met. However, I accept that such a condition would be difficult to meet for any design incorporating a cafe on this site and note that the Council’s Design Review Panel were critical of a number of the DCP controls. Furthermore, the DCP is only a guiding document and its controls are otherwise met.

66. The DCP does not define the size of any cafe or restaurant with “small scale” arguably applying only to neighbourhood shops. The Council has sought to limit patron numbers in the outdoor terrace (by a reduction of 8 patrons) and footpath dining area but does not argue that the cafe does not comply with any size limitation which may be inferred from the DCP.

67. The applicant argued that the proposed cafe was contemplated on the site in the DCP and, as it “fits” within the developable area defined in the DCP, it must be considered “small scale” and appropriate. The applicant also argued that the development met key DCP controls including activating Carr Street and outdoor seating only to Carr Street, and was strongly supported by the Council’s Design Review Panel given the improvements proposed to the existing building on the site. The Council did not dispute any of these assertions and nor do I.

68. Mr Mead advised the Court that neighbour concerns with access and service delivers could be addressed by conditions and I agree. Similarly neither party expressed a concern with parking, noise from the extended balconies or the impact of the extended balconies when viewed from the beach – in fact the development was seen to improve the building’s appearance as evident by the comments of the Design Review Panel.

69. The DCP and LEP limit the range of commercial uses permitted in the area and therefore approval to this development will not establish a precedent for more broad scale commercialisation of the area. Only three properties in the immediate locality permit the commercial uses proposed, including the subject site, and the adjoining site which already contains Barzura. A bar is not a permissible use in its own right and the proposal is not for a bar other than a bar being an integral component of the café and only operable to service the café.

70. I therefore consider that the residents’ concerns are either unfounded or have been reasonably addressed in the amended development which essentially complies with the DCP and which the Council has only sought to restrict by conditions of consent, in terms of the height of the WC and awning and the operation of the café. I agree with the parties that all other aspects of the development are acceptable.

Orders

1. The appeal is upheld;

2. Development application (116/2014), as amended, for alterations and additions to the existing residential flat building including a new café is approved, subject to the conditions in Annexure A; and

3. The exhibits, except Exhibits A and 2, are returned.

Jenny Smithson

Acting Commissioner of the Court

Amendments

08 July 2015 - Category amended

Decision last updated: 08 July 2015