Moody v Waverley Council

[2008] NSWLEC 1150

Land and Environment Court

of New South Wales

CITATION:

Moody v Waverley Council [2008] NSWLEC 1150

PARTIES:

APPLICANT
Tony Moody

RESPONDENT
Waverley Council

FILE NUMBER(S):

11299 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Section 96 Application :- Conditions of Consent, modification of approved plans, extension of trading hours, trial period

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2006

DATES OF HEARING:

02/04/2008

EX TEMPORE JUDGMENT DATE:

2 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Hill, solicitor
of Susan Hill and Associates

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

2 April 2008

11299 of 2007 Tony Moody v Waverley Council

JUDGMENT

1 This is a Class 1 Appeal, No 11299 of 2007 between Tony Moody and Waverley Council in regard to conditions of consent in DA 413/2006 for a pizzeria at No. 53 Glasgow Avenue, Bondi Beach, which is on the corner of Glenayr Avenue. The site is across Glenayr Avenue from the Beach Hotel.

2 The s 96 application to amend conditions 1 and 2 of the consent was dealt with by council in agreeing to the amendment of condition 1 which modified the approved plan of the pizzeria. However, council did not approve the amendment of condition 2 which sought to change the hours of operation and extend them until midnight. During the course of the appeal on condition 2 the parties have negotiated and come to Court with consent orders as in Exhibit 2 as annotated.

3 The application was notified to nearby property owners including residents of apartments in the locality. Also the hearing today on the consent orders was notified to the objectors of whom there were two, one being the Beach Road Hotel and the other being Mr and Mr Michaelides of unit 2, 51 Glasgow Avenue.

4 The hotel’s concern was in regard to the extension of hours beyond the hotel trading hours. The concern of the Michaelides appeared to relate to a previous owner of the pizzeria and its operations in the past. It had given rise to the use of the front yard of their apartment building allegedly by patrons, or shall we say, persons in the street, sitting on their front fence and also using their front yard as a toilet.

5 The notification of the consent orders I have been told has assuaged the concerns of the Beach Road Hotel. Mr and Mrs Michaelides declined to come to the hearing today to give evidence, but they were concerned if something could be done in regard to the use of their front yard.

6 I have seen photographs of the location of the pizzeria which is a very small operation; it only has one pizza oven and six seats in the actual building. It is a very small corner shop activity.

7 The location of the Michaelides’ apartment is actually along Glasgow Avenue at the other end of the quite large allotment that houses the various shops and apartments above in the same property as the pizzeria. It would be approximately 30 metres at least from the entry of the shop to the Michaelides’ front fence. Given the activity in the locality at night, particularly with the activity of the hotel, one might be hard pressed to be able to put all of the blame for any undesired activity outside the Michaelides’ on patrons of the pizzeria.

8 The core of the agreement between the parties is to have a trial period for later hour operation. The approved hours of 10am to 10pm Mondays to Sundays inclusive remain. However, the trial period for one year allows on Thursday, Friday and Saturday nights the premises to trade until 11pm when trading must cease and thereafter clean-up operations and any remaining patrons on site must have left the premises by 11.30pm.

9 This is in conformity with Development Control Plan of Waverley 2006, amendment 2, pt E, commercial, for the Business Neighbourhood Zone 3C in which the property is located. Clause 6(2) provides the option for a trial period of later hours, particularly when you are in a low intensity area such as a neighbourhood zone and where there are residential occupancies adjoining, adjacent and nearby the premises.

10 During the hearing in regard to Exhibit 2, the consent orders, the applicant was at pains to preserve the client’s rights in regard to a s 96 application on any other matter than the trial period, and the parties agreed in Exhibit A to an additional condition in regard to those matters.

11 It seems to me having read the documents tendered and heard the submissions that there is no reason sufficient for me to refuse the consent orders sought by the parties. Therefore the orders of the Court by consent are:

1. The appeal is upheld.

2. The application to modify Development Consent No. DA 413/2006 received by Waverley Council on or about 20 July 2007 relating to 53 Glasgow Avenue, Bondi Beach is determined by the modification of Condition 2 of the previous consent as set out in Annexure A.

3. Annexure A is to comprise the conditions as annotated in Exhibit A of this hearing.

4. The exhibits except for Exhibits 2 and A are returned to the parties.

The Court notes the agreement of the parties that there be no order as to costs.

___________________

K G Hoffman
Commissioner of the Court
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