Musu v Byron Shire Council

[2011] NSWLEC 1112

Land and Environment Court

New South Wales

Medium Neutral Citation:

Musu v Byron Shire Council [2011] NSWLEC 1112

Hearing dates:

14 March 2011

Decision date:

15 March 2011

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is upheld.

2. Development Consent No. 00/0368 granted by the Respondent on 2 November 2000 for a Mixed Commercial/Tourist Development on the land known as Lot 7 Sec 26 DP 758207, 11 Marvell Street, Byron Bay (as modified on 5 June 2001) is modified pursuant to section 96 of the Environmental Planning and Assessment Act 1979 as set out in Annexure A.

3. The exhibits, except Exhibits 2 and 3, may be returned.

Catchwords:

APPEAL:- Consent Orders - modify development consent. Resident concerns about noise impacts.

Legislation Cited:

Byron Local Environmental Plan 1988

Cases Cited:

Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117

Category:

Principal judgment

Parties:

APPLICANT
Benild Musu

RESPONDENT
Byron Shire Council

Representation:

APPLICANT
Mr M Young, solicitor

RESPONDENT
Mr A Seton, solicitor
APPLICANT
McCartney Young, Lawyers

RESPONDENT
Marsdens Law Group

File Number(s):

11013 of 2010

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Byron Shire Council of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (00.0368) at 11 Marvell, Street, Byron Bay.

1. The development consent approved a mixed use commercial and tourist development including a cafe in tenancy 3, which is on the ground floor at the corner of Marvell and Middleton Streets. The cafe has bi-fold doors along the southern wall and bi-fold windows along the south-eastern corner. It has indoor and outdoor tables and seating.

1. The conditions of the development consent included condition T2 which states:

Hours of operation of all commercial components of the development shall be no earlier than 7am and no later than 10pm, seven days per week.

1. The s 96 application initially sought to amend condition T2 for tenancy 3 to enable the cafe to operate until 12 midnight.

1. The parties have now agreed to amend condition T2 to permit the hours of service of customers for tenancy 3 to be until 11pm and that all patrons are to have left the premises by 11.30pm. The doors and windows of tenancy 3 are to be kept closed after 10pm. The amendment to the condition has resolved the issues between the parties and they are seeking consent orders from the Court.

1. Consistent with the Court's practice direction, objectors to the application were notified of the consent orders hearing. The Court heard evidence from Ms T Heal, on behalf of a number of other objectors, and Mrs K Bienke. The principal concern of the objectors was the noise that emanated from the existing operation of the premises and concerns that this would be exacerbated by the extended hours of operation and would further impact on their residential amenity. Mrs Bienke also raised general concerns about the adverse impact of alcohol related anti-social behaviour in the area, which impacts on the operation of her business.

Site and locality

1. The site is located on the eastern side of the main business area of Byron Bay. The surrounding development to the immediate north and west is commercial, and immediately to the east and south is a mixture of commercial and residential.

Planning Controls

1. The site is zoned 3(a) (Business Zone) under Byron Local Environmental Plan 1988 (BLEP). Cafes and restaurants are not listed as prohibited uses and are, therefore, innominate use which are permissible in the zone. "Restaurant" is defined in BLEP as:

restaurant means premises in which food or beverages or both are supplied for sale to the public for consumption on the premises.

1. "Cafe" is not separately defined and the parties agree it falls within the definition of restaurant.

1. Clause 9(3) of BLEP provides:

Except as otherwise provided by this plan the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

1. The objectives of the 3(a) zone relevantly include:

(a) to encourage the development and expansion of business activities which will contribute to economic growth and employment opportunities within the Shire of Byron;

(b) to facilitate the establishment of retail, commercial, tourist and professional services to meet the needs of the community and which are compatible with the surrounding environment.

1. Land to the east of the site is zoned Residential 2(a) under BLEP. The site is, therefore, at an interface between the residential and commercial zones.

1. Byron Development Control Plan 2002 (DCP) applies to the site but does not include specific controls relating to noise or to the contentions raised in the Statement of Facts and Contentions or by the objectors.

1. Byron Draft Liquor Licensing and Approval Policy (Policy) has recently been exhibited and is to be considered by council in April 2011. The objectors stated that the Policy restricted licensed premises near residential areas. The policy states that it applies to all applications for the extension or amendment of an existing liquor licence or the approval of a new liquor licence in Byron Bay. The application, the subject of the appeal, is not an extension or amendment to a liquor licence and the policy is a draft and can therefore be afforded little weight.

Findings

1. The issues of concern to the residents relate to noise from the existing operation of the premises. They consider the existing operation has an unacceptable impact on amenity and the extension of hours would exacerbate this impact.

1. As part of the assessment of the application council requested a noise assessment. A noise report and a subsequent report were prepared by Carter Rytenskild (Report) and reviewed by council. The reports state that the relevant standard in the New South Wales Industrial Noise Policy (Noise Policy) is 5d(B)A at the boundary. The nearest offsite dwelling is 37 m to the south of the site across Marvell Street and the next nearest dwelling is approximately 45 m away.

1. The reports and review have resulted in the agreed conditions that limit service hours to 11pm and require that the doors be closed after 10pm. With these, conditions, the reports conclude that the proposal will meet the relevant standard. The applicant has also agreed to further conditions which clarify that the outdoor tables and chairs are not to be used after 10pm as well as a requirement that patrons be advised of the availability of parking on site and the need to leave the premises in a quiet and orderly manner to reduce impact on nearby residents.

1. In the absence of any expert noise evidence to the contrary, I am satisfied that the issues between the parties have been resolved and that the proposed extended trading hours will not unreasonably impact on the amenity of the adjoining residents and that the proposal is consistent with the objectives of the 3(a) (Business Zone).

1. I accept Mr Young's submission for the applicant that:

There is a broader planning issue that arises from the development of this land at the interface of the residential zone. The planning principles stated by Commissioner Bly in Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117 is relevant. Residents must accept that impacts will occur. Similarly development at the subject site must take into account the residential zone adjoining. The evidence indicates that noise impacts of this proposal will not be unreasonable.

1. I, therefore, accept that the consent orders sought by the parties may be granted. .

Orders

1. The appeal is upheld.

2. Development Consent No. 00/0368 granted by the Respondent on 2 November 2000 for a Mixed Commercial/Tourist Development on the land known as Lot 7 Sec 26 DP 758207, 11 Marvell Street, Byron Bay (as modified on 5 June 2001) is modified pursuant to section 96 of the Environmental Planning and Assessment Act 1979 as set out in Annexure A.

3. The exhibits, except Exhibits 2 and 3, may be returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 19 May 2011