Nandos Australia Pty Ltd v Waverley Council - [2010] NSWLEC 1245

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Nandos Australia Pty Ltd v Waverley Council [2010] NSWLEC 1245

PARTIES:
APPLICANT
Nandos Australia Pty Ltd
RESPONDENT
Waverley Council

FILE NUMBER(S): 10486 of 2010

CORAM: Fakes C

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- Development Control Plan
Practice and Procedure

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environmental Plan 2006

CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 - revised - 01/10/2004

DATES OF HEARING: 18/08/2010
27/08/2010

DATE OF JUDGMENT:
31 August 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Hill - solicitor
Susan Hill & Associates
RESPONDENT
Mr S Patterson - solicitor
Wiltshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

31 August 2010

10486 of 2010 Nandos Australia Pty Ltd v Waverley Council
JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Waverley Council (the council) to grant consent to DA No 53/2010 for the amalgamation of two shops into one and the fit out into a Nandos restaurant with external signage at 85-87 Hall Street, Bondi Beach.

2 The proposal also includes provision for limited outdoor seating in recesses created within the boundary of the site.

The site

3 Hall Street runs off Campbell Parade in a generally north-west direction. The site is approximately 350m from Campbell Parade. The site is located on the northern side of Hall Street and has access from O’Brien Street at the rear where there is a single space loading bay.

4 The site is a single storey building comprising two separate shops. No 85 is a retail giftware/ home ware shop. No 87 currently operates as an Indian restaurant.

Background and issues

5 The application was considered by the council’s Development and Building Unit (DBU) on 12 May 2010 and was recommended for approval, subject to certain conditions of consent.

6 The application was considered by the Development Control Committee in council on 25 May 2010 and refused for the following reasons.

7 The reasons for refusal echoed many of the concerns raised in 5 public submissions. Other submissions related to an unacceptable increase in floor space ratio, the impact on the footpath of queues for coffee, objections to footpath seating, and the need for an awning at the front of the premises.

8 It is noted that a separate development application must be lodged for outdoor seating beyond the boundary of the site and this is not a matter subject to this appeal.

Consent orders

9 The appeal now comes before the Court for consent orders. In accordance with the Court’s ‘Practice Note – Class 1 - Development Appeals’ (cll 35 and 36) “ the consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.”

10 The change in position of the council from refusal of the development application to one of agreeing to consent orders is as a result of the council approaching 3 external consultant planners. Two responded in writing.

11 Mr S Harding from Willana Associates could find no basis or issues upon which to support the council decision to refuse the application. He considers that the proposed use is permissible and compliant with the relevant planning controls and in many ways it would result in an improvement in the current situation. He also considers that a number of issues raised in the contentions, such as the corporate status of the applicant, are not relevant planning matters.

12 Mr N. Kennan from Nexus Environmental Planning Pty Ltd concludes:

We are of the opinion that there are not sufficient planning grounds to support the view of the Council that the Appeal should fail and, hence, in this instance, we will not be able to assist the Council.

Planning controls

13 The relevant planning controls are Waverley Local Environmental Plan 1996 (WLEP) and Waverley Development Control Plan 2006 (WDCP).

14 The site is zoned 3(a) Business General in the WLEP and the use is permitted with consent. The objectives of this zone are:

15 The relevant sections of the WDCP are Part E1 – Retail and Commercial Premises and Part F5- Local Village Centres.

16 Part E1 of the WDCP sets the development controls relating to retail frontage, lighting, hours of operation, delivery vehicles, amenity, waste, energy efficiency and water conservation, community crime prevention and accessibility. For the purposes of this Part of the WDCP, the Hall Street site is included in the Bondi Beach locality as Area C.

17 In Part F5, Hall Street is identified on the concept map of local village centres as Hall Street Town Centre. The Waverley local village centres are placed in hierarchical order in accordance with the NSW Government’s Metropolitan Strategy. Town Centre is the highest order. The desired future character objectives are given in cl 10.2, cl 10.3 lists specific planning controls for Hall Street Town Centre. These are:

(a) To maintain Hall Street and the southern end of Glenayr Avenue as a separate and discrete precinct within the wider Bondi Beach town centre, with the role and character of providing local shops, service and residential accommodation for the local community;

(b) To ensure that development complements the heights, scale and street rhythm of identified buildings of historic character in Hall Street;

(c) To maintain the built form arising from the historical subdivision pattern and the small shop character at street level;

(d) To maintain the mixed-use character of the centre by locating the shops and services at ground level and residential units above;

(e) To support, maintain and expand upon the diverse mix of local shops and services that provide the daily needs of the local residential community;

(f) To effectively manage the retail/commercial and residential interface in the centre;

(g) To limit and manage the proliferation of cafes and restaurants, including areas of outdoor dining, in order that these uses do not dominate the character of the centre or undermine the current and future role and function of local shops that provide the daily needs of the local resident community; and

(h) To maintain and enhance accessibility to public open space.

Objector issues

18 In accordance with the Court’s Practice Note, I must take into account any objections by any person. I have read and considered the written objections in the council’s bundle. I note that many of the issues raised in the written objections have been incorporated into the consent orders.

19 This judgment deals chronologically with the evidence heard from objectors on two occasions.

Site inspection and hearing – 18 August

20 A site inspection and subsequent hearing was held on 18 August 2010. A representative from Nandos was in attendance as was the designer of the proposed development. Mr Moody, planner for the applicant and Mr P Brennan, council’s Director of Planning and Environmental Services were also in attendance.

21 Ms Amanda Luckman, the former tenant of 85 Hall Street, gave evidence on site. Ms Luckman expressed her concerns that as a resident of the area, the proposed development could result in more litter and that another fast food outlet in this part of Bondi was unnecessary and essentially, such premises should be confined to Campbell Parade.

22 Ms Luckman also questioned whether an alcove between numbers 85 and 83 Hall Street, used by her as a storeroom, was part of the applicant’s property. The advice received at the site view was that it is.

23 Mr Ben Kremer, a barrister, gave evidence on behalf of his father, Dr Kremer, owner of a surgery adjacent to the site at 83 Hall Street. He also represented his brother who is the practice manager for the surgery. Mr Kremer stated that the existing cavity or space between 83 and 85 Hall Street should be retained and extended to maintain a noise buffer between the two buildings. He also stated that the external brick wall of No 85 should be of double brick construction. It was determined on site that the plans for the proposal show that these concerns are satisfied.

24 Another contention raised by Mr Kremer was resolved. This was the deletion of louvres from the rear eastern elevation of the building (adjacent to the loading dock) and their replacement with opaque fixed glass. The purpose of this is to avoid any overlooking of windows at the rear of the surgery at no 83. This was agreed by the parties and the plans are to be redrawn to show this detail.

25 Mr Kremer also had concerns that the construction of an accessible toilet as well as standard toilet facilities will extend the line of the building into the area currently used as a loading dock. He voiced concerns about the current loading and unloading practices and issues of non-compliance with street parking in O’Brian Street. His concern was that any reduction in the length of the loading space would exacerbate these problems. It is noted that the current restaurant does not have an accessible toilet.

26 In response, the applicant stated that only small vans are proposed to be used for deliveries and that any additional deliveries could be managed from Hall Street.

27 Another concern of Mr Kremer is that the odour assessment report in condition 3 should be extended to cover any and all vents projecting above the building. From his evidence on site this would seem to include toilet vents.

28 Mr Kremer also raised concerns over the location of the exhaust plant. He does not want it located close to the boundary with No 83 Hall Street as he contends that this will have an adverse impact on the amenity of the medical surgery and its commercial viability.

29 The final contention of Mr Kremer is that the opening hours should not extend to 11:00 pm. As he contends that most businesses in the vicinity are closed by 10:30. He considers that extending the hours until 11:00 will lead to an increase in antisocial behaviour. He considers that if the premises are to close at 11:00 a security guard should be employed for the period from 10:30-11:00 pm.

30 An affidavit from Mr Anthony Tesoriero, a local real estate agent, was obtained by Mr Kremer and tendered in evidence. The affidavit lists the nearby premises and their opening hours. The table in the affidavit indicates that there is a diversity of commercial premises with a range of opening hours.

Planning evidence

31 Mr Moody, planner for the applicant gave evidence. He stated that the intended opening hours comply with the WDCP – Part E1 – Retail and Commercial Premises. The table in cl 2.3 shows that the general maximum hours allowable are from 7:00am until midnight, 7 days a week.

32 Further in cl 2.3.2 – Bondi Beach Trading Hours, the site is in Area C of this precinct. The recommended trading hours are 7:00am until 11:00 pm, 7 days a week. This clause also states:

Where residential uses are in close proximity, more restrictive trading hours may be applied….

33 Mr Moody contends that the recommendation above has been complied with in that the outdoor seating within the building footprint will be closed at 10:00 pm and the front windows closed. A condition has been drafted that requires this to happen. Mr Moody considers that it would be an onerous and unusual condition to require a security guard. He stated that the premises would have a manager on site at all times.

34 A contention raised by the Development Control Committee related to the intensification of the use and the deviation from the built form. WDCP cl 10.3 states that cafes, and restaurants (including fast-food takeaway outlets) must not constitute more than 20% of shopfronts or activities along any part of a street between the corners of 2 other streets.

35 Mr Moody studied the relevant section of Hall Street and based on the criteria of number of shops and length of shops, including the proposed premises, the proposed development complies with this control in the WDCP.

Hearing 27 August

36 Due to a lapse in administrative procedures, the Bondi Beach Precinct Committee (BBPC), who made a submission to council, was not advised of the proposed consent orders, a requirement of the Court’s ‘Practice Note for Class 1 Appeals’.

37 Mr Paul Paech co-convenor of the BBPC, who is currently overseas, was contacted. He prepared a response and Ms Jan Hyde, co-convenor and secretary of the BBPC gave oral evidence on behalf of the BBPC in Court on 27 August 2010. Mr Paech’s response was tendered in evidence.

38 The BBPC summarised their objections in a motion passed at the precinct meeting on 12 April 2010. This stated:

Bondi Beach Precinct urges Council to decisively reject the DA to replace two pre-established small scale, well-established, locally owned and operated businesses with a large scale franchise fast food business, more suited to Campbell Parade than the Hall Street Village; and draws Council’s attention to in that the proposal

39 The submission forwarded by Mr Paech for the hearing on the 27 August drew the Court’s attention to the WDCP and the weight to be given to a DCP as determined in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised – 01/10/2004. The submission also expanded on the contentions and original BBPC submission.

40 Attached to the submission is the Waverley Villages Consultation Outcomes Report prepared by Elton Consulting for Waverley Council in June 2006 that was undertaken as part of the process of preparing the WDCP 2006. This is included to suggest that, in accordance with Stockland, this DCP should be given significantly more weight than other DCPS.

41 Ms Hyde’s oral evidence supported the BBPC’s position. She emphasised the likely negative impacts of the development on the road, parking, and traffic. She reiterated the concerns relating to food smells and the associated fall out of grease as well as littering. The BBPC’s position is that the development proposed is primarily a fast food take-away business. Ms Hyde stated that there was evidence from studies of the impacts of takeaway outlets on anti-social behaviour however, she was unable to specify where that evidence was to be found.

42 In response to the issues raised by Ms Hyde on behalf of the BBPC, Mr Moody, planner for the applicant, gave evidence. Mr Moody restated some of the evidence he gave at the previous hearing. He contends that the characterisation of the business as a fast-food outlet is not correct as the proposal is for a restaurant. He stated that the council planners had no issues with respect to parking and traffic and that the development replaces an existing restaurant. He considers that the conditions of consent relating to litter and the plan of management will address many of the issues raised by the BBPC.

43 Mr Moody agrees that the WLEP and the WDCP should be the focal point of the Court’s decision.

Location of toilet and impacts on loading bay

44 I consider that the provision of accessible toilets to be of greater benefit in the public interest than any minor inconvenience that may be the result of a slightly shortened loading bay. I see no reason for any amendment of the plans. It was noted that O’Brian Street is not a busy pedestrian area. It is also noted that the opening hours of the adjoining surgery are from 9.00 am until 4.45 pm Monday to Friday and therefore more restricted than the hours proposed for the development.

Odour assessment and location of exhaust plant

45 On the evidence, I see no reason to vary the condition. The condition is detailed and requires the applicant to prepare an ‘Odour Assessment Report’ that is to be approved by council’s Director of Planning and Environmental Service prior to the issue of a construction certificate.

46 The applicant contends that the proposed vent is state of the art technology and the council has imposed other conditions requiring the installation and maintenance of carbon filters. It would seem unreasonable and unnecessary to include toilet vents in the assessment. These are a normal component of all buildings and must be installed in accordance with the relevant building standards.

47 Ms Hill, for the applicant, contends that there are 14 details conditions of consent relating to noise and odour assessment and management and that to impose a specific locational limit would be unreasonable and unnecessary.

48 It would appear that the final location of the ventilation system may be dependent on the findings in the odour assessment report and that the proposed conditions of consent are adequately detailed to require compliance with the relevant Acts, guidelines and standards. I see no reason to impose an additional condition with respect to the location of the exhaust plant.

Hours of operation

49 With respect to conditions 4 and 6 concerning outdoor seating and hours of operation, there is no evidence before me to vary these conditions. The hours are compliant with the controls in the WDCP. It also seems unnecessary for a security guard to be in attendance. Ms Hill for the applicant stated that there were no nearby hotels that closed at 11:00am and therefore it is unlikely that an 11:00pm closing time is likely to result in any increase in antisocial behaviour.

50 However, in order to give some comfort to nearby premises, a condition of consent is to be drafted to require the applicant to prepare a site-specific management and security plan for the proposed development that is generally in accordance with the generic ‘Nandos Management and Security Plan’ tendered as exhibit C in the proceedings.

Compliance with the WLEP and the DCP

51 The BBPC’ submission urges the Court to give determining weight to the WDCP – Part F5 – Local Village Centres in accordance with Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised – 01/10/2004 at para 87.

52 The BBPC contends that the proposal does not meet any of the desired future character objectives in cl 10.2 of Part F5 of the WDCP. These objectives are given in para 15 of this judgment. The main objection appears to be that the applicant is a ‘nationally branded company’ and, as such, does not meet the concept of ‘local’ as the BBPC contends that the WDCP seeks to protect.

53 I have considered the controls in Part F5 - WDCP and I find that the proposal complies with those controls and with the desired future character objectives. No more than 20% of the section of the street in which the site is located will be occupied by cafes/restaurants. The built form is maintained in height, there are other double-fronted premises in the vicinity and the on-street seating is confined to within the boundary of the site.

54 The WDCP has detailed controls relating to the particular zoning of the site. The site is zoned in the highest orders of commercial use and it is a designated ‘town centre’. The use is permissible in this zone.

55 There are no controls regarding the corporate ownership of any business. Ms Hill, for the applicant, pointed out that a development consent runs with the land and not with the owner.

56 I am satisfied that the conditions of consent relating to litter management are appropriate.

Conclusions

57 On the evidence before me I consider that the proposed development is permitted by the WLEP and complies with the controls in the WDCP and there are no planning issues on which the appeal could be refused. On this matter I am in agreement with the council planning officer who initially assessed the development application, the two senior planners from the DBU who recommended the proposal be approved, the two independent planners contacted by the council and the applicant’s planner.

58 I have considered the objections and oral evidence of the objectors and I am satisfied that the majority of the concerns that are planning-related are satisfied by the proposed conditions of consent. Where some other matters raised by the objectors are not of a planning nature, I am satisfied on a merit assessment under s 79C of the EPA Act, that the development is acceptable.

59 Accordingly, I accept the granting of Consent Orders is appropriate in the circumstances.

60 The orders by consent are;

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

_________________________________

Annexure ‘A’

Conditions of Consent

A. Approved Development

1. Approved Development

The development must be in accordance with:

(a) Architectural Plan Nos D01.1, D01.2, A00, A01.1, A01.2, A10, A10.2, A11, R01, all Revision A, tables and documentation prepared by CDC Design, dated 13-11-2009, and received by Council on date 16 February 2010,

(b) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.

Except where amended by the following conditions of consent.

2. general modifications

The proposal shall be amended as follows:

(a) There shall be no signage at the rear of the property on the O’Brien Street frontage, to be consistent with the residential character of this street.

(b) The lower portion of all windows to the proposed dining section at the rear of the property (being the windows on both elevations running parallel to and transverse to O’Brien Street) shall be obscure glazed and unopenable (fixed) to maintain the residential character of O’Brien Street. The upper portion of the windows nominated on the approved plans as louvered glass shall also be obscure glazed however can be openable for cross ventilation. At the rear of the property the glazing to the eastern elevation parallel to the loading dock shall be fixed obscure glazing (with no louvres) to ensure there is no overlooking into the property at 83 Hall Street.

(c) No signage on the premises shall be illuminated.

The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

3. ODOUR ASSESSMENT REPORT

In relation to the proposed Smog Hog system (or equivalent) and carbon filters an air quality/odour assessment investigation is to be carried out by a suitably qualified consultant describing and assessing the impact of odour emissions from the proposed cooking appliances (barbeque/charcoal type cooking appliances) the investigation shall include, but not be limited to:

(a) the identification of sensitive receivers potentially impacted by the proposal;

(b) the formation of a suitable assessment criteria having regard to current guidelines;

(c) the identification of odour producing facets of the proposal and the subsequent predictions of resultant odours at the identified sensitive receiver locations. Where appropriate the predication procedures must be justified and include an evaluation of prevailing atmospheric conditions that may promote odour propagation;

(d) based on the above, the recommendation of any controls required in order to achieve compliance.

(e) a statement indicating that the proposal will comply with the relevant criteria together with details of odour control measures that will be incorporated into the development/use, will not create adverse noise impacts to surrounding development.

The odour assessment report is to be approved by Council’s Director of Planning and Environmental Services prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

4. outdoor seating

The outdoor seating area and panel lift windows on Hall Street shall be closed at 10pm to minimise disturbance to surrounding residential properties.

5. serving from footpath

All ordering of food and beverages shall take place from inside the shop with no serving being conducted from the footpath on Hall Street. This is to ensure that there is no queuing of customers on Hall Street.

6. Hours of operation

The hours of operation of the shop or premises being restricted to between 8am and 11pm seven days per week.

7. roller shutters

The installation of roller shutters or grilles, in front of, or in place of a standard window or shop front is prohibited. Council Policy requires the retention of a glass shop front for window display purposes.

8. patron behaviour

The Management shall ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the neighbourhood. In this regard, the management shall be responsible for the control of noise and litter generated by patrons of the premises and shall ensure that patrons leave the vicinity of the premises in an orderly manner to the satisfaction of Council. If so directed by Council, the Management is to employ private security staff to ensure that this condition is complied with.

9. TOILET FACILITIES

Provision of toilet facilities are to be provided in accordance with the Building Code of Australia.

10. OUTDOOR SEATING

This approval relates strictly to the installation of seats within the confines of the shop premises with no seats to be placed beyond the front boundary of the site. Any proposal to utilise the footpath for dining will be subject to a separate development application to Council and if approved will require a lease agreement to be entered into with Council.

11. No Spruikers

Spruikers (with or without sound amplification) shall not operate without the prior written consent of Council.

12. DELIVERY OF GOODS

Loading and unloading of vehicles and delivery of goods to the land shall at all times be carried out entirely within the boundaries of the site and must not obstruct pedestrian access along the footpath with O’Brien Street or vehicular or pedestrian access to any adjoining properties. Any deliveries that cannot be carried out entirely within the loading dock at the rear of the premises must be made from Hall Street and not O’Brien Street. The area set aside for car parking as shown on the approved plans shall be used for the parking of vehicles (including delivery vehicles) and for no other purpose.

13. LITTER PATROLS

Litter patrols are to be undertaken by the operator within a 50m radius of the premises to collect and dispose of litter including footpath to gutter litter cleaning. A minimum of three patrols daily (at 10am, 3pm and 10pm or closing time) must be undertaken. A litter patrol roster is to be maintained and kept on the premises at all times detailing date, time or patrol, staff member responsible, and manager's signature. Litter patrols are to be detailed in the Waste Management Plan for the site.

14. ENTERTAINMENT NOISE EMISSIONS

No sound reproduction device nor any forms of entertainment operated within the premises are to exceed a noise level of 5dBA above background noise levels measured from any public place or other parts of the premises or adjoining premises.

15. NOISE - MECHANICAL PLANT

Noise associated with mechanical plant shall not give rise to any one or more of the following:

(a) Transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy.

(b) A sound pressure level at any affected property that exceeds the background (LA90, 15 minute) noise level by more than 5dB(A). The background noise level must be measured in the absence of noise emitted from the licensed premises. The source noise level must be assessed as a LAeq, 15 minute.

(c) Notwithstanding compliance with (a) and (b) above, the noise from mechanical plant associated with the premises must not be audible in any habitable room in any residential premises between the hours of 12.00 midnight and 7.00am.

(d) A Certificate is to be submitted at the completion of all work and prior to the issue of an Occupation Certificate, from a suitably qualified Acoustic Engineer. The Certificate is to certify all plant and equipment complies with the terms of approval in relation to noise.

16. MECHANICAL VENTILATION SYSTEMS

(a) The premises are to be ventilated in accordance with the requirements of the Building Code of Australia & relevant Australia Standards.

(b) Any proposed mechanical ventilation system shall comply with the Australian Standard AS 1668 - 1991 (Parts 1 and 2). Prior to installation, the design is to be certified by a person competent to do so. At completion of the installation of the system and prior to the issue of the Occupation Certificate, the work shall be certified by a person competent to do so. The certification shall include:

(i) inspection, testing and commissioning details;
(ii) date of inspection, testing and commissioning details;
(iii) the name and address of the individual who carried out the test; and
(iv) a statement that the service has been designed, installed and is capable of operating to the above standard.

17. EMISSIONS

No injury being caused to the amenity of the neighbourhood by the emission of noise, smoke, smell, vibration, gases, vapours, odours, dust, particulate matter, or other impurities which are a nuisance or injurious or dangerous or prejudicial to health, the exposure to view of any unsightly matter or otherwise.

18. NOISE EMISSIONS

The use of the premises shall not give rise to:

(a) Transmission of "Offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy;

(b) A sound pressure level at any affected premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5dB(A). The source noise level shall be assessed as an LA10, 15min and adjusted in accordance with the Department of Environment and Climate Changes's (DECC) guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content.

(c) A sound pressure level at any affected premises that exceeds the DECC recommended planning levels outlined in the DECC Environmental Noise Control Manual; or

(d) A sound pressure level at any affected premises that exceeds the DECC recommended maximum noise level as modified to account for the existing level of stationary noise at the receiver premises.

19. AIR EMISSIONS

The use of the premises shall not give rise to air impurities in contravention of the Protection of the Environment Operations Act, 1997. Waste gases released from the premises must not cause a public nuisance nor be hazardous or harmful to human health or the environment.

20. NO FLASHING SIGNS

The use of flashing lights, flashing illuminated signs and the like is prohibited.

21. erection of signs

(a) The erection of the sign is to satisfy the following requirements:

(b) Be subject to development consent of Council:

(c) Be erected/supported in a secure manner for safety purposes;

(d) Does not cause measures that would cause irreversible damage to the building; and,

(e) Shall be a minimum of 2.6m above the footpath level and be offset a minimum of 600mm behind the kerb.

22. NO SIGNS OR GOODS ON PUBLIC AREA

Portable signs or goods for sale or display must not be placed on the footway or other public areas, without the prior approval of Council.

23. EXISTING SIGNS

Any existing advertising structures displayed at the premises not relating to the approved use being removed.

B. Compliance Prior to Issue of Construction Certificate

24. SECTION 94A CONTRIBUTION

A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and Waverley Council Development Contributions Plan 2006 in accordance with the following:

(a) A cost report indicating the itemised cost of the development shall be completed and submitted to council:

(1) Where the total development cost is less than $500,000:
"Waverley Council Cost Summary Report"; or,

(2) Where the total development cost is $500,000 or more:
"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".
A copy of the required format for the cost reports may be obtained from Waverley Council Customer Service Centre or downloaded from:

(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.

(c) Should a section 96 modification result in any change to the total cost of the work, the Section 94A contribution is to be revised and amended. Prior to the issue of the Construction Certificate, evidence must be provided that the revised levy has been paid to Council in accordance with this condition.

Waverley Council Development Contributions Plans 2006 may be inspected at Waverley Council Customer Service Centre.

Advisory Note

-

A development valued at $100,000 or less will be exempt from the levy.

-

A development valued at $100,001 - $200,000 will attract a levy of 0.5%.

-

A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.

25. security deposit

A deposit or guarantee satisfactory to Council for the amount of $4000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.

26. long service levy

A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more.

27. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

The building work, including demolition, must not be commenced until:

a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and
c) Council is given at least two days Notice in writing of the intention to commence the building works.

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

28. CERTIFICATION OF MECHANICAL EXHAUST

The mechanical exhaust ventilation system is to comply with the approved plans and specifications in addition to Australian Standards AS 1668 parts 1 and 2, 2002. A Certificate of Test together with a copy of the final test figures is to be submitted by a competent person and approved by the Principle Certifying Authority prior to the issue of the Occupation Certificate.

29. SMOKE-FREE ENVIRONMENT LEGISLATION

The use and operation of the premises is to comply with the Smoke-free Environment Act 2000 and the Smoke-free Environment Regulation 2000. Guidance may also be obtained from the NSW Health Department.

Written Certification from a suitably qualified person stating that the proposed smoking areas (terrace / courtyard / deck / balcony) are designed in accordance with the Smoke-free Environment Act 2000 and the Smoke-free Environment Regulation 2000 must be submitted to the satisfaction of the Principal Certifying Authority prior to the issue of a Construction Certificate.

Note: The certification must include compliance with Section 10 "Duty to prevent the spread of smoke and Regulation 8 "Guidelines for determining what is an enclosed public place etc."

30. SITE WASTE AND RECYCLING MANAGEMENT PLAN

A Site Waste and Recycling Management Plan (SWRMP) Checklist 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.

The builder and all subcontractors shall comply with the approved SWRMP Part 1 and 2 at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction. Copies of demolition and construction waste dockets that verify the facility that received the material for recycling or disposal and the quantity of waste received, must be retained on site at all times during construction.

31. EROSION, SEDIMENT AND POLLUTION CONTROL

Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

32. ENGINEERING DETAILS

Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate.

C. Compliance Prior to and During Construction

33. PRIOR TO SITE WORKS

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

(c) any change to these arrangements for doing of the work.

34. CONSTRUCTION SIGNS

Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

35. obstruction to public areas

If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then:

(a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected;

(b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and

(c) a hoarding, fence or awning is to be removed when it is no longer required for the purpose it was provided.

36. TOILET FACILITIES

Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.

37. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS

All site works complying with the occupational health and safety requirements of WorkCover NSW

38. LOCATION OF BUILDING OPERATIONS

Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.

39. ALL BUILDING MATERIALS STORED ON SITE

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

40. CONSTRUCTION HOURS

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(b) Sundays and public holidays; and

(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

41. CONSTRUCTION NOISE - PERIODS OF 4 WEEKS OR UNDER

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 20dB(A) when assessed at any sensitive noise receiver.

42. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.

43. BUILDING CODE OF AUSTRALIA

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

44. QUALITY OF CONSTRUCTION ACT - INSPECTIONS (COMMERCIAL CLASS 5, 6, 7, 8 AND 9)

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planing and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certification.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

The specified MANDATORY inspections are:

In the case of a Class 5, 6, 7, 8 or 9 building:

(a) at the commencement of the building work;

(b) prior to covering any stormwater drainage connections; and

(c) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

The following additional inspections are required to be undertaken by the PCA:

(a) sediment control measures prior to the commencement of building work;

(b) shoring of excavation works, retaining walls, piers, piling or underpinning works;

(c) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns;

(d) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls).

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

45. ENCROACH BEYOND THE BOUNDARIES

No portion of the proposed works including the footings and roof eaves, to encroach beyond the boundaries of the subject property.

46. WATER PROOFING

The floor and wall surfaces of the proposed wet areas being protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier.

Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.

47. HOT TAP WATER SCALDING

To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.

48. SMOKE ALARM SYSTEM

A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia.

49. TREATMENT OF BOUNDARY WALLS

Any new walls on the boundary are to be finished on the adjoining property side to a minimum standard, that being face brickwork and all mortar joints ironed (no dags). A void will be provided between all new walls and the walls of 83 Hall Street of the same depth as the existing void between the existing walls, with all new walls to be of double brick construction.

50. AWNINGS

Awnings shall be offset a minimum of 600mm behind the kerb.

D. Compliance Prior to Occupation or During Occupation

51. FINAL OCCUPATION CERTIFICATE

The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

52. KITCHEN EXHAUST SYSTEM

A kitchen exhaust system is to be installed to effectively prevent or minimise air pollution including the emission of odours, vapours and oils in contravention of the Protection of Environment Operations Act 1997.

53. ODOUR COMPLAINTS

In the event of Council receiving odour complaints that can not be solved by improving maintenance practices the owner shall, at their own cost, solicit the help of an odour specialist to upgrade their mechanical exhaust and odour control systems until the odour emissions are mitigated. Details of all kitchen exhaust system upgrades must be provided to Council for approval before being installed.

54. FOOD PREMISES

The following requirements apply to premises that commercially provide food:

(a) The premises must comply with the Food Act, 2003 and the Food Standards Code there under;

(b) The applicant must arrange for an inspection by Council's Environmental Health Surveyor prior to Occupation;

(c) The premises are to be registered with Council prior to the issue of the Occupation Certificate;

(d) The premises must be constructed in accordance with the requirements of Council's "Policy for fit-out and construction of food premises". Copies of the policy can be purchased at Council's Customer Service Centre; and

(e) The proprietor must pay any fees incurred by the carrying out of food safety inspections as determined by Council's Pricing Policy, Fees and Charges.

55. waste bins

The premises must provide 2 x 240 Litre MGB for garbage, to be emptied daily to accommodate the estimated waste generation rates. The premises shall also provide 1 x 240 Litre MBG for paper/cardboard for recycling and 1 x 240 Litre MGB for other recyclables, both to be emptied twice weekly. The figures for recyclables may increase depending on the type of containers are being used by the shop and this could mean more bins may be required, particularly if there are large amounts of cardboard or plastic bottles. All bins must at all times be stored entirely within the boundaries of the site.

56. bin storage area

The bin storage area must be covered, bunded and connected directly to the sewer and not the grease trap, unless written consent from Sydney Water is provided allowing connection to the grease trap.

57. RECYCLING OF WASTE PAPER

The operator of the business shall ensure that waste paper is recycled. In this regard, the operator shall make the following arrangements:

(a) Recycling bins must be provided for all staff in the preparation area;

(b) Both litter and recycling bins must be provided for customers within the restaurant;

(c) The business is NOT to provide food to customers in any non biodegradable material or polystyrene foam;

(d) The operator must carefully consider signage and the location of the bins inside the premises to encourage people to dispose of packaging carefully.

58. STREET NUMBER/S

The street number for the property shall be a minimum of 75mm high and shall be positioned 600mm-1500mm above ground level on the site boundary that fronts the street. Should the number be fixed to an awning then it shall be a minimum 150mm high.

59. PEST CONTROL

A Pest and Vermin Control Management Plan is to be implemented. Details of which are to be submitted to Council prior to initial implementation.

60. CERTIFICATION OF AIR CONDITIONING SYSTEM

The installed air conditioning system shall be the subject of an air filter cleaning/replacement service and regular servicing. In this regard, documentary evidence is to be submitted to Council or an Accredited Certifier enabling a Compliance Certificate to be issued on request certifying satisfactory compliance with this condition and the efficient performance of the system.

61. DUCTWORK

The design, construction and installation of all ductwork and exhaust hoods are to be in accordance with the requirements of Australian Standard AS 1668.2-1991.

62. DUCTWORK - CERTIFICATION

The installed duct work system shall be the subject of an air filter cleaning/replacement service. In this regard, the applicant is advised that Council or an Accredited Certifier will require documentary evidence to be submitted enabling a Compliance Certificate to be issued at intervals of not less than three (3) months certifying the satisfactory condition and efficient performance of the system.

63. Deleted

64. odours

The following requirements apply to the development to ensure that odours do not impact on the amenity of the locality:

(a) The premises must not give rise to any impurities or odour in contravention of the Protection of the Environment Operations Act 1997;

(b) Any odours from the premises must not cause a public nuisance nor be hazardous or harmful to human health. In this regard a maintenance program is to be adopted for the mechanical exhaust ventilation system that includes the cleaning of the hood ductwork to the discharge point every six months by an approved company. The details of the program are to be kept on site and be available for inspection at any time. Further, a filter cleaning/replacement service is to be implemented and carried out fortnightly.

(c) The mechanical exhaust ventilation system including the flue and ductwork is to be maintained to an adequate performance standard including an annual independent inspection to determine ongoing efficiency of odour extraction and noise impacts on adjoining residents. The carbon filters shall be replaced no less frequently than every 6 months.

65. MECHANICAL EXHAUST MAINTENANCE

A maintenance program is to be implemented for the mechanical exhaust ventilation system that includes the cleaning of the entire system from the hood to the top of the flue at the discharge point at six (6) monthly intervals.

66. PLAN OF MANAGEMENT

Prior to the commencement of operations the Applicant shall submit a plan of management for the approval of Council’s Director of Planning and Environmental Services. The plan of management shall be generally in accordance with the Nando’s Management and Security Plan which was lodged with the development application and was tendered as Exhibit C (otherwise than in respect of matters which would be inconsistent with these conditions of consent). The business shall be conducted in accordance with the approved plan of management.

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Citations

Nandos Australia Pty Ltd v Waverley Council [2010] NSWLEC 1245

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

CITATION:	Nandos Australia Pty Ltd v Waverley Council [2010] NSWLEC 1245
PARTIES:	APPLICANT Nandos Australia Pty Ltd RESPONDENT Waverley Council
FILE NUMBER(S):	10486 of 2010
CORAM:	Fakes C
KEY ISSUES:	CONSENT ORDERS - DEVELOPMENT APPLICATION :- Development Control Plan Practice and Procedure
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2006
CASES CITED:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 - revised - 01/10/2004
DATES OF HEARING:	18/08/2010 27/08/2010
DATE OF JUDGMENT:	31 August 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms S Hill - solicitor Susan Hill & Associates RESPONDENT Mr S Patterson - solicitor Wiltshire Webb Staunton Beattie Lawyers