Sevenex Pty Ltd v Sydney City Council
[2011] NSWLEC 1241
•11 August 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Sevenex Pty Ltd v Sydney City Council [2011] NSWLEC 1241 Hearing dates: 26-28 July 2011 Decision date: 11 August 2011 Jurisdiction: Class 1 Before: Morris C Decision: (1)The appeal is dismissed.
(2)Development Application No. D/2010/2128 for use of part of an existing commercial building at No 276-282 Devonshire Street, Surry Hills (the site) as a restaurant and microbrewery is refused.
(3)The exhibits, other than Exhibits 1 and C are returned.
Catchwords: DEVELOPMENT APPLICATION: Mixed Use Zone; Transitional precinct; Impacts on residential amenity; microbrewery and restaurant; noise; parking. Legislation Cited: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998Texts Cited: South Sydney Development Control Plan 1997: Urban Design; Late Night Trading Premises Development Control Plan 2007; Development Control Plan No. 11 - Transport Guidelines for Development 1996. Category: Principal judgment Parties: Sevenex Pty Limited (Applicant)
Sydney City Council (Respondent)Representation: Counsel
Mr P Clay (Applicant)Mr I Hemmings (Respondent)
Ms M Flick
Solicitors
Mr D Thomas
Wellings Lawyers (Applicant)
Sydney City Council (Respondent)
File Number(s): 10354 of 2011
Judgment
This is an appeal pursuant to the provisions of s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Sydney City Council (the council) of Development Application No. D/2010/2128 (the application) which proposes the use of part of an existing commercial building at No 276-282 Devonshire Street, Surry Hills (the site) as a restaurant and microbrewery.
The issues in contention are whether the proposal is consistent with the council's zone objectives and planning controls and whether the site is suitable for the proposed development, in particular whether the development would adversely impact on the adjacent residential area in terms of noise, anti-social behaviour and demand for on-street parking.
The site and its context
The site is within an existing two-storey building, which is erected across the whole block, bounded by Devonshire, Violet and Esther Streets and Esther Lane. The area subject to the application comprises the eastern portion of the ground floor of the building and has access to Devonshire and Violet Streets. The rear portion of the site also adjoins Esther Street however no direct access to that road is provided. A central building entry foyer separates the proposed occupancy from the remainder of the ground floor premises and also provides stair access to the upper level tenancies.
To the north and opposite the site in Esther Street are two former warehouse buildings that have been converted to residential use. Those buildings form the northern extent of the Mixed Use zone. To the east are a number of terrace-style dwelling houses, which have their primary frontage to Bourke Street and gain vehicle access off Violet Street and are within a Residential 2b zone. An art gallery is located to the west of the site on the corner of Esther Lane within a mixed use zone and further residential development is directly opposite the site fronting Pawley Street. These terrace houses are also within the residential 2b zone. To the southwest, are a range of commercial uses and to the southeast, a restaurant and caf. More intense commercial development is found further to the west along Crown Street whilst the areas to the north, south and east are primarily residential, the zoning of those areas being Residential 2b.
Esther Street and Lane, Raper Street, Violet Street and Whittell Street, in the vicinity of the site are narrow lanes and Davies Lane and Austin Lane to the north of the site off Raper Street include blind ends.
Background and the proposal
The original application was lodged with the council in December 2010 and proposed the fitout of the site as a restaurant and microbrewery accommodating 200 patrons, of which 100 were to be within the restaurant and 100 within the microbrewery/bar area. Hours of operation proposed were 7am to 12 midnight Monday to Saturday and 7am to 11pm on Sundays and open to the public from 11am each day.
The site comprises the ground floor, eastern portion of the building and is currently divided into three occupancies, two shops fronting Devonshire Street and an office to the rear of both. There is a difference in levels of approximately 800mm between the eastern and western shop tenancies. Openings are proposed within the dividing walls and alterations to existing stairs proposed to facilitate access between the two levels. The proposed microbrewery would be installed at the lower level and occupies an approximate area of 55sqm. That area comprises a series of tanks (to be installed along the eastern windows which face Violet Street and therefore visible from the roadway), a kettle and chiller.
A bar area with stools separates the brewing area from a casual dining area and the main restaurant bar service area. The plans now before the Court (Exhibit C) provide for 34 stools around those bars in an area designated as the casual dining area and seven tables designated as additional restaurant seating for 30 patrons. The upper level provides the main restaurant area with a mix of tables and booth seating, waiters' station, beer serving tanks and the main reception area. The back of house area is proposed within the area presently approved as office space. The application includes a proposal to remove one of the three existing entry doors off Devonshire Street and replace it with new windows.
Plant and ventilation equipment, in addition to existing rooftop plant, is to be installed on the rooftop and enclosed with an acoustic screen.
As a consequence of the submissions received by the council in response to its notification of the application and its staffs' preliminary assessment of the application, which identified concerns in relation to potential noise, traffic, parking and odour impacts, the applicant further amended the application and also provided additional information. These amendments did not alter the proposed layout of the site. The changes involved a reduction in maximum patrons of 170 (85 within the restaurant and 85 within the casual dining area adjacent to the microbrewery area) and 12 staff and hours of operation changed to 11am to 12 midnight Monday to Saturday and 11am to 11pm on Sundays. This amended proposal was renotified by the council during March 2011 and further submissions received, the majority objecting to the proposal however a number of submissions in support were also received.
During preparation of the expert reports for the hearing, further amendments were made to the application including the submission of information regarding odour and a further reduction in the proposed hours of operation. The hours of operation to be considered by the Court are 11am to 10.15pm Monday to Wednesday, 11am to 11pm Thursday to Saturday and 11am to 9pm on Sundays. In addition, the plans were amended to provide a sound lock to the eastern entry door off Devonshire Street and the removal of a screen wall that separated the main restaurant area from the lower level microbrewery area with the delineation of additional restaurant seating at that level. Further operational aspects of the use were detailed within the proposed Plan of Management (POM) for the site.
There was much discussion during the hearing regarding the nature of the proposed use and how it differs from a bar or hotel. The intentions of the applicant have been described in the Statement of Environmental Effects (SEE) submitted with the amended application as having a vision of sustainability and providing food and beverages in an educative environment. The concept is said to be:
Our vision is to create a community minded, welcoming and relaxed haven in the thriving suburb of Surry Hills, Sydney. The selected establishment will be the flagship of our ecosystem comprising high quality food, unique beers and cider, and wine made available to public and corporate clients. The venue will be designed with the patrons in mind, providing a unique experience in the history of Sydney. Patrons will enjoy unique specialty beverages combined with original Australian cuisine in an environment that also provides an educational experience around the production and history of the food, beer and wine industry within Australia.
Tapping into the already growing public demand to learn and enjoy the world of fine cuisine and beverages, this venture takes yet another step to enlighten the Australian consumer on the arts of combining food, beer and wine in a comfortable environment whilst educating on the history of these elements. The Young Henrys vision is to prove that the highest quality of beer and food can be produced and delivered through environmentally friendly and sustainable practices.
The microbrewery will be designed and built to deliver naturally brewed beer and cider flor local consumption. With a large percentage of the product's carbon footprint made up of distribution kilometres, the onsite production of beer removes this cost entirely. The 10hL, natural gas powered microbrewery of state of the art manufacture will deliver the most efficient use of energy and water in production. To put the size of the brewery into perspective, its capacity will be 1200 times smaller than that of the old Kent Brewery on Broadway. Spent grain, yeast and hops from the brewing process will go to animal feed for selected farmers growing produce supplied to the Young Henrys Restaurant.
The Young Henrys Restaurant will embody the 'farm-to-table' philosophy. To do this, the business will work with farmers and suppliers who employ sustainable practices throughout the Sydney food chain. Our meat and vegetables will come from farmer to consumer directly and will be sourced wherever possible from within 100km proximity. The restaurant will be strongly focused on local, seasonal and sustainably grown food with the kitchen staff carrying out its own butcher and applying a 'nose-to-tail' approach to produce.
Young Henrys will foster a family orientated environment. This venue will be one the connoisseur can share with her husband and children. High chairs will be available in the dining room and our Sunday lunch will return this meal to a time to share with family and friends.
Between the onsite brewery, visible butchery and open kitchen, visitors to Young Henrys will have the opportunity to learn more about he origins of food and drink through the hosting of regular brewery tours, educational wine sessions, beer and food matching nights and other informative events provided by expert staff......
The planning controls
The site is within Zone 10 - the Mixed Use Zone under South Sydney Local Environmental Plan 1998 (the LEP) . The Principal Objectives of the LEP provided in clause 7 are as follows:
(a) to ensure a sustainable City of South Sydney through the efficient and equitable management and allocation of resources, and
(b) to enhance the quality of life and well-being of the local community, and
(c) to implement the goals and objectives contained in the Strategy for a Sustainable City of South Sydney published in June 1995 by the Council, and
(d) to repeal all the existing local environmental planning instruments applying to the land to which this plan applies to the extent to which they apply to that land, and to replace those controls with a single local environmental plan, and
(e) to rationalise the former land use restrictions by creating a small number of zones, and
(f) to create an integrated planning framework of land use controls which allow detailed provisions to be made in development control plans.
Clause 10 of the LEP requires that consent is not to be granted to the carrying out of development unless the council is satisfied that the proposal is consistent with the objectives of the zone within which the land is located.
The relevant objectives of the Mixed Use 10 zone are:
(a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and
(b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and....
(e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and
(f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and
(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and
(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.
The South Sydney Development Control Plan 1997: Urban Design (DCP1997) applies to the site and provides the detailed land use controls referred to in clause 7 of the LEP. In addition, the council's Late Night Trading Premises Development Control Plan 2007 (DCP2007) applies.
Part F of DCP1997 provides design criteria for specific types of development and the Mixed-Use controls are found in Section 4. Of particular relevance is the creation of precincts within Zone 10 as provided by the intent of sub-clause 4.1 which states:
To account for differences amongst South Sydney's mixed use areas and to ensure only compatible land uses locate together, this Urban Design DCP creates four mixed use generic types that determine the desired mix of uses. Uses must also be consistent with the Zone No.10 Mixed Uses of South Sydney LEP 1998.
In assessing an application for a particular land use mix, Council must be satisfied that the application contributes to the desired future character of the precinct by pursuing its planning intent, and that the uses proposed satisfy land use criteria. The objectives of this control (s4.1) are:
· To achieve a mix of uses that enhances the physical quality and function of the urban environment.
· To reinforce the essential characteristics of mixed use precincts and direct further development in mixed-use areas, and in particular to reinforce the distinctive characteristics of the 'north' and 'south' sectors of the City.
· To ensure uses that locate together are environmentally compatible and respect the character and function of the precinct, and above all that they respect the amenity of residential uses.
· To ensure the essential services needed by the community are maintained in mixed-use zones.
· To ensure development contributes to a lively and pleasant street environment containing many activities and environmental improvements.
The DCP identifies three mixed land use precincts being precinct 1 - Traditional, 2 - Transitional and 3 - Urban village centres. The site is within Precinct 2, the Mixed-use transitional precinct and this precinct applies to properties on the northern side of Devonshire Street between Marlborough Street and Violet Street and on the southern side is restricted to the one block between Nickson Street and Wilshire Street. Land to the south and west of the precinct (along Crown and Cleveland Streets) is in an Urban Village Centres zone and to the east and north is not subject to the provisions due to the residential zoning.
The transitional precincts are said to contain a range of marginal retail, commercial and light industrial uses and the planning intent is:
· To encourage medium density urban housing and a range of compatible vibrant non-residential uses such as shops, professional offices and studio type workshops.
· To protect the amenity of adjoining residential areas by providing a buffer.
· To encourage improvements to the Public Domain to reinforce the particular character of the Precinct.
· The non-residential floor space is not to exceed:
- 25% of the gross floor area of the building,
or
- the ground floor area of the building, whichever is the greater.
The onus is on the applicant to demonstrate how this can be accommodated without impacting on the amenity of adjoining land uses.
Land use criteria for the precinct specified in the DCP are:
Activities compatible with the intent of the precinct include:
· Medium density residential activities for permanent and transient residents, including for example, multi-unit development, boarding houses and serviced apartments.
· Restaurants, cafes and take-away shops which serve a wide resident and work population.
· Offices (but generally not at ground floor as they do not encourage great pedestrian activity).
· Shops and personal service stores which provide goods and services for a wide population.
· Educational and medical activities.
· Work activities that can be carried out from the home or associated spaces such as a garage or workshop and which do not detrimentally affect residential amenity (e.g. home industries, studio workshops).
· Low-intensity industries which do not detrimentally affect the amenity of the locality by way of:
- the scale and size of the development
- floor space requirements
- the size and number of vehicle movements
- noise
- air and water pollution
- hours of operation
- any other negative environmental impact.
NB: The above is not an exhaustive land use table of uses permissible in the 10 Mixed Use zone; it is a generic list of compatible activities.
A whole range of other activities may be appropriate in the precinct, depending on their environmental performance.
DCP2007 aims to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties. It applies to all land within the City of Sydney local government area and specifically to applications for new and existing Category A and B premises (e.g. hotels, licensed premises, clubs and other commercial premises with the potential to impact on the amenity and safety of a neighbourhood resulting from its operation at night). The category is dependant on the number of patrons or type of use. The proposed use of the site is agreed to be a Category B - Low Impact premises for the purposes of DCP2007 and is outside those areas identified as late night trading areas and therefore require consideration against those matters listed in section 2.6, Matters for Consideration which are:
a the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises;
b the specific nature of the premises, ie. pub, nightclub, restaurant etc and the proposed hours of operation;
c the existing hours of operation of surrounding business uses;
d the size and patron capacity of the premises;
e the impact of the premises on the mix, diversity and possible concentration, of late night uses in the locality;
f the likely operation of the proposal during day time hours;
g submission of a plan of management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain;
h the diversity of retail services within an area and the impact of a late night proposal on this diversity;
i measures to be used for ensuring adequate safety, security and crime prevention both on the site of the premises and in the public domain immediately adjacent to, and generally surrounding, the premises;
j the accessibility and frequency of public transport during late night trading hours.
Consideration of all of these factors provides the basis for a consistent approach to the determination of appropriate trading hours and creates greater certainty both for the community and proponents of late night trading premises.
Once these factors are taken into consideration late night trading hours may be permitted in appropriate circumstances, particularly in areas within the City that already exhibit a vibrant night-time character, as opposed to parts of the City that are predominantly residential in character where amenity impacts can be the greatest and most difficult to manage.
The nearest identified late night trading area is the Crown Street local centre area to the west of the site.
DCP2007 identifies base hours and extended hours for premises located within the three late night trading areas and for Category A premises located outside of those area. As the site is a Category B premises and outside the areas identified by the council for late night trading, there are no controls for trading hours. There is however a provision that requires all late night trading hours to be approved on a trial basis. The applicant accepts this requirement and that any consent granted would be approved for a twelve-month period only.
Development Control Plan No. 11 - Transport Guidelines for Development 1996 (DCPTGD) is the council's current plan providing guidelines for transport requirements and related design criteria for that part of the local government area formerly forming the South Sydney Council area which includes the site.
The issues
The matters in contention are whether the application is consistent with the objectives of the Mixed Use 10 Zone and the aims, objectives and provisions of DCP1997, particularly with regard to the Land Use Mix objectives; whether the proposal adequately addresses the objectives of DCP2007; the impact of the development on the surrounding road network and availability of parking; noise impacts and public interest. These contentions can be grouped into the following issues:
· Amenity/compatibility of the use
· Social impact
The council did not press contentions regarding odour and the food premises/kitchen fitout.
The evidence
The hearing commenced on site and evidence was heard from a number of residents, all objecting to the application. The issues raised by the residents were:
Noise associated with the premises, loading/unloading operations, rooftop plant, vehicles being driven around looking for parking, persons leaving the property and using the proposed footpath smoking area;
Larger premises in Crown Street already impact adversely on the area and this would bring it closer;
There are already too many large venues in the area and the residential amenity is compromised;
Inadequate public transport available to service the site;
Scale of development is inappropriate and too large for the location and site not suitable for the proposed use;
This part of Surry Hills is quiet, particularly at night and the proposal will change that, will mean that we can't sleep;
Parking is already at a premium and the proposal, not providing any on-site parking, will generate a demand for the few available spaces thereby affecting resident's ability to obtain a carparking space close to their residence;
There are no footpaths along the laneways that bound the site which provides a potential conflict between pedestrians and vehicles and a safety threat to children who walk along those lanes;
Laneways are a safety threat and are already the subject of unsociable behaviour; concern this will increase;
Proposed security is inadequate, particularly as it is not scheduled to commence prior to 10pm;
In addition to residents, Senior Constable Cosgrove of the Surry Hills Local Area Command provided evidence. Whilst the police do not object the application, they do say that licensed premises in the area increase anti-social behaviour and there is a concern that the development will have negative impacts on what is described as a "very quiet area". Therefore the police support the reduced hours and agree with the 12-month trial period to assess the impacts of the use and determine its suitability.
The Court also inspected two residences in the vicinity of the site in the company of the parties and owners of those properties to observe the context of those dwellings, location of windows and proximity to noise sources. The area around the site was also inspected including the adjoining laneways, north to Davies Street and west to Crown Street.
Expert evidence was heard from the following:
Applicant Council
Acoustics Mr Cooper Dr Tonin
Traffic/parking Mr Hallam Mr Campbell
Town planning Mr Moody Mr Mead
Amenity/compatibility of use
The Planning Framework
The LEP and DCP1997 provide a range of controls which go to ensuring the amenity of the area is considered in determining the application. In particular, one of the principal objectives of the LEP is to enhance the quality of life and well-being of the community and the objectives of Zone 10 - Mixed Uses are to allow, in appropriate circumstances a mixture of compatible land uses......to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.
These considerations are further reinforced in DCP1997 which requires an account of differences amongst South Sydney's mixed use areas to ensure only compatible land uses locate together and the objectives of ensuring uses that locate together are environmentally compatible and respect the character and function of the precinct and above all that they respect the amenity of residential uses. The planning intent of the transitional precinct is to protect the amenity of adjoining residential areas by providing a buffer.
Similar considerations are included in DCP2007 which states that late night trading hours may be permitted in appropriate circumstances, particularly in areas within the City that already exhibit a vibrant night-time character, as opposed to parts of the City that are predominantly residential in character where amenity impacts can be greatest and most difficult to manage.
Noise Impacts
The acoustic experts agree, with modifications to the building such as the construction of an air lock at one door, ensuring the other doors are not used after 10pm, thickening the windows in perimeter walls, installing an automatic closer to the door off the common entry foyer and an acoustic ceiling would address the appropriate noise criteria for activities within the building and the operation of the rooftop plant. They also recommend conditions that they say would ensure loading/unloading activities would comply with appropriate standards and recommend that those requirements be included in any POM for the site. Other conditions are agreed to address noise from plant.
The experts disagree on the noise impacts caused by people leaving the premises and patrons using the proposed on-street smoking area. It is proposed in the application that smokers will be directed to an area outside the building on Devonshire Street between the two external doors and that a maximum of 10 patrons would be allowed outside to smoke at any one time. It is agreed that smokers talking in a normal or raised voice will not create a concern at the terrace houses opposite the site (Pawley Street terraces) however, both agree that patrons shouting would give rise to non-compliance with sleep-disturbance criteria. This would also apply to patrons leaving the premises after 10pm and Dr Tonin predicts that patron shouts would significantly exceed the sleep disturbance criterion at the Pawley Street terraces.
Mr Cooper says that, through his experience, there is little likelihood of smokers shouting however, the risk of non-compliance could be controlled through the employment of a security guard to control the behaviour of patrons outside the premises when using the smoking area and through staff encouraging patrons not to go outside to smoke or if they do, to respect the neighbours by being quiet. Dr Tonin says that whilst the focus of the applicant is on minimising the noise risk, no one can guarantee that there won't be shouting from the smoking area and once a breach has occurred it is too late to ensure the impact does not affect residents.
Both experts agree that the current acoustic environment is such that a vehicle driving down the street would disturb sleep with windows open or partly open, thereby exceeding the sleep disturbance criteria, however Dr Tonin is of the view that shouts would have a cumulative contributing effect and recommends that if consent is granted, a condition requiring the deployment of a security person to control patrons leaving the site and request they proceed quietly. Mr Cooper says that as there is still a number of vehicles using this section of Devonshire Street between 11pm and midnight (24 vehicles in 15 minutes) the noise from patrons could coincide with vehicles and there would be no additional disturbance.
Traffic and Parking
The traffic experts agree that parking cannot be provided on site and therefore the development will generate a demand for the existing street parking. Mr Campbell says that on-street parking in the immediate vicinity of the site is close to capacity and has been known to exceed capacity after 10pm. Mr Hallam says that the availability and frequency of public transport is reasonable however Mr Campbell says that there is a reduction in availability late at night and at weekends. They agree that there will be amenity impacts that would increase from the late night trading and that impact relates to noise with patrons departing the site by foot or to cars parked on-street, or walking to a taxi or bus.
The experts agree that it is the council's strategic objective to minimise car use and therefore Mr Hallam concludes that it is not appropriate to provide any on-site parking. Mr Campbell says that DCPTGD includes as an objective to ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking onto surrounding streets and says that this objective is not met by the application . Both agree that it is important that the development should not result in any loss of on-street parking supply.
The original proposal to provide for a cycle parking area on street outside the site has been deleted however it is still required by the council and a draft condition prepared which provides for its construction in an area nominated by the council and may involve the use of public land if it cannot be provided on-site. No details of this facility have been provided to the Court. Mr Hallam says this area should be provided on the footpath adjacent to the site and Mr Campbell supports its provision however says it should be provided on-site and that it is unlikely to be used by patrons of the microbrewery, particularly after business hours at night and is not seen as a mitigating factor to parking demand at key times.
The experts agree that there is a need to provide a dedicated loading bay on Devonshire Street and to minimise the impact on parking, the draft consent conditions provide for that area to operate from 7am to noon weekdays and 9am to noon weekends and public holidays.
It is agreed that the parking demand for the application is a net requirement of 11 spaces however, the experts also agree that the council has not required the provision of on-site parking for restaurant uses in the vicinity of the site in recent times. They acknowledge that the use will add to the competition for parking in the area. Mr Hallam says that this is consistent with the council's strategic objectives to restrict parking and discourage vehicle use and to increase the time limits when the residents' parking scheme operates to 10pm from 8pm. Mr Campbell says that the additional parking demand generated by the microbrewery would adversely impact on the amenity of residents especially those that do not have access to off-street parking within their property. He says that the site is within Precinct 18 and that within that precinct there are 340 resident parking spaces that are also available for time-limited parking by the public under the council's resident parking scheme. Within that precinct, the council has issued 336 resident parking permits and is systematically increasing the time periods when those spaces will be restricted from 8pm to 10pm.
Planning
The planning experts agree, that subject to the controls and management procedures to be incorporated into the POM, provision of security, reduced hours and a 12-month trial period, that the application would satisfy the aims and objectives of the LEP and DCP1997. Mr Moody accepts that if the sleep disturbance criterion is exceeded, that would have an amenity impact however he considers it highly unlikely that this would occur due to the management practices proposed and the adoption of the recommendations of the acoustic experts.
Mr Mead had concerns in relation to the number of people who could be at the premises in the bar/casual dining area (adjacent to microbrewery area) and argued that this number should be limited. Mr Moody says that it would be appropriate to restrict the number of person in that area to the number of seats available i.e. 55 persons however Mr Mead says the number of people should be limited to 35. Mr Mead's primary concern related to the number of 'drinkers' as opposed to 'diners' and wanted to ensure that the use was that of a restaurant rather than a bar as he saw the potential for different amenity impacts from the different categorisations. He acknowledged that the use would be less intense to that of a hotel of nightclub. Mr Moody did not see any issue if patrons attended the premises for drinks only however did see the provision of food as vital component of the application.
Mr Moody says that a restaurant use is a use that the council contemplates within the transitional precinct and says that the provision of buffer areas is a sound planning approach. Therefore, he considers a restaurant to be a compatible use and what is important is to look at the nature of the restaurant and the impacts that it may have. He says that the transitional zone calls for vibrant activities and that all uses will have some impacts and it is for that reason that the application includes a series of controls to address those impacts, which he finds to be acceptable. He says that if the impacts are not controlled the use would be inappropriate and unacceptable and that he would not support use of the site as a hotel or club.
The planners deferred to the traffic experts for assessment of parking needs. They had examined the council's relevant files and inspected premises within the locality and determined that the council had not required on-site parking for equivalent restaurant operations. Mr Moody accepted that there is an identified parking shortfall and that the application has the potential to impact on the availability of parking but says that people know that this is the case and are likely to use public transport or taxis to access the site rather than drive and that this practice would be consistent with the council's policies to discourage vehicle use. Whilst he accepts that there will be an impact, he does not consider that it would be so adverse as to warrant refusal of the application.
Social impacts
The only evidence provided in relation to this impact was that of the residents who stated that they are already experiencing anti-social behaviour from people moving through the area when leaving late night premises to the west of the site. The police evidence confirmed that this is the case and, as detailed in para 29, confirm that licensed premises in the area increase anti-social behaviour however do not oppose the application provided hours are reduced and any consent granted is for a 12 month trial period.
Conclusions and findings
The council's planning controls provide a number of areas where consideration of the amenity of the area is to be considered. Principally, clause 21 of the LEP, dealing with zone objectives, allows for a mix of compatible land uses "in appropriate circumstances" but ensuring that the "nuisance generated by non-residential development..... is controlled so as to preserve the quality of life for residents in the area".
DCP1997 seeks to ensure that only compatible land uses locate together and adopts different precincts so as to determine the desired mix of uses within Zone 10 - Mixed Uses and "ensure uses that locate together are environmentally compatible and respect the character and function of the precinct, and above all (emphasis added) that they respect the amenity of residential uses. The planning intent of the transitional precinct is to "protect the amenity of adjoining residential areas by providing a buffer".
The application relies on a range of management controls which, if not satisfied, has been agreed would lead to amenity impacts by way of noise in particular. Mr Clay, for the applicant, says that the risk of amenity impacts is contemplated by the controls, which can't be avoided but can be managed. He says that the applicant's willingness to accept the 12-month trial period would be the "proof of the pudding" and that the management practices incorporated within the final POM ensure a comprehensively protected operation and therefore any adverse impact is minimised.
Adherence to the POM is critical in this case. A POM is a recognised planning tool used to address potential conflicts as described in:
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315:
53 Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law ( Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused.
Whilst I accept that POMs can successfully be applied to manage a range of issues, I am not satisfied on the evidence before me, that the potential impacts of the application, particularly those that relate to the external smoking area, the noise associated with patrons leaving the premises and the demand for on-street parking are addressed so as to preserve the quality of life of residents of the adjacent residential areas.
I have not been provided with any evidence that shows the provision of security guards will ensure that smokers using the area do not shout at any time. The evidence is that the presence of a security guard can encourage people not to shout and only deal with such an event after it occurs.
On the evidence of Dr Tonin, the practices proposed will not guarantee that there won't be shouting and if it does occur, it is then too late to do anything about it. If it does occur, the impact is that the sleep disturbance criteria would be exceeded and residents would be disturbed. Mr Cooper says that it is unlikely that smokers using the area would shout however concedes that the more people that are in the area, there is more likelihood of the sleep disturbance criteria being exceeded.
The reliance on use of on-street parking or public transport means that there will be impacts from patrons leaving the premises. The POM provides for taxis to be called to the premises as required however, to access the main bus services, the traffic experts agree that it is necessary to walk to either Crown or Bourke Streets.
From the evidence provided, I am satisfied that the POM could address the internal operations of the premises, however, I cannot be satisfied that it will address the external impacts of the proposed use. It is those external impacts that would adversely affect the amenity of residents of the adjacent residential zone.
For those reasons, I conclude that the proposed use is inconsistent with objectives 21(b) and (h) of the LEP even with the controls proposed by the applicant and the suggested 12 month trial period.
I consider that the application proposes the introduction of a large, late-night trading establishment to a primarily residential area and that this would be contrary to the council's planning approach of providing a buffer. Whilst I accept that DCP1997 contemplates restaurants as a use that may be appropriate in the transitional zone, I consider the size, scale and nature of these premises to be incompatible with the adjoining residential areas, which, on the evidence of the Police, is currently a "very quiet area".
The evidence shows that the council has not consented to any developments of the scale proposed in the precinct in which the site is located and that all larger establishments (in excess of 70 persons) which trade late are located within the local centre, late night trading area. Accordingly, development consent must not be granted. It also follows that the proposal would be inconsistent with the DCP provisions for the transitional zone.
Orders
For the foregoing reasons, the orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No. D/2010/2128 for use of part of an existing commercial building at No 276-282 Devonshire Street, Surry Hills (the site) as a restaurant and microbrewery is refused.
(3) The exhibits, other than Exhibits 1 and C are returned.
Sue Morris
Commissioner of the Court
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Decision last updated: 16 August 2011
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