Vella v Canada Bay CC

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Vella v Canada Bay CC [2006] NSWLEC 477

PARTIES:
APPLICANT
Richard Vella
RESPONDENT
City of Canada Bay Council

FILE NUMBER(S): 10617 of 2005

CORAM: Hoffman C

KEY ISSUES: Deemed Refusal :- s.96 modification application to conditions 4 and 15 of development consent No.42/02, heritage item, on-street parking, hours of operation, noise nuisance to adjacent dwellings.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Drummoyne Local Environmental Plan 1986
Drummoyne Comprehensive Development Control Plan 1999 Site Specific DCP - Nestle Site Abbotsford Bay. Parking DCP.

DATES OF HEARING: 24/04/2006, 9/05/2006 and 22/06/2006

DATE OF JUDGMENT:
08/02/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr C. Gough, solicitor
of Storey and Gough
RESPONDENT
Ms J. Wauchope, barrister
Instructed by Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

2 August 2006

10617 of 2005 Richard Vella v City of Canada Bay
JUDGMENT

1 This is an appeal against the Deemed Refusal of a s 96 modification application to conditions 4 and 15 of Development Consent No.42/02 issued by the Council on 2 July 2002, for a property at No.378 Great North Road, Abbotsford. It allowed the use of a heritage item as a restaurant. The building had been a recreation pavilion for employees and built by the Grace family of the department store fame, who were the original owners of what is called “the Nestle Site, Abbotsford Bay”. The latter has been named Abbotsford Cove by the developers. The old marine villa mansion “Abbotsford House” was restored and maintained as part of the development.

2 A specific control on the property is the Development Control Plan for the Nestle Site at Abbotsford Bay, January 1995.

3 The approval for the large residential flat and townhouse development at Abbotsford Cove had allowed the pavilion heritage item to be moved up to the corner of Great North Road and Blackwall Point Road.

4 The subject building is now on its own allotment that provides a setback to both streets, and a garden area behind the building.

5 The garden abuts community facilities for the residential complex. A tennis court and swimming pool and a community hall are on the east and the south side of the garden on the adjoining Abbotsford Cove property. Further east across the tennis court is an apartment building on the Abbotsford Cove site. On the north of the garden and adjoining the pavilion are 2-storey townhouses, and garages and a private access laneway on the Abbotsford Cove site.

6 On the Great North Road outside the site is a bus stop and bus shelter obviously the main bus stop for Abbotsford Cove residents and nearby houses.

7 On the Blackwall Point Road side is a carpark and a vehicle space for service and delivery vans that serve the community facilities, and in theory the restaurant except that a condition of consent requires the gate from the carpark to the restaurant to be locked. This means entry and exit of the restaurant is from the Great North Road side, and apparently customers who drive predominantly use the on-street parking.

8 Section 96(1A) Modification of conditions 4 and 15 of Development Consent No. 42/02 Development Consent No.42/02 was granted 2 July 2002, by Council for alteration to the existing building to facilitate use of the premises for a cafe, subject to 48 conditions of consent, including the following:

2.

Trial Period

The consent is limited to a period of twelve (12) months only. A Development Application to review this consent

shall be lodged two (2) months before the expiry of this period.

(Reason: Review of Development)

4.

Seating

A maximum of 82 seats are to be provided on-site. This shall be restricted to 70 indoors and 12 outdoors.

(Reason: To ensure compliance with approved plans)

15.

Hours of Operation of Business

The hours of operation are restricted to between: 7 am to 7 pm, Mondays to Saturday 8 am to 7 pm, Sundays and Public Holidays

(Reason: Environmental amenity)

9 An application pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979, (“the Act”) was lodged with Council on 20 August 2002, to delete condition No.2 by Court Order dated 12 February 2003. Development Consent No. 42/02 was modified by the deletion of Condition 2, and the addition of a new condition relating to pedestrian access to the site.

4

Seating.

A maximum

of 108 seats are to be provided on site. This shall be restricted to 68 indoors and 40 outdoors.

15.

Hours of Operation of Business

7 am – 10 pm, Sunday to Wednesday

7 am - 12 midnight, Thursday - Saturday

Other Applications:

10 Development Application 779/04 granted consent by Council on for the extension of trading hours to 7.00 am to 7.00 pm, Mondays to Thursdays, 7.00 am to 9.00 m, Fridays and Saturdays, 8.00 am to 7.00 pm, Sundays and Public Holidays, and no outdoor dining permissible between 7.00 pm and 9.00 pm.

11 An application for an on-licence (restaurant) was made on 29 July 2004, to the Licensing Court of New South Wales. This application was withdrawn 25 October 2004 and no further applications have been made.

12 The statutes and controls are:

Drummoyne Local Environmental Plan 1986

Zone 2(b) Residential

"The Clubhouse Pavilion" is listed on Schedule 1 of the LEP as a heritage item.

Drummoyne Comprehensive Development Control Plan 1999 Site Specific DCP - Nestle Site Abbotsford Bay. Parking DCP.

13 At the first day of the hearing the parties were in negotiation and hoped for agreement. A considerable amount of evidence was taken on-site from objectors to and supporters of the proposal. Also a heritage report was needed for acoustic installations to the heritage item as recommended by the acoustic expert. An adjournment was granted to enable these matters to proceed. On the second hearing day, the parties had not yet received the heritage report, and were still hoping for agreement. In that case the objectors would need to be notified of the terms of any agreement, and their opportunity to come to the Court and give further evidence. A further adjournment was granted.

14 During the hearing the applicant agreed to not increase the number of seats after Mr Shiels, (the town planning expert that the parties had agreed should be appointed by the Court), expressed the opinion that the level of activity and noise generated by the restaurant under its existing consent caused considerable impacts to nearby residents of the townhouses and apartments and it should not be expanded.

15 Also if additional seating is allowed then additional parking would be required. Mr Coady the traffic engineer for the applicant had assumed the carpark in Blackwall Point Road was wholly for the use of the restaurant. Actually it was a shared facility, and had no capacity for expansion of the restaurant.

16 On the third day of the hearing, the parties informed the Court that no agreement had been reached. There remained to be decided where the seating should be located especially on the eastern verandah, whether acoustic screening should be permitted, and should the increased operating hours be permitted.

17 The issues remaining in the appeal are:

1. Deleted (in regard to increased seating).
2. Deleted (whether the modification is substantially the same development as originally approved).
3. Whether the increased operating hours will result in unacceptable noise impacts upon the adjoining residential dwellings.
4. Whether the site is suitable for a restaurant of the size and operating hours proposed by the modification in relation to the constraints posed by its location, in particular the proximity of residential dwellings. Particulars:

(a) Inconsistency with the zone objectives for the 2(b) residential zone contained in the Drummoyne LEP 1986;
(b) Inconsistency with the reasons, aims and objectives of the site specific DCP for “the nestle Site, Abbotsford”;
(c) Section 79C(1)(c) of the Act.

5. Deleted (in regard to additional parking required if the seating is increased).
6. Whether the proposed development ought to be refused on the basis of the written objections received from adjoining and nearby residents under s 79C(1)(d) and (e) of the Act.

18 The respondent’s evidence was heard from:

Mrs T. Valenti, objector, 28 Chatham Place.

Mrs S. and Mr M. Lawrie, 29 Chatham Place (one of the townhouses next to the site).

Mr P Sanger, Chatham Place.

Mrs Wong, who lived nearby and also owned another restaurant nearby.

Mr K Thomas, 30 Chatham Place (other townhouse next to proposal).

19 The applicant’s evidence was heard from:

Mr S Bates, 87 St Aubin Drive.

Ms L. North, 2/2 Harbourview Crescent.

Mr Harris.

Mr Klorin (owner of the proposal).

Mr T. Miliauskas, Unit 1 Abbotsford Drive.

Also the applicant had collected a large number of signatures from customers supporting the proposal.

20 A summary of the objections is:

1. The restaurant is popular and often large groups commence with drinks served in the garden. The restaurant has catered for functions that create more noise than casual diners. The noise is a nuisance to the adjoining dwellings, sometimes inebriated persons cause additional nuisance.
2. Children yelling and playing in the garden while parents eat add to the nuisance.
3. Persons at tables on the east verandah talking loudly are clearly heard in bedrooms of the townhouses and this disturbs children trying to sleep (the Lawrie’s have 4 children)
4. Cars and deliveries have used Chatham Place, a private road for parking and deliveries, blocking resident’s access. This has been reduced by locking a pedestrian gate from the Place into the garden. The garden has a right-of-way pedestrian path through for residents of Abbotsford Cove to walk through to the bus stop.
5. Trucks deliver to the restaurant parking in the bus stop and often busses have to stop out in the carriageway of the road to pickup and drop off passengers. Indeed during the court view of the site a large truck stopped there and unloaded goods for the restaurant. The service van bay in the carpark is way too small for delivery trucks.
6. The popularity of the restaurant brings numbers that use the on-street parking outside the townhouses and the detached homes across the street. Driveways are parked across, or so close reversing out is dangerous. People farewelling each other late at night slamming car doors and revving engines is a nuisance. Later opening will extend this nuisance into later hours.
7. The DCP says the pavilion should be used for small scale uses to service Abbotsford Cove. The restaurant is drawing from a much wider area than that. Other local restaurants have about 40 seats. The proposal with existing 82 seats is not small and that is the source of the impacts. The residents of Chatham Pl bought their townhouses on the basis of small scale use of the pavilion, not what it has become.
8. A judgment by Commissioner Tuor on a previous application on the site said 12 seats were on the east verandah. Frequently 28 people sit there. One cannot expect people enjoying themselves to be quiet. The number of seats on the verandah should be enforced especially at night. The large table at the north end of the east verandah is a major source of noise. It sits 12 persons. The plans in Exhibit 2 say it only held 8.
9. The acoustic insulation of the building may reduce noise of persons INSIDE, but the glass screen on the north end of the verandah will not reduce noise to acceptable levels for the adjoining residents.
10. The objectors had no confidence in the Plan of Management due to alleged non-compliance with existing conditions of consent.

21 The supporters of the proposal said:

22 Below is a photo of the pavilion and the garden and verandah on the east side.

23 In relation to the pavilion, part of the application is to erect a glass acoustic screen at the northern end of the rear or eastern verandah to reduce noise from patrons sitting at tables being a nuisance to Mr Thomas’ townhouse only a few metres away.

24 Mr D. Logan a conservation architect gave evidence in Exhibit C, and reached the conclusion:

Given appropriate reversible fixing methods (such as the approach outlined), I do not believe that a glass acoustic screen fixed at the north end of the eastern verandah of The Pavilion will adversely impact on the significant character or fabric of the heritage item. In the context of recent adaptation of the building and its sympathetic re-use as a public restaurant/cafe, the limited extent and visual impact of the proposed new element, together with its ability to be installed in an easily reversible manner, support this conclusion. We trust that this information is of assistance. We would also be happy to discuss the final detailing of the proposed glazed screen on site with the acoustic consultant and/or the contractors if required.

25 The original plans approved by the council are lost by both parties. The only plan available in Exhibit B was stamped by council on 17 July 2002 and shows 12 seats in the garden on the Great North Road frontage, and 70 under the roof including 16 on the east verandah. This must be a different plan to the one referred to by Commissioner Tuor in Appeal No. 10786 of 2002 that stated the original approved plan showed 12 seats on the east verandah. The Consent No. 42/02 refers to plans SK01 – SK08 and DA1. They are the plans that are lost.

26 The applicant said that “inside” includes seats under the roof on the verandas. A restaurateur needs the flexibility to move tables as needed to suit customers. The current set up of a table for 8 persons at the north end of the east verandah is very popular as are the other 5 tables currently on the veranda giving 28 seats total as on the plan in Exhibit 2 annexure C, the Plan of Management. That is what the applicant wants. The respondent put that Exhibit C showing only 16 seats merely reinforced the evidence on adverse impacts if the hours of operation are extended. The east verandah is very popular due to the garden and the space on that side. It was noted the plan in Exhibit 2 Annexure C still showed a total of 108 seats.

27 The primary control on this application (apart from the EP&A Act 1979) is the site specific DCP. Mr Shiels reports the applicable provisions as follows:

The Drummoyne Area Development Control Plan for the Nestle Site Abbotsford Bay came into effect in January 1995, and applies to the subject site.
The relevant provisions of this DCP as identified in the Statement of Issues filed in the Court on 17 August 2005 are Clauses 2.1, 3.1 and 3.2, which provide the Reasons for the Plan, Aims and Objectives, respectively.

Clause 2.1 provides, inter alia:

"2.1 Reasons for the Plan:

Clause 3.1 provides, inter alia:

"3.1 Aims

The aims of this plan are:

To facilitate the orderly and economic development of the land to which the plan applies and to encourage a development outcome acceptable to future residents of the site and to the community in general;
To establish development controls and performance standards within which the scale, bulk, form and character of a future development can be determined; and
To ensure that development complements and is environmentally compatible with the existing built environment and makes a positive contribution in social and economic terms to the area."

3.2 Objectives

The objectives of this plan are:

28 Mr Shiels reported on the application as follows:

inter alia:

Use of the premises;
Hours of operation;
Staffing;
Compliance with the Plan of Management;
Maintaining neighborly relations;
Noise control;
Consumption of alcohol on the premises;
The parking of vehicles;
Deliveries and garbage disposal;
Smoking;
Seating arrangement;
Safety and security; and
Emergency procedures.

29 Following receipt of the Plan of Management, I expressed concern that a number of the above items in the Plan of Management had not been addressed in a quantifiable manner.

30 On 6 March 2006, I received an amended Plan of Management which provided additional information.

31 The proposed hours of operation of the premises were provided in table format and are reproduced below for the Court's convenience:

32 The applicant sought to amend this during negotiation to allow trading to 11pm Monday to Saturday and open at 7am on Sunday.

33 Mr Shiels concluded that:

The site is zoned residential and forms part of a residential redevelopment project and currently has approval as a cafe with 82 seats and restricted trading hours to 7 pm Monday to Sunday. The section 96(2) modification seeks to increase the seating to 108 and extend the trading hours to 11 pm Monday to Saturday.

Given the close proximity of residential dwellings, the Court needs to be satisfied that the proposal will not have an unreasonable impact on surrounding residents. My opinion is if the restaurant extended its trading hours to 11 pm six evenings a week, there is every likelihood that the proposal would have an unreasonable impact on nearby neighbours. In my opinion, if the potential capacity of the restaurant is increased to allow for major functions there will be increased competition for car parking on street and in the community car parking area. If any change to the currently approved operating hours is to be approved, it should be limited to:

1. The restaurant not having any live entertainment or noise emitted on the outdoor verandas;

2. The number of seats be contained to the level of 82 with a maximum of 12 outdoor seating on the western verandah and 28 on the eastern verandah;

3. That the hours of operation and general functioning of the restaurant proposed in the Plan of Management be modified as above.

4. That major functions, weddings etc not be permitted.
5. Servicing and deliveries be limited in location and time of delivery.
6. A trial period be considered.

34 Mr Lawrie had noted that the acoustic tests done by Mr Cooper had been carried out with the sound receiver positioned at ground level outside his fence, and with 22 persons on the east verandah, not the 28 usually seated there. The glass screen proposed on the north end of the veranda might do something to reduce noise for Mr Thomas, but it would do nothing for the Lawries. Also their bedroom windows are on the upper floor facing the veranda. The acoustic test could not give a true indication of noise at the neighbours’ bedrooms.

35 Mr Shiels agreed with this and the respondent put that any increased hours at night must require a test period and more acoustic tests. On the basis of the existing tests however, Mr Shiels supported 22 seats on the east veranda up until 7pm and 16 seats from 7pm to 8.30pm on Friday and Saturday nights. The large table at the northern end should be roped off at 7pm to avoid a noisy group at it. During oral evidence he conceded that 28 seats on the east verandah up until 7pm should not produce much more noise than 22 seats. The council presses for 22. I have concluded that for the trial period 28 persons up until 7pm and 16 thereafter is reasonable.

36 The question arose about the prohibiting of functions. What is the definition of a function. Mr Shiels said 20 persons and the applicant said 40. The respondent pressed for 10 persons. Mr Shiels regarded 10 as a group of casual diners.

37 The applicant put that the draft conditions put by the council should only apply after 7pm because the existing consent was valid until then. The respondent put that the Plan of Management and the documents and the existing consent covered all hours of operation. The modification of the consent can change those parts of it relevant to the impacts of the changes sought.

38 It seems to me there is no disagreement that the original lost plans did not have 28 seats on the east verandah. That is a change that is part of this application, it is reasonable to impose seating restrictions. I conclude for the trial period 28 seats before 7pm is reasonable and 16 seats after 7pm, but no function is to be held on the east veranda and the tables to have no more than 4 seats after 7pm.

39 There was debate about whether the restaurant could be described as a community facility the latter term being the permissible use. It was shown the LEP definition of community facility includes “refreshment room” and that is accepted as including a restaurant.

40 There is no definition of “small scale” as referred to in the DCP, it could only be construed that it meant uses in the community facilities and the subject site should be activities that had minimal effect on residential amenity.

41 I agree with the applicant’s submission that after 7pm a door for access to the east veranda needs to be open on Friday and Saturday. I also agree that food may be served outside the footprint of the building on the west side only.

42 The draft conditions do not require a review or development application at the end of the trial period to establish permanent opening hours if condition 15 is to be changed. Such a condition is needed. Condition 15 should reflect that.

43 There also needs to be a plan that reflects amended condition 4, and so I attach the plan filed on 28 June 2006.

44 For the above reasons, the Orders of the court are;

___________________

K G Hoffman

Commissioner of the Court

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Vella v Canada Bay CC [2006] NSWLEC 477

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CITATION:	Vella v Canada Bay CC [2006] NSWLEC 477
PARTIES:	APPLICANT Richard Vella RESPONDENT City of Canada Bay Council
FILE NUMBER(S):	10617 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Deemed Refusal :- s.96 modification application to conditions 4 and 15 of development consent No.42/02, heritage item, on-street parking, hours of operation, noise nuisance to adjacent dwellings.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Drummoyne Local Environmental Plan 1986 Drummoyne Comprehensive Development Control Plan 1999 Site Specific DCP - Nestle Site Abbotsford Bay. Parking DCP.
DATES OF HEARING:	24/04/2006, 9/05/2006 and 22/06/2006
DATE OF JUDGMENT:	08/02/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr C. Gough, solicitor of Storey and Gough RESPONDENT Ms J. Wauchope, barrister Instructed by Maddocks

[2006] NSWLEC 477

02/08/2006