Cday Electrical Services Pty Ltd v Burwood Council

The site and its context

1. The site is located on the southern side of Parramatta Rd between Wychbury Lane (to the west) and Acton St (to the east). Wychbury Lane provides access from the rear of the site. The site has a 17.235m frontage to Parramatta Rd, including an existing driveway crossing, and a site area of 554.6 sqm. The site is currently vacant.
2. The immediate vicinity of the site is characterised by a mixture of commercial and light industrial premises, facing Parramatta Road, with some service access to these premises provided by Wychbury Lane. To the south of the site, and adjoining the lane, is a row of single storey dwellings located in the Wychbury and Alexandra Avenues Heritage Conservation Area (WAHCA). The surrounds of the site are shown in the following aerial image.

The proposal

1. The proposal, in development application 195/2015, comprises the construction and use of a food and drink premises on the site. In addition the development incorporates toilets, store and staff areas, outdoor seating, 8 parking spaces, delivery bay and site landscaping. The application seeks the following operating hours: Tuesday 11am - 10pm Wednesday - Thursday 11am - 12 midnight Friday - Saturday 11am - 2am Sunday 11am - 10pm The agreed conditions of consent propose to authorise a reduced range of operating hours on Friday and Saturday night from those sought, with trade ceasing at midnight. In addition to these ongoing hours of trading, the conditions allow trading from 12midnight to 2am, on a trial basis, with a sunset of 12 months (Exhibit 4).

Public submissions

1. The Court heard from a number of objectors on site at the commencement of the conciliation conference. During the hearing a summary of these objections were tendered (Exhibit 2). The residents central concerns with the proposal can be summarised as: 1. The use of Wychbury Lane as an entry and exit point to the proposed food and drink premises; 2. Concern that the proposed hours of operation will result in adverse traffic impacts and loss of amenity for residents; 3. The likely increase of rubbish in the laneway from patrons of the food and drink premises; 4. Impact on the safety and security of residents in view of the late night trading proposed; 5. Additional noise and the ingress of light (from vehicles as well as the premises) providing sleep disturbance and impacting residential amenity; and 6. Loss of privacy to rear yards and private open space.

Planning framework

1. Section 79C(1)(a) of the EPA Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The following State Environmental Planning Policies apply to the development:

• State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP)
• State Environmental Planning Policy No 64 Advertising and Signage (SEPP 64)

1. Infrastructure SEPP applies to the site as it has frontage to a classified road. The proposal has received concurrence from NSW Roads and Maritime Services, and the proposed development is considered to satisfy the requirements of this instrument.
2. SEPP 64 applies to the proposed advertising signage for the development. The applicant has provided an assessment of this against the requirements of the SEPP, in Exhibit A. A condition is proposed in the agreed draft conditions that states (in part): 17. All external signage graphic advertising details shall be the subject of a separate application to council This has the effect of removing any external signage from this development consent.
3. Burwood Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2): … (b) to encourage or restrict development of land according to its suitability for various purposes, … (d) to encourage growth in business and employment development.
4. Pursuant to LEP 2012 the site is zoned B6 Enterprise Corridor and the proposal is permissible with consent. The objectives of the zone are as follows: ● To promote businesses along main roads and to encourage a mix of compatible uses. ● To provide a range of employment uses (including business, office, retail and light industrial uses). ● To maintain the economic strength of centres by limiting retailing activity. ● To provide for residential uses, but only as part of a mixed use development.
5. The maximum height control for the site (cl 4.3) is 15m. It is agreed between the experts that the development complies with this control.
6. The maximum floor space ratio for the site (cl 4.4) is 1:1.75. It is agreed between the experts that the development complies with this control.
7. Given the site is adjoining a mapped heritage conservation area, cl. 5.10: Heritage conservation, does not directly apply to the site, other than for consideration of any impact of the development on the significance of the adjoining conservation area.
8. The Burwood Development Control Plan 2012 (DCP 2012) applies to the proposal. The DCP 2012 aims relevant to this appeal are: … ● To help maintain and enhance the quality of the natural and built environments in the Burwood LGA through the development assessment process. ● To improve the environmental and social sustainability of development …
9. Overall DCP 2012 seeks to maintain the following key features of the Burwood local government area: ● Housing availability and diversity. ● Excellent accessibility with good transport connections. ● Availability of major shopping facilities, business services and community facilities. ● High quality urban environment and public domains of residential and commercial areas. ● Heritage conservation and healthy communities. ● Economic development and local employment opportunities. ● Sustainable development and environmental protection. ● Protection of Burwood's high quality residential areas.
10. DCP 2012 requires the applicant to respond to the local and broader contexts by identifying the defining elements of a development site and the character of the locality (cl 2.2) and to prepare and submit a site analysis. It is agreed between the experts that the development complies with this control.
11. In Part 3.2 of DCP 2012 details a series of general building controls. It is agreed between the experts that, where relevant, the development complies with these controls.
12. The Parramatta Road corridor has specific controls within s 3.1: Development in Centres and Corridors. This section of DCP 2012 has the following aims: ● To reinforce and support the different identities, functions and character of the centres and corridor. ● To ensure development achieves the stated desired future character of each of the centres and corridor. ● To minimise the potential negative impacts of development on neighbouring low density residential properties. ● To encourage a safe and human scale environment at street level within centres and corridor.
13. A statement of desired future character for this precinct is provided at cl 3.6.2. The following extract of this statement is relevant to this proposal: … Buildings within the corridor will be of low-medium scale and higher design quality, and deal with access and parking on site. They will be encouraged to locate closer to and address the road (vehicle sales businesses will be a special case) while ensuring that direct impacts on adjoining residential property owners are minimised..
14. Pursuant to c l3.7: Transport and parking in Centres and Corridors, one vehicle space is required per 40m² of floor area. As the proposal has a total gross floor area (as defined by the DCP) of 88m² and a provision of 8 spaces, a delivery bay and bicycle parking, it is agreed between the experts that this requirement of the DCP is met by the proposal.
15. The waste management requirements of the proposal are outlined in cl 6.2 of the DCP. A waste management plan in accordance with this clause has been provided with the application, and compliance with this plan is a proposed condition of any consent (Exhibit 4).
16. To facilitate the development stormwater management works are proposed as detailed in the 'Stormwater Concept and Erosion &Sediment Control Plan' prepared by Barker Ryan Stewart. It is agreed between the experts that subject to the imposition of the agreed conditions the requirement of the DCP at clause 6.5 are met by the proposal.
17. Clause 6.6 of DCP 2012 has no specific requirements for landscaping for the development. Limited landscaping has been identified on the architectural plans.

Expert evidence

1. The initial joint conferencing process sought to address the issues in contention as detailed in Exhibit 1 and summarised below: 1. The potential for unreasonable adverse impact on the acoustic amenity of the neighbourhood from the premises and the need for additional acoustic information and assessment; 2. The potential impact on Wychbury land from traffic from the development, and patron parking that is not accommodated on site; 3. The potential of the development to have an adverse social impact as a result of the behaviour of patrons; and 4. The lack of a Plan of Management to cover all aspects of the operation of the proposed use.
2. During the conciliation process these issues were addressed as follows: 1. Joint conferencing of the acoustic experts and additional noise logging and assessment; 2. Addition of the following to improve the acoustic performance of the development: 1. Addition of a roof over the outdoor seating area with acoustic treatment; 2. The offer to replace the rear bound fencing of No 3 & 5 Wychbury Lane with 2500mm high acoustic fencing to reduce the acoustic and lighting impact on the adjoining residential properties; and 3. The extension of the rear wall in length towards the west, by 1.5m at the boundary of the site. 1. Amendments to the site design to direct traffic exiting the development right into Wychbury Lane and the addition of No left turn signage; 2. The inclusion of a boom gate to the site entry from the lane to restrict vehicles from using the laneway to enter the site; 3. Submission of an Operational Plan of Management for the site that details the procedures for and management of: 1. Deliveries; 2. Noise; 3. Lighting; 4. The entry and exit of patrons; 5. An incident register; 6. The behaviour of patrons; 7. The use of Closed Circuit Television (CCTV); 8. Maintenance and litter; and 9. Emergency procedures.
3. There are a number of agreed conditions (extracts below) are proposed to be included in any consent, that are relevant to the above matters and their implementation in any consent proposed (note full conditions are included in Annexure A). 1. Certainty of outcomes and operation: (1) The development shall be carried out in accordance with the following plans and documentation, except where amended by the conditions of consent: Plans prepared by Nordon Jago Architects, Project No. MLT00115, Drawings:- DA. 000, Site Location & Perspective, dated 17.08.16, Issue E DA. 100, Site & Analysis Plan, dated 17.08.16, Issue F DA. 101, Plan, dated 17.08.16, Issue F DA. 102, Sections & Elevations, dated 17.08.16, Issue E Plan of Management prepared by Barker Ryan Stewart Total Project Solutions, dated 9.08.16, as amended. Storm Water Concept and Erosion & Sediment Plans, prepared by Barber Ryan Stewart Total Project Solutions, Drawing Nos. CC 150144E1.01 and 02, Revision B and dated 9/8/2016. Survey of the site, prepared by John K Wicks and Associates, dated 7/08/12. Traffic & Parking Impact Assessment Report, prepared by Barker Ryan Stewart, Planning Project Management Engineering Certification, dated 11/12/2015. Noise Impact Assessment Report prepared by Acoustic Logic Consultancy Pty Ltd, dated 19/07/2016, Revision 3 and associated comments. Waste Management Plan prepared by Barker Ryan Stewart, dated December 2015. B99 Delivery Vehicle Swept Path Analysis Plan by Barker Ryan Stewart numbered CC150144T101 Rev A dated 22.08.16 1. Controlling Residential Amenity Impacts (7) The proposed food and beverage premises shall not interfere with, cause harm or cause any adverse impact to the area in any manner, particularly to the residential properties across Wychbury Lane. (8) The hours of operation are confined to: • Mondays closed, • Tuesdays 11am - 10pm, • Wednesdays & Thursdays 11am - 12 midnight, • Fridays & Saturdays 11am - 12 midnight, • Sundays 11am - 10pm. The hours of operation on Fridays and Saturdays between 12 midnight and 2 pm (next morning), is subject to a 12 month Trial Period, from the date that an Occupation Certificate is issued, and the operation of the premises begins. … (9) At all times there shall be compliance with the Plan of Management, dated August 2016, and prepared by Barker Ryan Stewart Total Project Solutions, as amended. A copy of the Plan of Management shall be kept on the premises at all times. (10) No liquor shall be displayed, stored or sold from the premises. (11) The maximum number of persons working on the premises is limited to 4, without further approval of Council. (12) The footpath and lane shall be kept clear of signs, fixtures and goods at all times. (14) A maximum number of three tables with a total of 18 seated patrons on the premises are permitted at any particular time, without further approval from Council. … 1. Traffic (13)…No vehicle entry to the premises shall be permitted via Wychbury Lane. (16) All loading and unloading shall be carried out from the Delivery Bay. (21) A Boom Gate(s) shall be installed at the rear exit into Wychbury Lane, which prevents vehicles entering the site from the lane. "No Entry" signs shall be affixed to the southern side of the rear walls, adjacent to the exit opening. "Exit" and "Right Turn Only" signage shall be marked/painted across the driveway, adjacent to the boom gate. Similar signs are to be affixed to the gates and rear walls. (23) The rear gates shall be closed, and vehicle access from Parramatta Rd., prevented/blocked off with bollards/boom gate or similar, when the premises is not trading or is closed for business. 1. Acoustic Measures (22) The eastern rear wall shall be extended in length towards the west, by 1.5m. (24) Construction of boundary fences The applicant shall construct at no cost to the owners of 3 and 5 Wychbury Avenue Croydon: i. In respect of No 3 Wychbury Avenue, to construct a lapped and capped timber fence on the Wychbury Avenue boundary to a height of 2.5m above existing ground level. The palings shall be constructed from a minimum 20mm thick hardwood timber. There shall be no visible gaps in the construction including where the construction abuts any other surface. The gates in the fence shall be built in materials and in a manner to ensure that they have equivalent acoustic properties to the fence. ii. In respect of No 5 Wychbury Avenue, to extend the height of the existing masonry fence on the Wychbury Avenue boundary to a total height of 2.5m above existing ground level. The material used for the extension shall have a sound reduction index not less than Rw 20 and shall be constructed of material which is acceptable to the owner. There shall be no visible gaps in the construction including where the construction abuts any other surface. (Reason: To ensure the amenity of surrounding land uses) (25) Noise Use The LAeq,15min noise level emitted from the premises (including mechanical plant) shall not exceed the following at any point within the boundary of any affected residence: Day Day-time 7am-10pm Evening 6pm-10pm Early Night-time 10pm-midnight Late Night-time 10pm-2am Tuesday-Sunday 55 57 Wednesday-Thursday 50 Friday-Saturday 51

… (26) Noise - Mechanical Plant The LAeq,15min noise level emitted from all mechanical plant installed on the premises operating contemporaneously shall not exceed the following at any point within the boundary of any affected residence: Day-time 50 Evening 50 Night-time 45 … (27) Offensive Noise Noise emitted from the premises shall not give rise to the transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy. (28) Sound Amplification Equipment Notwithstanding compliance with any other clause in these conditions of consent, the sound emitted from any amplification equipment installed on the premises shall not be audible within any habitable room of any affected residence between the hours of 10pm and 7:00am. 'affected residence' includes a lot in the strata scheme or any other strata scheme, premises for short-term accommodation and hospitals. (29) Acoustic Certification Within the first 60 days of use of the premise commencing, attended acoustic monitoring must be undertaken in accordance with the following: a. The acoustic consultant must: i. measure and verify that the noise emanating from the premises complies with these conditions; ii. if necessary, make recommendations to ensure that the noise emanating from the premises complies with these conditions; and, iii. submit a report including recommendations to Council within 21 days of completing the measurements. b. The noise measurement must: i. be undertaken without the knowledge of the applicant, manager or operator of the premises; ii. be taken on a night when the premises is operating at or near maximum patron capacity and an allowance made in the noise readings to account for maximum patron capacity; iii. include all sensitive noise receivers and elevated receptor locations; and, iv. include the time period from 10pm to 30 minutes after closing time. c. If the acoustic consultant recommends that additional treatment or works be undertaken under sub-clause (a)(ii) above, those recommendations must be implemented to the satisfaction of Council within one month from the date of the acoustical consultant's report referred to in sub-clause (a)(iii). d. If the acoustic consultant's recommendations are not implemented in accordance with this condition, the use which is identified as causing noise to be emitted in excess of the conditions referred to here-in must cease until such time as the recommendations are implemented and verified. e. If necessary, the requirements of this clause shall be repeated to the satisfaction of Council. (30) Noise Complaints If, during on-going use of the premises, substantiated complaints of breaches of noise emission conditions and/or the Protection of the Environment Operations Act, 1997 occur, an acoustic report assessing the impact of the operation shall be carried out by a suitably qualified acoustic consultant. The report is to be submitted to the satisfaction of Council's Health Compliance Unit within 60 days of written request. The investigation shall include, but not be limited to: a. The identification of sensitive noise receivers potentially impacted by the proposal; b. The quantification of the existing acoustic environment at the receiver locations (measurement techniques and assessment period should be fully justified and accordance with relevant Australian Standards and NSW Environment Protection Authority (EPA) requirements); c. The formation of a suitable assessment criteria having regard to the Conditions of Consent and guidelines contained in the NSW EPA Industrial Noise Policy; d. The identification of operational noise producing facets of the use and the subsequent measurements predictions of resultant noise at the identified sensitive receiver locations from the operation of the use. Where appropriate the predication procedures must be justified and include an evaluation of prevailing atmospheric conditions that may promote noise propagation; e. A statement indicating that the operation of the premises complies with the relevant criteria together with details of acoustic control measures that will be incorporated into the development/use, will not create adverse noise impacts to surrounding development. (31) Qualifications of Acoustic Consultant In these conditions, reference to a suitably qualified acoustic consultant means an individual who possesses the qualifications to render them eligible for membership of both the Australian Acoustics Society and Institution of Engineers Australia at the grade of member or an individual who is employed by a member firm of the Association of Australian Acoustic Consultants.

1. At the hearing the representatives advised the court that the experts are agreed that the effect of the changes detailed in [30] is that the concerns in the contentions that were pressed by the Council are resolved.

Consideration

1. In accordance with s80 of the Act in determining an application, a consent authority can either: (a) grant consent to the application, either unconditionally or subject to conditions; or (b) refuse consent to the application.
2. Pursuant to s80A(1) of the Act the consent authority may impose a condition of development consent if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)-(9) of this section or section 94, 94A, 94EF or 94F.
3. Relevantly s80(4) requires that conditions are expressed in terms of outcomes or objectives, and requires that conditions are expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.
4. In order for conditions to be successful they need to clear and certain, as outlined in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] 143 LGERA 277 which states at 24: (that there is no lawful development consent where the consent falls into one of two categories) 'the first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B; 351 (Preistly J A). The second category is where Council has purportedly granted consent, but in terms which lack finality or certainty, so that there is, in substance, no effective consent to the application.
5. Having reviewed the agreed conditions (Exhibit 4), in the context of the powers under s80 of the Act, I find that the proposed conditions 7, 12, and 29 lack finality and certainty and in to meet the requirements of s80A(4) of the Act they require amendment as detailed below: (7) The proposed food and beverage premises shall comply with the requirements of this consent so as to not interfere with, cause minimise harm or cause any adverse impact to the area in any manner, particularly to the residential properties across opposite the subject site in Wychbury Lane. (12) The footpath and lane shall be kept clear of signs, fixtures and goods at all times along and opposite the frontage of the subject site to Wychbury Lane and Parramatta Road. (29) … c. If the acoustic consultant recommends that additional treatment or works be undertaken under sub-clause (a)(ii) above, those recommendations must be implemented to the satisfaction of Council within one month from the date of the acoustical consultant's report referred to in sub-clause (a)(iii). d. If the acoustic consultant's recommendations are not implemented in accordance with this condition, the use which is identified as causing noise to be emitted in excess of the conditions referred to here-in must cease until such time as the recommendations are implemented and verified. e. If necessary, the requirements of this clause shall be repeated to the satisfaction of Council.
6. In note that the representatives of the Council have tendered to the Court agreement to the imposition of 24 and consent to the completion of these works on their properties.
7. In the statement of facts and contentions the Council raised concern about the practicality of policing compliance with conditions of consent. Chief Justice Preston in Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 at [35] concluded that the Court should approach the decision making process with the view that conditions will be complied with: 35 Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully.
8. The agreed conditions propose a 'trail period' of extended trading for Friday and Saturday evening (Condition 8). Such reviewable conditions are empowered by s80A(10B) as follows: Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.
9. I am satisfied that such a trial period and review is appropriate given the proposed use and the proximity of residential uses.
10. The agreed conditions, at Condition 1 require that the development is carried out in accordance with the Operation Management Plan, prepared by Barker Ryan Stewart (Exhibit C). In considering whether a plan of management is appropriate for a particular use or situation Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54] outlines a series of questions to be considered to ensure the effectiveness of the plan of management.
11. In the circumstances of this case the I find that the answers to these questions are as follows: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? Yes 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? No 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? Yes 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? No 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? Yes 6. Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent? Yes 7. Does the Management Plan contain complaint management procedures? Yes 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? Yes
12. As such I find that the plan of management, in concert with the amended conditions, are an appropriate means of controlling the impacts of development on residential amenity, and is unlikely to impose a high burden placed on Councils to enforce conditions or the plan of management, to control the amenity impacts of the proposal.
13. On the basis of the site view and the evidence before the court I am satisfied that the development is not likely to have an impact on the significance of the adjoining heritage conservation area (cl5.10).
14. I have reviewed the comments made by experts, and their agreement, I am satisfied, subject to the changes to conditions above, that they appropriately consider the issues raised by the contentions and the appropriate planning controls and I accept their conclusions.
15. It remains now to assess the matters raised the submissions made by the public in response to the notification of the development application (s97C(d) and (e) and whether they have been satisfactorily addressed.
16. As outlined in [10], as part of the onsite view, the Court had the opportunity to hear from members of the public in relation to their concerns with the proposed development. The issues raised by the residents were pressed by the Council and through the conciliation process a number of amendments were made to the application by the applicant. These changes to the proposal are detailed in [31]. The applicant and the Council have also agreed to a set of conditions that provide additional safeguards and certainty in relation to the management of impacts of the development.
17. I find that in evaluating the development application, the amendments, and proposed conditions, that they are appropriately responsive to public submissions and the potential impacts of the development [s79c(1) (b)(e)]. There are no material issues raised by the residents that remain to be considered.

Findings

1. For the reasons set out in the judgment, after considering the relevant matters under s79C(1) of the Act, the amended plans, the expert reports, the proposed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.

Orders

1. The orders of the Court are: 1. The appeal is upheld 2. Consent is granted to development application 2015/95 for the use of the site at 62-66 Parramatta Rd, Croydon as a food and beverage premises with associated parking and amenities, subject to conditions in Annexure A with the following amendments detailed at [38] 3. The exhibits may be returned with the exception of A, B, C, 1 and 3. ……………. D M Dickson Commissioner of the Court 163113.16 - Annexure A (152 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2016