Codling v Manly Council

EX TEMPORE Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) from the determination by Manly Council to refuse consent to Development Application 25/2009 for the fit out and minor alterations and additions to level 1 of the Manly Bathers Pavilion. 2The background to the matter is as follows. The development application was lodged in February 2009 and amended by the applicant in May 2009. The Manly Independent Assessment Panel determined to refuse consent on 23 September 2009 and the applicant commenced proceedings in this Court. The contentions raised by the Council were first, that the proposed function centre on level 1 comprises a "water-based restaurant and entertainment facility" which is a use for a purpose which is not permissible under the applicable zoning under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, and that consequently the proposed function centre use was prohibited. The second contention as put by the Council in its Statement of Facts and Contentions was that if the Court decides that the proposed development is permissible, the respondent raises no merit issues but reserves the right to formulate proposed conditions of consent. 3The hearing of the matter commenced on site, and eight resident objectors gave evidence, including two whose primary concern was as penguin protectors for a small colony of Little Penguins nesting in the foreshore area adjacent to the Manly Bathers Pavilion. The evidence heard on site was generally consistent with, and supportive of, the 71 written submissions received by the Council during the course of its consideration of the application. 4The nature of the written submissions, and the evidence given on site, is summarised at paragraphs [24]-[25] of my decision at first instance in this matter ( Codling v Manly Council [ 2010] NSWLEC 1299): 24 The Council publicly notified the amended development application and received 71 written submissions. Those submissions raised concerns as to noise impact on adjoining residences and the penguin habitat; inadequate parking; increase in pedestrian traffic using the boardwalk; impact of construction work on penguin habitat and disturbance to the penguin colony during nesting and the breeding season; impact on public use of the boardwalk; impact on the penguin habitat from smokers and from light; impact of deliveries; heritage impact; and an increase in anti-social behaviour in adjoining streets. 25 The hearing commenced on site where evidence was given by eight resident objectors. The concerns expressed related to noise from functions, parking, congestion when guests exit the premises, anti-social behaviour, and impact on the Little Penguins which nest in the adjacent foreshore area. The view included a view of the location of Little Penguin nesting sites adjacent to the site. Evidence tendered in the proceedings included a plan and photograph showing the location of penguin burrows adjacent to the site and those close to the Manly Wharf. 5The parties provided detailed written notes summarising the evidence given by the objectors on site at the commencement of the hearing on 20 October 2010, and those notes are Exhibit 14 in these proceedings. 6In my reasons I determined that the proposed use of level 1 of the Manly Bathers Pavilion was not permissible under the applicable planning instrument. My conclusion that the proposed development was not permissible led me to the conclusion that the appropriate course was to dismiss the appeal, and to refuse consent to the development application. 7The applicant appealed under s 56A of the Land and Environment Court Act 1979 and the appeal was determined by Pain J: Codling v Manly Council [2011] NSWLEC 57. There were three grounds of appeal raised, and her Honour concluded in relation to ground 2 that the applicant had established that I had erred in finding that the proposed use or part of the proposed use was for a restaurant. Her Honour upheld the appeal on that basis: see para [43]. Her Honour held that it was not necessary to consider grounds 1 or 3, as the use or uses of the proposed level 1 are permissible with development consent. The matter was remitted to me for the making of final orders. 8The position that the parties had reached at the conclusion of the hearing before me in October 2010 was that there were no merit issues between the parties that would warrant refusal, and the parties had reached agreement on the conditions to be imposed. Those conditions are Exhibit 13 in the proceedings. The Council's position now is that as a consequence of the finding that the proposed use is permissible, it raises no independent merit issues. The issue for me, therefore, is to consider whether the proposed conditions sufficiently address the matters raised by the resident objectors so that I am satisfied that it is appropriate for development consent to be granted. The following discussion should be read together with the reasons in Codling v Manly Council [2010] NSWLEC 1299 and Codling v Manly Council [2011] NSWLEC 57. 9The proposed conditions were the subject of submissions during the earlier hearing on Thursday 21 October 2010, and the parties' representatives addressed the extent to which the conditions as proposed met the concerns raised by the resident objectors. It is clear from a comparison of the original proposed conditions, and those that are now before the Court as Exhibit 13, that a number of the conditions have been modified and others added in order to address the residents' concerns. 10The specific conditions of concern fall within at least three general categories. One of the major issues raised in the written submissions and in the oral evidence on site concerned a small colony of Little Penguins, with a number of burrows close to the site of the proposed development. The evidence of the objectors, which was consistent with a report prepared for and tendered by the applicant relating to monitoring of the Little Penguin colony, was that there are specific issues for Little Penguins relating to noise, light and other interferences with their nesting, and particularly during their breeding season. I have been informed this afternoon by the applicant's representative that it appears that the small colony of Little Penguins near the site of the proposed development has suffered impact to the extent that it may be in doubt as to whether there are Little Penguins nesting there any longer. However, the applicant's position is that it is still appropriate to impose conditions to ameliorate any impact on Little Penguins. 11The particular conditions that address impact on Little Penguins are those that address the noise impacts of the proposed operations of the function centre, and those conditions include conditions prohibiting live music and restricting internal sound amplification (condition 3), and imposing a noise level on noise emissions from the site (condition 8). The conditions relating to light impacts include conditions relating to the closing of louvres to avoid light spill (condition 13), and restricting the use of doors in and out of the premises (condition 14). The proposed conditions include a number of detailed conditions to apply during the construction phase of the proposed development, including requiring a Construction Management Plan to provide measures to protect Little Penguins during the construction phase (condition 16) and specific provisions relating to, for example, runoff and sediment control (condition 23), and the use of particular kinds of equipment (condition 22). The other condition relating to potential impacts on the Little Penguins is condition 37, which continues the obligation on the applicant to either develop and implement a monitoring program, or continue to contribute to an existing program by the Department of Environment and Climate Change. In my view these conditions address the significant concerns relating to potential impacts on the Little Penguin colony that were raised in the written submissions and on site. 12Other issues raised by the residents, both in the written submissions and on site, relate to noise impacts of the operations of the proposed facility. The conditions that are now before the Court include condition 3 relating to external sound amplification, to ensure the acoustic amenity of the immediate vicinity. Condition 8 relating to the maximum noise level to be emitted from the premises specifically addresses the concerns raised by residents across the other side of Manly Cove and further around on East Esplanade, by requiring that the noise emitted from the premises not exceed the background noise by more than 5 dB between 7.00am and 10.00pm at the boundary of any affected residence (including but not limited to affected residences both across the waters of Manly Cove and on East Esplanade). A specific concern raised by the objectors relating to the noise of trucks engaged in deliveries is addressed by condition 9, which imposes a restriction on the hours of deliveries, loading and unloading, preventing them from taking place between 10.00pm and 6.00am on any day. 13There are a number of conditions that address other matters that were raised in the written objections and on site. The external part of the Manly Bathers Pavilion is used by members of the public as a walkway, and concern was expressed about patrons of the venue congregating and interfering with public access. There are conditions proposed to prevent that conflict occurring, in the form of conditions 32 and 33 restricting the use of the doors on the eastern faade. Condition 34 provides for a designated external smoking area on the eastern side of the building, and restricts patrons smoking on other sides of the building. Condition 34 includes a provision that persons not congregate in the smoking area, so as to impede the free flow of pedestrians along the public walkway. 14The other aspects of concern raised by residents about the use of the premises for functions are addressed in part by a requirement in condition 2 that the applicant comply with the Plan of Management for the premises. The Plan of Management in the form before the Court contains provisions as to management of behaviour during the operation of the premises. There is a provision in the conditions for the installation of CCTV (condition 47) and for tapes to be made available to Council and police when requested, that condition being intended to protect the penguin habitat and public safety. 15The other matters that were raised by the residents in their written submissions and on site concern the heritage significance of the building. There are a number of conditions of consent addressing the heritage aspects of the site (conditions 51 to 62). Those conditions are NSW Heritage Council Conditions as to how the work is to be conducted, and restrictions on, for example, the installation of new services, and requirements to protect significant built elements. 16A further matter of concern for the residents on the site related to parking for patrons attending the venue. The application proposes to address the question of parking in two ways, through the provisions of the Plan of Management and through a contribution to the Council under s94 of the Act in part to cover its costs of providing parking facilities. 17The conditions that relate to the matters identified above in my view address the major concerns that were raised by nearby residents and others in the written submissions and on site. There were other concerns raised about this being an additional licensed venue, and the possibility of antisocial behaviour. The Plan of Management addresses some of the aspects of operating a licensed venue and the behaviour of patrons, and condition 2 requires that the premises be operated and managed in accordance with the Plan of Management as amended by any of the more specific conditions of consent. 18Having considered the proposed conditions of consent on which the parties had reached agreement, and which address in matters of detail the concerns of the residents and others as I have summarised them in these brief reasons, I am satisfied that where the proposed development is a permissible development that there is no basis for a refusal of the application on its merits, and there is certainly no evidence before me as to any matters other than those raised by the residents in their submissions and on site that would justify a refusal of the application. 19In those circumstances the orders of the Court are: