Draft conditions
45The council's draft conditions include deferred commencement provisions which require preparation of an emergency response manual, construction of a fire hydrant outlet and alterations to the carpark security gate to meet the requirements of the Building Code of Australia (the BCA) and lighting of the carpark. The applicant agrees to these provisions with the exception of a requirement to maintain a register of guests. The council's planning expert maintained that this was a requirement of Australian Standard 3745 however, I do not agree that this is a mandatory requirement and accordingly it is not a condition that should be imposed as it is onerous and unnecessary.
46The main issues of contention in relation to the conditions are the proposed trial period, the hours of operation, acoustic issues and the requirement for the surrender of the consent for the use of the site as the Palestinian community centre.
47The council seeks a 6 month trial of the reception lounge. The applicant wants this trial period to be for 12 months and to allow the use of the site as a reception lounge for up to 150 persons and that the trial only relate to assessment of the impacts of between 150 and 250 persons.
48The council argues that the applicant's unauthorised use of the site has shown that the use has caused adverse impacts to the amenity of the area and for that reason, it is appropriate that the applicant demonstrate through the trial that the PoM proposed will address those amenity impacts. Mr Cole cites Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 where Preston CJ says:
38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant.
49I agree that, from the evidence available in relation to the amenity impacts of the use of the site as the community club and the more recent use as a reception lounge, the site can, subject to compliance with appropriate conditions, be used for the purpose proposed. In the circumstances of the case, it is appropriate to impose a trial period and, based on the evidence of the traffic experts, that trial period should also be for a maximum of 150 guests. I consider a twelve month trial period would be appropriate and would also ensure that the council and residents can fully assess the impacts of the development over the full range of conditions that will apply.
50Mr Seymour argues that the surrender of the consent would affect the ability of the owners of the land to continue use of the site. He says that the current consent could continue to apply to the land and a new consent for the reception lounge use also apply. To require the surrender of the consent without the owner being a party to the proceedings would, according to Mr Seymour, be contrary to findings in News Limited and Others v Australian Rugby Football League Limited and Others [1996] FCR 410. Mr Cole takes the contrary view and says that the club, as owners of the land, has granted its consent to the applicant to lodge the development application and that the Act provides power, to require surrender of the consent. Without surrender of the consent, Mr Cole says there is no certainty as to how the site is to be used and that the 6 year, exclusive access lease that has been granted to the applicant deems the need for two consents to be unnecessary. I agree that it is appropriate that only one consent should apply to the site in the circumstances and accordingly, the surrender of the consent should be required.
51In addition to what are deemed to be the appropriate acoustic levels, the council is seeking that, following occupation, testing by an appropriately qualified acoustic engineer be undertaken at the applicant's expense to ensure compliance with the acoustic recommendations of Mr Koikas. The applicant seeks deletion of this condition or alternatively, amendment to allow the operator to select the operator after considering three engineers nominated by the council. Mr Seymour says that this is to ensure the costs to his client are not unreasonable. I accept the reasonableness of the amendments sought by the applicant.