Lawler v Byron Shire Council

Land and Environment Court (NSW)|2014-05-02

Judgment 1COMMISSIONER: In 2009, the Court granted conditional approval to Development Application No 10.2007.52.1 for the change in use from a dwelling to a restaurant and manager's quarters at 13 McGettigans Lane, Ewingsdale. Amongst other things, the Court approved a maximum seating capacity of 60 persons and operation over 7 days. The application at that time did not anticipate that the premises would be licensed to serve alcohol. 2The 2009 consent has not been activated. 3In 2012, the applicant obtained an On Premise Restaurant Liquor Licence No. LIQO660031050 from the NSW Independent Liquor and Gaming Authority (ILGA). The licence applies to the original approved trading hours of 12 noon to 10pm each day. The area approved for the service of alcohol is limited to inside the proposed restaurant and does not include the verandah. 4In February 2013 the applicant lodged a s 96 Application with Byron Shire Council to modify the 2009 development consent. 5Section 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) enables an application to be made to the relevant consent authority to modify an existing development consent. In determining the application, the consent authority must be satisfied that the proposed modified development is essentially the same as the approved development. The consent authority must also assess the proposal in accordance with s 79C of the EPA Act and consider its likely impacts. 6The application to Council sought to increase the seating capacity to 90 persons, increase the number of parking spaces from 20 to 30 spaces, alter the hours and days of operation, and modify other aspects of the approved development. 7On 12 April 2013 Council refused the modification application on a number of grounds, in particular, adequacy of the proposed On-site sewerage management system (OSSM system), potential noise, absence of a social impact statement (as the premises would be licensed), and other issues not in the public interest. 8In October 2013 the applicant filed a Class 1 application appealing the council's refusal of the s 96 modification application. The appeal is made under s 97AA of the EPA Act. 9The matter commenced as a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979. However, as agreement could not be reached, the matter proceeded to a hearing. During this process the applicant sought leave to rely on a number of amended plans and documents. As leave was granted, the council amended its Statement of Facts and Contentions and relevant experts participated in joint conferencing.

The proposal 10The application (No. 10.2007.52.3) seeks to modify the approved plans and conditions to:

change trading hours from noon to midday up to seven days per week to: (a) Wednesday, Thursday and Friday - 6pm to midnight; (b) Saturday and Sunday - noon to midnight; (c) Monday and Tuesday - closed;
increase the maximum capacity from 60 to 90 persons;
increase the number of car parking spaces from 20 to 30;
reconfigure the kitchen area, toilets and seating area;
lower the acoustic barrier fence;
remove the acoustic carport;
include construction of a new toilet building; and
modify the approved on-site sewerage management system (OSSM).

The site and its locality 11The site is a triangular lot bounded by McGettigans Lane, Ewingsdale Road and Quarry Lane, and is described as Lot 2 in DP 11896. Ewingsdale Road is the main regional road linking the Pacific Highway and Byron Bay. The site is currently accessed from Quarry Lane however, the 2009 approval requires access from McGettigans Lane. 12At the moment, the locality is characterised by grazing land and rural properties. A rural-residential subdivision has been approved on the opposite side of Quarry Lane to the east. Nearby, to the west is the proposed site of a new hospital. The rural residential area of Ewingsdale is to the south.

Planning controls 13Byron Local Environmental Plan 1988 (BLEP) applies. Clauses 2 and 3 provide the Objectives and Guiding principles of the LEP. Clause 2A(1) considers that approval will be granted to the carrying out of development only if it is consistent with the aim, objectives and guiding principles of the plan. Clause 9(3) requires development to be consistent with the relevant zone objectives. 14The site is zoned Zone No 1(c2) -Small Holdings (c2) Zone; the proposal is permitted with consent. In the circumstances of this appeal, Objective (e) is most relevant. (e) to ensure that no development occurs within this zone until the likely impact of the development on the locality has been considered. 15Byron Shire Development Control Plan 2010 applies.

Council's contentions 16Since the filing of amended plans and reports, the council's amended Statement of Facts and Contentions raises the following issues: 1. Adequacy of the On-site sewerage management system; 4. Social impact in regards to licensed premises 5. The public interest; 6. Matters raised by objectors; 7. Insufficient information in regards to the OSSM proposal, Social Impact Assessment, and standard of plans and documents. 17Contention 2 - Building Layout and Toilet Facilities, and Contention 3 - Acoustic Impacts are no longer pressed as council's concerns have been addressed.

The hearing 18The hearing commenced on site. Mr Lawler represented himself and did not instruct his experts to attend. Ms Gerathy represented the council. The Court was assisted by Ms Lara Gallagher, Senior Environmental Officer, Environmental and Planning, Byron Shire Council and Mr Ian MacIntosh, Development Assessment Officer, Planning, Byron Shire Council 19A number of local residents made oral submissions in addition to their written submissions. Their main concerns can be summarised as:

The potential for contamination of local waterways, in particular Simpsons Creek, as a consequence of inadequate land on the site to retain and manage waste water;
Unacceptable noise, especially at night;
Increased traffic and potential road safety issues, particularly at the intersection of McGettigans Lane and Ewingsdale Road;
Potential conflicts between service deliveries/ waste removal and other road users such as school buses;
Fears of non-compliance with conditions of consent and the Plan of Management leading to unacceptable impacts on the amenity of local residents; and
Parking congestion on Quarry Lane and McGettigans Lane. 20Two of the local residents who spoke have operated an unlicensed local café for the last 25 years. They stressed the importance of having on-site owner-operators present to manage parking and patron behaviour, particularly after evening functions, so as to minimise impacts on nearby neighbours. 21On the first day of the hearing the Court granted the applicant leave to rely on final plans and other necessary documents. As the applicant was self-represented Ms Gerathy and the Court assisted Mr Lawler in tendering his evidence. Mr Lawler was regularly asked whether he understood what the respondent, their experts, or the Court were proposing. 22Cross-hatching on the initial Masterplan submitted by the applicant indicated a significant portion of the site proposed to be available for the service and consumption of alcohol. This included the area nominated for wastewater disposal. It was noted that this was inconsistent with the area covered by the 2012 Liquor Licence granted by the ILGA. As is discussed later in this judgment, it had also been previously agreed that the area for wastewater disposal could not be used for any restaurant activities or functions. To those ends, the applicant provided a revised version of the Masterplan (Exhibit A) that reflects these changes. 23The Masterplan, architectural plans and documents tendered by the applicant during the hearing are the basis of the council's draft without prejudice conditions of consent and council's position not to oppose the modification application if the conditions are adopted in full. Clearly these are the plans and documents the Court relies on in making its determination.

Wastewater 24The parties experts, Ms Lara Gallagher for the council and Dr Robert Patterson for the applicant, participated in a joint conference and prepared a report. The experts considered a revised On-site Wastewater Management report prepared by Greg Alderson and Associates dated 21 January 2014. 25Initially the modification application proposed all wastewater to be disposed of on site with no partial re-use through the toilets. The revised system reverts to the type of system approved in 2009 but with additional measures. The original approval included partial re-use of water for flushing toilets. 26The revised system comprises: a 1500 litre commercial grease trap, two Aerated Wastewater Treatment Systems (AWTS) capable of nutrient reduction and treatment of the predicted peak loading from the development; use of a 'Tertiary Polishing Unit' for reuse through the toilets; a balance tank to store and distribute waste water to the irrigation field over 7 days; and disposal within a subsurface irrigation field. In addition, surface water will be diverted around the irrigation area with a catch drain. 27The experts agree that the revised system and associated calculations satisfactorily address the relevant contentions and particulars raised by council. 28Ms Gallagher advised the Court that the experts had taken a very conservative approach to the task of ensuring that all wastewater, and the nutrients contained within it, would be contained on the applicant's property. Their approach recognises and addresses the constrained and environmentally sensitive nature of the site. For example, the area designated for wastewater disposal is in excess of the area indicated by Mr Alderson's calculations. Some of the water is to be treated on site and reused for flushing toilets. In her opinion, there would be no risk of overflow into, or contamination of, local waterways as long as the relevant detailed conditions of consent are adhered to. 29Ms Gallagher stated that given the environmental sensitivity of the site, the proposed conditions relating to the OSSM are of necessity very detailed, and strict compliance is required. In particular, given that there is no existing OSSM system in operation on the site to be used as a comparison, draft condition 47 includes: a requirement for detailed designs to be prepared by an appropriately qualified irrigation expert, specified limits to the volume to be applied on any day, the installation of flow meters to validate and assess the design, a three month validation period, and fencing off the area designated on the Masterplan for wastewater disposal and prohibiting any access to it other than for routine maintenance and inspections. Condition 48 covers effluent reuse. 30In addition, Condition 8 makes it clear that an approval under section 68 of the Local Government Act 1993 must be obtained from council prior to the issue of a Construction Certificate. 31The applicant agrees to these conditions. 32On the evidence before me I am satisfied that the proposed conditions of consent relating to the OSSM system are appropriate, comprehensive and provide for measures that will ensure that the wastewater generated by the modified proposal will be contained on site and will not have any unacceptable impacts on the local catchment. The application should not be refused on this basis.

Social impact and Plan of Management 33In regards to the social impact contention, Mr Ian MacIntosh on behalf of the council, and Dr Annie Holden on behalf of the applicant, participated in a joint conference and prepared a report. 34In their joint report, the experts agreed on a number of conditions that satisfy all aspects of council's contention. In particular, these conditions addressed a trial period of 12 months to limit Sunday night trading to 10.00 pm to assess whether the hours should be extended to midnight, as well as changes to the proposed Plan of Management. These conditions were incorporated into council's draft conditions of consent. 35However, after the joint conferencing, the applicant produced Draft Chillout Restaurant Management Plan 4 (POM v4). This was accompanied by Draft Responsible Service of Alcohol House Policy 4, a requirement of the liquor license. Elements of POM v4 are inconsistent with the agreed position of the experts and a number of deficiencies and omissions were discovered within it. 36In court, Mr McIntosh stated that compliance with the relevant conditions of consent was essential in minimising any adverse impacts on the nearby community. In regards to the proposed and agreed 12 month trial period, he said that the experts agreed this was necessary given the absence of any trading history on the site and the fact that the original approval was not for licensed premises. He reiterated the important role of the Plan of Management in specifying the way in which the business would be operated, and not necessarily by the present owner, so that impacts on the amenity of neighbours would not be unreasonable. 37A considerable amount of court time was spent considering and revising the draft conditions of consent, especially in regards to the POM. 38While a deferred commencement condition requiring a new POM would have been preferable, this is not a course of action open to the parties or the Court by way of s 80A(3) of the EPA Act. Instead, a detailed operational condition was drafted. 39Draft condition 4 - Amendment to Plan of Management, details the matters to be included in the POM. In particular this requires a detailed Operational Management Plan to include, amongst other things: appointed of a Duty Manager; requirements for staff to remind patrons to leave quietly; restrictions on outside speakers and amplified music; hours of operation; hours of closure; restrictions on numbers of patrons at any time and in specific areas such as the verandah and outdoor area; and no functions to be held outside. A Restaurant Staff Induction Handbook will be supplied to all staff; the handbook is to contain a copy of the approved POM and all documents attached to it. The operator is also required to maintain an Incident and Complaint Register. 40In support of the conditions relating to the POM, Ms Gerathy cited Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 and the questions to be considered when deciding whether a Management Plan is appropriate for a particular use and situation. In summary these questions are:

Is there consistency between the POM, the proposed use, and the conditions of consent?
Are the requirements of the POM reasonable?
Can any breaches of the POM be readily identified to enable enforcement?
Does the POM require absolute compliance to achieve an acceptable outcome?
Can the people the subject of the POM be reasonably expected to know of its requirements?
Is the POM to be enforced as a condition of consent?
Does the POM contain complaint management procedures?
Is there a procedure for updating, changing and advertising any changes to the POM? 41I agree with the council that the POM is a necessary requirement in ensuring minimal impact on the amenity of neighbouring properties, especially given the fact that this will be a new activity in the locality and the premises will be licensed. Parts of condition 4 specifically address the amenity of the neighbourhood. Considerable time has been spent in ensuring consistency with the conditions of consent and the requirements of the POM. In my view, the requirements are reasonable and clearly described. 42The part of the condition requiring a detailed operational plan as part of the POM gives certainty and direction to the owner/ operator and all staff as well as to council compliance officers and members of the public. The condition relating to the POM also species the keeping of an Incident and Complaint Register. The POM is to be included in the Staff Induction Handbook. 43POM v4 contained a statement suggesting that the operator may amend/ revise the POM, however, the proposed conditions of consent delete this section as any such arbitrary revision would lead to confusion and uncertainty. 44I note that some confusion may have arisen in understanding the requirements of a Management Plan relating to the operation of the restaurant and the premises as required by council as opposed to any separate requirements imposed by the Office of Liquor, Gaming and Racing or the NSW Independent Liquor and Gaming Authority as a consequence of the liquor license. Condition 4 requires deletion of unnecessary references to the Liquor Licence requirements from the POM. 45After considering the evidence and the proposed conditions of consent, I am satisfied that the modification application should not be refused on this basis. I note Mr Lawler's acceptance of the conditions of consent.

Other issues 46A number of local residents raised concerns about the potential road safety conflicts arising from parking, deliveries and increased traffic. Although council did not raise this as a contention, internal council reports indicate that it was certainly considered. Exhibit J is a Traffic and Parking Assessment report prepared by John Coady Consulting Pty Ltd in November 2012 in regards to the s 96 modification. Based on traffic surveys and RTA data on traffic typically generated by restaurants, the report concludes that increasing the number of seats to 90 would have no unacceptable traffic implications. 47Council also advised that it has the capacity to manage parking in McGettigans Lane by way of signs. The Masterplan shows on-site parking for 30 patrons, including one disabled space, plus 4 staff parking spaces, a loading bay, and one car space for the residential unit. This is also specified in condition 49. Therefore, there should be no necessity for parking off-site. 48A number of conditions of consent specifically address vehicle entry and departure as well as restricted hours for waste collection and goods delivery. 49Other residents were concerned about noise and changes to the proposed acoustic fencing. 50A supplementary acoustic report prepared by Steven Cooper of the Acoustic Group Pty Ltd assessed the likely acoustic impacts of vehicle movements on gravel, external speakers, numbers of patrons, outdoor seating and the inclusion of the toilet block. The report finds the proposal fully complies with the Office of Liquor, Gaming and Racing before midnight noise criteria as well as the EPA intrusive sleep arousal criteria. 51Council has accepted this report and a number of conditions have been imposed that address and limit noise. For example, while the height of the acoustic fence has been reduced, and the acoustic carport removed, council is satisfied that condition 19 imposes the necessary standards for acoustic treatments. Conditions 51, 52, 54 and 56 deal with specific operational aspects of noise control. 52Therefore, as there is no evidence to suggest otherwise, I am satisfied that noise, parking and traffic matters have been appropriately considered and addressed.

Conclusions and orders 53There is no dispute that the proposed modification is not substantially the same as the approved development. 54In regards to the matters to be considered under s 79C(1) of the EPA Act, I am satisfied that the proposal is consistent with the aims and objectives of BLEP and of the zone. No issues regarding non-compliance with BDCP have been raised. The site, while constrained, is suitable for the development as conditioned. Although it is inevitable there will be some impact of the development on the locality, I am satisfied to the necessary extent that the conditions of consent have been carefully drafted to limit any unreasonable impacts. 55Similarly, while a number of residents have concerns about the proposal, it is not against the public interest to approve this modification. 56Therefore, the Orders of the Court are: (1)The appeal is upheld. (2)Modification application No. 10.2007.52.3 to modify plans and conditions of development consent No. 10.2007.52 granted by the Land and Environment Court on 6 July 2009, for Lot 2 in DP 11896 McGettigans Lane, Ewingsdale, is approved and is subject to the conditions of consent in Annexure A. (3)All exhibits except A, H, 1 and 7 are returned.

Judy Fakes Commissioner of the Court ANNEXURE A Restaurant Toilet block 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: 08 May 2014

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