Sansone v Waverley Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Protection of the Environment Operations Acts 1997

DATES OF HEARING: 11/08/2005 EX TEMPORE JUDGMENT DATE : 08/11/2005

APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick

LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This appeal No. 10545 of 2005 between Nick Sansone and Waverley Council in regard to a s 96 application to amend DA 474/2004 issued by Waverley Council for a restaurant and pizza takeaway at Shop 1 at No. 68-70 Campbell Parade, Bondi Beach. 2 The building actually wraps around the corner with Lamrock Avenue and the pizza shop is at the end of the building only separated from No. 14 Lamrock Avenue by a laneway. The shop is in the Business 3(a) zone of the tourist commercial area of Bondi Beach. Number 14 across the lane is in Residential 2(c) zone and is a block of flats. 3 The council had just before year 2000 made Lamrock Avenue a one way street, and widened the footpath out side the shop. The council had granted a licence under the Roads Act for 9 persons to be seated at tables on the footpath outside the restaurant. 4 According to the neighbours the restaurant was renovated at that time with the shopfront being replaced with bi-folding doors open to the street and seating inside increased up to about 45 persons. 5 The original development consent dated 1986 set a closing time of 10 pm and a limit of 6 persons seated inside and a staff of 4. 6 The business had not operated that way for several years. The neighbours saying the problems began after the renovations around year 2000. Complaints about the adverse impacts on residential neighbours led to the DA 474/2004 consent granted in 2004. 7 The applicant had not complied with its conditions saying they were too difficult to comply with. The adverse impact on the neighbours continued and gave rise to prosecution by council for non-compliance mainly on the storage of garbage in the public laneway, and exceedance of the seating limit of 30 persons total including the 9 on the footpath, and the closing hours of 10 pm Sunday to Thursday and 11 pm Friday and Saturday. 8 The s 96 application sought to amend these conditions amongst some others, one of which was a time limit to the consent of 12 months that meant it would terminate in December 2005. 9 The issues are: The Respondent says that the issues that arise for determination in relation to application to modify Development Application No. DA-474/2004 pursuant to section 96(1A) proposing changes to conditions of consent for the operation of Gelbison's Pizzeria at 68-70 Campbell Parade, Bondi Beach, are as follows: Substantially the Same development

1. The proposed modification should not be approved as the development as modified would not be substantially the same development as that originally approved by council as required under section 96(1A)(b) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Particulars: (a) increase in operating hours; (b) increase in number of dining chairs; (c) likely noise increases; and (d) the development, as modified, would not be of the same essence and material characteristics of the consent will be modified. Amenity Impact
2. The proposed modification should not be approved as the consent authority would not be satisfied that the proposed development as modified has a minimal environmental impact as required under section 96(1A)(a) of the EP&A Act.

Particulars: (a) the increase in hours of operation and number of dining chairs and the amendment of conditions relating to operation of the ventilation fan would have a significant impact on the amenity of local residents. 3. The proposed modification should not be approved as the change to the operating hours is unreasonable and would have an adverse impact on residential amenity.

Particulars: (a) the increase in hours is not acceptable for premises that face residential streets and adjoin residential premises; (b) the additional operating hours should not be permitted in daylight saving time; and (c) it is premature for the applicant to modify its consent as the applicant should wait until the conclusion of the twelve month trial period.

4. The proposed modification should not be approved as the increase in the number of seats will directly impact on the level of noise created by the restaurant and the amount of garbage produced.

5. The proposed modification should not be approved as the development as modified would not be consistent with the specific aims set out in clauses 3(2)(b) and (c) of Waverley Local Environmental Plan 1996.

6. The proposed modification should not be approved as the development as modified would not be consistent with objective (c) of the General Business 3(a) zone.

7. The proposed modification should not be approved as the development as modified would not be consistent with council's Draft Development Control Plan No. 38 -Retail & Commercial Premises in relation to:

(a) Objective (1) -consistent controls to all shops; (b) Objective (2) -minimisation of potential impacts on the surrounding environment; and (c) Objective (7) - compatibility with adjoining residential uses. 8. Not pressed.

9. Whether the proposed modification should be approved having regard to the sufficiency of the waste storage area considering the garbage generated by the applicant and other operators within the building.

Public Interest 10. Whether the proposed modification should be approved having regard to the matters raised in submissions received by council. 10 Attending the on-site hearing for the respondent are: - Mr S Patterson, solicitor - Ms C Rose, solicitor - Mr J Condonaris of Waverley Council - Ms P Murray of Minter Ellison - Mr D Grace, resident - Ms K Harvey, resident - Mr S Pearce, resident - Mr N Huxtable, resident - Mr P Paech, resident 11 The following attended the on-site hearing on behalf of the applicant: * Mr G Green, solicitor * Mr R Bennett, solicitor * Mr & Mrs E & N Sansone, applicant and operator of shop * Mr S Sansone, employee of shop 12 There was considerable evidence from both sides. 13 The residents suffering the impacts of the business operations drew attention to the pizza oven exhaust fan. It had been particularly noisy disturbing sleep in the apartments in No. 14 such that those adjacent to the laneway could not sleep and had to move bedrooms. The fan was often left on all night, and the restaurant was open on occasions to 1 am with cleanup and rubbish and bottles being dumped into garage bins in the laneway after that time. One apartment on the ground floor could not be rented due to the noise and smells. 14 The fan had been serviced recently and was quieter than previously but still prevented sleep. It was supposed, under a condition of the 2004 consent, to be assessed by an acoustic engineer to ensure it complied with the relevant statutory standards. This had not been done. 15 The applicant said there is a garbage store on the lease of Shop 1, but it was not used because other people in 68-70 Campbell Parade left bins/rubbish in the laneway. 16 The applicant said it would renovate and use the garbage bin storage area and comply with other conditions to minimise smells/unsightly rubbish etc. in the laneway. Also the applicant sought a new trial period time limit to the consent to be dated for 1 year from today. It sought closing times of 11 pm 7 days with 11.30 pm in daylight saving periods and other changes to which I shall refer later. 17 Mr Fletcher overall said the history of non-compliance although a factor was not of itself a reason to refuse the amendments. He supported most of the changes subject to conditions. 18 The respondent in cross-examination discovered Mr Fletcher had only visted the site twice in the afternoon. Most of the problems complained about had occurred from 10 pm - 1 am. So he had not seen the non-compliances in operation and their impacts. In fact, he said he could not hear the exhaust fan when he visited. 19 I could hear the fan at the s 34 Conference during midday street noise including in the rooms of No. 14 Lamrock Avenue. 20 Nevertheless Mr Fletcher said if the applicant complied with conditions the unacceptable impacts would go away. 21 In dealing with such matters it is true the Court must presume compliance and provided the conditions are adequate Mr Fletcher's opinion should become reality. The council is there to enforce compliance if needed. 22 The most efficient way of dealing with this evidence and submissions is to go through the Issues and Conditions seriatim.

Issue 1: I believe the characteristics of the use remains a restaurant/takeaway. The changes to the number of seats that makes it a more intense use does not make it substantially different such that should be refused. 1. The impacts of the intensification are merit matters that have a bearing on the conclusions in this appeal.

Condition 1: The garbage bin storage area is referred to as "Communal" on the plans. The applicant says it is on the lease of the applicant and can be used and will be used and modified as per the conditions and the plan showing that should be included in the conditions.

Condition 2: Should be replaced with a similar condition and the time limit of the consent will expire on 11 August 2006.

Issues 2, 3, 4, 5 & 6: Impacts of the hours of operation, number of seats and the ventilation fan. It is unfortunate the applicant has never tried to comply with the original consent conditions in regard to these matters, as it would have demonstrated whether or not an increase of hours/seats etc. should be granted. 23 The objectives of the zone and cl 32 of the LEP have the intention of managing the interface between residential and commercial/retail and tourist uses to maintain reasonable amenity. 24 I accept the noise of the existing pizza oven exhaust fan causes sleep arousal for the residents next door. It is most unlikely to comply as it currently exists, with the terms of the consent or the Protection of the Environment Operations Act 1997. Until that is fixed and garbage disposal properly managed I do not believe that the seating capacity and hours of operation should be increased. To do so would only increase the currently unacceptable impacts on the residents. 25 Therefore I will amend Condition 3 of the existing consent by adding the following words: No cooking or orders to be taken after the closing time. The doors to the street to be locked so that only customers inside the shop at that time may be allowed to exit thereafter and no new customers enter.

During the shut down period, the pizza oven exhaust fan to be turned off 15 minutes after closing time. All customers and personnel to be gone, garage bins put out and the premises locked for the night 30 minutes after closing time. If shut down of the restaurant needs to commence earlier than the set closing time to comply with the exit of all personnel 30 minutes after closing time then the operator must impose that regime.

Once the pizza oven exhaust fan is fixed to comply with Conditions 8, 14, 16, 16A, 16B and 18, and the garbage store modified and the garbage management plan completed and its implementation commenced in accordance with Conditions 10, 12 and 13 then the hours of operation shall become, for the remainder of the trial period of the consent as follows: Sunday to Thursday Opening 11.30 am - 11 pm closing time Friday & Saturday Opening 11.30 am - 11 pm closing time With closing time extended to 11.30 pm on Friday and Saturday during the State declared daylight saving period. The above requirements in regard to the shut down period after closing time shall continue to apply during the remainder of the trial period. Condition 4: Shall be similarly amended having regard to Issue 4 such that the number of 30 seats for 30 persons shall remain in place until Conditions 8, 10, 12, 13, 14, 16, 16A and 16B and 18 are complied with and thereafter shall be increased to permit 45 persons to be seated inside the restaurant and 9 on the footpath for the remainder of the time limit to the consent. Condition 5: Shall be amended as in Exhibit 5. Condition 12: Shall be amended as in Exhibit 5 with the addition of the provision in Exhibit 10 amended in regard to times to comply with Condition 3. Condition 12A: Is to be inserted as in Exhibit 5. Conditions 13 & 15: Is to be amended as in Exhibit 5. Conditions 14: Is to be amended as in Exhibit 12. Conditions 15A: Is unnecessary in view of other condition in Exhibit 5. Conditions 16: Is to be changed and additional conditions 16A and B added as in Exhibit 12. Conditions 25: Is deleted. 26 Other conditions that required compliance within a period after the original date of consent in DA 474/2004 are to be adjusted to date from 11 August 2005. 27 The orders of the Court are:

1. The appeal is upheld in part. 2. Development Consent DA 474/2000 issued by Waverley Council on 14 December 2004 for a restaurant and pizza takeaway at Shop 1, No. 68-70 Campbell Parade, Bondi Beach, is hereby modified as set out in Annexure A hereto. 3. Exhibits are returned to the parties except Exhibits A, 2, 3, 5, 10 and 12 and the subject plans in Exhibit 1 job No. 044223 sheets 1 to 3 plus the waste store plan dated 14 March 2005 all by Astute Designs Building Designers. 4. No order as to costs. ______________________ K G Hoffman Commissioner of the Court Commissioner of the Court rjs

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