Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 437

Land and Environment Court of New South Wales

CITATION : Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 437

APPLICANT Jonah Pty Ltd PARTIES : RESPONDENT Pittwater Council

FILE NUMBER(S) : 10284 of 2000

CORAM: Bly C

KEY ISSUES: Development Consent :- Alterations to existing consent for restaurant/motel, outdoor seating, noise impacts

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 30/10/2006

EX TEMPORE JUDGMENT DATE : 10/30/2006

APPLICANT Mr P Clay, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr M Causer, solicitor SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

30 October 2006

10284 of 2000 Jonah Pty Ltd v Pittwater Council

JUDGMENT This decision was given extemporaneously on site and has been revised and edited prior to publication.

1 On the 30th April 2001 the Court granted Consent Orders for alterations and additions to Jonahs Restaurant/Motel at 69 Bynya Road, Palm Beach, subject to a number of conditions. Those conditions include: D226. Restaurant seating numbers are not to exceed 100 D227. No tables or chairs or similar structure of any type are to be permitted on the new terrace area adjacent to and on the eastern side of the existing outdoor dinning area. That area maybe used for other than dinning provided that no seating or tables are to be provided on that area. 2 The applicant has now submitted an application to modify this consent so as to enable the outer terrace (referred to in condition D227 as the new terrace area) for the seating of a maximum of 60 restaurant patrons. 3 The application was advertised and a number of objections were received from residents of the immediate locality. Whilst concerns were expressed in those objections in relation to the activities of the restaurant generally those matters are not matters that form part of this appeal. Other concerns were expressed particularly in relation to the proposal and those concerns were essentially explained by three residents who gave evidence during these proceedings: · Mrs L. Brandon of No. 64 Bynya Road was concerned that the added flexibility resulting from the use of the outer terrace will make the premises more attractive and thus likely attract more patrons notwithstanding the patron limits. These additional patrons will cause in the surrounding area to be adversely affected by additional noise as well as additional traffic in the street. · Mr L. Panozzo of No. 226 Whale Beach Road, explained that he had carried out noise measurements in various locations surrounding the site and was of the opinion that the expert acoustic report provided was not correctly founded and should not be relied upon. He was also concerned at the inadequacy of community consultation processes to properly deal with complaints about the activities of the restaurant. · Ms S. Gold of No. 35 Pacific Road, had a number of concerns. She asserted that the restaurant regularly failed to comply with the 100 patrons maximum and that if this were taken into account the noise impacts would be greater and hence the noise assessment would be or is flawed. Like many other residents she was concerned about the impact of the restaurant on the surrounding neighbourhood including matters of traffic and noise that would result from the utilisation of the outer terrace for dinning purposes.