Sansone v Waverley Council [2005] NSWLEC 450

Land and Environment Court of New South Wales

CITATION : Sansone v Waverley Council [2005] NSWLEC 450

APPLICANT Nick Sansone

PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10545 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Restaurant and pizza takeaway shop - amenity impacts - public interest - extension of hours and seating

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

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

11 August 2005

10545 of 2005 Nick Sansone v Waverley Council

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.