Land and Environment Court of New South Wales CITATION : Barmist Pty Ltd v Waverley Council [2007] NSWLEC 815 APPLICANT Barmist Pty Ltd PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11058 of 2007 CORAM: Tuor C KEY ISSUES: Section 96 Modification :- Modify development consent to provide fixed seating in the atrium space. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 DATES OF HEARING: 14/11/2007 and 10/12/2007 EX TEMPORE JUDGMENT DATE : 10 December 2007 APPLICANT Mr R. Turner, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 10 December 2007 11058 of 2007 Barmist Pty Ltd v Waverley Council JUDGMENT 1 This is an appeal against the refusal by Waverley Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent 168/2005 (the consent). 2 The proposal seeks to provide fixed seating in the atrium space at 78 Campbell Parade, Bondi Beach (the site). The number of seats and the area remains the same as that approved under the consent. The fixed seating has been constructed but this does not impose an impediment to the determination of the s 96 application. 3 The matter commenced on site as a conciliation conference under s 34 of the Land and Environment Court Act. No agreement was reached and the parties agreed to the matter being disposed of under s34(3)(b)(ii). 4 The site, its context, the history of the application and the planning controls as set out in the Statement of Facts and Contentions. 5 Council, when it assessed the s 96 application, understood the proposal to involve an increase in the seating numbers. The applicant has identified that no increase is proposed and has accepted a condition, which limits seating for no more than 40 people in the atrium area. The applicant has also accepted a condition that the proposal complies with the Smoke Free Environment Act 2000. The wording of these conditions was clarified in a telephone mention on 10 December 2007. 6 The council officers report recommended approval of the application, even with an increase in numbers. Council refused the application on the basis that the proposal was not in the public interest but did not call any evidence to substantiate this contention or specify any impacts of the proposal. As there is no increase in seating the proposal will not result in any increase in impacts to those assessed when the consent was granted. The proposal is therefore acceptable. Orders 1. The appeal is upheld. 2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (168/2005) to alter the fixed seating in the atrium at 78 Campbell Parade, Bondi Beach, is approved. The consent is modified as follows: Amend Condition 1 and 8 to read: 1. Approved Development The development must be in accordance with Architectural Plan No. 1001/B, tables and documentation prepared by "RED MOON', dated October 2005, and received by Council on 15 May 2006, except where amended by the following conditions of consent. 8. Maximum number of persons The maximum number of persons accommodated within the entire ground floor of the premises is limited to 200 people at any one time, with seating for no more than 40 people in the atrium area. Insert new condition 50 50. Smoke free environment The premises shall comply with the Smoke Free Environment Act 2000 and the applicant should confer with the Tobacco Policy and Health Unit of the NSW Department of Health. 3. The exhibits, except Exhibit A, may be returned. ___________________ Annelise Tuor Commissioner of the Court ljr 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.