Land and Environment Court of New South Wales CITATION : Designer Developments Pty Limited v Byron Shire Council [2009] NSWLEC 1223 APPLICANT Designer Development Pty Limited PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 11087 of 2008 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Change of use for restaurant, on-site sewage system, noise/light amenity, impact on neighbourhood Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Byron Local Environmental Plan 1988 Byron Development Control Plan 2002 DATES OF HEARING: 23 April 2009, 5 June 2009, 3 and 6 July 2009 DATE OF JUDGMENT: 6 July 2009 APPLICANT Mr K Webber (solicitor) SOLICITOR Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT M K Gerathy (solicitor) Ms J Hewitt (solicitor) SOLICITOR HWL Ebsworth Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 6 July 2009 11087 of 2008 Designer Development Pty Limited v Byron Shire Council JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for the change of use of an existing single storey dwelling to a restaurant and managers residence at McGettigans Lane, Ewingsdale. 2 The proposed restaurant is to have a seating capacity of 60 persons. It was initially proposed to operate from 7am to midnight, 7 days per week. The associated works involve: o an internal fitout. o construction of an on-site sewage management system. o relocation of the driveway to a north/south alignment parallel to the eastern side and associated landscaping. o construction of car parking spaces for 22 vehicles. o construction of an acoustic fence along the McGettigans Lane frontage. o construction of a carport section over the eastern portion of the car parking. 3 The issues in the appeal are summarised as follows: o Adequacy of the on-site sewage management system. o Acoustic impacts. o Amenity impacts on the neighbourhood involving perimeter fencing, setbacks. o Consistency with the zone objectives. o Public interest matters. The site 4 The site is described as Lot 2in DP 118960 McGettigans Lane, Ewingsdale. It is a triangular shaped island parcel of land with road frontages to all boundaries as follows: (a) approximately 123m to McGettigans Lane to the west; McGettigans Lane is a sealed two lane local road servicing the residential area of Ewingsdale. (b) approximately 75m to Ewingsdale Road to the north; Ewingsdale Road is an arterial road, being the main road servicing Byron Bay from the Pacific Highway; (c) approximately 160m to Quarry Lane to the south-east; Quarry Lane is a dead-end single lane partly sealed road currently providing access to the subject site and one other existing dwelling, and two possible future dwellings, on the opposite side of Quarry Lane, adjacent to the proposed carport. 5 The property is largely developed with minor landscaping around existing building. There are a small number of large trees on the site consisting of mostly camphor laurels and palms. There is a gentle fall towards the north and west and the existing improvements on the site consist of a single storey dwelling house with associated landscaping. 6 The site is immediately surrounded by grazing land and rural dwellings in all directions. Further to the south is the rural-residential area of Ewingsdale. The nearest residence to the site is to the east on Quarry Lane, opposite the Eastern carparking / carport area. 7 Development consent has also been granted to a 23 lot rural-residential subdivision of land immediately to the east of the site. Two of the approved lots also obtain access off Quarry Lane and will be a similar distance from the proposed development once constructed. Planning controls 8 The relevant controls are: .1 SEPP 55 – Remediation of Land . .2 Byron LEP 1988 ; under which the land is zoned 1(c1) (Small Holdings). The development is permissible with consent. .3 Byron DCP 2002 ; with particular reference to: o Part C – Residential Development, o Part G – Parking. The evidence 9 Detailed evidence was presented by: o Mr P Dawson; council's consulting planner. o Mr P De Fina; applicant's consulting planner. o Ms L Gallager; council's senior environmental officer. o Mr M Cupitt; consulting engineering geologist. 10 In addition to this, a number of objections were made and other oral objections expressed by residents at the site inspection. These have been taken into account. On-site sewage management system 11 This issue was addressed by Ms Gallagher and Mr Cupitt, who agreed that the proposed on-site sewage management system was required to comply with the provisions of cl 45 of the LEP that satisfactory arrangements be made with council prior to granting consent. 12 They identified the following areas of concern: o Suitability of the sub-surface conditions in the designated effluent disposal area. o Adequacy of this area. o Potential health risk from planting in the vicinity of the irrigation areas. 13 Following further site investigations, they agreed that the sub-surface conditions should be suitable and that an adequate area was provided for the irrigation beds. However the operation of this area was to be carefully monitored by the conditions of consent. 14 The conditions of consent impose a 3-month validation period for the wastewater quality to ensure its suitability for re-use. There is also a further water quality monitoring program for the first 2 years of operation to ensure that the recycled water quality is maintained and the health of the environment and users is protected. 15 Concerns were expressed about possible health risks from the use and consumption of herb and spices plantings in the vicinity of the effluent disposal areas. The applicant agrees to a condition, which restricts this area for growing vegetables, fruit or any other plant for human consumption. 16 Accordingly I am satisfied that compliance with the agreed conditions for this issue, will adequately satisfy cl 45 of the LEP and result in a reasonable environmental outcome. Acoustic and other amenity impacts . 17 The neighbours expressed a number of concerns about potential adverse amenity impacts arising from the commercial use of these premises. One of these concerns is that there will be excessive noise generated during the later night time operations. However the proposal incorporates a 1.8m (minimum) height acoustic fence along the Quarry Lane frontage that incorporates a transition at the eastern end. This fence is of a "saw tooth" design, which incorporates acoustic treatment and allows for screening landscaping. 18 The specification for this fence is in accordance with the Acoustic Impact Report that indicates any noise generation should be contained to currently acceptable levels. The noise attenuation is also addressed by the proposed carport structure that should assist in mitigating noise emissions. 19 Associated with this are internal plantings and the construction of a 1.8m high decorative fence that should prevent light spill from vehicles in the car park. Whilst there is to be safety and directional lighting around the car park and pathways, I am satisfied the conditions of consent can control this lighting to minimise any impacts on neighbouring properties. But in any case, it appears to me that the neighbouring properties are well separated from the subject development and I do not consider this impact of such magnitude to warrant rejection. Other matters 20 Another matter raised by the neighbours referred to pedestrian safety for the school children at the nearby bus stop in McGettigans Lane. Taking into consideration the different operating hours, I do not consider the traffic from the proposal should present any undue risk to the school children. There was no expert evidence to support this submission. 21 One of the unresolved details concerns the restricted hours of operation. Whilst it is agreed the restaurant can open from noon to 10pm each day, the applicant requires a further 30 minutes until 10.30 pm for non-resident staff (maximum of 2) to be allowed to stay and clean up the premises. In the circumstances of the scale of the development and its context with reasonable separation to other dwellings, I consider this request reasonable to be incorporated into the conditions of consent. 22 Another unresolved matter concerns the display lighting required for identification and safety. Insofar as the internal car parking and pedestrian lighting spill can be contained, I understand this issue mainly concerns the feature lighting of trees around the perimeter of the site, particularly the existing palms. 23 It seems to me that this identification lighting is not unreasonable for the commercial premises, providing its time of operation is limited. In this regard the applicant requires the general external lighting until 10pm, together with any lighting of feature trees to cease at 9pm. The difference is that that council prefers all display lighting to cease at 9pm. My assessment is that the extent of proposed concept lighting does not seem unreasonable for identification and security. Final details of the lighting are to be incorporated into the final landscape plan confirming the design of the lighting to avoid spill and on this basis 10 pm cessation is reasonable, except the tree lighting. 24 In response to the concerns, further review of a plan of management (POM) was undertaken to provide a reasonable assurance that the development would operate on a "good neighbour" basis. This POM incorporates a complaints register monitor that is to be available to review any breaches in the performance of the development in terms of its conditions of consent. Conclusions 25 Having considered the evidence, the submissions and undertaken a view, I am satisfied this amended application merits conditional consent. Restaurants are permissible in this 1(c2) zone and I am satisfied that the relatively modest scale of this restaurant will satisfy the relevant zone objectives, taking into account its separation from other residential dwellings. 26 Detailed conditions of consent are imposed to cover the amenity impacts identified by the neighbours and these include the 120m long acoustic and privacy fence along Quarry Lane and other landscaping works. Taking into account the significant reduction in opening times from that originally sought, I am satisfied that compliance with the conditions of consent, including the plan of management should result in a reasonable development/community outcome. Court orders 27 The Court orders: 1 The appeal is upheld. 2 Development consent is granted to Development Application No 10.2007.52.1 for the change in use from a dwelling to a restaurant and 1 bedroom dwelling at Lot 2 DP 118960 McGettigans Lane, Ewingdale subject to the conditions in Annexure A. 3 The exhibits may be returned except 3, 6, B and E _______________________ R Hussey Commissioner of the Court ljr Annexure 'A' Conditions of Consent Designer Development v Byron Council Class 1 appeal re DA 10.2007.52.1 Parameters of this Consent 1) Development is to be in accordance with approved plans The development is to be in accordance with plans and documents listed below subject to amendments made by any conditions of consent: Plan No. Description Prepared by Dated: Masterplan (Site Layout Plan)** Michael Hajjar 19 May 2009 Sheet 1 Fence & Car Port Section Unattributed 24/04/09 Sheet 2 North/West Elevations OMA Issue A October 2004 Sheet 3 South/east Elevations OMA Issue A October 2004 Sheet 4 Proposed Floor Plan OMA Issue A October 2004 as amended 30/08/07 Sheet 5 Kitchen Layout Plan 24/04/09 Landscape Concept Plan Michael Cooke July 2009 Plan of Management July 2009 ** The following componets of the site plan/Masterplan are expressly not approved: (a) landscaping components depicted on the Masterplan; (b) The mapping and prioritisation of effluent disposal areas into 'primary' and 'alternative' disposal areas, as this is a matter to be determined during assessment of the requisite s68 Local Government Act approval. The development is also to be in accordance with any changes shown in red ink on the approved plans and conditions of consent. The approved plans and related documents must be kept on site at all times while work is being undertaken. 2) Erection of signs (1) For the purposes of section 80A (11) of the Act, the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work. (2) A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: (a) showing the name, address and telephone number of the principal certifying authority for the work, and (b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and (c) stating that unauthorised entry to the work site is prohibited. (3) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. (4) This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building. (5) This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State's building laws. (6) This clause applies to a development consent granted before 1 July 2004 only if the building work, subdivision work or demolition work involved had not been commenced by that date. Note: Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100). 3) Compliance with Building Code of Australia (1) For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work: (a) that the work must be carried out in accordance with the requirements of the Building Code of Australia , The following conditions are to be complied with prior to issue of a Construction Certificate for building works 4) Water and Sewerage Section 68 approval required An Approval under Section 68 of the Local Government Act 1993 to carry out water supply work and sewerage work must be obtained. 5) Terms of approval for on-site sewage management required Pursuant to Section 91A of Environmental Planning and Assessment Act 1979 terms of approval must be obtained for on-site sewage management prior to the issue of Construction Certificate. 6) On-site stormwater detention approval required Stormwater drainage is to be designed to direct all water to a Council approved drainage system to prevent discharge runoff onto adjoining land. The drainage system is to be designed for 1 in 20 year storm event. On-site stormwater detention is required, restricting stormwater discharge to the pre-development runoff rate for a 1 in 5 year storm event. This system must be designed in accordance with AS/NZS 3500.3:2003 - Plumbing and drainage, Part 3: Stormwater drainage. The point of disposal for stormwater is to be via an infiltration pits located on the subject property. The infiltration area is to be designed: a) By a qualified practising Civil Engineer. The Civil Engineer is to be a corporate member of the Institution of Engineers Australia or is to be eligible to become a corporate member and have appropriate experience and competence in the related field. b) With a safety factor of 2 to allow for any long-term deterioration in infiltration rate. c) To ensure that the stormwater run-off entering the infiltration area is pre-treated to remove sediment and gross pollutants. d) To ensure that the stormwater run-off from the site is restricted to a pre-development discharge rate for all storm events up to and including the 1 in 20 year storm. e) In accordance with the requirements of Section 9.4 of the NSW Department of Housing manual, Managing Urban Stormwater – Soils and Construction. f) Via percolation tests on the site in accordance with Appendix 4.1F of A.S. 1547:2000, On-site Domestic-wastewater management. Such plans and specifications must be approved as part of the Construction Certificate. Any piped drainage lines over adjoining land are to be located within drainage easements. All costs are the responsibility of the proponent. An approval is to be obtained under Section 68 of the Local Government Act 1993 to carry out stormwater drainage work. The engineering plans and specifications are to be designed by a qualified practising Civil Engineer. The Civil Engineer is to be a corporate member of the Institution of Engineers Australia or is to be eligible to become a corporate member and have appropriate experience and competence in the related field. Engineering plans and specifications are to be submitted in triplicate and must include details in accordance with Appendix C of AS/NZS 3500.3:2003 - Plumbing and drainage, Part 3: Stormwater drainage. Note: The Engineering plans must be in compliance with Council's DCP Part N and Council's current "Northern Rivers Local Government Design & Construction Manuals and Standard Drawings." 7) Car parking and Internal access driveways - plans required The application for a Construction Certificate is to include plans and specification that indicate internal access, parking and manoeuvring details in accordance with the plans approved by this consent. The access, parking and manoeuvring for the site is to comply with the requirements of Council's DCP 2002, AS 2890.1-2004: Parking facilities, Part 1: Off-street car parking and AS 2890.2 – 2002 - Parking facilities, Part 2: Off-street commercial vehicle facilities. Plans are to include, but not be limited to, the following items: a) pavement description; b) site conditions affecting the access; c) existing and design levels; d) longitudinal section from the road centreline to the car space(s); e) cross sections every 15 metres; f) drainage (pipes, pits, on-site detention, etc.). g) turning paths h) linemarking and signage i) extent of earthworks, batters, retaining walls j) a minimum setback from McGettigans Lane site boundary of 2.5m. to 3.0m. to provide sufficient area for drainage infrastructure and screen landscaping. The exact width will be subject to detailed designs. k) Provide for a minimum of 20 on site car spaces, plus 1 space for the residence, plus a loading area. The engineering plans and specifications are to be designed by a qualified practising Civil Engineer. The Civil Engineer is to be a corporate member of the Institution of Engineers Australia or is to be eligible to become a corporate member and have appropriate experience and competence in the related field. Such plans and specifications must be approved as part of the Construction Certificate. Note: The Engineering plans must be in compliance with Council's DCP Part N and Council's DCP Part N and Council's current "Northern Rivers Local Government Design & Construction Manuals and Standard Drawings." 8) External Driveway off McGettigans Lane – plans required. Consent required for works within the road reserve. Consent from Council must be obtained for works within the road reserve pursuant to Section 138 of the Roads Act 1993. Three (3) copies of engineering construction plans must accompany the application for consent for works within the road reserve. Such plans are to provide for the following works: o Driveway access to the restaurant/dwelling carpark off McGettigans Lane. The design is to provide for two way vehicle flows, show the extent of earthworks and batter slopes and stabilisation, drainage, signage, linemarking, and intersection sight distances in compliance with the current Australian Standards. Note: The Engineering plans must be in compliance with Council's "Northern Rivers Local Government Design & Construction Manuals and Standard Drawings." 9) Traffic Management Plan Consent from Council must be obtained for a traffic management plan pursuant to Section 138 of the Roads Act 1993. The plans and specifications are to include the measures to be employed to control traffic (inclusive of construction vehicles) during construction of the development. The traffic control plan is to be designed in accordance with the requirements of the Roads and Traffic Authority's Manual, Traffic Control at Work Sites Version 2 , and Australian Standard 1742.3 - 1985, Manual of Uniform Traffic Control Devices Part 3, 'Traffic Control Devices for Works on Roads '. "the plan shall incorporate measures to ensure that motorists using road adjacent to the development, residents and pedestrians in the vicinity of the development are subjected to minimal time delays due to construction on the site or adjacent to the site". The traffic control plan must be prepared by a suitably qualified and RTA accredited Work Site Traffic Controller. 10) Contributions for Bulk Water Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with the Byron Shire Council Development Servicing Plans for Water Supply and Sewerage Services dated May 2005, and/or in accordance with Rous Water Development Servicing Plan adopted 21 May 2003. The Plans may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby. The contributions payable will be adjusted in accordance with relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. Payments will only be accepted by cash or bank cheque. The Certificate of Compliance under Section 306 of the Water Management Act 2000, identifying payment of the contributions, is to be provided to the Principal Certifying Authority. 11) Developer Contributions to be paid Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan 2005 dated June 2005 and Byron Shire Council Section 94 Development Contribution Plan 2005 Amendment No. 1 dated 20 July 2005 for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & Urban Improvements, Shire Support Facilities and Administration. The Plan may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby. The contributions payable will be adjusted in accordance with relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. Payments will only be accepted by cash or bank cheque. 12) Public liability insurance cover required The developer and/or contractor must produce evidence to the Principal Certifying Authority of public liability insurance cover for a minimum of $10 million. Council is to be nominated as an interested party on the policy. 13) Bond required to guarantee against damage to public land A bond of $4,000 is to be paid to Council as guarantee against damage to surrounding public land and infrastructure during construction of the proposed development. Evidence is to be provided to Council indicating the pre development condition of the surrounding public land and infrastructure. Such evidence must include photographs. The proponent will be held responsible for the repair of any damage to roads, kerb and gutters, footpaths, driveway crossovers or other assets. Such bond will be held until Council is satisfied that the infrastructure is maintained/repaired to pre development conditions and that no further work is to be carried out that may result in damage to Council's roads, footpaths etc. 14) Long Service Levy to be paid A Long Service Levy must be paid to the Long Service Payments Corporation. These payments may be made at Council's Administration Office, Station Street, Mullumbimby. Cheques are to be made payable to 'Byron Shire Council'. This is a State Government Levy and is subject to change. 15) Garbage store area to be provided The application for a Construction Certificate is to include plans and specifications that indicate the proposed garbage store area. The proposed garbage store area is to be designed and constructed in accordance with the requirements of Section C7.9 of the Byron Shire Council Development Control Plan 2002. The enclosure must incorporate a concrete base with enclosure of suitable materials to provide adequate site and top screening and visual integration with the buildings and landscape treatment. Such plans and specifications must be approved as part of the Construction Certificate. 15A) Acoustic Treatments The acoustic treatments, being the acoustic fence along the Quarry Lane boundary and the carport over the westerly portion of the carpark, will be constructed of material and in a manner sufficient to meet the design criteria contained in the Acoustic Impact Report dated 6 September 2007 and in such a way as to minimise visual impacts. The detailed plans must include elevations, and appropriate specifications for the height, method of construction, materials and colours of the fence and carport structures and must be accompanied by certification thereof from a suitably qualified acoustic expert. The detailed plans and specifications must in particular, but not limited to, demonstrate and the certification must confirm: i. That there are no holes or gaps in the acoustic treatments; ii. The surface mass density of the proposed acoustic fence will be no less than 11kg/m2; iii. That there will be no holes or openings between the acoustic fence or rear wall of the carport and the carport roof structures; iv. The installation of absorptive lining of 50mm fibreglass batts, and the facing of those batts, to the roof and to a minimum of the top 1.5m of the wall of the carport structure. Such plans and specifications must be approved as part of the Construction Certificate. 15B Landscape Plan Prior to the issue of a construction certificate the applicant shall provide a landscape plan generally in accordance with the Concept Landscape Plan dated July 2009 prepared by Michael Cooke Garden Design but amended to comply with the following requirements. Such landscape plan must ensure the development can be adequately landscaped to soften the visual effect of the development, including in relation to the emanation of lighting from the site, and reinforce the biodiversity values of the site. A detailed landscape plan prepared by a suitably qualified landscape architect or ecologist must be approved as part of the Construction Certificate and must incorporate: i) a minimum 5m buffer of native plantings along the entire boundary to Ewingsdale Road using only species identified in Tables H1 of Part H of DCP 2002 and which is otherwise consistent with Part H of DCP 2002; ii) use of only species identified in Tables H1 to H4 of DCP 2002 and landscaping otherwise consistent with Part H of DCP 2002 for all plantings on the external side of the acoustic fence; iii) use of species identified in Tables H1 to H4 of Part H of Development Control Plan 2002 wherever possible but noting the use of food production plants is permitted provided they are not species identified as environmental weeds in Table H5 of DCP 2002; iv) proposed location for planted shrubs and trees; v) botanical name of shrubs and trees to be planted; vi) mature height of trees to be planted; vii) location of grassed and paved areas; viii) location of trees identified for retention in the development application plans; ix) Adequate screening plantings on either side of the internal access road (particularly to address light spill from cars entering the site) and on the exterior of the eastern boundary fence to the north and south of the car port; x) Adequate screening plantings on either side of the internal decorative fence crossing the site in an east-westerly direction from McGettigans Lane to Quarry Lane (particularly to address light spill from the restaurant) xi) Location and type of lighting to be used on site. The following conditions are to be complied with prior to any building or construction works commencing 16) Traffic Management Plan The approved traffic management plan is to be implemented. 17) Public safety requirements All care is to be taken to ensure the safety of the public in general, road users, pedestrians and adjoining property. The public liability insurance cover, for a minimum of $10 million, is to be maintained for the duration of the construction of the development. Council is to be nominated as an interested party on the policy. Council is not held responsible for any negligence caused by the undertaking of the works. 18) Erosion & sediment measures Erosion and sedimentation controls are to be in place in accordance with the Guidelines for Erosion & Sediment Control on Building Sites . A summary of these guidelines is attached. A full copy may be downloaded from Council's web site at www.byron.nsw.gov.au . Particular attention is to be given to the provision of the following sediment and erosion control measures: - Temporary driveway from the edge of road to the building site - Silt fence or sediment barrier Additionally the enclosed sign, to promote the awareness of the importance of maintenance of sediment and erosion controls, is to be clearly displayed on the most prominent sediment fence or erosion control device for the duration of the project. Note: Council may impose on-the-spot fines for non-compliance with this condition. 19) Plumbing Standards and requirements. All Plumbing, Water Supply and Sewerage Works shall be installed and operated in accordance with the Local Government Act 1993, the NSW Code of Practice for Plumbing and Drainage and AS/NZS 3500 Parts 0-5, the approved plans (any notations on those plans) and the approved specifications. Your Plumber must obtain a Plumbing Permit at least two (2) working days prior to commencing work. Please forward the enclosed Application for a Plumbing Permit to your plumber to complete and to return to Council prior to commencement of work or Refer to http://www.byron.nsw.gov.au/files/Forms/Plumbing_Drainage_Permit.pdf . 20) Trees to be protected Trees to be retained are to be protected by a fence so as to minimise disturbance to existing ground conditions within the dripline of the trees. The fence is to be constructed: a) with a minimum height of 1.2 metres, b) outside the dripline of the tree, c) of steel star pickets at a maximum distance of 2metres between pickets, d) using a minimum of 3 strands of steel wire, e) to enclose the tree, and f) with orange barrier mesh, or similar, attached to the outside of the fence and continuing around its perimeter The fence is to be maintained for the duration of the site clearing, preparation and construction works. The following conditions are to be complied with during construction 21) Construction times Construction works must not unreasonably interfere with the amenity of the neighbourhood. In particular construction noise, when audible on adjoining residential premises, can only occur: a) Monday to Friday, from 7 am to 6 pm. b) Saturday, from 8 am to 1 pm. c) No construction work to take place on Sundays or Public Holidays. 22) Construction noise Construction noise is to be limited as follows a) For construction periods of four (4) weeks and under, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 20 dB(A). b) For construction periods greater than four (4) weeks and not exceeding twenty-six (26) weeks, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 10 dB(A). 23) Maintenance of sediment and erosion control measures Sediment and erosion control measures must be maintained at all times until the site has been stabilised by permanent vegetation cover or hard surface. 24) Measures to control stormwater runoff Measures must be put in place to control stormwater runoff. These control measures must be in place prior to the commencement of works so as to prevent soil erosion and the transport of sediment from the site into either: d) adjoining land e) natural drainage courses f) constructed drainage systems, or g) waterways. All disturbed areas must be stabilised and revegetated. Turfing or another approved seeding method must be undertaken in each part of the development within 14 days of completion of earthworks. Topsoil must be preserved for site revegetation. Details of sediment control measures and revegetation works must be submitted to the Principal Certifying Authority for approval prior to release of the Construction Certificate. 25) Inspection for on-site sewage management All plumbing and drainage works is to be installed by a suitably qualified person. The plumber must adhere to the requirements of the NSW Code of Practice and AS/NZ 3500. The plumber is to arrange for the following inspections to be undertaken: a. Internal drainage prior to covering of the works. b. External drainage prior to the covering of works. c. Irrigation installation prior to the covering of works. d. Final 26) Builders rubbish to be contained on site All builders rubbish is to be contained on the site in a 'Builders Skips' or an enclosure. Footpaths, road reserves and public reserves are to be maintained clear of rubbish, building materials and all other items. 27) Maintenance of sediment and erosion control measures Sediment and erosion control measures must be maintained at all times until the site has been stabilised by permanent vegetation cover or hard surface. 28) Prevention of water pollution Only clean and unpolluted water is to be discharged to Council's stormwater drainage system or any watercourse to ensure compliance with the Protection of Environment Operations Act. The following conditions are to be complied with prior to occupation of the building 29) On-site sewage management system must be completed The on-site sewage management system is to be constructed in accordance with approved plans and in accordance with current specifications and standards. The system is not to be used and/or operated until a Council Officer has inspected the system and authorised its use. 30) Car parking areas to be completed and signs to be provided in accordance with the approved plans The car parking areas are to be constructed in accordance with the approved plans. Signs are to be erected clearly indicating the availability of off-street parking and the location of entry/exit points, visible from both the street and the subject site. 31) Sealed external driveway in accordance with Roads Act A sealed driveway is to be constructed from the edge of the road formation to property boundary in accordance with the Roads Act consent. 32) Internal driveway in accordance approved plans A driveway is to be constructed from the property boundary to the proposed car space(s) in accordance with the approved plans. 33) Stormwater disposal Stormwater must be collected and disposed of in a controlled manner such that stormwater flows are: a) Clear of buildings and infrastructure, b) Clear of effluent disposal areas, c) Not concentrated so as to cause soil erosion, d) Not directly to a watercourse, and e) Not onto adjoining land. 34) Roadworks in accordance Roads Act All works within the road reserve must be constructed in accordance with the Roads Act consent. 35) Access and facilities for persons with disabilities are to be provided Access and facilities for persons with disabilities are to be provided in accordance with AS 1428 - Design for Access and Mobility. An accessible car parking space is to be provided within the on site carpark.. 36) Construction of food premises Prior to commencing operation the food premise shall be constructed to comply with the New South Wales Food Act 2003 and Food Regulation 2004. Requirements of Food Standard Code 3.2.3 and Australian Standard AS 4674 – 2004 Design, construction and fit-out of food premises to be satisfied to achieve the minimum construction standards for the food business. The operator shall obtain a satisfactory inspection from Council's Environmental Health Officer prior to commencing operation. A minimum of 24 hours notice is required prior to inspection. Inspections can be arranged by telephoning (02) 6626 7054 during normal office hours. A fee is levied upon the operator for such inspections. Prior to use of the kitchen exhaust-hood installation, a certificate and system specifications detailing the air flow velocity readings to be provided to Council. The certificate should be completed by a suitably qualified professional and shall ensure that the installation satisfies the requirements of AS 1668 Parts 1 and 2. The operator shall demonstrate to Council's Environmental Health Officer's satisfaction that adequate waste disposal facilities are available on the premises, and that such facilities can be maintained to prevent environmental harm or public nuisance. The following conditions will need to be complied with at all times 37) On-Site Sewage Management System a. The On-site Sewage Management System must be in accordance with plans and associated reports submitted to Council. b. The daily wastewater volume must not exceed 3,660 L. c. The effluent disposal area for subsurface irrigation must be installed, operated and maintained in accordance with plans submitted to Council. d. The applicant must undertake an on-site sewage management system validation including the following: i. A three-month validation period for the approved on-site sewage management system must be undertaken before effluent reuse can commence. During this period, monitoring must be in accordance with the requirements of Tables 7.1 and 7.2 of the 'Interim NSW Guidelines for Management of Private Recycled Water Schemes. October 2007'; ii. The installation of flow meters to validate the design assumptions for volumes of effluent to be generated. iii. During this validation period, disposal of all effluent within the on-site disposal area will be required. e. The applicant must install flow meters to validate the design assumptions for volumes of effluent to be generated. Flow data must be reviewed and reported to Council quarterly for the first two years of operation. This frequency will then be reviewed by Council. 38) Effluent reuse a. At the end of the three-month validation period, the applicant must submit a report on compliance with all of the requirements of Tables 7.1 and 7.2 of the 'Interim NSW Guidelines for Management of Private Recycled Water Schemes. Department of Water and Energy. October 2007' , or similar . b. Effluent reuse can only commence after the applicant has confirmed compliance with all of the requirements of Tables 7.1 and 7.2 of the 'Interim NSW Guidelines for Management of Private Recycled Water Schemes. Department of Water and Energy. October 2007' and Council has approved an ongoing reuse monitoring program submitted by the applicant. c. Monitoring of effluent quality to ensure compliance with these guidelines will be reviewed by Council quarterly for the first two years of operation. This frequency will then be reviewed by Council. The purpose of this monitoring program will be to ensure the recycled water quality is maintained and the health of the environment and users is protected. d. Reuse of treated effluent must be restricted to toilet flushing. 39) Car Parking spaces are to be available for the approved use A minimum of 20 on site car parking spaces for the café, plus 1 loading bay plus 1 car space for the residential unit, are to be provided and maintained, together with all necessary access driveways and turning areas, to the satisfaction of Council. Tenants and customers of the development must have unrestricted access to the car parking spaces on a daily basis during business hours of the development. No car parking spaces are to be reserved (generally or specifically) for any tenant or customer. Only carparking spaces required for the residential component of the development are to be reserved and made available for particular residents. No access to/from the carparking areas to be off Quarry Lane. 40) Vehicles to enter/leave in forward direction Vehicles using any off-street loading/unloading and/or parking area must enter and leave in a forward direction onto McGettigans Lane only. All driveways and turning areas must be kept clear of obstructions that prevent compliance with this condition. 41) No interference with amenity of neighbourhood The proposed use must not be conducted in such a manner as would interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise. In particular, the noise level emanating from the use of the development must not exceed the background level by more than 5 d(B)A when measured at the boundary of the allotment. 42) Vehicle access off McGettigans Lane only. All vehicles using any off-street loading/unloading and/or parking area must enter and leave the site onto McGettigans Lane only. No access onto Quarry Lane. 43) Customer numbers The restaurant shall have a maximum capacity of 60 persons. 44) Restricted Hours of Operation The hours of operation are restricted to noon to 10.00pm each day. All patrons must have vacated the site by 10:00pm each day. Any alteration to the above hours of operation will require the further consent of Council. None resident staff must vacate the site by 10.30pm. 45) Restricted Hours for Waste collection and Goods delivery Waste collection and goods delivery vehicles are not to operate on the site between 6.00 pm and 7.00 am 45A) Restricted Hours for On-site Management of Glass Waste Discarding of bottles or glass in outdoor receptacles must not occur between the hours of 5.00pm to 10.am. 45B) Restrictions on Amplified Music or Other Amplified Noise Amplified music or other amplified noise must be limited to 70dB(A) at 1 metre from any speaker and all speakers must be oriented downwards and not focused towards any dwelling. 46) Not approved for take away use This consent approves a restaurant facility only. Any use for a food take away operation requires separate development consent 47) Separate application required for signs not approved by this consent A separate application is to be submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures other than the sign(s), approved in this consent. 48) Fire extinguisher and fire blanket to be located in every kitchen An appropriate fire extinguisher and fire blanket must be located and maintained in every kitchen. An effective evacuation plan must be developed and displayed to ensure the safe escape of patrons from for all areas of the building. 49) Display lighting to be shielded Any outdoor display lighting must be located or shielded so that no additional light is cast on adjoining land and so that motorists will not be distracted. 50) Display lighting time restriction Display lighting, other than that required for reasonable security, must not be used between the hours of 10.00 p.m. and 6.00 a.m. on any day. Any up lighting of trees ot external featues areto be turned offat 9pm. 51) Food standards The food premise shall be operated and maintained to ensure that the statutory requirements of the New South Wales Food Act 2003 and Food Regulation 2004 (incorporating Food Standard Codes ) are satisfied at all times. Access to the Food Standard Codes is available on-line at http://www.foodstandards.gov.au . The operator is required to ensure that the business is registered with the NSW Food Authority. Notification may be carried out on-line at http://www.foodnotify.nsw.gov.au 52) Plan of Management The Plan of Management identified in Condition 1 of this consent and annexed hereto and marked "A" must be implemented and complied with at all times. Any person operating the development the subject of this consent may develop and implement a Supplementary Plan of Management to address issues not otherwise covered by the Plan of Management approved by Council, without further referral to Council, provided such Supplementary Plan of Management does not detract from or contradict anything in the Plan of Management identified in Condition 1 of this consent. 53) Landscaping Plan The Landscaping Plan referred to in condition 15B is to be implemented and complied with at all times. 54) Separate application required for External Plant A separate application is to be submitted to, and approved by, Council prior to the erection or installation of an external refrigeration compressors, air conditioners or external mechanical plant of any type. 55) Grates Any grating installed in any internal road or carpark area must be securely fixed to prevent rattling when a vehicle passes over the grating. 56) Effluent Disposal Area The effluent disposal area must be not used to grow vegetables, fruit or any other plant for human consumption. _______________________ R Hussey Commissioner of the Court ljr Notes Construction Certificate required: This development consent is issued under the Environmental Planning and Assessment Act 1979 and does not relate to structural aspects or specifications of the building under the Building Code of Australia. All buildings and alterations require the issue of a Construction Certificate prior to works commencing. Application forms are available from the customer services counter or Council's website www.byron.nsw.gov.au Occupation Certificate required: The building must not be occupied until the Principal Certifying Authority has issued an Occupation Certificate. Principal Certifying Authority: Work must not commence until the applicant has:- appointed a Principal Certifying Authority (if the Council is not the PCA); and given the Council at least two days notice of the their intention to commence the erection of the building. Schedule of Development Contributions The following contributions are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The current contribution rates are available from Council offices during office hours. Payments will only be accepted by cash or bank cheque. SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979 (Office Use Only) Community and Cultural Facilities = " - Shire Wide = Open Space = " - Shire Wide = Roads(R-BB)72.00trips @$745.65=$53,686.49 Car Parking = Cycleways = Civic & Urban Improvements(IM-BB)2.07SDU @$1,638.71=$3,392.13 Rural Fire Service = Surf Lifesaving = Administration(OF-SW)2.07SDU @$750.80=$1,554.16 Total = $58,632.77 Certificate of Compliance – Water Management Act 2000 A Certificate of Compliance will be issued on completion of construction of water management works to serve the development and/or on payment of developer charges for water and sewer as calculated in accordance with Byron Shire Council and Rous County Council Development Servicing Plans. Note: Copies of the application forms for Certificates of Compliance are available on Council's website www.byron.nsw.gov.au or from Council's Administration Office. Copies of Byron Shire Council's Development Servicing Plans are available at Council's Administration Office. The following charges are indicative only. Developer charges will be calculated in accordance with the Development Servicing Plan applicable at the date of payment. A check must be made with Council to ascertain the current rates. (Office Use Only) Water Bulk Water (BW-BB) 0.63 ET @ $3,600.00 $2,268.00 Sewer Total $2,268.00 Protection of the Environment Operations Act 1997: It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to act in a manner causing, or likely to cause, harm to the environment. Anyone allowing material to enter a waterway or leaving material where it can be washed off-site may be subject to a penalty infringement notice ("on-the-spot fine") or prosecution. Annexure 'B' Plan of Management Designer Developments v Byron Shire Council Plan of Management July 09 - DA 10.2007.52.1 This Plan of Management (POM) sets out the policies and management practices for the Restaurant. The POM also sets out the methods by which venue management will address any concerns of neighbours, local residents and the wider community. The restaurant will be professionally managed and operated in away as to minimize any adverse impacts on the neighbourhood. This POM is in accordance with the development consent conditions and will be complied with at all times Standard hours of operation are noon to 10.00pm each day. Maximum no of patrons 60. 1/ Operational Procedures & Policies Management will implement the following policies & associated procedures to maintain a professional, high quality dining experience for our guests and the community. The financial viability and long term health of the business of the Restaurant is directly dependant on our ability to provide best practice customer service by using the following- Recruiting qualified and experienced managers and (Licensees upon a liquor license being granted),t & staff so as to provide a high level of customer service. Staff induction and training will include but is not limited to: knowledge of the Plan of Management, booking & reservation procedures, meet & greet service procedures, legal compliance responsibilities, penalties for non compliance of liquor licensing where an appropriate liquor license has been granted and customer service complaints handling procedures. Use of a centralized reservations diary with limits per hour on seating availability to be consulted before any reservations is accepted. Telephone or personal contact by staff to confirm the numbers and style of larger group bookings prior to commencement of the trading period to assess potential or unexpected noise impacts. The use of the "meet & greet" service where guests will be met at the front door, matched with the centralized reservations dairy and advised of reserved or open table availability before being escorted to a table by a staff member. Staff to inform all patrons arriving of the time of cessation of service and car park closure at 10.00pm and requesting all patrons when entering or leaving the restaurant to do so in a quiet and orderly manner. Proactive assessment before acceptance of any reservations to be made is to occur to avoid unwanted or unplanned guest attendances e.g. 18th & 21st birthday celebrations, end of year school formals or celebrations. 2/ Compliance with the Food Safety Codes NSW. The restaurant shall be operated and maintained to ensure compliance to the requirements of NSW Food Act and Food Regulation. The operator will provide Notification with the NSW Food Authority via online application. Appropriate fire extinguishers and fire blankets will be located and maintained in every kitchen. An evacuation plan will be displayed to ensure the safe escape of patrons from all areas of the building. A takeaway service for food & beverage is not offered or available. 3/ Amenity of Neighbourhood The manager of the restaurant shall consider the amenity of the residential neighbours and shall take all reasonable measures to ensure that adverse impacts to nearby residents do not occur. The style of casual, multicultural dining experience we will provide will not have any impact on the quiet and good order of the neighbourhood. a. Noise A noise abatement report has been prepared by a suitably qualified acoustic consultant detailing existing and proposed noise attenuation measures to ensure noise emanating from the subject premises does not exceed OLGR, EPA, OH&S levels measured at the nearest residential property. The management will control and monitor noise emitted from the building to ensure that the premises at all times complies with the noise criteria included as a condition of the development consent. It is intended that the amenity of the neighborhood will not be adversely affected by noise generated on the premises. The noise level emanating from the restaurant will not exceed the background level by more than 5 dB(A) when measured at the boundary. Amplified music or other amplified noise will be limited to 70dB(A) at 1 metre from any speaker and all speakers will be oriented downwards and not focused towards any neighbouring dwelling. b. Lighting & Signage Outdoor display lighting, other than for reasonable security, will not be used between the hours of 10.00pm and 6.00am on any day. Such lighting will be located/ shielded so no additional light is cast on adjoining land and motorists are not distracted. A separate consent application will be submitted prior to the erection of any advertising or advertising structures other than approved in this consent. c. Maintenance The venue premises shall be kept in a clean and tidy condition and regularly maintained to the satisfaction of council both internally and externally. The footpath outside the venue shall be kept clean at the management's expense, to the satisfaction of the council. Disposal, discarding of bottles and glass in outdoor receptacles will not occur between the hours of 5.pm to 10.00am. Unloading of goods delivery and waste collection vehicles will not operate on site between 6.00pm and 7.00am. d. Security The management will at all times ensure that all people entering and leaving the premises and area do so in a manner that respects the quiet rural nature of the surrounding locality. When premises are cleared management will ensure this is undertaken in a safe and orderly manner. Management and security will ensure that all fire escapes and stairways are kept clear of person(s) and/or objects at all times. e. Parking Access to facilities for persons with a disability will be provided in accordance with AS 1428 with an accessible car parking space provided within the onsite car park. All vehicles entering and leaving the site will do so in a forward direction. Entry to and exiting from the site will be onto McGettigans Lane only with no access to Quarry Lane. All driveways and turning areas will be kept free of obstructions All signage included in this consent will be maintained and clearly visible at all times, in particular: a) The stop / pedestrian sign at the point of vehicle egress from the site. b) The signs in the car park advising that the "Car park must be vacated by 10.00pm and guests entering or leaving are to do so in a quiet and orderly manner so as to not to disturb the neighbours". 4/ Complaint Resolutions : The manager will implement a Complaints Receipt, Response & Management protocol and properly address complaints from neighbours or other people in surrounding areas. This policy will seek to resolve any complaints without the involvement of Council or the NSW Police Force. These procedures include: Maintenance of a log book which logs the date, time and nature of all complaints, name and address of complainant, details of all communication between management and complainant, actions proposed to address complaint and the date and time the action is undertaken. This logbook will be available by request to all Council Officers and complainants. All complaints will be responded to within 30 min by the Restaurant Duty Manager. Measures taken to address complaints will be incorporated into the operational management plan to ensure repeat complaints are not received; The management will be available to meet with complainants at any reasonable time to work towards resolving any reasonable concerns that are raised; and will provide a telephone number during trading hours on which management personnel with appropriate authority over the premises can be contacted upon there being a complaint. Complainants will be encouraged to make any complaints to that number. The restaurant phone number will be displayed in a place visible to the public and made available to all occupants within a reasonable distance of the premises. 5/ Industry Consultation To a remain competitive, and an asset to our area, restaurant management will consult with industry and update our knowledge by: Membership - Restaurant & Caterers Association. Membership - The Byron Liquor Accord and its principles. Membership – Byron Chamber of Commerce 6/ Conditions of Development Consent a) The management will ensure that all the conditions of the development consent are: i. Easily available in written form at the premises ii. Made known to all management and staff at the premises including the obligation to comply with the conditions iii. Complied with at all times b) Patrons and members of the public can have access to and a copy of the Conditions of Consent and the Plan of Management upon request. 7/ Plan implementation A copy of this plan is available to the public and Council officers during operating hours, via email or post by contacting the Duty Manager on the dedicated restaurant telephone number. All new staff are to read and sign a copy stating they have read the Plan of Management on commencing employee induction training. Any person operating this Plan of Management may develop and implement a Supplementary Plan of Management to address issues not otherwise covered by the Plan of Management approved by Council, without further referral to Council, provided such Supplementary Plan of Management does not detract from or contradict anything in the Plan of Management approved by Council or the conditions of consent generally. For example the POM may be supplemented by a section on the responsible service of alcohol should an approval and liquor licence be obtained. The Management Plan will be reviewed by the operator at least every 12 months and a supplementary plan may be made if necessary and will be supplied to any new manager of the restaurant. This POM is dated July 2009. ________________________ R Hussey 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.