Musu v Byron Shire Council [2011] NSWLEC 1112

Land and Environment Court New South Wales

Medium Neutral Citation: Musu v Byron Shire Council [2011] NSWLEC 1112 Hearing dates: 14 March 2011 Decision date: 15 March 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld. 2. Development Consent No. 00/0368 granted by the Respondent on 2 November 2000 for a Mixed Commercial/Tourist Development on the land known as Lot 7 Sec 26 DP 758207, 11 Marvell Street, Byron Bay (as modified on 5 June 2001) is modified pursuant to section 96 of the Environmental Planning and Assessment Act 1979 as set out in Annexure A. 3. The exhibits, except Exhibits 2 and 3, may be returned. Catchwords: APPEAL:- Consent Orders - modify development consent. Resident concerns about noise impacts. Legislation Cited: Byron Local Environmental Plan 1988 Cases Cited: Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117 Category: Principal judgment Parties: APPLICANT Benild Musu

RESPONDENT Byron Shire Council Representation: APPLICANT Mr M Young, solicitor

RESPONDENT Mr A Seton, solicitor APPLICANT McCartney Young, Lawyers

RESPONDENT Marsdens Law Group File Number(s): 11013 of 2010

Judgment 1COMMISSIONER: This is an appeal against the refusal by Byron Shire Council of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (00.0368) at 11 Marvell, Street, Byron Bay. 2The development consent approved a mixed use commercial and tourist development including a cafe in tenancy 3, which is on the ground floor at the corner of Marvell and Middleton Streets. The cafe has bi-fold doors along the southern wall and bi-fold windows along the south-eastern corner. It has indoor and outdoor tables and seating. 3The conditions of the development consent included condition T2 which states: Hours of operation of all commercial components of the development shall be no earlier than 7am and no later than 10pm, seven days per week. 4The s 96 application initially sought to amend condition T2 for tenancy 3 to enable the cafe to operate until 12 midnight. 5The parties have now agreed to amend condition T2 to permit the hours of service of customers for tenancy 3 to be until 11pm and that all patrons are to have left the premises by 11.30pm. The doors and windows of tenancy 3 are to be kept closed after 10pm. The amendment to the condition has resolved the issues between the parties and they are seeking consent orders from the Court. 6Consistent with the Court's practice direction, objectors to the application were notified of the consent orders hearing. The Court heard evidence from Ms T Heal, on behalf of a number of other objectors, and Mrs K Bienke. The principal concern of the objectors was the noise that emanated from the existing operation of the premises and concerns that this would be exacerbated by the extended hours of operation and would further impact on their residential amenity. Mrs Bienke also raised general concerns about the adverse impact of alcohol related anti-social behaviour in the area, which impacts on the operation of her business.