Land and Environment Court New South Wales Medium Neutral Citation: Moore v North Sydney Council [2011] NSWLEC 1304 Hearing dates: 30 September 2011 Decision date: 04 October 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal upheld, consent orders granted Catchwords: Development application; Extensions to mixed - use building, heritage impacts, building height, building height plane, FSR, noise impacts, traffic/parking, amenity of neighbourhood. Legislation Cited: Environmental Planning & Assessment Act 1979. North Sydney LEP 2001. Category: Principal judgment Parties: Christine Moore (Applicant) North Sydney Council (Respondent) Representation: Mr M Mazzone, solicitor (Applicant) Diamond Conway Lawyers Mr C Drury, solicitor (Respondent) Sparke Helmore Lawyers File Number(s): 10506 of 2011 Judgment 1This appeal was lodged against council's refusal of a development application proposing alternations and additions to an existing two-storey mixed use building located at 134 Blues Point Road, McMahons Point. 2The proposed works initially included: (a)Conversion of the existing first floor level from caretaker's flat to restaurant use for the purpose of extending the existing ground floor restaurant use. (b)Construction of a new roof addition for a studio of 28.3 sq m to replace the first level caretaker's flat together with a landscaped terrace area of about 32 sq m. (c)Construction of new internal stairs to provide access between the restaurant levels and the residential level. (d)Internal alternations including demolition of existing walls on the first floor level and installation of acoustic panels against the party wall. (e)Reopening of a window on the ground level on the Princes Street elevation with a new bifold screen. 3The applicant also sought an extension of the opening hours on Mondays to Saturdays from 11pm to 12 midnight and from 10pm to 11pm on Sundays. The proposal is also for an increase in the seating capacity of the restaurant by approximately thirty (30) to a total of eighty-four (84) seats. 4The application was notified and attracted a considerable number of submissions both for and against the proposal. In summary, the objectors' concerns involve: * Noncompliance with the development standards for building height, building height plane and FSR, resulting in an overdevelopment of the site * Likely unacceptable noise impacts due to the increased patronage * Obstruction of the footpath * Insufficient parking leading to traffic congestion * Proposed extension is out of character with the area * Likely increase in antisocial behaviour * Concerns about the incremental intensification of the bottle shop component. 5Following an on site s 34 conference, the applicant undertook further amendments, which included: * Amended architectural plans including alterations to the design of the roof addition to increase the building setback of this structure from the Blues Point Road boundary by 600 mm. The roof addition, as amended, will provide a setback of 4.1 m from Blues Point Road * Additional acoustic treatment report/statement * Plan of management (POM) for the premises 6The operation of the proposal was also altered to: * No extension of operating hours for the existing restaurant, that is 11pm Mondays to Saturdays and 10pm on Sundays * The operation of the additional seating for thirty (30), which gives the total number of seating for the restaurant and footpath dining area from the approved fifty-four (54) seats to eighty-four (84) seats, to be restricted to 10.30pm, Mondays to Saturdays and 9.30 on Sundays * The total number of restaurant/footpath dining seating area after 10.30pm Mondays to Saturdays and 9.30pm Sundays will remain at fifty-four (54) as currently approved 7Consequently the parties have agreed to consent orders, which have been notified and further submissions made. However, also attending the consent orders hearing were: * Mr R Tse, Council's Senior Assessment Officer, who prepared a position paper, exhibit 3 * Mr M George, the Applicant's Consulting Planner * Mr S Cooper, the Acoustic Consultant * Mr J Coady, Traffic Consultant 8These consultants assisted the Court by responding to the various objections. 9The neighbouring residents were concerned firstly about the bulk scale of the development, particularly that it was an overdevelopment relying on the approval of the three SEPP 1 objections to: * Building height * Building height plane * FSR 10The objections also concerned: The intensification of use would result in unsightly ducting on the roof and there would be unsatisfactory noise transmission from the first floor restaurant. Council's consistency in dealing with the application and the submission that the impact on the immediate neighbours should be given greater consideration. Whether there is a need for a restaurant classified as "fine dining" in the area. Likely adverse impacts on parking and a lack of on site parking provisions. 11In response to these concerns, I have carefully considered the detailed assessment in Mr Tse's position paper. Mr Tse said that the noncompliances requiring SEPP 1 approval mainly arose from the inclusion of the relocated caretaker's flat on the first level. This particularly related to external impacts on the building within the McMahons Point conservation area. However, as the building has now been amended and the external presentation acceptable, Mr Tse's assessment is: Heritage/Bulk/Scale The proposed increase in building setback of the roof addition of 4.1 m from Blues Point Road has addressed the issues relating to heritage, characteristics, bulk/scale. Conditions C(2)(a), (b) and (c) are also proposed to ensure appropriate heritage conservation outcomes for the development. Having regard to the above, no objection is raised to the SEPP 1 objection submitted seeking variation of the development standards in North Sydney LEP 2001 relating to building height (cl 17) and building height plane (cl 18). The amended design also addressed the noncompliance with the following DCP controls including s 7.3(a) context, 7.3(f) setback, 7.3(h) form, massing and scale, 7.3(i) built form character, s 8.8(h) form, massing and scale of the North Sydney DCP 2002 and the building topology/building setback in the Blues Point Village character statement of the DCP 2002. 12In response to the intensification of use/amenity impacts, Mr Tse's opinion is that: Intensification of Use/Amenity Impacts The proposal, as amended, has a number of positive elements such as no change to the approved operating hours and a restriction to the operating hours for the additional seating to 10.30pm, Mondays to Saturdays and 9.30pm on Sundays. Whilst the amended proposal does not entirely remove the key amenity issues (noise/parking) associated with an expanded operation from the premises, it is however considered that the amenity impacts, particularly the noise impacts from activities outside the premises during the critical late night hours, will be substantially reduced from that originally proposed. The applicant has also submitted a Plan of Management for the subject restaurant outlining the measures to be taken to address the amenity issues. A number of specific conditions on the operational aspects of the restaurant have been recommended to ensure the amenity of the locality. Further specific conditions have been recommended to address impacts particularly from noise generated from the restaurant operation and plant equipment. Having regard to the above, no objection is raised to the SEPP 1 objection submitted seeking variation to the development standard relating to the Floor Space Ratio (cl 21) in the LEP. The imposition of conditions relating to noise and operation also addresses the non-compliance with s 7.2 of the North Sydney DCP 2002 in maintaining the quality and amenity of residential development including 7.2(g) noise of North Sydney DCP 2002. The absence of on site parking is contrary to the requirements of the provision of the maximum on site parking for developments within Residential D zone in s 9.1(a) and s 9.1(a)(i) of the North Sydney DCP 2002. The locality is also experiencing a shortage of on street parking. However, no objection is raised to the proposal on the basis that the operating hours and the additional seating is restricted as proposed and the measures in the Plan of Management relating to parking availability and other transport options are implemented. Residential Amenity Consideration has also been given to the appropriateness of the residential amenity of the roof addition, as amended, as a caretaker's unit due to the small area of this unit at around 25 sq m. Whilst the residential amenity of the roof addition is not ideal for the use as a conventional residential studio unit, no objection is raised to the use of the unit as a caretaker's accommodation subject to the imposition of condition 11 restricting the use of the unit. The imposition of Condition 11 addresses the non-compliance relating to the minimum area for a studio unit of 40 sq m as contained in s 7.4(c) high quality residential amenity of North Sydney DCP 2002. First Floor Kitchen Condition (C1) requires the submission of further details of the kitchen on the first floor to the satisfaction of Council to ensure compliance with the requirements of AS 4674 relating to the design, construction and fitout of food premises and the Food Safety Standards. Pedestrian Refuge on Prince Street Council seeks the imposition of Condition (G1) requiring the applicant to pay a contribution towards the installation of a pedestrian refuge in Princes Street, at the Blues Point Road intersection to ensure safety for pedestrians crossing Princes Street. Council's Traffic Engineer has received repeated requests from the applicant for the provision of the facility to ensure safety of motorists and pedestrians on Blues Point Road and Princes Street. 13From this review, Mr Tse supports the consent orders. 14Apart from this, Mr George confirmed that the amended plans will result in the existing ducting being substantially removed from the roof and new infrastructure will be screened, thereby addressing neighbours' concerns about adverse visual impacts for the building. 15Mr Cooper confirmed that when the initial noise assessment was done on a Thursday night, this was selected because the ambient background noise would be lower than on the busier Friday and Saturday nights, therefore the incremental changes could be better assessed. 16With regard to increased noise impacts at the adjoining terrace, Mr Cooper based his assessment on the provisions of s 6.2C of the DCP which deals as follows with acoustic privacy: Acoustic privacy for occupants of the proposed development and for neighbours. Noise within dwellings with windows closed does not exceed: Living areas 40 dBa Sleeping areas 35 dBa and all walls and floors separating units have a weighted sound reduction index (R W ) of not less than 55 and an impact isolation less than L DH 55 above habitable areas. 17Consequently, he says that from his site inspection, the external wall of the adjacent terrace E is in contact with the external southern wall of the restaurant, although the restaurant building appears to be of a cavity construction. Accordingly, the sound insulate in performance from the restaurant to the adjoining residential dwelling is already greater than that required by the DCP and on the basis of a typical average maximum level in a dining area at between 70 and 75 DBA the existing construction would comply with DCP s 6.2C requirements. 18However, notwithstanding compliance with the DCP he has considered additional noise control measures with respect to the first floor dining area and the adjacent residence. 19In this regard, he recommended that an additional isolated wall be constructed on the southern face of the proposed lounge area by the provision of a stud construction that is physically disconnected from the existing internal southern wall that is then sheeted with one layer of Compressed Sheet II. Prior to the installation of that sheeting, one layer of 50 mm thick Bradford Supertel Glasswool (32 kg/per cubed metre) glued and pin fixed to the existing masonry wall in between the vertical studs. 20This additional isolated wall should also occur between the proposed new steel staircase so as to ensure the new staircase is not fixed to the party wall. 21For the control of the reverberant energy in the proposed lounge (and to the benefit of patrons) he recommended that acoustic absorption panels be located on the southern wall and covering an area of not less than 40%. The absorption panels are to consist of 25 mm thick black faced Bradford Supertel Glasswool (32 kg/per cubed metre) faced with perforated ply, slotted timbers or similar providing an open area of not less than 20%. 22Mr Cooper confirmed that he did not envisage the proposed alteration to the first floor above the existing Delicado Restaurant at 134 Blues Point Road, McMahons Point would, at the outset, would present any undue noise impact in view of the acoustic environment of the area and the enclosed nature of the lounge area. 23Insofar as the council's DCP requires a contribution not exceeding the background level, the current plant was found to provide a contribution not exceeding the background level at the residential monitoring locations. The existing plant and any new plant as a result of the proposed alterations will take into account the cumulative noise emissions from all mechanical plant in terms of the DCP's requirements. 24I am satisfied to rely on Mr Cooper's assessment that with the inclusion of his recommendations as conditions, then the amended development will reasonably achieve the specified Acoustic Privacy outcomes contained in the DCP. Traffic 25With regard to the traffic objections, Mr Coady confirmed that the council's parking code would require an extra 1.8 car spaces. However, a patron interview survey was also undertaken, indicating that about one to two extra spaces would be required as a result of the incremental changes of the proposal. He says this is a relatively small increase, whereby this proposal is not a major traffic generator and it will not create any unacceptable parking traffic impacts in the existing context. Conclusions 26Having considered the evidence, including objections, submissions and undertaken a view, I am satisfied that the consent orders should now be granted for the amended proposal. In this regard I have considered the provisions of cl 14 of the North Sydney LEP 2001 and I am satisfied that this proposal is now consistent with the relative aims in cl 3 particularly: (a)(i) to promote the character of the neighbourhoods and development which is compatible with neighbouring developments in terms of bulk, scale and appearance, and ... (c)(ii) ensure that nonresidential development does not adversely affect the amenity of residential properties and public places, including adverse affectation by reason of the use, design, bulk, scale or appearance of the development or the traffic generation of parking associated with the development and.. 27Also the relevant Residential D Zone objectives: (a)encourage a wide range of services and shops which serve the surrounding residential neighbourhoods; and (b)to permit a range of small scale businesses which serve the local needs 28It is apparent that the design has been amended to incorporate the building elements to minimise the impacts on the neighbouring properties, which satisfy the DCP provisions; particularly with the inclusion of the agreed performance conditions for the noise impacts. 29With respect to traffic issues, I accept that this is an area where there is competition for on-street parking spaces at times, but I rely on Mr Coady's opinion that the incremental change for the development will be small. In any case, it appears that many patrons rely on taxis, public transport or walk. I therefore do not consider the proposal will result in any material change to the existing parking arrangements and therefore should be refused on traffic grounds. 30Therefore, the Court orders by consent: (1)That the objections by the applicant made under State Environmental Planning Policy Number 1 to the following development standards in North Sydney Local Environmental Plan 2001 are upheld: (a)Building height, clause 17 (b)Building height plane clause, 18 (c)Floor space ratio, clause 21 (2)The appeal is upheld in part. (3)Development application number 19/11 for alterations and additions to existing restaurant including relocation of caretaker's studio to new second floor level and increased capacity for restaurant at 134 Blues Point Road, McMahons Point is approved, subject to the conditions in annexure A. (4)The exhibits be returned, except 1, 3, A and B. R Hussey Commissioner of the Court 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. Decision last updated: 24 October 2011