Panetta v Canada Bay Council [2012] NSWLEC 1156

Land and Environment Court New South Wales

Medium Neutral Citation: Panetta v Canada Bay Council [2012] NSWLEC 1156 Hearing dates: 5 June 2012 Decision date: 08 June 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. 491/2011 is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibits 3 and A. Catchwords: DEVELOPMENT APPLICATION: Consent orders; restaurant use; heritage item; resident objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mr Joseph Panetta (Applicant) Canada Bay Council (Respondent) Representation: Counsel Dr Stephen Berveling, Barrister (Applicant) Mr Stephen Patterson, Solicitor (Respondent) Solicitors Egisto Solicitors (Applicant) Wilshire, Webb, Staunton, Beattie (Respondent) File Number(s): 10032 of 2012

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. 491/2011 (the application) for a proposed restaurant and alterations and additions to the ground floor and external areas of 380 Great North Road, Abbotsford (the site). 2The appeal was the subject of a conciliation conference on 13 April 2012. The conciliation conference was terminated pursuant to s 34(4)(a) of the Land and Environment Court Act 1979 on 19 April 2012. 3Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original application. The principle changes were: * Increasing the on-site parking from one to four cars; * Deleting a proposed pavilion on the western side of the site and replacing it with a pergola and paving; * Deleting the door on the southern side of the alcove adjacent to the pergola area; * Reconfiguring the position of outdoor tables to concentrate the tables on the western side of the site, adjacent to Great North Road; * Providing a pedestrian entry to the site on the corner of Great North Road and Walton Crescent; * Permanently closing the gateway at the north-eastern corner; * Reducing the hours of operation of the restaurant and further reducing the hours of the outdoor areas of the restauant; * Confirming that the first floor would be used for storage only. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii)the date of the hearing by the Court to consider making the proposed consent orders; and (iii)the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In accordance with the Practice Note, two local residents provided evidence at the consent orders hearing. Seven residents expressed their agreement with the evidence provided by the first local resident. The residents' concerns can be summarised as: * A restaurant/café is an inappropriate use within a residential area; * The proposal will detrimentally impact on the residential amenity of the area; * The amendments to the proposal do not satisfy the contentions raised by Council in their Statement of Facts and Contentions, including intensity of use, insufficient parking, acoustic impact and heritage impact; * The acoustic impact of the cool room compressor motors and their location on the southern side of the building will have a detrimental impact on the nearby residences; * The trading hours for the restaurant on Sundays is anomalous, as the external areas start at 7am and the internal rooms start at 8am; * The exclusion of the resident objectors, during the s 34 conciliation conference and negotiated amendments to the proposal resulted in a consensus being reached between the Council and the applicant without any further input from the resident objectors. 6In response to the objection raised by the resident regarding the outdoor trading hours starting before the indoor trading hours on Sunday mornings, the proposal was amended during the hearing to amend the outdoor trading hours to start at 8am on Sunday.