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. Planning Framework 7The site is within the R3 Zone pursuant to the provisions of the Canada Bay Local Environmental Plan 2008 (LEP 2008). 8Clause 12 of Schedule 1 of LEP 2008 specifically provides for the site to be used as a restaurant, as follows: 12 Use of certain land at 378 and 380 Great North Road, Abbotsford and 2 Abbotsford House, Abbotsford Cove Drive (1) This clause applies to land at 378 and 380 Great North Road, Abbotsford and 2 Abbotsford House, Abbotsford Cove Drive (the "Nestlé site", in particular, Abbotsford House, Chatham House and the Clubhouse pavilion) being Lot 22, DP 270127, Lot 1, DP 862198 and Lot 19, DP 270127. (2) Development for the following purposes is permitted with consent if the use is consistent with the conservation and preservation of the buildings and the amenity of the immediate residents: (a) office premises, (b) restaurants or cafes. 9380 Great North Road, Abbotsford is a heritage item, listed in schedule 5 of LEP 2008, as 'Chatham House and its curtilage'. The heritage curtilage of Chatham House is taken to be its allotment. 10Clause 5.10(4) of LEP 2008 requires that the consent authority consider the impact of the proposal on the heritage significance of Chatham House and its curtilage, as follows: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 11Abbotsford Cove (Also known as the Former Nestle Site) Development Control Plan 2007 (DCP 2007) applies to the site. Clause 4.4 Car Parking and Vehicular Access includes, under 'Performance Standards: Car Parking Provision', at (d) Parking and access facilities are to be provided in accordance with the Roads and Traffic Authority (RTA, now the Roads and Maritime Services) Guidelines for Traffic Generating Development (1993). 12The RTA Guide to Traffic Generating Developments, Version 2.2, October 2002 (which supersedes the 1993 version cited by DCP 2007), requires at Table 5.3, for restaurants to have whichever is greater, either 15 spaces per 100m2 GFA (gross floor area) or 1 space per 3 seats. The GFA of the proposal is 140m2, requiring 16 spaces and the application is for a restaurant seating 96 patrons, requiring for 33 spaces. Parking 13The plans have been amended to provide an additional 3 car parking spaces, to achieve a total of 4 car parking spaces on-site. 14The parties agree that the identified heritage significance of 'Chatham', including its garden setting, identified as its curtilage, prevents additional parking from being located on-site. While the Council stated in its Statement of Facts and Contentions that 25 parking spaces were required, they accepted that the capacity for on-site parking is limited due to the heritage significance of the grounds, including the existing vegetation and the garden setting of the heritage item. I agree with the conclusion reached by the parties on the issue of parking. Noise 15The conditions of consent include the following measures to assess and reduce noise generated by the restaurant. These are: * Music and amplified sound is restricted to background music only and must be controlled so that there is no disturbance to nearby or adjacent residents and is only to be audible within the property boundary and shall not exceed the 5dB(A) above the ambient background level at the received boundary (Condition 38). * The disposal of bottles is to take place between 7 am and 8 pm Monday to Saturday in the garbage room, whilst the door is closed. All other garbage shall be disposed of between 7 am and 9.30 pm Monday to Saturday. All garbage is to be disposed of between 7 am and 6.30 pm on Sundays (Condition 41). * The door to the kitchen is to be closed at all times while the kitchen is in operation (Condition 41). * The outdoor areas hours of operation are 7 am to 9.30 pm Mondays to Saturdays and 8 am to 7 pm on Sundays. All patrons are to vacate the outdoor seating areas 15 minutes after trading ceases in these areas (Condition 43). * All deliveries and waste collection must occur between 7 am and 8 pm daily (Condition 45). * The use of the premises shall not give rise to unacceptable or offensive vibration or noise and the cool room refrigeration motor shall be noise attenuated, to comply with applicable noise legislation (Condition 54). 16I am satisfied that the conditions of consent addressing acoustic constraints are sufficient to protect the amenity of surrounding properties. Use of the site as a restaurant 17The additional uses provision at clause 12 of Schedule 1 of LEP 2008 specifically provides for the use of the site as a restaurant or café, 'if the use is consistent with the conservation and preservation of the buildings and the amenity of the immediate residents'. 18I am satisfied, for the reasons provided above, that the use of the site as a restaurant is consistent with the conservation and preservation of the buildings (and curtilage) and the amenity of the immediate residents. Conclusion 19In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the resident objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent. Orders 20The orders of the Court are: 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. Susan O'Neill 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: 08 June 2012