Bondi City Supermarkets Pty Limited v Waverley Council [2012] NSWLEC 1211

Land and Environment Court New South Wales

Medium Neutral Citation: Bondi City Supermarkets Pty Limited v Waverley Council [2012] NSWLEC 1211 Hearing dates: 31 July 2012 & 1 August 2012 Decision date: 01 August 2012 Jurisdiction: Class 1 Before: Hussey C Decision: Appeals allowed Catchwords: DEVELOPMENT APPLICATION - amenity impacts of refrigeration/condensers, noise vibration, heat. Building Certificate Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2010 Cases Cited: Gasmon Pty Ltd v Waverley Council [2009] NSWLEC 1257 Category: Principal judgment Parties: Bondi City Supermarket Pty Ltd (Applicant)

Waverley Council (Respondent) Representation: Counsel Ms S Hill (Applicant)

Mr S Patterson (Respondent) Solicitors Susan Hill & Associates Pty Ltd (Applicant)

Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10303 of 2012 and 10491 of 2012

Judgment

Background 1These proceedings relate to council's refusal of the following two applications, which concern the impacts arising from the unauthorised installation of refrigeration/condenser units for a supermarket at No 53 Glasgow Avenue, Bondi Beach: * Proceedings No 10491 of 2012: A Building Certificate Application under Section 149B - Section 149E of the Environmental Planning and Assessment Act, 1979 for building works relating to refrigeration/condenser units ("the equipment") associated with an existing supermarket at No. 53 Glasgow Ave, Bondi ("the subject site"). The location of the equipment is within the eastern setback of the subject site. * Proceedings No 10303 of 2012: A Development Application ("DA") which seeks, in effect, to retain the equipment in its current location being within the eastern setback area of the subject site. The DA also seeks to demolish the existing enclosures around the equipment and to erect a new enclosure and screen around the equipment. The DA also includes a Landscape Plan, which proposes landscaping along a portion of the eastern boundary setback. 2The parties agreed for the matters to be heard concurrently at an onsite hearing (OSH) and the identified issues involve: * Impact on amenity; in terms of noise, heat and vibration arising from the condensers operation. * Whether the condensers should be located internally. * Landscaping; regarding the adequacy of the proposed landscaping around the condensers. * Public interest.