Barzio Holdings Pty Limited v Woollahra Municipal Council (No.2) [2014] NSWLEC 1175

Land and Environment Court New South Wales

Medium Neutral Citation: Barzio Holdings Pty Limited v Woollahra Municipal Council (No.2) [2014] NSWLEC 1175 Hearing dates: 8 August 2014, conditions 26 August 2014 Decision date: 28 August 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. DA 359/2012 for the use of a terrace building for a restaurant/bar, including alterations and additions to the building, at 6 Heeley Street Paddington is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and B. Catchwords: DEVELOPMENT APPLICATION: use of a terrace for a restaurant/bar, including alterations and additions to the building -further amendments result in council contentions being satisfactorily addressed - directions for amendments and other minor changes to be included in a fresh set of plans and amended conditions of consent - dispute over condition of consent restricting number of patrons Legislation Cited: Building Code of Australia Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 Category: Principal judgment Parties: Barzio Holdings Pty Limited (Applicant) Woollahra Municipal Council (Respondent) Representation: Mr R White, barrister (Applicant) Mr A Hudson, solicitor (Respondent) Andrew Fagent and Company (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10910 of 2013

Judgment 1COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council of DA 359/2012 for alterations and additions and use of a terrace building for a restaurant/bar at 6 Heeley Street Paddington (the site). The site also has a rear lane access to White Lane. 2On 1 May 2014 findings on the merits and a response to the concerns raised by residents was provided (Barzio Holdings Pty Limited v Woollahra Municipal Council, [2014] NSWLEC 1171) and Directions were made for a fresh set of plans and amended conditions of consent as the council considered that the contentions originally raised had been addressed by amendments to the development. These Directions stated: As the further amendments were not in a form that allowed orders to be made, some time should be allowed for the further amendments and other minor changes to be included in a fresh set of plans. This will allow these plans to be referenced in the conditions of consent that will also need to be amended to include matters such as the agreed conditions of the acoustic experts. A timetable for production of the amended plans and conditions will be discussed with the parties when these findings are handed down. Liberty to restore the matter on 48 hours notice is provided in the event that there is any dispute. 3In the formulation of the conditions, a dispute arose over the maximum number of patrons. Conditions C.3(a) and (b), as proposed by the council state: (a) That the required exits and travel to the required exits shall have a minimum width of one (1) metre in accordance with the requirements of Clause D1.6 of the BCA. If the required exit widths and paths of travel to exit widths cannot be met an alternative solution will be required by an appropriately qualified C10 accredited fire engineer considering increased body mass and sizes, reduced fitness levels, lateral body sway, coherent flow, overtaking movement, counter-flow, stair geometries, lighting levels meeting the performance requirements DP2, DP4, DP6 & EP2.2 of the BCA; (b) That the number of patrons within the premises shall be limited to sixty five (65). Signage shall be displayed on the ground floor level near the entrance in black lettering a minimum of 25mm in height on a white background stating that the ground floor is limited to a maximum number of patrons of thirty five (35), being twenty three (23) patrons inside and twelve (12) patrons outside (ten (10) patrons to rear courtyard and two (2) patrons to the street front verandah). Signage shall be displayed on the first floor near the entrance stairway in black lettering a minimum of 25mm in height on a white background stating that the first floor shall be limited to a maximum number of patrons of thirty (30), being twenty six (26) patrons inside and four (4) patrons outside (two (2) patrons each to the front and rear balconies) in accordance with the requirements of 98 (D) of the Environmental Planning and Assessment Regulation 2000; 4Condition I.4, as proposed by the council states: I.4 Patrons That the number of patrons within the premises at any time shall not exceed to sixty five (65) patrons as follows: i. The ground floor is limited to a maximum number of patrons of thirty five (35), being twenty three (23) patrons inside and twelfth (12) patrons outside (ten (10) patrons to rear courtyard and two (2) patrons to the street front verandah). ii. The first floor shall be limited a maximum number of patrons of thirty (30), being twenty six (26) patrons inside and four (4) patrons outside (two (2) patrons each to the front and rear balconies). Any person/s attending the premises for the purpose of 'takeaway' products/services will not be considered a 'patron' as detailed above, provided no food and or drink is consumed by those persons on the premises. 5Condition I.5, as proposed by the council states: I.5 - Signage to be Displayed - Licensed Premises Signage (in lettering not less than 15mm in height on a contrasting background) is to be erected in a prominent position near the principal entry to the premises in accordance with Clause 98D of the EPA Regulation 2000. The signage shall state the following and may change from time to time following any modification to this consent. "Approved hours of operation - Indoor Area Monday to Wednesday: 9.00am to 10:30pm Thursday: 9.00am to 11.30pm Friday to Saturday: 9.00am to 12.00am Sunday: 9.00am to 10:00pm Approved hours of operation - Outdoor Area Monday to Sunday: 9.00am to 10:00pm Approved patron capacity Sixty five (65) patrons: The ground floor is limited to a maximum number of patrons of thirty five (35), being twenty three (23) patrons inside and twelve (12) patrons outside (ten (10) patrons to rear courtyard and two (2) patrons to the street front verandah). The first floor shall be limited a maximum number of patrons of thirty (30), being twenty six (26) patrons inside and four (4) patrons outside (two (2) patrons each to the front and rear balconies). Upon leaving please respect local residents by minimising noise." The signage required by this condition is to be erected prior to the commencement of operations. This condition has been imposed to clearly identify the hours and patron capacity of the licensed premises. 6Condition I.20, as proposed by the council states: I.20 Paths of Travel to Exits The Owner(s) and occupier(s) must in accordance with this condition ensure that the premises maintains the approved unobstructed one (1) metre width paths of travel to exits provided in accordance with Condition C.3a) at all times that the restaurant is in operation. 7The applicant contends that the following patron numbers comply with the Building Code of Australia (BCA) and are supported by the Population Assessment Report prepared by Stephen Grubits & Associates dated 13 June 2014: (i) ground floor: 54 patrons with 42 patrons inside and 12 patrons on the outside in the rear courtyard (ii) first floor: 57 patrons with 55 patrons inside and 2 patrons on the outside rear balcony.