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. The agreed facts 8It was agreed that the only matter in dispute was the number of patrons for the restaurant based on the BCA requirements. There were no other issues associated with the BCA irrespective of whether the approach of the applicant or the council was adopted by the Court. 9Both parties relied on plans that indicated the ground floor and first floors of the restaurant (Exhibit A). To establish the patron levels under the BCA, both floor plans identified dining areas, areas excluded by the BCA (servery, kitchen, stairs etc) and hypothetical table numbers and layout. It was agreed that the dining area of the ground floor (excluding areas identified by the BCA) was 65.42 sq m and that seating was provided for 54 patrons. The dining area of the first floor (excluding areas identified by the BCA) was 58.33 sq m and that seating was provided for 57 patrons. While accepting these figures the council maintained that further areas should be excluded and that the table layout was not practical because of the size of the tables shown on Exhibit A. The relevant BCA requirements 10Part D1.0 relevantly states: D1.0 Deemed-to-Satisfy Provisions (a) Where a Building Solution is proposed to comply with the Deemed-to-Satisfy, Provisions, Performance Requirements DP1 to DP9 are satisfied by complying with- (i) D1.1 to D1.16, D2.1 to D2.23 and D3.1 to D3.12; and 11Part D1.6 relevantly states: D1.6 Dimensions of exits and paths of travel to exits In a required exit or path of travel to an exit- (a) . (b) the unobstructed width of each exit or path of travel to an exit, must be not less than (i) 1 m 12Part D1.13 relevantly states: D1.13 Number of persons accommodated The number of persons accommodated in a storey, room or mezzanine must be determined with consideration to the purpose for which it is used and the layout of the floor area by- a) calculating the sum of the numbers obtained by dividing the floor area of each part of the storey by the number of square metres per person listed in Table D1.13 'according to the use of that part, excluding spaces set aside for- (i) lifts, stairways, ramps and escalators, corridors, hallways, lobbies and the like; and (ii) service ducts and the like, sanitary compartments or other ancillary uses; or (b) reference to the seating capacity in an assembly building or room or (c) any other suitable means of assessing its capacity. The evidence The council's position 13Mr Richard Smith, the councils Fire Safety Officer states that the BCA requires that the unobstructed width of each exit or path of travel to an exit, must not be less than 1m (pt D1.6(b)(i)). Part D1.13 of the BCA is a deemed-to-satisfy provision and it provides that there can be one person per 1 sq m for a restaurant, excluding spaces set aside for certain features of the building, but relevantly in this case, "corridors". Mr Smith equates the reference to "corridor" in pt D1.13(a)(i) to the path of travel required by pt D1.6(b)(i). On this interpretation, the 1 m wide area required to satisfy pt D1.6(b)(i) should be excluded from the floor area used to calculate the deemed-to-satisfy of one person per 1 sq m for a restaurant. On this basis. the deemed-to-satisfy provision means that only 35 patrons can be on the ground floor and only 30 patrons can be on the first floor (as reflected in the councils conditions). If patron numbers greater than these amounts are proposed (as suggested by the applicant) then an alternative solution (in terms of the BCA) is required to justify a variation to the deemed- to-satisfy provisions to increase the number of patrons. The applicant's position 14Mr Carlos Quaglia, a Fire Engineer, does not accept the interpretation adopted by Mr Smith. In his opinion, the area required to satisfy pt D1.6(b)(i) for path of travel to an exit should not be excluded from the floor area used to calculate the deemed-to-satisfy of one person per 1 sq m for a restaurant. In his opinion, the required path of travel to an exit is not a "corridor" for the purposes of pt D1.6(b)(i). If the spaces identified in pt D1.13(a)(i) are considered, they do not relate to the core activity of the restaurant, being dining, but to ancillary matters. The conditions on the number of patrons sought by the applicant satisfy the deemed-to-satisfy provision of one person per 1 sq m for a restaurant. 15If this conclusion is not accepted by the Court, then it is submitted by Mr White that the Population Assessment Report (13 June 2014) of Mr Quaglia is an alternative solution, being an Expert Judgment (see Fig A0.3 of the BCA) given the qualifications and experience of Mr Quaglia. Findings 16Mr Smith and Mr Quaglia agree on the floor area of the restaurant, the area of the restaurant if the approach of Mr Smith is adopted and the need for a 1 m wide path of travel to an exit pursuant to pt D1.6(b)(i). Where the experts disagree is whether the path of travel pursuant to pt D1.6(b)(i) should be excluded from the area used to calculate the number of persons that can be accommodated in the restaurant pursuant to pt D1.13. 17In balancing the different arguments, I agree with the approach of Mr Quaglia for a number of reasons. First, if the different area identified in pt D1.13(a)(i) are considered collectively; they represent areas that are incidental to the use of the premises as a restaurant. They are not areas that would be used for dining but spaces associated with access and waiting areas prior to dining. Also, the words " and the like" must not be given a broad meaning but must have some association with the other words on the subparagraph that serve the purpose of access or waiting prior to joining. I do not accept that the words "corridor" and "path of travel" have the same meaning in the context of pt D of the BCA. 18Second, and given the objectives in pt D of the BCA are to provide "people with a safe, equitable and dignified access to of building" (DO1(a)) and "safeguard occupants from... injury while evacuating in an emergency (DO1(b)); if the draftsman contemplated that a path of travel should be included in pt D1.13(a)(i) than it would have been a simple task to include these words, particularly as "path of travel" has a specific meaning in the BCA. In my view, the absence of the words "path of travel" supports the approach of Mr Quaglia that this area should not be excluded in the way that other spaces in this part as specifically identified. 19Third, the calculation of the number of persons that can be accommodated, pursuant to pt D1.13, must be seen as a maximum although it is not specifically stated this way in pt D1.13. The 1 m wide path of travel must be provided and depending on the table configuration, shape of the floor area and location of the exits, the practical number of persons that can be accommodated within a specific area will vary. It may be that fewer persons can be accommodated than the number made available using the method in pt D1.13. The proposal does not achieve the maximum seating capacity based on the floor area of each part of the storey by the number of square metres per person listed in Table D1.13 of the BCA. Even though Mr Smith raised concern about the size of the tables depicted in Exhibit A, I am not satisfied that this is necessarily a reason to accept the councils patron numbers as other table configurations are likely to be available depending on the different size groups attending the restaurant. Irrespective of the table configuration, the operators of the restaurant are obliged to provide a 1 m path of travel to the exits in accordance with pt D1.6(b)(i) of the BCA. 20For these reasons, the council's position of a maximum seating capacity of 65 should be replaced with the maximum seating capacity of 111. While the applicant sought the deletion of conditions I.3(a) and I.20, there is no reason why these conditions should be deleted. These conditions, and additional reference to condition C.3(a) in other conditions, highlight and reinforce that the seating capacity is largely limited by the need to provide the 1 m wide path of travel, irrespective of the maximum number of patrons available under the BCA and the table layout. Orders 21The orders of the Court are: 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. ______________ G T Brown 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: 28 August 2014