2016-08-09 Planning & Environment Committee Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                                      9 AUGUST 2016


Assessment
As previously indicated to Council, staff had counted on site seating at 54 and consider the
requirement for patrons to be seated as reflective of the restaurant use applied for. The 70 patron
numbers suggested by the applicant is not reflective of its original application material, its acoustic
reporting or its application to Liquor Licencing. The applicant’s request to amend the condition is
not supported and it is recommended the condition remain unchanged.


Condition 7 – Sunset Clause
7.    This development permit lapses on 21 June 2017, unless an application is received to extend
      the approval. In assessing an extension to the approval, Council will have regard to any
      breach details available from the Office of Liquor & Gaming Regulation and any other
      relevant matters.
Applicant’s Request
The applicant wishes to register a number of concerns with this condition with Council in these
representations. These concerns include that the condition:-
(a)   lacks clarity;
(b)   is in conflict with relevant provisions of the Sustainable Planning Act; and
(c)   lacks certainty/finality.


(a)   Those matters that more specifically identify the applicant’s concern with respect to a
      perceived lack of clarity include:-
      I.     Condition 7 states that “an application” needs to be lodged. It is assumed that this
             reference is to a type of formal development application under the Sustainable
             Planning Act. It is unclear what specific “application” is required to be lodged by this
             condition. It may be that Council is referring to a formal request to extend the relevant
             period under Section 383 of the Sustainable Planning Act or perhaps the
             change/deletion of condition 7 is considered by Council to be a permissible change
             that can occur by a request to change an existing development approval under Section
             369 of the Sustainable Planning Act (as amended).
      II.    Condition 7 suggests that all Council requires is for an “application” to be simply lodged
             before 21 June, 2017 and then the current development approval does not lapse. It is
             unclear if that “application” needs to be also decided and approved by Council.
      III.   Procedurally, Condition 7 does not address the status of this current development
             approval between 21 June, 2017 and any Council approval of the assumed request to
             extend the relevant period. It is uncertain if Village Bicycle need to cease operations
             after 21 June, 2017 until Council decides the application/request. The condition is
             therefore considered to be unclear on this aspect as well.
      IV.    The above decision notice approves the use within the existing premises between 5am
             and 12pm seven (7) nights a week as well as the outdoor dining area between 5am
             and 10pm seven (7) nights a week and between 10pm and 12pm on four (4) nights a
             week. The condition would mean that the development approval would no longer apply
             to the proposed use both within the existing premises and in the outdoor dining area at
             all times. The business would therefore need to close unless some form of limited
             development was possible under the then relevant planning scheme. This is not only
             unclear but unreasonable.




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