No Free Pass Granted by Vibrancy Reforms Amendment Bill
The Environmental Planning and Assessment Amendment (Vibrancy Reforms) Bill 2024 has passed both the lower and upper house of the NSW Parliament last week, May 14 and May 16 respectively, without any of the amendments tabled.
The Environmental Planning and Assessment Amendment (Vibrancy Reforms) Bill 2024 (Bill) proposed amendments to the Environmental Planning and Assessment Act 1979 to require a consent authority (such as a council) to consider new 'Vibrancy Guidelines' when assessing applications to extend the hours of operation of food and drink premises in particular areas.
However, as the Hon. Paul Scully, Minister for Planning and Public Spaces, pointed out during the Second Reading Debate, this will not dismantle or override what is already in place to protect the environment, wildlife, public areas or the amenity and safety of residents, including those premises sited on Crown Land Reserves.
The Hon. Minister for Planning and Public Spaces stated:
‘’...Members have also raised concerns about the application of the guide in the consideration of other environmental factors. The guide will not switch off existing environmental protections or override matters that a consent authority would consider for a specific site. Section 4.15 of the Environmental Planning and Assessment Act sets out the matters that a consent authority must consider in determining a development application.
Those matters include the likely impacts of the proposed development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.
Matters for consideration like the effect of noise or light on the local environment as a result of longer or later operation hours will still need to be considered, as they always have. Councils will have to weigh up those impacts in certain locations as part of their assessment. ….’’
Applications will continue to be assessed on a case-by-case basis, with regard to all relevant considerations.
The Bill commences on Proclamation and this will provide an opportunity for the Vibrancy Guidelines to be developed, in consultation with stakeholders and Government agencies.
Once finalised, the Guidelines will be issued by the Planning Secretary and published on a NSW Government website.
The Bill, while providing certainty to the community and industry about the Government’s determination to ‘re-Enliven’ the night-time economy, will not override the usual assessment process.
Pittwater Online understands Council, after recent media attention, contacted the applicants early last week stated by the Government as their example for why this Bill was needed. Council invited them to meet with Council staff to discuss review options for their application to trade 7 days a week from 7am to 11pm + each day.
The invitation was accepted and a meeting was scheduled for Friday May 17.
Background
Development consent was granted to Development Application DA2021/0669 on 15 December 2021 for demolition works and construction of a new restaurant, carparking and associated uses for the Boat House and former Barrenjoey Boatshed in Governor Phillip Park.
Relevantly, condition 96 of the consent sets out the trading hours of the restaurant as follows:
Trading hours outside of daylight savings:
Monday to Saturday – 7am to 4pm
Sundays and public holidays – 7am to 4pm
Trading hours during daylight savings:
Monday to Thursday 7am to 4pm
Friday and Saturday 7am to 10pm
Sundays – 7am to 4pm
Recent application to extend trading hours
Council received an application (MOD2023/0684) on 20 December 2023 to extend trading hours so that the restaurant would operate all-year round Monday to Sunday 7am to 11pm. It is relevant to note that the application was lodged as a section 4.55(1A) application. The critical test for a section 4.55(1A) application is that the application must have a minimal environmental impact. In cases where the impact is not minimal, applications should be lodged as a section 4.55(2) application.
The application was publicly exhibited, and 139 submissions were received (132 in support and 7 in objection) during the exhibition period. However, on the publication of the agenda of Council’s Development Determination Panel (DDP) on the website, approximately 50 submissions objecting to the application were received.
There are 50 families in the vicinity who have recorded the proposal is not of minimal impact to their safe and peaceful enjoyment of their homes.
The application was assessed by an independent planner as the DA is a ‘Council related application’ and a report recommending approval of the application was considered by the DDP on 13 March 2024.
Following a site inspection and representation from both objectors and representatives of the applicant, the DDP refused the application.
Critical to the panel’s determination was the categorisation of the application as a 4.55(1A). The Panel formed the view that the increase in operating hours and the inevitable increase in functions, noise, traffic, and other amenity issues resulting from the extended trading hours does not meet the minimal environmental impact threshold and given this the application could not be approved.
In addition to the threshold consideration, the panel were also concerned about the impacts of the proposed increased operating hours on nearby residents and noted that no acoustic testing had been undertaken during functions since the recent re-opening of the venue, and that the applicant had relied on testing in an Acoustic report submitted with the original DA and that the testing took place during the Covid lockdown period.
These issues were to be discussed with the applicants at the meeting and advice was to be provided on the issues that will need to be addressed in any future review of the application.