Original signed by: David Hoy on 25/8/2016
Cloud 9 Café Crows Nest P/L
c/- Que Consulting
Suite 2.02 92 Norton Street
LEICHHARDT NSW 2040
D400/12
(MAM) (CIS)
ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979 (AS AMENDED)
Notice to Applicant of Determination of Request
to Modify a Development Consent
Pursuant to Section 96 of the Act notice is hereby given of the determination by the consent
authority of your request for a modification to Development Consent No. 400/12 and registered
in Council’s records as Application No. 400/12/2 relating to the land described as
55 Willoughby Road, Crows Nest.
Your request for the modification of the Development Consent as set out in Notice of
Determination dated 18 January 2013, has been determined in the following manner:1.
To modify Condition No. I4 so as to read as follows:
Hours of Operation
I4.
The refreshment room may be open for business only between the following hours: 

6.30am and 11pm, Sunday to Thursday
6.30am and 12 midnight, Friday to Saturday.
The hours are limited to the indoor areas only. All outdoor areas must cease operation
at 10pm, Monday to Sunday and the doors to the outdoor dining kept shut after
10pm.
Upon expiry of the permitted hours, all restaurant service (and entertainment) shall
immediately cease, no person shall be permitted entry and all customers on the
premises shall be required to leave within the following half hour.
(Reason: Information to ensure that amenity of the surrounding locality is maintained
and hours of operation are consistent with those in surrounding locality)
2.
To insert new conditions C1, C2, C3 and I9 for noise management
Noise from Plant and Equipment
C1.
The use of all plant and equipment installed on the premises must:
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(a)
During night time hours (between 10pm and 7am) comply with the Acceptable
Amenity Criterion (EPA Industrial Noise Policy) and Council’s DCP Part 2.3.2
Noise Emission Limits when operating contemporaneously on the site or in the
strata scheme or in the mixed strata schemes when measured at the boundary of
any affected receiver. The modifying factor adjustments in Section 4 of the
EPA Industrial Noise Policy shall be applied.
(b)
Not cause ‘‘offensive noise’’ as defined in the Protection of the Environment
Operations Act 1997.
‘‘affected receiver’’ includes residential premises (including any lot in the strata
scheme or another strata scheme), premises for short-term accommodation,
schools, hospitals, places of worship, commercial premises and parks and such
other affected receiver as may be notified by the Council in writing.
‘‘boundary’’ includes any window or elevated window of an affected receiver.
Terms in this condition have the same meaning as in the Noise Guide for Local
Government and the Industrial Noise Policy published by the NSW Environment
Protection Authority.
(Reason:
To maintain an appropriate level of amenity for adjoining land uses)
Compliance with Acoustic Report
C2.
The recommendations contained in the acoustic report prepared by Acoustic Logic
dated 19 February 2016, must be implemented and adhered to at all times.
(Reason:
To maintain an appropriate level of amenity for adjoining land uses)
Noise Control (Licensed Premises)
C3.
The use of the premises must comply with the following:
(a)
The LA10 noise level emitted from the use of the premises must not exceed
the background noise level (LA90) in any Octave Band Centre Frequency
(31.5 Hz to 8 kHz inclusive) by more than 5dB between the hours of 7.00am
and 12.00 midnight when assessed at the boundary of any affected residence.
(b)
The LA10 noise level emitted from the use must not exceed the background
noise level (LA90) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz
inclusive) between the hours of 12.00 midnight and 7.00am when assessed at
the boundary of any affected residence.
(c)
Notwithstanding compliance with (a) and (b) above, the noise from the use
must not be audible within any habitable room or sleeping area in any affected
residence between the hours of 12.00 midnight and 7.00am.
(d)
The LA10 noise level emitted from the use must not exceed the background
noise level (LA90) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz
inclusive) by more than 3dB when assessed indoors at any affected
commercial premises with windows closed.
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(e)
The use of the premises must be controlled so that any emitted noise is at a
level so as not to create an ‘‘offensive noise’’ as defined in the Protection of
the Environment Operations Act 1997.
‘‘affected residence’’ includes residential premises (including any lot in the
strata scheme or any other strata scheme), premises for short-term
accommodation and hospitals.
‘‘boundary’’ includes any window or elevated window of an affected
residence.
LA10 is the average maximum A-weighted Fast Response sound level emitted
from the premises.
LA90 shall be measured in the absence of all noise from the premises
(including mechanical plant noise).
Terms in this condition have the same meaning as in the Noise Guide for
Local Government and the Industrial Noise Policy published by the NSW
Environment Protection Authority.
(Reason:
To ensure the amenity of surrounding land uses)
Noise and Vibration Impact
I9.
The on-going use of the premises approved under this consent must comply with all
conditions pertaining to noise and vibration specified in this consent.
(Reason:
3.
To ensure compliance with the specified levels of noise and vibration
and to maintain the amenity of surrounding land uses)
To insert a new condition No. I10 for Outdoor Dining Permit
Footpath Seating Permit Required
I10.
Footpath seating is not to be provided unless a footpath-seating permit is obtained from
North Sydney Council. Under no circumstances is footpath seating to be provided
without a footpath-seating permit being in place (including appropriate public liability
insurance), which is permanently displayed in accordance with the provision of
Council’s footpath seating policy.
Note: Footpath seating permits are issued on an annual basis and Council reserves
the right to review the operation of outdoor seating. Failure to comply with the terms
of this consent and the footpath seating permit may result in the non-renewal of any
footpath seating permit
(Reason:
To ensure compliance with Council’s policy for the provision of
outdoor seating on footpaths)
The conditions attached to the original consent for Development Application No. 400/12 by
endorsed date of 18 January 2013 still apply.
Page 4
ADVISINGS
(a)
Council is always prepared to discuss its decisions and in this regard, please do not
hesitate to contact Aloma Moriarty. However, if you wish to pursue your rights of
appeal in the Land and Environmental Court pursuant to Section 97 of the
Environmental Planning and Assessment Act 1979 (as amended), you are advised that
Council generally seeks resolution of such appeals through a Section 34 Conference,
instead of a full Court hearing, subject to any further advice to the contrary from
Council’s Solicitors and senior staff. Such an approach is less adversarial, it achieves a
quicker decision than would be the case through a Court hearing and it can give rise to
considerable cost and time savings for all parties involved. The use of the Section 34
Conference approach requires the appellant to agree, in advance and in writing, that the
Court appointed assessor will be given the full authority to completely determine the
matter at the conference.
(b)
Pursuant to Section 96AB, an applicant is able to request Council to review its
determination. An application for a review under Section 96AB of the Act must be
made no later than 28 days after the date on which the application for the modification
of the development consent was determined.
(c)
Prior to commencing any building, subdivision or associated constructions works, the
following provisions of the Environmental Planning and Assessment Act 1979 (the
‘Act’) are to be complied with:
(d)
(i)
A Construction Certificate is to be obtained in accordance with Section 81A(2)
(a) of the Act.
(ii)
A Principal Certifying Authority is to be appointed and Council is to be notified
of the appointment in accordance with Section 81A(2)(b1)(i) of the Act.
(iii)
Council is to be notified at least two (2) days of the intention to commence
building works, in accordance with Section 81A(2)(c) of the Act.
You are advised that changes to the external configuration of the building, changes to
the site layout, density and unit configuration internal changes to the proposed building
or any changes to the proposed operation of a use MAY require the submission of a
further modification under Section 96 of the Environmental Planning & Assessment
Act, 1979 (as amended).
Council staff would be pleased to assist in identifying such changes which may require
the submission of a modification of a Development Application under Section 96 of the
Environmental Planning & Assessment Act.
DATE
Signature on behalf of consent authority
DAVID HOY
TEAM LEADER (ASSESSMENTS)