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Nicholas Walton - 24 November 2015

Nicholas Walton made the following comments in the Public Access Session at the Ordinary Council Meeting on 24 November 2015.

APPLICATION FOR MODIFICATION TO A DEVELOPMENT CONSENT

TERN INN RESTAURANT

INFORMATION SUPPLIED TO THE COUNCIL ON 24 NOVEMBER 2015

Thank you for allowing me to address Council about the Application for Modification to the operating hours of the Tern Inn.

There are three issues which I believe should be brought to the attention of Councillors.

Acoustic Testing

When I addressed the Council meeting on 10 November 2015, I started to mention the requirement by Council staff that the Tern Inn must have Acoustic or Noise Testing in order for Council to support an extension of operating hours. It was suggested that the issue of acoustic testing was not relevant to the Application before Council, which I did not entirely agree with. I would like Councillors to know that I have not withdrawn my original application for modification that included extending the operating hours for at least a part of the year from 10 pm until 11 pm – it has been amended but not withdrawn.

Council staff have advised me that the Council will not support an extension of operating hours unless I have acoustic testing carried out. I have attended two meetings with Council staff to discuss the merits of having the acoustic testing carried out, however I cannot agree that it is necessary in order to have Council support for the extended operating hours.

An area of dispute with Council is the validity of the acoustic testing that was done by previous owners during an approved trial period of closing at 11.00 pm. Council has indicated that the acoustic testing was unsatisfactory, namely that the background noise testing was not done during the proposed period of the extended operating hours. That said, the consultant stands by his calculations and his report, and he has given reasons why the testing was done at the busiest time the business was operating and not late in the evening.

I believe that the acoustic testing by the previous owners was done in good faith and recommended that the operating hours be extended. I do not intend to engage anyone to carry out further acoustic testingfor the following reasons:

1. Normally, acoustic testing is only required where there is noise being emitted from plant or equipment and not from noise emanating from people talking in the street or closing car doors. Our consultation with Acoustic Engineers has revealed that you are unlikely/unable to test for noise emanating from people talking outside the Tern Inn or leaving in their vehicles because the noise must persist for a minimum of 15 seconds. The behaviours of people outside the Tern Inn can vary significantly and there may not even be any noise made on the night that acoustic testing is carried out. However, noise could in fact be made by someone outside the Tern Inn onanother occasion, which will result in a complaint to Council despite the acoustic testing;

2. On the particular night that the noise levels are to be tested the restaurant could either be completely full, partially full or completely empty. In simple terms I may not even have a single customer on the night that acoustic testing is carried out, which is something I have little control over;

3. In Tuross Head the background noise on any given day can vary because of the noise created by waves crashing onto the beach;

4. I have concerns that noise being made by people not associated with the Tern Inn, either walking passed and talking, or driving passed may be attributed to the Tern Inn;

5. I do not believe that acoustic testing will satisfy the current complainant who has telephoned the Tern Inn during permitted operating hours (9.45 pm) and been abusive about people talking in the street; and

6. If the acoustic testing is found to be in favour of the Tern Inn extending the operating hours, I believe that the current complainant will accuse the Tern Inn of influencing the testing regime to give a favourable result.

As a result of the amendment to my Application for Modification, Council staff have required me to submit a fresh Application for Modification. On 18 November 2015 I submitted a further Application for Modification. Council staff have advised that this Application must also be notified to nearby residents, which means that I will not be able to have the issues resolved either in favour or against until the February 2016 Council meeting. If Council staff had advised me that there was a requirement to renotify the nearby residents about the same issue, I would not have agreed to amend my original Application. The difference between what was originally proposed and what is now being proposed is that I am not asking for extended trading for every night of the daylight savings period. I am asking for less operating hours than was in the original Application that was notified in May 2015.

In some circumstances, outlined in the ESC Advertising and Notification Code, exemptions from notification can be given. I believe that because my original Application was notified and this latest Application for Modification differs only in minor aspects to the original application that it could be exempt from further notification.

In summary, our position is that further acoustic testing would be a waste of time and money. I believe that an extension of one hour of operating on a Friday and Saturday night from 10 pm until 11 pm is reasonable in all of the circumstances. Similarly, I believe that at least some opportunities to have functions until 12 midnight in the Tern Inn should be provided for in the operating hours if adequate notice is given to the neighbours.

Tuross Head Motel Development Consent for a Restaurant & other ESC Restaurants

I would like to make Councillors aware that immediately next door to the Tern Inn, the Tuross Head Motel has a Development Consent to operate a restaurant without any restriction on operating hours.

Recently, the current proprietors of the Tuross Head Motel have re-opened the restaurant area as a café and operated initially from 8.00 am (now 9.00 am) until mid-afternoon. The fact is that the Tuross Head Motel can operate their restaurant until well after the Tern Inn Restaurant must close.

Importantly, I would like Councillors to understand that the Tern Inn is the only Restaurant in the entire Eurobodalla Shire that must close at 10.p.m. and that the Application for Modification only seeks to extend the operating hours by two hours per week (one hour on a Friday night and one hour on a Saturday night) and a maximum of ten functions per year. Tuross Head is a tourist town with an influx of additional people recreating on a Friday and Saturday night – the amenity of the area on these nights is very different from a night during the week.

Breach of ESC Code of Meeting Practice and false information provided to Councillors

I have been advised by Council staff that Mr Lyristakis has breached the ESC Code of Meeting Practice by refusing to provide a copy of his presentation to Council on 10 November 2015. Mr Lyristakis may have his reasons for not providing a written copy of his presentation, however I believe he should have done so in compliance with the Code of Meeting Practice.

I have invited Mr Lyristakis to participate in Community Justice Centre Mediation, however he has refused to do so. I would have liked to talk through Mr Lyristakis issues and worked with him to resolve at least some of the issues. I am very concerned about false allegations about the operating hours of the Tern Inn, such as selling alcohol after 12 midnight and closing after 10 pm.

At the Council meeting on 10 November 2015, I believe Mr Lyristakis provided false information to Councillors about the operation of the Tern Inn Restaurant and at least one of his interactions with Council staff. I am concerned that Mr Lyristakis has made public statements to Council that are not truthful and have gone unchallenged by Council.

Questions for Council

1. As mentioned during my presentation, I would like Council to consider bringing forward the remaining issues from my original Application for Modification, namely the extension of operating hours from 10 pm until 11 pm for at least a part of the year and the opportunity to have a limited number of functions, to the 8 December 2015 Council meeting. Can Council please bring forward my original Application for Modification and make a decision at the 8 December 2015 Council meeting?

2. Given the discussion today about the Council requirement for acoustic testing, what is the latest date by which the results of acoustic testing would need to be provided in order for Council to consider the issues at the 8 December 2015 meeting?

3. I have provided Council with the reasons why I do not believe that further acoustic testing is the way forward. I understand from Council staff that the acoustic testing will support my Application and enable Council to manage any complaints. I believe that extending the operating hours on a Friday and Saturday night by one hour on each of these days is reasonable without the need for acoustic testing; and that Council can assess my proposed management actions in the first instance. Has Council given consideration to my proposed management actions (to be used on a Friday and Saturday night), arising from my original Application and in response to the submissions? Has Council determined that these proposed management actions are inadequate? If so, what process was used and in what way are they inadequate?

4. Can Council explain why each of my reasons for not proceeding with the acoustic test are not valid?

5. What does Council propose to do about my allegations that Mr Lyristakis has provided false information to Councillors and his refusal to comply with the ESC Code of Meeting Practice?

6. Does Council consider that the Tern Inn Restaurant, as the only restaurant in the ESC with a closing time of 10 pm is being treated fairly?

7. Given that there is a Development Consent in place for Tuross Head Motel (next door to the Tern Inn and in the same zoning) to operate a restaurant until after the closing time of the Tern Inn, does Council consider that this fact has any relevance to the Application for Modification by the Tern Inn Restaurant?

8. There are a number of inter-related issues and compelling reasons why the Tern Inn Restaurant, as a small business contributing to the local economy in a tourist town where employment opportunities are limited, should be supported by Council to extend the operating hours by about two hours per week. I am concerned that Council is focusing on managing future complaints rather than focusing on what is right and fair in all of the circumstances. Has Council given proper consideration to all of the criteria in the legislation in their evaluation of my Application for Modification? If so, what are the criteria that have been considered and how have each of these criteria been assessed against my Application for Modification?

Council's Reply

With regard to your comments, I will address the issues raised as follows:

1 & 2. Council received your previous application in April 2015. This application was amended during the assessment process and determined by Council on 10 November 2015. The application that was approved, was different to that originally proposed and this was done with your consent. This is permitted pursuant to Clause 55 of the Environmental Planning and Assessment Regulations 2000.

Following Council’s determination of the application, the process was completed and there remains no outstanding undetermined matters.

Each and every application is required to go through the normal assessment processes such as notification, assessment and determination, i.e. they stand alone.

With regard to your current application, the exhibition period did not end until 8 December 2015, so it was not possible to get the report to the Council Meeting of the same date.  As you will understand, any report going to a Council meeting must be on Council’s website a week prior to the date of the meeting giving councillors and the community adequate time to read or prepare and organise their time should they wish to speak at that meeting.

3. There is no established data relating to background noise levels in the vicinity of the restaurant or the operating noise levels of the restaurant.  It is therefore not possible to determine the effectiveness of any management techniques without an acoustic assessment.

4.
(a)
The acoustic testing would consider noise from the operation of the restaurant including people coming and going, noise during dining and cooking, and plant and equipment. The nose assessment would not be limited to plant and equipment.

(b) The acoustic assessment would make allowances for low or large numbers of clients and Council would rely on the professionalism of the acoustic engineer.

(c) Waves crashing are a constant, and background noise levels are normally determined over a period of time.

(d) An acoustic engineer would make allowances for other noises not associated with the restaurant but this would contribute to the background noise level.

(e) The acoustic assessment is not about any particular submission or complaint but rather the integrity of the assessment process under section 79C of the Environmental Planning and Assessment Act.

(f) Council would rely on the professionalism of an acoustic engineer and as stated above, it is not about any particular submission or complaint but rather the integrity of the assessment process under section 79C of the Environmental Planning and Assessment Act.

5. Council does not intend to pursue Mr Lyristakis. However, at the Mayor’s discretion, permission may be refused for Mr Lyristakis to address any future public forum/access of Council meetings.

6, 7, 8. Restaurants are not usually located within residential zones and are often not prescribed any particular operating hours. Notwithstanding this, the operation of the restaurant is regulated by the development consent for the property and any proposed changes must be done in accordance with the Environmental Planning and Assessment Act.