It follows the highly publicised stoush regarding The Joey in neighbouring Palm Beach,which was blocked from opening at night after residents objected to potential noise despite their homes being more than 600 metres from the venue.
The ageing apartment block and deli at Whale Beach are owned by the Cassar tourism family.Edwina Pickles
The case highlights the complexity of the state’s myriad planning layers,and shows how a council can be left facing a legal challenge for a decision it did not make or support.
Inhabitants of the small,sleepy enclave of Whale Beach were divided when the Cassar tourism family first lodged plans in 2020 to redevelop their ageing deli and apartments into a flashy shop-top housing complex with a larger restaurant.
In early 2022,the owners applied to expand the restaurant’s capacity to 170:140 indoors and 30 on the outside terrace. Objections poured in from neighbours including merchant banker Mike Crivelli,Travelogic founder Craig Smith,former Goldman Sachs boss Charles Gorman,Macquarie director Phil Coffey and Sydney developer John Molyneux,among others.
The application was supported by council staff. But it was rejected by the Northern Beaches Local Planning Panel,which consists of independent planning experts and community members,and exists to assess sensitive or contentious developments in a “transparent and accountable” way.
Residents of Whale Beach look over the pristine yellow sands of the beach,where parking is often at a premium.Wolter Peeters
The decision was taken partly because the larger restaurant would place too much pressure on the nearby public car parking,and because it would have “unacceptable noise impacts on adjoining and nearby residential properties”.
But last Thursday,the Land and Environment Court upheld an appeal by owner Leslie Cassar,and approved the restaurant to seat up to 150 people – depending on the season and the time of day.
As agreed with the owners,the venue will be permitted to host 150 people for lunch on weekdays all year round,but only 80 on weekends.
Between October and March,it will be limited to 130 people for dinner on weekdays,while on weekends,that will drop to 100. From April to September,its evening maximum will be 150 on weekdays and 140 on weekends.
Whale Beach.Rhett Wyman
Northern Beaches Council did not contest the revised offer,as the reduced numbers were in line with the advice of its own experts. It refused to disclose how much money it spent on the case (in 2022-23,the council spent a total of $1,136,327 on all legal proceedings,and recovered $181,441,resulting in net expenditure of $954,886).
The court accepted evidence that reducing patronage as outlined above would mean parking at Whale Beach was not unreasonably affected.
“This is not to dismiss or diminish the genuinely held concerns of residents that parking is a source of stress and concern for those who live in the area,” Commissioner Timothy Horton said.
During a visit to Whale Beach,the court “saw for itself examples[of] vehicles parked unlawfully,drivers failing to observe stop signs and the like”.
“It is clear that there is a high demand for parking along the beachfront,as is common in beachside areas of Sydney,” Horton found. “With it,I have no doubt that aggression and dispute follows,as residents attest.”
The court case triggered a whole new round of public submissions against the expanded restaurant,including from long-time Whale Beach resident Leonor Gouldthorpe,who said the increased noise and disruption threatened to make life “unbearable”.
Horton considered these and other concerns,noting:“Broken glass in the public domain is also a feature which with residents are clearly fed up.”
In their revised plan of management,the owners agreed to limit large group bookings (more than 100 people) to 12 times a year,and agreed not to play amplified music on the premises.
A 1.8 metre high “lapped and capped fence” will also be erected alongside the property’s southern boundary,along with several other sound-proofing measures.
The Palm Beach and Whale Beach Association provided evidence calling for the resident’s capacity to remain at 70 patrons. “We thought the size should be commensurate with the needs of the locals,” president Richard West said.
He said the compromise solution endorsed by the court was “very complicated,and it’s going to be difficult to enforce”. Meanwhile,he said The Joey in Palm Beach should be allowed to open at night as a restaurant,but remained concerned about noise from functions.
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