Development Application: 52 Waterloo St, Surry Hills - D/2021/242

Decision Maker: Local Planning Panel

Decision status: Recommendations Determined


The Panel:

(A)      upheld the variation requested to clause 4.4 'Floor space ratio' in accordance with Clause 4.6 'Exceptions to development standards' of the Sydney Local Environmental Plan 2012 in this instance; and

(B)      granted consent to Development Application No. D/2021/242 subject to the conditions set out in Attachment A to the subject report, subject to the following amendments (additions shown in bold italics, deletions shown in strikethrough):


The maximum capacity of patrons within the new enclosed area is 18 persons, the capacity of patrons within the remaining outdoor seating area is 30 12 persons.

The maximum capacity of the premises remains at 142 persons. 


(a)              Signs must be placed in clearly visible positions within the restaurant requesting patrons upon leaving the premises to do so quickly and quietly, having regard to maintaining the amenity of the area.

(b)              The management must ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the neighbourhood.  In this regard, the management must be responsible for the control of noise and litter generated by patrons of the premises and must ensure that patrons leave the vicinity of the premises in an orderly manner to the satisfaction of Council.  If so directed by Council, the management is to employ private security staff to ensure that this condition is complied with.

(13)         COMPLAINTS

Where a noise complaint is received by Council from a place of different  occupancy (including commercial premises) and the complaint is substantiated by a Council Officer, the Council may employ a consultant to measure noise emanating from the property and to recommend (if necessary) appropriate actions to ensure compliance with the Condition (3) "Noise – Licensed Premises". The consultant must be a full member of the Australian Acoustic Society (AAS), Institution of Engineers Australia (IEA) or the Australia of Acoustical Consultants (AAAC). The cost of such appointment and associated work shall be borne by the operator, who shall also ensure the recommendations of the acoustic consultant are implemented.



(a)            The cooking appliances require an approved air handling system designed in accordance with AS1668.1 - The Use of Ventilation and Air-conditioning in Buildings – Fire and Smoke Control in Buildings and AS1668.2 - The Use of Ventilation and Air-conditioning in Buildings – Mechanical Ventilation in Buildings, and must incorporate the following:

(i)         The discharge exhaust air must be directed in a vertical, or near vertical direction above the roof, and

(ii)        The cooking appliances must not burn any charcoal, wood or other solid fuel.

(b)             Details of the proposed system must be submitted to and approved by Council’s Health and Building Unit in writing prior to the issue of a Construction Certificate.


(a)             The collection of waste and recycling must only occur during the designated zone collection times as outlined in the City’s Waste Policy – Local Approvals Policy for Managing Waste in Public Places 2017.

(b)             Garbage and recycling must not be placed on the street for collection more than half an hour before the scheduled collection time. Bins and containers are to be removed from the street within half an hour of collection.


The drainage system is to be constructed in accordance with Council's standard requirements as detailed in Council's 'Stormwater Drainage Connection Information' document dated July 2006. This information is available on Council's website -

A Positive Covenant must be registered on the title for all drainage systems involving On-site Detention (OSD) to ensure maintenance of the approved OSD system regardless of the method of connection.

Reasons for Decision

The application was approved for the following reasons:

(A)      The proposal is consistent with the objectives of the B4 Mixed Use Zone.

(B)      The proposal generally satisfies the relevant controls relating to food and drink premises.

(C)      Based upon the material available to the Panel at the time of determining this application, the Panel is satisfied that:

(i)         the applicant’s written request has adequately addressed the matters required to be demonstrated by clause 4.6(3) of the Sydney LEP 2012, that compliance with the floor space ratio development standard is unreasonable or unnecessary and that there are sufficient planning grounds to justify contravening clause 4.3 of the Sydney LEP 2012;

(ii)        the proposal is in the public interest because it is consistent with the objectives of the B4 Mixed Use zone and the floor space ratio development standard.

(D)      The proposal is considered to address the design excellence provisions at Clause 6.21(4) of SLEP 2012 in that it is to be comprised of contemporary materials and detailing that are consistent with the existing building and maintains a high degree of architectural design quality appropriate to the surrounding locality and streetscape.

(E)      Condition 5 was amended to clarify the maximum capacity of the outdoor area is 18 persons in the enclosed area and 12 in the remaining outdoor area.

(F)      Conditions 12, 13, 18, 19 and 25 were deleted as the matters are adequately addressed by the parent consent for the restaurant approved under D/2010/1716/D, in that Condition 3 requires the proposed new seating enclosure to fully comply with the operational conditions approved under D/2010/1716/D.

Carried unanimously.



Scott Barwick (SJB) – on behalf of the applicant, and Con Haralambis (applicant).

Report author: Derek Smyth

Publication date: 30/06/2021

Date of decision: 30/06/2021

Decided at meeting: 30/06/2021 - Local Planning Panel

Accompanying Documents: