Cresville Pty Ltd v Sutherland Shire Council

Cresville Pty Ltd v Sutherland Shire Council - [2005] NSWLEC 298 - NSWLEC 2005 case summary — Zoe

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15 Clause 46 states - Can development within the business zone be limited? Regardless of the development control tables in this plan, a development control plan relating to land within a business zone may recommend restrictions on specific types development otherwise permitted on the land. Caringbah Centre Development Control Plan 16 This DCP contains guidelines for development within this commercial centre and contains the following Objective (ii): Development must contribute to an improvement in the social sustainability of the Centre by providing a high quality residential and shopper environment, contributing to the provision of community facilities and adding to the general vitality of the Centre. Brothels and Sex Shops - Development Control Plan 9.3/11. 17 This DCP came into effect on 14 April 2005. It contains the following restrictions for sex shops: Sex Shops 1) Siting and Location - Sex Shops Development for the purpose of a sex shop may be carried out only with development consent. A sex shop must not be located: i) within 50 m of any form of residential (excluding 9(a) Mixed Residential/Business zone), open space or special uses zone or land where the activity is identified as a sensitive land use. Sensitive land uses include, but are not limited to, place of public worship, churches, schools, transport nodes, residential dwellings, child care centres, family health centres, senior citizens centres, licensed premises (licensed under the Liquor Act 1982) and facilities and places typically frequented by families or children . ii) within 100 m of the boundary of an existing legally operating sex shop. iii) on the ground floor of retail or commercial premises. iv) within immediate proximity to the residential entrances of a mixed development. v) where it may conflict with the residential amenity of a mixed development. vi) on land owned by or under the care, control and management of the council. 2) Vehicular access and parking A minimum of one (1) parking space is to be provided for every 40 sq m of floor space. 3) Advertising and display All advertising must comply with council's requirements for the General Industrial, General Business and Mixed Residential/Business zones in the Development Control Plan for Advertising Structures and Signs. In addition to these council requirements, all brothels and sex shops must comply with the requirements of the Crimes Act 1900 Section 578(e) and Classification (Publications, Films and Computer Games) Enforcement Act 1995. Advertising Structures and Signs - Development Control Plan 9.3/05

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36 Before considering this assessment, I think it relevant to consider the background to this DCP 9.3/11, considering its late presentation, to ascertain what discretion may be allowed and therefore what weight should be given to it. This is in line with the authority established by His Honour, the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, where he stated: Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Ply Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Ply Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are: * A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. * A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. * A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. * A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. * Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

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Public interest 52 As I noted, considerable public interest and objection has been expressed against this proposed sex shop. Some of this relates to the unacceptability to the concept of any sex shop in the Caringbah Centre, or for that matter in the Shire. However I consider the thrust of the planning issue objections from the residents has been fairly dealt with in Court-appointed expert- Mr Juradowitch in his detailed assessment. Accordingly I am satisfied to rely on his opinion that this proposal merits conditional consent, including a trial period of 12 months, during which any complaints, or impacts can be carefully monitored. Conclusions 53 Having carefully considered the evidence, the submissions and undertaken a view, I am satisfied that this application demonstrates reasonable compliance with the relevant planning controls to merit conditional consent. In particular, it satisfies the intent of LEP 2000 which provides very limited opportunities for such sex shops, but the subject location in the 3(a) Business Zone is one such location. 54 The application has then been assessed against the specific controls in DCP 9.3/11 and whilst, it is non compliant with some of the separate controls. In my opinion they are overly restrictive, particularly in the absence of any detailed, objective rationale being presented to the Court. It is apparent that no detailed surveys of land use have been applied to the formulation of this DCP, because the separation list of "sensitive land" uses quite likely unreasonably restricts sex shop opportunities, which LEP 2000 otherwise permits in the cl 3(a) General Business Zone. Therefore I give these controls diminished weight and do not accept the controls as determinative in this case, because of the inconsistencies identified with the primary control LEP 2000. 55 Insofar as there is considerable objection to the proposal, a significant part of this is against the concept of sex shops location and not directly relating to planning merits consideration. In any case, I am satisfied that Mr Juradowitch has adequately addressed these objections and I am satisfied to rely on his opinion that the proposal merits consent, which includes discrete, inoffensive identification signage. 56 In addition to Mr Juradowitch's assessment, I note that the application was assessed and considered by council's IHAP on the basis that: Context and Setting

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