Lowe v Sutherland Council

[2005] NSWLEC 364

Land and Environment Court

of New South Wales

CITATION:

Lowe v Sutherland Council [2005] NSWLEC 364

PARTIES:

Applicant:
Donna Lowe

Respondendt:
Sutherland Shire Council

FILE NUMBER(S):

10355 of 2005

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- temporary use of school as food market

traffic and parking impact on neighbours

DATES OF HEARING:

23/06/2005

EX TEMPORE JUDGMENT DATE:

06/23/2005

LEGAL REPRESENTATIVES:

Applicant:
Ms M Taylor, solicitor of Norman Waterhouse

Respondent:
Mr G Green, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

23 June 2005

10355 of 2005 Donna Lowe v Sutherland Shire Council

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Senior Commissioner: This is an appeal against the refusal of a development application to use the grounds of the Cronulla High School for an organic produce market on the second and fourth Sunday of each month.

2 The applicant intends to organise a market on the school’s paved courtyard, which is surrounded by buildings. The football field is proposed to accommodate the parking of 350 cars. The Cronulla Rotary Club will provide 15 parking attendants. The hours of operation are from 7 am to 4.30 pm. The hours of opening to visitors are from 9 am to 3 pm. The cars are to enter from Bate Bay Road and to exit to Captain Cook Drive.

3 The application is supported by Mr G McGrath, the school principal; Mr K Hayden, the school deputy principal; Ms M Gately, president of the P & C Association; Ms L Ricker, the school vice-captain; Mr K Fenwick of the Cronulla Rotary Club; Mr R Stanley-Jones of the Cronulla Chamber of Commerce; and Ms S Wolfenden of 46 Kirkwood Road, a parent. It has also attracted a large number of objectors, of whom the Court heard the evidence of seven: Mr S Palamidis of 2 Kirkwood Road; Mr B Collins of 2/1 Kirkwood Road; Ms M Duckworth of 19 Kirkwood Road; Mr D and Mrs P Linegar of 13 Kirkwood Road; Mr A Webb of 12 Bate Bay Road; and Mr F Carter of 10 Kirkwood Road. The two main grounds for objections are traffic and parking. The objectors live either in Bate Bay Road or Kirkwood Road, close to the school entrance. They accept a certain amount of disturbance from living close to a school during the week but they believe that they should have peace and quiet on Sundays. While they accept there may be adequate parking on the site, they apprehend that the visitors to the market will park in Kirkwood Road in preference to the school grounds.

4 I note the residents’ concerns about traffic; however, apart from their concerns I have no expert evidence that the traffic impact may be unacceptable. On the contrary, the Sutherland Consultative Traffic Forum, at its meeting on 2 July 2004, supported the proposal, subject to conditions that the applicant accepts.

5 I turn to the issue of parking. There is no suggestion that 350 spaces provided on site are not sufficient. The fear is that the visitors to the market will not use the car park within the school grounds. Given the closeness of the car park to the market stalls, the fact that the visitors do not arrive and leave at the same time and there’re there is unlikely to be queuing at the exit, and the presence of 15 parking attendants, in my view, these fears are exaggerated. Parking in Kirkwood Road would be less comfortable for the patrons of the market than parking in the school grounds.

6 Most of the factors about this site’s location make it suitable for the proposal. It is relatively isolated and large in area. The only factor that is not favourable is that it is close to a small number of houses. However, every site has negative features, and in this case the positives outweigh the negatives.

7 The council’s draft conditions include Condition 2, giving a time-limited consent for one year. The applicant objects. In my opinion there is no justification for limiting this consent to one year. Given the length of time taken to progress the application to this stage and the high probability that the impact is acceptable, it would be unreasonable to require the applicant to lodge another application in about six months. It would also be inefficient for the council to have to assess it again within such a short period.

8 The council’s advocate, Mr G Green, raised the question whether I have power, under cl 9 of the Sutherland Local Environmental Plan 2000, to grant consent for longer than one year. Clause 9 deals with the temporary use of land. A market is permissible on the site only as a temporary use of land. The clause states:

Regardless of any other provision of this plan, consent may be granted to the temporary use of land, other than for designated development, being carried out for a maximum period of 28 days, whether consecutive or non-consecutive, in any 12-month period.

9 On my reading of the above, temporary use means a maximum of 28 days use in any one year and not just during the year following the consent. The use may be repeated for 28 days in any subsequent year. If I were wrong, the recipients of temporary use consents would have to re-apply every year, and the council would need to re-assess and re-issue consents for all temporary uses every year. This would be an absurd drain on everyone’s (and especially the council’s) resources.

10 In the circumstances I propose to grant consent to the application. Without the benefit of expert evidence I do not include a draft condition limiting the size of the trucks entering the school ground, as requested by the council. I note that it has not included it in the draft conditions presented to the applicant before the hearing. It was formulated “on the run”.

Orders

1. The appeal is upheld.

2. Development application to use the grounds of Cronulla High School as an organic produce market on the second and fourth Sunday of the month is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits 1, A and B are retained on the Court’s files.

__________________
Dr John Roseth
Senior Commissioner