Markakis v Ashfied Municipal Council

Land and Environment Court

of New South Wales

CITATION:	Markakis v Ashfied Municipal Council [2004] NSWLEC 383 revised - 20/08/2004
PARTIES:	APPLICANT John Markakis RESPONDENT Ashfied Municipal Council
FILE NUMBER(S):	11313 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Adult book store Social impact management trial period
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan Ashfield Development Control Plan Crimes Act 1900 s578 Classification (Publications, Films and Computer Games) Enforcement Act 1995
CASES CITED:	Zhang v Canterbury City Council [2001] NSWCA
DATES OF HEARING:	03/03/2004
EX TEMPORE JUDGMENT DATE :	05/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M E McMahon, solicitor SOLICITORS M E McMahon & Associates RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

19 May 2004

11313 of 2003 John Markakis v Ashfield Municipal Council

JUDGMENT

1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Ashfield Council’s refusal of a development application for an adult book store at the premises known as No. 255A Liverpool Road, Ashfield. The subject premises are located within the Ashfield shopping centre.

2 The Ashfield shopping centre is a large, busy town centre for the local government area. It also provides facilities for the neighbourhood shopping of the residents as well as many sub-regional functions. There are a number of schools, not within immediate proximity, but there are a number of schools and other community facilities located within the Ashfield town centre. The subject premises is in a busy section of the area, and there are of passing pedestrians large numbers. Under the subject premises there is an Asian supermarket at the ground level. The area is one that can be described as a multi-cultural centre, as I said offering many commercial and community facilities and activities within relative close proximity.

3 The council refused the development application and the issues in the proceedings are:


1. whether the proposed use is compatible with surrounding uses given its location within an established shopping centre;
2. whether the location is acceptable in terms of it being in the vicinity of an area frequented by schoolchildren;
3. the proximity of the proposal in terms of churches, schools within walking distance, it was agreed that the nearest school is some 300 m away;
4. whether sufficient information has been provided to demonstrate the proposed premises can be adequately managed in terms of anti-social behaviour;
5. whether access to the premises by persons with a disability is in accordance with the Ashfield DCP
6. whether the proposed use meets the aims and objectives of the town centre and council’s long-term future aims for the area;
7. adequate on-site parking;
8. loading facilities, inadequacy thereof;
9. the disposal of material and waste; and circumstances of location issues raised by the objectors.

4 The matter commenced on-site where most of the evidence was heard. A number of people took the opportunity…