Mortimer v Sutherland SC - [2005] NSWLEC 349

Land and Environment Court

of New South Wales

CITATION:
Mortimer v Sutherland SC [2005] NSWLEC 349

PARTIES:
APPLICANT
Andrew Mortimer
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):
10004 of 2005

CORAM:
Hoffman C

KEY ISSUES:
Appeal :- Proposed adult book store/sex shop - signage - location in a precinct frequented by families and by unsupervised children and juveniles - economic impacts - concern of police for the location attracting anti-social activities.

LEGISLATION CITED:
Sutherland Shire Local Environmental Plan 2000
Cronulla Centre Development Control Plan
Sutherland Shire Draft Local Environmental Plan 2004
Advertising Signs and Structures Development Control Plan
Council Development Control Plan 9.3/11
Crimes Act 1900
Classification, Publications, Films and Computer Games Act 1995
Environmental Planning and Assessment Act 1979

CASES CITED:
Martyn v Hornsby Council [2004] NSWLEC 614;
Liu v Fairfield City Council [1996] NSWLEC 272

DATES OF HEARING: 14/04/05

DATE OF JUDGMENT:

06/07/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr Pickles, barrister
of Walker Taylor Edwards Smith
RESPONDENT
Mr Reilly, solicitor
of Sutherland Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

7 June 2005

10004 of 2005 Andrew Mortimer v Sutherland Shire Council

JUDGMENT

1 This is a Class 1, Appeal No. 10004 of 2005, between Andrew Mortimer and Sutherland Shire Council in regard to the refusal of a proposed adult book store, or termed sex shop under the Sutherland Shire Local Environmental Plan at No. 39A The Kingsway, Cronulla.

2 The store was on the first floor of a two-storey building. Below it on the ground floor was a sports surf and ski shop. The door into the surf and ski shop was immediately beside the door to the stairs leading to the first floor. Both doors were in a recess off the public footpath. On the side boundary wall of the recess facing the ski shop door and beside the adult book store entry was a large electrical switchboard. The proposal is to have in large letters on the door of the switchboard the words “Cronulla Adult Superstore Restricted Premises”. The telephone number was also to be put on. A floodlight would illuminate the sign. Above the door into the stairs was a large glass fan light. The proposal was to have the words on it “Adult Book Store, No. 39A”.

3 During the hearing a proposed fin type wall sign on the first floor of the building was deleted. The book store was to be the only tenant of the top floor. During the hearing the Court was told the internal partitions on the top floor would be removed, except for the toilet and shower rooms and the kitchenette. The enlarged room would create a display area. The windows to The Kingsway were to be obscured by one means or another with no signs proposed in them. A rear glass sliding door and small deck were to have a lattice screen to prevent views into the adult book store from apartment buildings at the rear.

4 The service counter shown in the plans…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 349
Decision Date: 06/07/2005

CaseChat Overview and Summary

This appeal concerns the refusal by Sutherland Shire Council to grant development consent for the operation of an adult book store, or sex shop, at No. 39A The Kingsway, Cronulla. The key issues revolved around the proposed location, its proximity to various sensitive land uses, the potential social and economic impacts, and the public interest considerations. The applicant argued that the site was suitable and that the negative impacts could be mitigated, while the council and numerous objectors contended that the proposal was inconsistent with the character and social environment of the area and posed significant risks to public safety and morality. The court had to determine whether the proposal complied with relevant planning controls and whether it was in the public interest to approve it.

The court found that the proposed location of the sex shop was problematic due to its proximity to several sensitive uses, including a veterinarian clinic, a Masonic Temple used for dance classes, a surf and ski shop, a pizza take-away, a bicycle shop, and a video store, all of which attract a significant number of children and adolescents. The court also considered the concerns raised by the police and local residents about potential anti-social activities and the negative impact on the character of the area. Despite the applicant's efforts to mitigate these impacts through limited signage and restricted hours, the court concluded that the proposal was not suitable for the site given the surrounding uses and the potential for attracting undesirable elements. The court further determined that the new Council Development Control Plan for Brothels and Sex Shops, while relevant, did not alter the overall conclusion that the proposal was inappropriate for the location.

In light of the evidence and submissions, the court found that the proposal did not meet the necessary standards for approval under the applicable planning controls and the public interest. The court dismissed the appeal and refused the development consent for the adult book store at the specified location. The orders of the court included dismissing the appeal and returning the exhibits to the parties, except for certain specified documents.

Orders