Shytot Pty Ltd v Marrickville Council

[2004] NSWLEC 435

Land and Environment Court

of New South Wales

CITATION:

Shytot Pty Ltd v Marrickville Council [2004] NSWLEC 435

PARTIES:

APPLICANT
Shytot Pty Ltd

RESPONDENT
Marrickville Council

FILE NUMBER(S):

10058 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Alterations to use premises as restricted premises - including sex on premises

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

30/07/2004

EX TEMPORE
JUDGMENT DATE :

08/06/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Wilson, barrister
SOLICITORS

RESPONDENT
Ms S Duggan, barrister
SOLICITORS

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 August 2004

10058 of 2004 Shytot Pty Ltd v Marrickville Council

JUDGMENT

1 In this matter, an interim finding was delivered on 1 July 2004. My finding was that the location is suitable for the development, however further consideration is required to the conditions of consent, to ascertain what final orders should be made.

2 Subsequently the parties have had the opportunity to make submissions on the contentious conditions. They relate to:

• 12 months trial period condition,
• hours of operation,
• status of Plan of Management and mechanisms for its periodical review,

• provision of disabled access.

3 Having considered the further submissions, I am now satisfied this application merits conditional consent, in accordance with the reasons published in the interim findings.

4 With regard to the conditions, I accept Ms Duggan’s submission that the most appropriate way to achieve the 12 months trial period is to impose a limited time of consent condition, which can be subsequently reviewed or modified, as determined by the applicant. Accordingly council's draft condition in this regard is to be imposed.

5 The conditions relating to the times of operation are related to the number of staff on the premises to supervise the activities. On the basis that at least 3 staff are required during the trial period, I am satisfied that the development can operate from 9 AM to 3 AM, Monday to Sundays.

6 Condition 2 refers to the Plan of Management and enables amendment from time to time with council’s consent. As this plan deals primarily with internal management aspects, I am satisfied this condition is reasonable.

7 With regard to the issue of disabled access, I note that there is still some disagreement between the parties concerning the disabled access from the street. According to the applicant this is due to a limited width of the stairway, which may restrict installation of a chair-carrying lift.

8 However during the hearing it was put to the Court that this could be achieved. Accordingly I accept council’s conditions 28(a) requiring installation of an appropriate lift. If some minor difficulties are encountered, I note the applicant’s original submissions that it was purchasing the building, in accordance with the contract extract (Exhibit 14). In these circumstances, minor alterations to the staircase should be achievable to enable the installation of the appropriate lift.

9 Another aspect of disabled access concerns the provision of a toilet on Level 2 and I note the applicant’s undertaking to provide this, which can be incorporated within the Construction Certificate plans.

10 Accordingly Court orders are:

1. The appeal is upheld.

2. Development consent is granted to DA No. 200300312 to carry out alterations to the premises at 251 King Street, Newtown, and the use of the first and second floors as restricted premises (adult bookshop) and an adult entertainment lounge, in accordance with the conditions in the Annexure A.

3. The exhibits may be returned except for Exhibits 7, 8, 10, 12, 14, A, B and D.

_____________
R Hussey
Commissioner of the Court
rjs