Toth v Hurstville City Council
[2004] NSWLEC 561
•04/14/2004
Land and Environment Court
of New South Wales
CITATION: Toth v Hurstville City Council [2004] NSWLEC 561 revised - 11/10/2004 PARTIES: APPLICANT
Tim Toth
RESPONDENT
Hurstville City CouncilFILE NUMBER(S): 11544 of 2003 CORAM: Roseth SC KEY ISSUES: Appeal :- Use of ground floor premises as an adult products shop LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 14/04/2004 EX TEMPORE
JUDGMENT DATE :04/14/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr P Rigg, solicitor
Deacons
Mr P Glisson, barrister
SOLICITORS
Lansley Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESDate 14 April 2004Roseth SC
11544 of 2003 Tim T oth v Hurstville City CouncilOn-site Hearing – Reasons for Decision
1 This is an appeal against Hurstville City Council’s refusal of an application to use the ground floor premises at shop 2(b) 411 King Georges Road, Beverley Hills, as an adult products shop. The shop now operates without consent.
2 Mr J Pagan, a consultant planner, put the council’s case as follows:
· The proposal is inconsistent with cl 4.1.13 of DCP 12, as it does not (and cannot) provide a transparent shop front.
· The proposal is inconsistent with cl 2(a) of the Restricted Premises Policy (RPP), as it is located at street level, 50 m (not 100 m) from residentially zoned land, 70 m (not 100 m) from a bus stop and a railway station, and in a place where children pass going to and from school.
· Section 9 of the LEP requires the Court to take into consideration any policies adopted by the council. The RPP was adopted on 25 February 2004.
3 Ms Sutton, the principal of the Beverley Hills Primary School said that her 6th year pupils were aware of the shop. They were particularly interested in the existing sign, which includes the words “rear entry” and “toys”.
4 The applicant, Mr T Toth, said that he would be willing to remove the sign immediately and replace it with a more appropriate one that complied with the RPP. He also agreed to a condition requiring a screen at the entry lobby to ensure that anyone entering the entrance lobby would not have a view of the displays.
5 I have decided to approve the application for the following reasons:
6 The least appropriate element of the proposal is the existing sign. The applicant has agreed to remove it during the course of the hearing, and eventually replace it with one that complies with the RPP and is worded in a way that the experts on both sides consider appropriate.
7 The second inappropriate element of the proposal is that a view of the display can be obtained from the entry lobby. The applicant has agreed to provide a screen preventing such viewing.
8 The third problem with the proposal is that it is not consistent with the location criteria required by the RPP. I note that cl 9 of the LEP requires me to take the RPP into account. Mr P Rigg, the council’s advocate suggested that I give the RPP the same weight as if it were a DCP. Despite this I have given the RPP only moderate weight, and much less than if it were a DCP, mainly because it was adopted without being advertised for public comment.
9 I note that the RPP was adopted after the DA was lodged, so that the applicant could not have known about it when lodging the application. The RPP was not in existence 40 days after the DA was lodged, by which time the council should have determined it.
10 In my opinion, the RPP lacks reasonableness, because it sets location criteria that are unlikely to be met by any site. In effect, the RPP prohibits restricted premises, rather than sets criteria for their location. 1.
11 The weakest element of the application is that it is on the ground floor. Clearly, the applicant cannot amend the application to change this fact. It has responded by making the shopfront of mirrored glass. While this is not as attractive as transparent glass, it is not dissimilar to the treatment of the medical practice in a nearby shop.
12 I note that the two schools in the vicinity are at least 200 m from the proposal. The main route to school is along King Georges Road and does not pass the proposed shop. A less offensively worded sign will greatly reduce the shop’s appeal to young people’s natural curiosity.
13 The other inconsistency of the proposal with the RPP is its closeness to the bus stop and railway station. In this respect I consider the criteria of the RPP to be so unreasonable that they should not be applied, even if the application had been made after the adoption of the RPP.
14 Therefore the orders of the Court are:
1. The appeal is upheld.
3. The exhibits are returned except Exhibits A and 6.2. Development application to use shop 2(b), 411 King Georges Road, Beverley Hills, for the sale of adult products is approved, subject to the conditions in Annexure A.
_________________
John Roseth
Senior Commissioner
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Conditions of development consent
1. The approved hours of operation are from 10.00am to 10.00pm Monday to Saturday and 12.00 noon to 9.00pm Sunday.
2. Deliveries are to be via a station wagon or sedan at the rear of the complex only, such that they do not interfere with the traffic on Edgbaston Rd, Beverly Hills.
3. Persons under the age of 18 are not permitted to enter the shop at any time.
4. The premises must comply with the relevant provisions of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 at all times.
5. The proprietor of the premises or other responsible adult person appointed by the proprietor must be in attendance at all times whilst the premises are open to the public.
6. No part of the interior of the premises is to be visible to any person outside the premises.
7. Approval is only granted for one (1) under awning sign. Any additional signage will require separate development application to be lodged with and approved by Council. No approval is expressed or implied for flashing lighting.
8. The proposal must comply with the recommendations of the NSW Police as stated in the Safer by Design Crime Risk Evaluation conducted on this development application.
9. A closed circuit video security system is to be installed which will operate 24 hours a day, seven (7) days a week.
10. The street sign shall comply with cl 3 of the council’s Restricted Premises Policy and contain only the words “Adult Zone Restricted Premises” plus a telephone number.
11. The applicant shall provide an additional screen at the entrance lobby so that no view of the display is possible when the curtain in the entrance lobby is opened.
_________________
Senior Commissioner
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