Walker v North Sydney Council

Reported Decision: (2000) 110 LGERA 397

Land and Environment Court

of New South Wales

CITATION:

Walker v North Sydney Council [2000] NSWLEC 211 revised - 29/11/2000

PARTIES:

APPLICANT
Walker

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10350 of 2000

CORAM:

Cowdroy J

KEY ISSUES:

Development :- refreshment room - refreshment room permissible with consent - local environmental plan seeking to ensure retention of neighbouring shops - development failing to comply with parking requirements of development control plan - draft local environmental plan prohibiting refreshment rooms in applicable zone.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 ;
Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181;
Mathers v North Sydney Council [2000] NSWLEC 84

DATES OF HEARING:

20/9/00, 21/9/00, 22/9/00

DATE OF JUDGMENT:

10/11/2000

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan (Barrister)

SOLICITORS
Staunton Beattie Solicitors

RESPONDENT
Ms D Townsend (Solicitor)

SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10350 of 2000
CORAM: Cowdroy J
DECISION DATE: 11/10/00

Victoria Walker

Applicant

v

North Sydney Council

Respondent

JUDGMENT

1. In these proceedings, Victoria Walker (“the applicant”) appeals against the refusal of North Sydney Council (“the council”) of development application no 706/00 (“the development application”) for a proposed refreshment room on the ground floor of premises at 171 Blues Point Road McMahons Point (“the site”).

2. The site is located on the corner of Blues Point Road and Lavender Street, McMahons Point. Erected upon the site is a two storey building, the ground floor of which has been used as a jewellery shop and the upper floor as a residence.

3. The site is affected by the provisions of the North Sydney Local Environmental Plan 1989 (“the LEP”) and pursuant thereto is zoned 2(d)(Residential/Neighbourhood Shops). Within the 2(d) zone the use of refreshment rooms is permissible with development consent.

4. The particular objectives of such zone, relevant to the present proceedings are sub-para (b) and (c) of the LEP which provides:-

(b) To provide opportunities for the establishment and retention of retail facilities and related services to serve the needs of surrounding residential areas;

(c) To prohibit development for the purposes of commercial premises in order to encourage the retention of neighbourhood shops.

5. The site is also affected by the North Sydney Development Control Plan No 1 (“the DCP”). Part 7 of the DCP relates to carparking. Clause 55 of the DCP relevantly provides:-

(1)

A building may not be erected on any land to which the LEP applies unless car parking is provided on that land in accordance with the requirements set forth in Schedule 1.

(2) The provision of parking spaces should not exceed the requirements set out in Schedule 1.

6. Schedule 1 to the DCP provides that one parking space per ten square metres of floor area used for seating is to be provided for refreshment rooms.

7.…