Mortimer v Sutherland SC [2005] NSWLEC 349

Mortimer v Sutherland SC [2005] NSWLEC 349

The site was inappropriate for the proposed sex shop because it was immediately adjoining and among a concentration of uses that attracted unsupervised children, juveniles and adolescents, including the ski and surf shop below, the Masonic Temple used as a dance academy, the veterinary clinic, pizza shop, bicycle shop and video store. The shared recessed entry and signage would confront ski and surf shop customers, there was likely economic impact on that business, police concerns about anti-social elements had weight, and the relevant considerations under s 79C supported refusal. Issue 1(v), concerning the nature of surrounding uses and the number of children frequenting the area, was...

Jurisdiction
Australia
Judgment Date
07 June 2005
Procedural Posture
Class 1 Appeal Concerning Refusal of Development Consent for a Proposed Adult Book Store/sex Shop / Judgment After Hearing on Site
Outcome
Appeal dismissed; proposal refused.
Legal Topics
['development Consent' 'adult Book Store/sex Shop' 'sensitive Land Uses' 'signage' 'social and Economic Impacts' 'public Interest' 'site Suitability']
['planning and Environment' 'land Use and Development Control'] ['development Consent' 'adult Book Store/sex Shop' 'sensitive Land Uses' 'signage' 'social and Economic Impacts' 'public Interest' 'site Suitability']

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Procedural Posture

Class 1 Appeal Concerning Refusal of Development Consent for a Proposed Adult Book Store/sex Shop / Judgment After Hearing on Site

Legal Issues

  1. 1 ['Whether Council Development Control Plan 9.3/11 edition 3 for Brothels and Sex Shops applied to the appeal' 'Whether the proposed adult book store/sex shop was appropriately located having regard to nearby uses frequented by families, children, juveniles and adolescents' 'Whether the proposed signage and entry arrangement would create unacceptable impacts on adjoining uses' 'Whether the proposal would have unacceptable social or economic impacts, including on the adjoining ski and surf shop' 'Whether the proposal was in the public interest under the Environmental Planning and Assessment Act 1979']

Ratio Decidendi

The site was inappropriate for the proposed sex shop because it was immediately adjoining and among a concentration of uses that attracted unsupervised children, juveniles and adolescents, including the ski and surf shop below, the Masonic Temple used as a dance academy, the veterinary clinic, pizza shop, bicycle shop and video store. The shared recessed entry and signage would confront ski and surf shop customers, there was likely economic impact on that business, police concerns about anti-social elements had weight, and the relevant considerations under s 79C supported refusal. Issue 1(v), concerning the nature of surrounding uses and the number of children frequenting the area, was...

Court Disposition

Appeal dismissed; proposal refused.

Orders

  • ['The appeal is dismissed.' 'Exhibits are returned to the parties except Exhibits A, B, C, D, 8, 10, 12, 13, 14 and 17.']