Cresville Pty Ltd v Sutherland Shire Council [2005] NSWLEC 298

Cresville Pty Ltd v Sutherland Shire Council [2005] NSWLEC 298

The appeal was upheld because the proposed sex shop was permissible in the 3(a) General Business Zone under the Sutherland Shire Local Environmental Plan 2000, represented one of the limited locations where such use was contemplated, and there was no substantive evidence that it would be inconsistent with the zone objectives or undermine the viability of the Caringbah Centre. The relevant DCP separation controls were given diminished and non-determinative weight because their rationale was not objectively established and they appeared overly restrictive and inconsistent with the LEP's permissive scheme. With discreet signage, first floor operation, controlled access and a 12 month trial...

Jurisdiction
Australia
Judgment Date
07 June 2005
Procedural Posture
Appeal Against Council's Refusal of Development Consent for a Sex Shop / Final Judgment and Orders
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Consent' 'sex Shop' 'development Control Plans' 'sensitive Land Uses' 'signage' 'public Interest Objections' 'social Impact']
['planning and Environment Law'] ['development Consent' 'sex Shop' 'development Control Plans' 'sensitive Land Uses' 'signage' 'public Interest Objections' 'social Impact']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Against Council's Refusal of Development Consent for a Sex Shop / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the proposed first floor sex shop at 356 Port Hacking Road, Caringbah was a suitable development having regard to social impacts on the area.' 'Whether the proposal was inconsistent with the Sutherland Shire Local Environmental Plan 2000, the Caringbah Centre Development Control Plan and the Brothels and Sex Shops - Development Control Plan 9.3/11.' 'Whether proximity to sensitive land uses, licensed premises, residential premises and another sex shop warranted refusal.' 'Whether proposed advertising and signage would adversely affect the character and amenity of the locality.' 'Whether public objections and public interest considerations warranted refusal.']

Ratio Decidendi

The appeal was upheld because the proposed sex shop was permissible in the 3(a) General Business Zone under the Sutherland Shire Local Environmental Plan 2000, represented one of the limited locations where such use was contemplated, and there was no substantive evidence that it would be inconsistent with the zone objectives or undermine the viability of the Caringbah Centre. The relevant DCP separation controls were given diminished and non-determinative weight because their rationale was not objectively established and they appeared overly restrictive and inconsistent with the LEP's permissive scheme. With discreet signage, first floor operation, controlled access and a 12 month trial...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to DA 04/0924 for a sex shop on the first floor level of the existing premises at 356 Port Hacking Road, Caringbah, in accordance with the conditions in Annexure A.' 'Exhibits may be returned except for Exhibits 1, 10A, 11A, A, B and C.']