Lowe v Sutherland Council [2005] NSWLEC 364

Lowe v Sutherland Council [2005] NSWLEC 364

The proposed market was suitable for the site because there was no expert evidence that traffic impact would be unacceptable, the Sutherland Consultative Traffic Forum supported the proposal subject to accepted conditions, 350 on-site parking spaces with 15 attendants were sufficient, and fears of visitors parking in nearby streets were exaggerated. Clause 9 of the Sutherland Local Environmental Plan 2000 did not require consent to be limited to one year, because it allowed temporary use for up to 28 days in any 12-month period, including subsequent years. The positives of the site's location outweighed the negatives, so consent should be granted without the one-year limit or the...

Jurisdiction
Australia
Judgment Date
23 June 2005
Procedural Posture
Appeal Against Refusal of a Development Application / Ex Tempore Judgment
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Consent' 'temporary Use of Land' 'traffic Impact' 'parking Impact' 'local Environmental Plan']
['planning and Environment Law'] ['development Consent' 'temporary Use of Land' 'traffic Impact' 'parking Impact' 'local Environmental Plan']

Case Brief

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Procedural Posture

Appeal Against Refusal of a Development Application / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether development consent should be granted for temporary use of the grounds of Cronulla High School as an organic produce market on the second and fourth Sunday of each month.' 'Whether the proposed market would have unacceptable traffic impacts on neighbouring residents.' 'Whether the proposed on-site parking would be adequate and likely to be used by visitors.' 'Whether cl 9 of the Sutherland Local Environmental Plan 2000 permitted consent for longer than one year for temporary use of land.' 'Whether conditions limiting the consent to one year or limiting truck size should be imposed.']

Ratio Decidendi

The proposed market was suitable for the site because there was no expert evidence that traffic impact would be unacceptable, the Sutherland Consultative Traffic Forum supported the proposal subject to accepted conditions, 350 on-site parking spaces with 15 attendants were sufficient, and fears of visitors parking in nearby streets were exaggerated. Clause 9 of the Sutherland Local Environmental Plan 2000 did not require consent to be limited to one year, because it allowed temporary use for up to 28 days in any 12-month period, including subsequent years. The positives of the site's location outweighed the negatives, so consent should be granted without the one-year limit or the...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development application to use the grounds of Cronulla High School as an organic produce market on the second and fourth Sunday of the month is determined by the grant of consent subject to the conditions in Annexure A.' "Exhibits 1, A and B are retained on the Court's files."]