29 Enterprise Pty Limited v Ryde City Council

[2010] NSWLEC 1166

Land and Environment Court

of New South Wales

CITATION:

29 Enterprise Pty Limited v Ryde City Council [2010] NSWLEC 1166

PARTIES:

APPLICANT
29 Enterprise Pty Limited

RESPONDENT
Ryde City Council

FILE NUMBER(S):

10125 of 2010

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT CONSENT :- S96(1A) to delete a condition to enable continued use of premises as a brothel, following a trial period

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ryde Development Control Plan 2006
Ryde Planning Scheme Ordinance

CASES CITED:

29 Enterprise Pty Limited v Ryde City Council 2008 NSW LEC 1339

DATES OF HEARING:

27 May 2010

EX TEMPORE JUDGMENT DATE:

27 May 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Campbell, solicitor
of Macro Legal

RESPONDENT
Mr J Strati, solicitor
of Ryde City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

27 May 2010

10125 of 2010 29 Enterprise Pty Limited v Ryde City Council

JUDGMENT

1 This is an application under s 96(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to the Court to exercise power under s 96(1A) to modify development consent (949/2007) granted by the Court on 31 July 2008 (29 Enterprise Pty Limited v Ryde City Council 2008 NSW LEC 1339).

2 The Court approved “internal changes to 2/36-42 Buffalo Road, Gladesville, for use as a 13 room brothel for a one-year trial period subject to conditions”.

3 Condition 2 required:

The use of the property at 2/36-42 Buffalo Road, Gladesville, for the purpose of a brothel pursuant to this development consent shall be limited for a period ending twelve months after the date that an occupation certificate for the use is issued.

4 Paragraph 31 of the judgment states:

At the conclusion of the trial period, a further development application or s 96 application will be required to continue the use. The assessment of such an application would involve information on the operation of the brothel, including any complaints received by the council or the police.

5 The applicant is seeking to delete condition 2 as the brothel has been operating without complaint for a trial period.

6 The s 96 application was notified and four objections were received. They raised concerns on moral grounds, its location near residential uses and that the brothel had not operated twenty-four hours a day during the trial period and therefore its impacts were not known.

7 Council staff considered the application and raised no objection to the deletion of condition 2.

8 Council considered the application and resolved to neither object nor support the application. The application was referred to the police who raised no objection and noted that complaints in the area had reduced during the period of operation of the brothel. The Court heard no expert evidence and no objectors chose to give evidence.

9 An affidavit of Mr S Cirene, the manager of the brothel, was tendered. This indicated that the brothel had operated with six rooms during the trial period. He noted that the brothel did not operate 24 hour a day on some days due to patronage. He stated that to his knowledge the brothel had not caused any disturbance to the neighbourhood and that no complaints had been received. He did not consider the approved plan of management required amendment.

10 The site is zoned 4(c1) Industrial Special under Ryde Planning Scheme Ordinance. Under cl 70A a brothel is permissible with consent in zone 4(c1). Ryde Development Control Plan 2006 is relevant. Part 3.1 provides planning requirements for brothels. Clause 4.1 of pt 3.1 provides:

A consent may include conditions which limit the approval to a period of twelve months so that council may assess the impact of the development on the local community and monitor compliance with conditions of consent.

At the conclusion of the twelve-month period, council will reassess the proposal in terms of any complaints received regarding the approved operations and compliance with any conditions of development consent.

11 The brothel has operated for a twelve-month trial period and neither the operator, council or the police have received any complaints. During this period, the brothel has used only six of its 13 approved rooms and has not operated on a twenty-four hour basis every day of the week. However, it is not anticipated that the brothel would operate at its maximum capacity at all times and there is nothing to indicate from its existing operation that any adverse impact would result from the use of its 13 rooms. Council has not pressed for a further trial period. I therefore accept that condition 2 may be deleted.

12 The orders of the Court are;

1. The appeal is upheld.
2. The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to the Court to exercise power under s 96(1A) to modify development consent (949/2007) for internal changes to 2/36-42 Buffalo Road, Gladesville for use as a 13 room brothel is approved. The consent is modified by the deletion of condition 2.
3. The exhibits may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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