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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 29 Enterprise Pty Limited v Ryde City Council

Details

AGLC: 29 Enterprise Pty Limited v Ryde City Council [2010] NSWLEC 1166
Case: [2010] NSWLEC 1166
Decision Date: 27 May 2010

CaseChat Overview and Summary

In the matter of 29 Enterprise Pty Limited v Ryde City Council, the applicant sought to modify development consent for a property zoned as industrial special under the Ryde Planning Scheme Ordinance, which was being used as a brothel. The trial period for the brothel, which had been granted consent for 13 rooms, had concluded, and the applicant sought to delete a condition limiting the operation to a twelve-month period. The court was required to determine whether the condition should be deleted based on the lack of complaints and the limited operation of the premises during the trial period.

The court noted that the trial period had elapsed without any complaints from the operator, council, or police. The brothel had only used six of its 13 approved rooms and had not operated on a 24-hour basis every day of the week. However, the court found that it was not anticipated that the brothel would operate at its maximum capacity at all times and that there was nothing to indicate from its existing operation that any adverse impact would result from the use of its 13 rooms. The council had not pressed for a further trial period. Therefore, the court accepted that the condition could be deleted.

The court ordered that the application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify the development consent for the property at 2/36-42 Buffalo Road, Gladesville, for use as a 13 room brothel be approved. The consent was modified by the deletion of condition 2. The exhibits were ordered to be returned. The court found that the brothel had operated without complaint for the trial period and that there was no reason to believe that its operation at full capacity would cause any adverse impact.

Orders