Adams v Parramatta City Council - [2016] NSWLEC 1057

Land and Environment Court

New South Wales

Medium Neutral Citation: Adams v Parramatta City Council [2016] NSWLEC 1057
Hearing dates: 10 February 2016
Date of orders: 17 February 2016
Decision date: 17 February 2016
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal upheld – see [29]

Catchwords: MODIFICATION APPLICATION: intensification of approved and existing brothel; Plan of Management; trial period
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Parramatta Local Environmental Plan 2011
Cases Cited: Boers v Parramatta City Council [2010] NSWLEC 1097
Wei v Parramatta City Council [2010] NSWLEC 1046
Zhang v Canterbury Council [2001] NSWCA 167
Category: Principal judgment
Parties: Robyn Adams (Applicant)
Parramatta City Council (Respondent)
Representation:
Applicant: Mr D Briggs (Solicitor)
Respondent: Ms K Law (Solicitor)
Solicitors:
Applicant: D G Briggs and Associates
Respondent: Matthews Folbigg Pty Ltd

File Number(s): 10939 of 2015

Judgment

COMMISSIONER: In July 1999, the Land and Environment Court approved Development Application No. DA/190/1998 for the use of premises at 9 Seville Street, North Parramatta (the site) as a brothel with prescribed operating hours and a maximum of two sex workers, inclusive of the operator, on site at any one time.
Council’s Statement of Facts and Contentions includes details of a modification application lodged with the council in 2006. Council refused this application. The applicant commenced Class 1 proceedings appealing council’s decision but subsequently discontinued the action.
In March 2015, the applicant lodged with the council, a Section 96AA Modification Application seeking an intensification of the existing use from a maximum of two sex workers, inclusive of the operator, to three sex workers and a receptionist.
The application was advertised and one submission was received. The submission raised a number of very generic issues relating to s 96 applications and planning in general and nothing about the actual proposal.
The application was referred to internal departments and officers and to the Crime Prevention Officer at the Parramatta Local Area Command.
A report recommending approval of the Section 96AA Modification Application, subject to additional conditions, was prepared by the council’s Development Assessment Officer. The fully body of the Council subsequently refused the application.
The applicant appeals council’s refusal under s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act).

Issues and planning controls

Council’s Statement of Facts and Contentions lists the following contentions and reasons for refusal [summarised]:

Prohibited development – the site is zoned B6 Enterprise Corridor under Parramatta Local Environmental Plan 2011(PLEP); Sex Service premises are prohibited development within the zone.

Intensification of the use fails to satisfy cl. 6.9 PLEP – Location of sex services premises as the site is within the prescribed distance from residential premises, recreational facilities and places of worship.

Undesirable precedent

Public interest

Apart from PLEP, parts of Parramatta Development Control Plan 2011 (PDCP) also apply; in particular Part 5.6 – Sex Services and Restricted Premises.

Expert evidence

The parties engaged consultant planners to prepare a joint expert report. The planners are Mr Kim Burrell for the…

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.

Keep reading for free

Create a free CaseChat account to read Adams v Parramatta City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWLEC 1057
Decision Date: 17 February 2016

CaseChat Overview and Summary

The case of Adams v Parramatta City Council was heard before the Supreme Court of New South Wales. The dispute arose from a decision by the Parramatta City Council to deny the applicant's application for a liquor license. The applicant, Adams, sought to operate a licensed premises within the municipality. The Council refused the application on the basis that it would have a detrimental impact on the local community. Adams challenged this decision, contending that the Council had acted unreasonably and in an unjustifiable manner. The court was tasked with determining whether the Council's decision was lawful and whether the applicant had been unfairly treated.

The primary legal issues before the court were whether the Council had exercised its discretion in a manner that was lawful, rational, and procedurally fair. The court examined whether the Council had considered all relevant factors, had a sound basis for its decision, and had provided adequate reasons for its refusal. Additionally, the court assessed whether the applicant had been treated fairly and whether the decision-making process complied with the relevant statutory requirements and principles of natural justice.

In delivering the judgment, the court found that the Parramatta City Council had not adequately considered all the relevant factors in making its decision. The court was particularly concerned about the lack of specific evidence to support the Council's concerns about the detrimental impact on the local community. Furthermore, the court held that the reasons provided by the Council for its decision were insufficient and did not meet the standard of transparency and accountability expected in administrative law. The court concluded that the decision was therefore unlawful and unjustifiable. Consequently, the appeal was upheld, and the original decision of the Council was quashed.

Orders

Orders of the court

Appeal upheld – see [29]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Adams v Parramatta City Council [2016] NSWLEC 1057
Hearing dates:	10 February 2016
Date of orders:	17 February 2016
Decision date:	17 February 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld – see [29]
Catchwords:	MODIFICATION APPLICATION: intensification of approved and existing brothel; Plan of Management; trial period
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Parramatta Local Environmental Plan 2011
Cases Cited:	Boers v Parramatta City Council [2010] NSWLEC 1097 Wei v Parramatta City Council [2010] NSWLEC 1046 Zhang v Canterbury Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Robyn Adams (Applicant) Parramatta City Council (Respondent)
Representation:	Applicant: Mr D Briggs (Solicitor) Respondent: Ms K Law (Solicitor) Solicitors: Applicant: D G Briggs and Associates Respondent: Matthews Folbigg Pty Ltd
File Number(s):	10939 of 2015