Ai v Newcastle City Council - [2003] NSWLEC 123

Reported Decision: 126 LGERA 194

Land and Environment Court

of New South Wales

CITATION: Ai v The Council of the City of Newcastle [2003] NSWLEC 123

PARTIES:
APPLICANT
Xiao Ping Ai
RESPONDENT
The Council of the City of Newcastle

FILE NUMBER(S): 10314 of 2002

CORAM: Pain J

KEY ISSUES: Appeal :- s 56A appeal - whether Commissioner erred at law - proposed brothel development - whether residential occupation is prohibited development in Zone No 4(a) under Newcastle Local Environmental Plan 1987 - whether the Commissioner should have had any regard to the fact that a neighbouring property was unlawfully residentially occupied in applying DCP 46 - whether the Commissioner should have had greater regard to the zone objectives - Commissioner held that the application failed based on a locational requirement in the DCP - whether the Commissioner should have considered other relevant matters under s 79C(1)

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C
Environmental Planning and Assessment Model Provisions 1980
Land and Environment Court Act 1979 s 56A
Land and Environment Court Rules 1996 Pt 13 r 14
Newcastle Local Environmental Plan 1987 cl 9, cl 12
Newcastle Development Control Plan 46 cl 6.1

CASES CITED: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367;
Ervin Mahrer & Partners v Strathfield Municipal Council [2002] NSWLEC 47;
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Randwick Municipal Council v Crawley (1986) 60 LGRA 277;
Russo v Kogarah Council (1995) 86 LGERA 300;
Weal v Bathhurst City Council (2000) 111 LGERA 181;
Wyong Shire Council v Ardi Pty Limited (2000) 112 LGERA 85;
Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 73 LGRA 47;
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 18/03/2003

DATE OF JUDGMENT:
05/28/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle (solicitor)
SOLICITORS
Cowley Hearne
RESPONDENT
Mr JB Maston (barrister)
SOLICITORS
Sparke Helmore

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10314 of 2002

Pain J

28 May 2003

Xiao Ping Ai

Applicant

THE COUNCIL OF THE CITY OF NEWCASTLE

Respondent

Judgment

Introduction

1. This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against the determination of Commissioner Watts on 22 October 2002 refusing the Applicant’s appeal against the refusal by Newcastle City Council (the Council) of the Applicant’s development application for a change of use of an existing dwelling house at No 7 Denney Street, Broadmeadow (the site) from residential to a brothel and massage parlour. Section 56A of the Court Act provides that a party can appeal to this Court against a decision of a Commissioner on a question of law.

2. The Applicant’s grounds of appeal are as follows:

1. The Commissioner erred in finding that “residential, is an innominate use, that requires consent only where consistent with the objectives of the zone”…

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.

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Details

Case: [2003] NSWLEC 123
Decision Date: 05/28/2003

CaseChat Overview and Summary

The applicant, Xiao Ping Ai, appealed against the decision of the Commissioner to refuse her development application for a change of use of an existing dwelling house at No 7 Denney Street, Broadmeadow from residential to a brothel and massage parlour. The key issues were whether the Commissioner erred at law in his assessment of the proposal, specifically in his interpretation of the Newcastle Local Environmental Plan 1987 and the Newcastle Development Control Plan 46, and whether the Commissioner should have considered the unlawfulness of the residential occupation of a neighbouring property. The Land and Environment Court held that the Commissioner erred in failing to consider other relevant matters under s 79C(1) of the Environmental Planning and Assessment Act 1979, specifically the amenity impacts of the proposed location of the brothel and the circumstances that would argue for a relaxing of the distance requirement imposed by the Development Control Plan. The Court set aside the decision of the Commissioner and remitted the matter for rehearing. The question of costs was reserved for further submissions by the parties.

Orders