Bai Yi Jian v Blacktown City Council

[2011] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bai Yi Jian v Blacktown City Council [2011] NSWLEC 1258

Hearing dates:

23 August 2011

Decision date:

24 August 2011

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA -10-2062 for the use of an existing unit as a brothel and associated internal alterations of the premises at lot 1, SP 30825, 1/18 Forge Street, Blacktown is approved subject to conditions in annexure "A".

(3)The exhibits are returned except for exhibit A.

Catchwords:

Appeal - Development application for use of a factory unit as a brothel, hours of operation, plan of management, security and parking.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan 1988
Blacktown Development Control Plan 2006

Category:

Principal judgment

Parties:

Applicant
Bai Yi Jian

Respondent
Blacktown City Council

Representation:

Ms Saw Applicant (counsel)

Mr O'Connor Respondent (solicitor)
Applicant
N/A

Respondent
Houston Dearn O'Connor Lawyers

File Number(s):

10452 of 2011

JUDGMENT

This determination was given extemporaneously and has been edited prior to publication.

1. The applicant seeks consent to fit out and use an existing factory unit at 1/18 Forge St, Blacktown for the purposes of a brothel.

1. The detail of the amended application is found in Exhibit A. It includes 5 working rooms, waiting areas, amenities, staff and utility areas. The brothel is proposed to operate from 6am until 5pm Monday to Friday - and from 6am to 3pm on Saturdays subject to consent from the body corporate in accord with Strata Special By Law 1.

1. As council's planner Mr Apps records - in council's statement of facts and contentions dated 7 July 2011- the site is the front unit of a block of 5 units with parking at the rear. It is within an industrial area and the land is zoned 4(a) - General Industrial pursuant to the Blacktown Local Environmental Plan 1988 . Development for the purpose of a brothel is permissible with consent.

1. Despite the development's permissibility council refused its consent to the original development application on 7 June 2011. This is because the council did not accept the proposed 24-hour operation of the brothel, seven days a week. In council's assessment nighttime operation of the brothel raises security issues for the site and the adjoining factory units. The owners of the adjoining units and their tenant confirmed this concern at the view. They told me that the parking area behind the brothel adjoins the parking area for their units in the strata. Presently a locked gate secures the parking area of the strata after 5pm. This is done to avoid vandalism of property within the parking area at night. In short if this brothel were to operate after 5pm, then the gate would need to be open and this would pose a security risk for the other factory units in the complex. It would also breach the recently introduced Special Strata By Law no 1 (which requires the gate to be locked after 5pm).

1. By the time of the hearing however, the applicant had amended his application to seek consent to operate from 6am to 5pm on Monday to Friday. The objectors, the Council and Blacktown Police agree that there is no security issue arising from daytime trading.

1. The other contentions listed in council's statement of facts and contentions about onsite security and drainage are also addressed by the amended application and the conditions of consent (exhibit E). The conditions (which the applicant accepts) introduce security patrols of the site and camera surveillance and require operation of the brothel in accordance with a comprehensive plan of management.

1. The planners, Mr Apps and Ms Gordon support the amended application and council's draft conditions of consent (exhibit G).

1. Having regard to the zoning and the planning evidence of Ms Gordon and Mr Apps, and; the relevant statutory controls in Blacktown Local Environmental Plan 1988 and Blacktown Development Control Plan 2006 - Part A and Part E, and; the matters raised by the Blacktown Local Area Command's letter to council dated 18 October 2011 I am satisfied that the amended application should be approved subject to the agreed conditions. Accordingly, the Court orders:

(1)   The appeal is upheld.

(2)   Development consent is granted to DA -10-2062 for the use of an existing unit as a brothel and associated internal alterations of the premises at lot 1, SP 30825, 1/18 Forge Street, Blacktown is approved subject to conditions in annexure "A".

(3)   The exhibits are returned except for exhibit A.

Susan Dixon

Commissioner of the Court

Decision last updated: 05 September 2011