Boers v Parramatta City Council - [2010] NSWLEC 1097

Land and Environment Court

of New South Wales

CITATION: Boers v Parramatta City Council [2010] NSWLEC 1097

PARTIES:
APPLICANT
John Boers
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10765 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- Brothel

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1993
Restricted Premises Act 1943
Civil Procedure Act 2005
State Environmental Planning Policy No 1- Development Standards
Sydney Regional Environmental Plan No 28 - Parramatta
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan Sex Services and Restricted Premises

CASES CITED: Boers v Parramatta City Council [2010] NSWLEC 1071
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226
CSA Architects Pty Ltd v Woollahra Council [2009] NSWLEC 1054
Huang v Parramatta City Council [2009] NSWLEC 1401
McInnes v Wingecarribee Shire Council (1997) 10 NSWLR 660
Mirvac Homes (NSW) Pty Ltd v Blacktown City Council [2005] NSWLEC 265
O'Donnell v Woollahra Council [2009] NSWLEC 1066
Uky Huang v Parramatta City Council [2009] NSWLEC 1331
Wehbe v Pittwater Council [2007] NSWLEC 827
Wei v Parramatta City Council [2010] NSWLEC 1046
Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 31 March, 20 April 2010

DATE OF JUDGMENT:
4 May 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr J Doyle, barrister
Australian Town Planning Consultants 2 Pty Ltd, agent
RESPONDENT
Mr T Pickup, solicitor
Storey & Gough Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

4 May 2010

10765 of 2009 Boers v Parramatta City Council
JUDGMENT

1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Parramatta City Council (the Council) of consent to a development application for alterations to a building and its use as a brothel and for associated outcall/escort services at 45 George Street Clyde, Lot 19 DP 612994 (the site).

2 The applicant to the Council was Mr John Boers of Boers Consulting. The applicant nominated in the Class 1 application to the Court was Ms Uky Huang. At the commencement of the hearing and on the application of Mr Doyle who appeared for the applicant, I granted leave pursuant to s64 of the Civil Procedure Act 2005 to amend the application to change the name of the applicant so that these proceedings are in the name of Boers v Parramatta City Council. This was not opposed by the Council, is consistent with the decision of the Court of Appeal in McInnes v Wingecarribee Shire Council (1997) 10 NSWLR 660, and is the same course as adopted by Moore SC in Boers v Parramatta City Council [2010] NSWLEC 1071, proceedings which involved the same parties in relation to different premises.

3 The site is a two storey industrial building previously used as an engineering warehouse. The site is located on that part of George Street which runs between Parramatta Road…

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 Boers 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: [2010] NSWLEC 1097
Decision Date: 4 May 2010

CaseChat Overview and Summary

In this appeal, John Boers sought approval for a development application for alterations to a building and its use as a brothel and for associated outcall/escort services at 45 George Street Clyde, Lot 19 DP 612994. Parramatta City Council had refused to grant consent, but on appeal to the Land and Environment Court, the Council agreed that development consent could be granted, subject to conditions. The issues before the Court were whether a time limited consent condition should be imposed, and whether conditions requiring payment of an Annual Monitoring Fee for Restricted Premises and Sex Service Premises, and an Infrastructure and Restoration Administration Fee, should be imposed. The Court found that a time limited consent condition should be imposed, but that the condition should be amended to reflect that the consent would not lapse if an application was made either in the form of a new development application or a s96 modification application before the end of the two year period. The Court also found that a condition requiring payment of an Infrastructure and Restoration Administration Fee should be imposed, but that a condition requiring payment of an Annual Monitoring Fee for Restricted Premises and Sex Service Premises should not be imposed.

Orders