Canterbury City Council v Wang & Anor; Fowler & Anor v Canterbury City Council

[2008] NSWLEC 99

Land and Environment Court

of New South Wales

CITATION:

Canterbury City Council v Wang & Anor; Fowler & Anor v Canterbury City Council [2008] NSWLEC 99

PARTIES:

40411 of 2007
APPLICANT
Canberbury City Council
FIRST RESPONDENT
Guo Lan Wang
SECOND RESPONDENT
Bruce Fowler

10824 of 2007
FIRST APPLICANT
Bruce Fowler
SECOND APPLICANT
Guo Lan Wang
RESPONDENT
Canterbury City Council

FILE NUMBER(S):

40411 of 2007; 10824 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Construction and Interpretation :- declarations

DATES OF HEARING:

4 March 2008

EX TEMPORE JUDGMENT DATE:

4 March 2008

LEGAL REPRESENTATIVES:

No.40411 of 2007
APPLICANT
Mr P Jackson of
Pike Pike & Fenwick

No.10824 of 2007
APPLICANTS
Dr S Berveling
SOLICITORS
Russo & Co

No. 40411 of 2007
RESPONDENTS
Dr S Berveling
SOLICITORS
Russo & Co

No. 10824 of 2007
RESPONDENT
Mr P Jackson of
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

4 March 2008

40411 of 2007 Canterbury City Council v Guo Lan Wang & Anor
10824 of 2007 Bruce Fowler & Anor v Canterbury City Council

EXTEMPORE JUDGMENT

1 His Honour : Before the Court this morning are two sets of proceedings concerning the premises known as 269 Canterbury Road Canterbury.

2 Matter No. 40411 of 2007 was commenced by Council on 9 May 2007 in Class 4 of the Court’s jurisdiction to restrain the use of the premises as a brothel without consent.

3 Matter No. 10824 of 2007 is an appeal by the Respondents in those Class 4 proceedings against Council’s refusal of a consent to add the use “brothel” to the already approved uses of the premises, namely, as a clinic for “Chinese acupuncture and therapeutic massage”.

4 The Development Application for use as a brothel was lodged on 31 May 2007; it was refused on 15 August 2007; and the Class 1 appeal, commenced on 24 August 2007, is presently part-heard before Commissioner Brown, a question of permissibility having been raised at the hearing on 8 November 2007.

5 Both sides have since filed Questions of Law in those proceedings, but those Questions have not been dealt with. The question of permissibility obviously sits also at the heart of the Class 4 proceedings and Jagot J so directed on 7 December 2007.

6 The parties have now reached a level of agreement as to the way forward with the matter, and have jointly asked the Court, notwithstanding the lack of any amended Clause 4 application seeking declaratory relief, to now make two declarations by consent in the Class 4 proceedings, and then stand them over part heard until after the Class 1 proceedings have been determined by Commission Brown. The making of the declarations will mean that both Questions of Law in those Class 1 proceedings effectively go away and can be withdrawn.

7 Having considered the affidavit and documentary evidence (see Exhibit C1), and the submissions filed by the Council in these Class 4 proceedings, and the relevant planning instruments, being the Local Environmental Plan (“LEP”) in Exhibit R1 and the Development Control Plan (“DCP”) in Exhibit R2, I am satisfied that the two declarations in the Short Minutes of Order are appropriate.

8 Their effect is to clarify (i) that the existing consent 910/2005, granted on 29 August 2005 for two years, was for development for the purpose of “health consulting rooms” as defined by the LEP, and (ii) that if the premises are found/held to be suitable for use as a brothel, such further use will fall within the definition of “identified development” as defined in the LEP.

9 Having made those two declarations I will, again by consent, make two orders for the efficient further disposition of both sets of proceedings.

10 Mr Jackson has indicated there will ultimately be a lively debate on questions of costs (see Exhibit C2), but costs will today be formally reserved, and the exhibits retained.

11 The Court makes the following Declarations, by consent:

1. The Consent to Development Application Numbered by the Applicant as 910/2005 to use Lot B DP 368248 being 269 Canterbury Road, Canterbury (“the Premises”) for “proposed fitout and use as a Chinese acupuncture and therapeutic massage clinic” is a consent to carry out development for the purpose of “health consulting rooms” as defined in Canterbury Local Environmental Plan No.148 – Campsie Precinct (“the LEP”).

2. Upon satisfying the consent authority that the Premises are suitable due to the circumstances of the site for use for the purposes of a brothel, such use will fall within the definition of “identified development” as defined in the LEP.

12 The Court makes the following Orders, also by consent:

1. Leave granted to the parties to approach the Registrar to obtain a date for a resumed hearing in Class 1 proceedings 10824 of 2007 before Commissioner Brown.

2. These Class 4 proceedings stood over for mention before Sheahan J on the second Friday after the resumed hearing date obtained pursuant to Order 1 above.

3. Costs reserved.

13 The Exhibits are to remain in the Class 4 file.