Cheung v Ku-ring-gai Council - [2009] NSWLEC 1408

Land and Environment Court

of New South Wales

CITATION: Cheung v Ku-ring-gai Council [2009] NSWLEC 1408

PARTIES:
APPLICANT
Hoi Wan Cheung
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10353 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT MODIFICATION :- Brothel
Trial period

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Development Control Plan No 31 - Access
Ku-ring-gai Development Control Plan No 42 - Regulation of Brothels
Disability Discrimination Act 1992 (Cth)

CASES CITED: Jonah v Pittwater Council (2006) 144 LGERA 408
Dayho v Rockdale City Council [2004] NSWLEC 184
Bales Investments Pty Ltd v Cessnock City Council [2009] NSWLEC 1102

DATES OF HEARING: 24 November 2009

DATE OF JUDGMENT:
8 December 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr M Baird, barrister
Instructed by
Storey & Gough Lawyers
RESPONDENT
Mr T Howard, barrister
Instructed by
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

8 December 2009

10353 of 2009 Hoi Wan Cheung v Ku-ring-gai Council
JUDGMENT

1 Commissioner: This is an appeal against the refusal by Ku-ring-gai Council (the Council) of an application pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent granted on 26 March 2008 by the Ku-ring-gai Planning Panel to development application No. 0353/07 for the change of use of commercial premises at 1/105 Grandview Street Pymble (the premises) to a brothel. The consent was subject to a condition limiting the use to a trial period of 12 months and the applicant sought to modify the consent by the deletion of that condition.

2 The issues between the parties are whether it is appropriate to permit continued operation, or impose a further trial period. The Council contends that the applicant had not complied with the conditions of the consent and all of the procedures as approved in the Plan of Management during the trial period, that the kitchen waiting room and reception areas have not been constructed and set up in accordance with the approved plan result in an unsatisfactory reception area/waiting room configuration, that the continued use of the premises would be contrary to the public interest, and that the applicant has not provided sufficient information to demonstrate that disabled access should not be provided to the premises.

Background

3 The premises are located on the first floor of a two-storey commercial building fronting Grandview Street with access from a rear lane via timber stairs. There are two working rooms, each with a separate shower cubicle and handbasin, one staff resting room, two waiting rooms, one staff bathroom and one toilet. There are two car parking spaces at the rear of the site, one of which is used by the business on the ground floor and the other provided for the subject premises.

4 The Ku-ring-gai Planning Panel granted consent to development application No 0353/07 for a brothel on 26 March 2008, to operate from 10 April 2008. Condition 1 imposed a trial period of 12…

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: [2009] NSWLEC 1408
Decision Date: 8 December 2009

CaseChat Overview and Summary

The applicant, Hoi Wan Cheung, appealed a decision by the Ku-ring-gai Council to refuse an application to modify a development consent. The consent, granted on 26 March 2008, permitted the change of use of premises at 1/105 Grandview Street Pymble to a brothel. The consent was subject to a condition limiting the use to a trial period of 12 months. The applicant sought to modify the consent by deleting this condition. The Council opposed the application on the basis that the applicant had not complied with the conditions of the consent and all of the procedures as approved in the Plan of Management during the trial period, that the kitchen waiting room and reception areas had not been constructed and set up in accordance with the approved plan resulting in an unsatisfactory reception area/waiting room configuration, that the continued use of the premises would be contrary to the public interest, and that the applicant had not provided sufficient information to demonstrate that disabled access should not be provided to the premises. The Court found that the purpose of the trial period had been achieved, and that no purpose would be served by imposing a further trial period. The appropriate course was to delete condition 1 of the development consent, and to amend condition 2 to include the amended plans showing the configuration of the reception/waiting areas as currently constructed. The appeal was upheld, and the development consent modified accordingly.

Orders