Davis v Parramatta CC - [2005] NSWLEC 474

Land and Environment Court

of New South Wales

CITATION:
Davis v Parramatta CC [2005] NSWLEC 474

PARTIES:
APPLICANT
Lyn Davis
RESPONDENT
Parramatta City Council

FILE NUMBER(S):
11564 of 2004

CORAM:
Hoffman C

KEY ISSUES:
Appeal :- Refusal of consent for a brothel - proximity to sensitive uses - carparking - potential for nuisance - disable access - applicability of Council development control plan.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan No. 28
Parramatta Local Environmental Plan 1997
Disability Discrimination Act 1992

CASES CITED:
Pont v Hurstville [2005] NSWLEC 33;
Martin v Hornsby [2004] NSWLEC 614

DATES OF HEARING: 8/04/2005, 27/05/2005

DATE OF JUDGMENT:

08/04/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr A. Galasso, barrister
of Ritchie & Castellan
RESPONDENT
Mr C. Gough, solicitor
of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

4 August 2005

11564 of 2004 Lyn Davis v Parramatta City Council
JUDGMENT

1 This is a Class 1 Appeal 11564 of 2004 between Lyn Davis and Parramatta City Council over the refusal of consent for a brothel at No. 6 Station Street East, Harris Park. As the address might indicate the premises are opposite the Great Western Railway but not opposite the station. The station is a little to the south of this. Opposite the site and several city blocks north is only a footpath and the railway security fence. Station Street ends adjacent to the site at a L-shaped intersection with Marion Street which also ends there. A pedestrian laneway commences at that point and takes one along beside the railway southwards to the station entry and overbridge.

2 The brothel is on the upper floor of an early 1900s two-storey building on the corner of Station and Marion Streets. On the ground floor on the corner is a hairdresser. The next shopfront along Station Street from the hairdresser has windows whited-out, then there is a recessed doorway to the next shopfront. That is the entry to the brothel.

3 The second shopfront is also whited-out with only the street number for identification. The two whited-out shopfronts contain a waiting room and a reception room for the brothel. Behind them on the ground floor are stairs to the upper floor, an office, a bathroom, a small tea room and the door to the rear lane. Upstairs there are four consulting rooms and separate bathroom and a laundry. Three of the consulting rooms have en-suite showers and basins.

4 The next shopfront north past the brothel is a hardware shop and the last shop in the group is a fast food pizza take away. After that along Station Street are older houses and flats, some of which are used as offices, others for accommodation. This one city block along Station Street East is zoned Business under Sydney Regional Environmental Plan No 28, Parramatta, and that is the applicable statute.

5 There being so few shops in Station Street East the main shopping centre is in Marion…

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: [2005] NSWLEC 474
Decision Date: 08/04/2005

CaseChat Overview and Summary

This appeal concerns the refusal of consent for the establishment of a brothel at 6 Station Street East, Harris Park, by Lyn Davis against Parramatta City Council. The site, an early 1900s two-storey building on the corner of Station and Marion Streets, is currently occupied by a hairdresser on the ground floor and a brothel on the upper floor. The primary issues before the court were whether the proposed brothel complied with the Parramatta Local Environmental Plan 1997, the Parramatta Regulation of Brothels Development and Control Plan, and other relevant legislative requirements, including the Environmental Planning and Assessment Act 1979 and the Disability Discrimination Act 1992.

The Parramatta City Council argued that the proposal did not comply with the zone objective as it required commercial development to support surrounding residential development, did not provide adequate car parking, and would likely cause a disturbance in the neighbourhood. Additionally, the council claimed the proposal did not meet the requirements of the Parramatta Regulation of Brothels Development and Control Plan, such as location, access and layout, parking, hours of operation, security, and public interest. They also contended that the proposal was situated in close proximity to sensitive land uses and lacked disabled access.

The applicant argued that the business zone specifically allows brothels with consent, and that the proposal could exist with minimum and acceptable impacts. They also argued that the Parramatta Regulation of Brothels Development and Control Plan could not apply to the proposal as it had been made under a now repealed statute. The applicant also argued that the site was discrete, located opposite the railway with low intensity uses adjoining and in the less active part of the shopping centre.

The court found that the statutory submissions of the applicant had determined why the Development Control Plan had little role to play given the provisions of Sydney Regional Environmental Plan No 28. The court concluded that the site of the premises was discrete and not obvious to passers-by, including school children or adolescents. The court also found that the location did not have sensitive uses adjoining or adjacent and that any that were in the locality were at such a distance that the premises would have no effect on their amenity.

The orders of the court were:

1. The appeal is upheld.
2. Development consent is granted for a brothel at 6 Station Street East, Harris Park, subject to the Conditions and Plan of Management in Annexure ‘A’ hereto.
3. The exhibits are returned to the parties except Exhibits A, B, F, G, H, 4 and 7.
4. No orders as to costs.

Orders