Egel v Ashfield Municipal Council - [2006] NSWLEC 611

Land and Environment Court

of New South Wales

CITATION: Egel v Ashfield Municipal Council [2006] NSWLEC 611

PARTIES:
APPLICANT
Peter Egel
RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S): 10275 of 2006

CORAM: Brown C

KEY ISSUES: Development Application :- use of existing premises as a brothel - appropriateness of location - public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1985

CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614 ;
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154

DATES OF HEARING: 22/08/06

DATE OF JUDGMENT:
09/29/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Pickles, barrister
SOLICITORS
Kells The Lawyers
RESPONDENT
Mr A Simpson, solicitor
SOLICITORS
Pike, Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 September 2006

10275 of 2006 Peter Egel v Ashfield Municipal Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Ashfield Municipal Council (the council) of Application No. 10.2006.009.1 to use the premises at 93 Edwin Street North, Croydon (the site) as a brothel.

The site and surrounding area

2 The site is generally rectangular with a frontage of 5.69 metres to Edwin Street North, a frontage of 20.69 metres to a pedestrian walkway and a rear frontage to a laneway of 5.57 metres giving a total site area of 181 square metres.

3 A two-storey terrace is located on the site and a similar structure adjoins this building. The building on the site has been used as a brothel or similar for the past 17 years without approval. The applicant in these proceeding has operated the premises for the past 7 years.

4 The site falls within part of the Croydon shopping centre that consists of smaller older style shopfronts with residential and commercial uses above. Some newer mixed commercial/residential developments are located in the shopping centre.

5 Residential development in Horden Place adjoins the commercial area to the south east and shares part of a rear lane with the commercial properties. A pedestrian walkway links Horden Place to Edwin Street North.

The proposal

6 The proposal provides for the use of the existing building as a brothel. The ground floor contains a reception area, waiting room, bathroom, storage, laundry and three working rooms. The first floor contains two working rooms, bathroom, shower, staff room and kitchen. Access for clients is from Edwin Street North with staff entry from the rear of the site. The current use of the premises provides all access from the rear of the site. The change of access necessitates minor internal alterations. Two car parking spaces are available at the rear of the premises and are to be used by staff.

7 The proposed hours of operation are:

Monday to Friday: 10 a.m. to 10 p.m.
Saturday: 10 am to 9 p.m.
Sunday: 11 a.m. to 8 p.m.

8 The proposal provides for 6 staff, made up of 5 sex workers and 1 manager/receptionist. A Plan of Management provides further details…

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: [2006] NSWLEC 611
Decision Date: 29/09/2006

CaseChat Overview and Summary

In the case of Egel v Ashfield Municipal Council, the applicant, Peter Egel, appealed against the council's refusal of his application to use the premises at 93 Edwin Street North, Croydon as a brothel. The applicant sought to continue operating the existing building as a brothel, changing the access from the rear of the site to the frontage on Edwin Street North. The primary legal issues before the court were whether the proposed brothel was appropriately located considering the nearby commercial uses and residential properties within the nearby mixed use developments, and whether the proposed brothel was in the public interest and whether the issues raised by local residents in Horden Parade warranted the refusal of the development application.

The court found that while the proposed brothel was a permissible use within the General Business Zone, the lack of planning controls necessitated the application of planning principles. The court adopted the criteria in Martyn v Hornsby Shire Council for assessing the appropriateness of the location of a brothel. The court found that the proximity of the brothel to the nearby commercial uses and residential properties would not necessarily support the refusal of the development application, but the potential for adverse impacts existed. The court was not convinced that the limited number of unacceptable events identified by local residents would support the refusal of the application at that stage. The court concluded that a 12-month trial period would allow a more thorough assessment of the application in the form presented to Court. The court approved the development application subject to the conditions in Annexure A, including a 12-month trial period and additional lighting in the pedestrian walkway.

Orders