Guo v Parramatta City Council - [2007] NSWLEC 544

Land and Environment Court

of New South Wales

CITATION: Guo v Parramatta City Council [2007] NSWLEC 544

PARTIES:
APPLICANT
William Guo
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10213 of 2007

CORAM: Hussey C

KEY ISSUES: Development Application :- Expansion of brothel, suitability of site, impact on neighbours, weight to be given to LEP Amendment on separation distances.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001

CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289;
Martyn v Hornsby Shire Council [2004] NSWLEC 614

DATES OF HEARING: 16/08/2007

DATE OF JUDGMENT:
30 August 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr R. Creighton (Agent)
RESPONDENT
Mr Marincowitz, solicitor
of Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

30 August 2007

10213 of 2007 William Guo v Parramatta City Council
JUDGMENT

Background.

1 This appeal was lodged against Councils refusal of a development application for the expansion of an existing brothel at 110 – 112 Ballandella Road, Pendle Hill. The brothel operates on the basis of consent orders granted by the Court on 9 January 2006, which imposed a set of conditions for the use of the property. Apparently the subsequent operations of the brothel have not been in compliance with the conditions of consent and proceedings were undertaken in respect of the contraventions.

2 A number of issues were initially raised for the appeal and subsequent conferencing by the parties reduced the outstanding issues to:

Whether the proposed development is an unacceptable intensification of use,

Inappropriate location, in terms of the separation distances to residences,

Fire safety in terms of compliance with the BCA,

Poor management practices,

Public interest matters raised by the objectors.

3 The subject site is Unit 1 and described as Lot 1 in SP 37905. This site contains 5 strata titled industrial units and an open car park with the capacity for 18 vehicles. The industrial units have 6m high ceilings and a mezzanine level with windows that face the carpark. Unit 1 is the first unit within the complex and is located adjacent to Ballandella Road and the internal access way. It has a number of windows that front Ballandella Road.

4 The ground floor level of the unit has a floor area approximately 320 sq m and the mezzanine level of the unit has a floor area approximately 130 sq m.

5 This proposal involves building alterations to the ground floor and other alterations to the mezzanine level to increase the number of client service rooms from 6 to 11 and increasing the number of sex workers from 6 to 11. The works involve the following alterations to the ground floor level:

A client service room with spa

A client service room with the bathroom designed for disabled access

Two staff rooms

A client waiting room

A staff dining-room with kitchen

4 car parking spaces

A laundry room.

6 The other works involving reconfiguration of the existing rooms on the mezzanine level…

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: [2007] NSWLEC 544
Decision Date: 30 August 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant, William Guo, appealed against the Parramatta City Council's refusal to grant a development application for the expansion of an existing brothel at 110-112 Ballandella Road, Pendle Hill. The proposed development involved increasing the number of client service rooms and sex workers from 6 to 11. The primary issues were whether the proposed development was an unacceptable intensification of use, inappropriate location, and whether it complied with fire safety regulations and public interest matters. The Parramatta Local Environmental Plan 2001 (LEP) and the Parramatta Development Control Plan 2001 (DCP) were the key planning controls governing the application.

The court considered the weight to be given to the LEP Amendment No 13, which had been enacted after the development application was lodged but before it was finally determined. The amendment introduced a 200-metre separation distance requirement for brothels from residential areas, which the subject site did not comply with. The court found that significant weight could be given to the new planning control in accordance with established case law. However, the court also considered the specific matters outlined in clause 24(2) of the LEP, which required consideration of the potential disturbance and interference with the amenity of the neighbourhood.

After reviewing the evidence and submissions, the court concluded that the proposed expansion of the brothel would significantly increase the disturbance and amenity impacts on the neighbourhood, particularly during late-night trading hours. The court found that the site was not suitable for the significant increase in the scale of operations, as it did not comply with the new 200-metre separation requirement and was located in a prominent position within the industrial complex. Consequently, the appeal was dismissed, and the development application for the expansion of the existing brothel was refused.

The final orders were as follows: 1. The appeal is dismissed. 2. Development application No DA/1019/2005 for the expansion of the existing brothel at 110-112 Ballandella Road, Pendle Hill is refused. 3. The exhibits be returned except for A, 4 and 10.

Orders