Krausman v Parramatta City Council - [2004] NSWLEC 503

Land and Environment Court

of New South Wales

CITATION: Krausman v Parramatta City Council [2004] NSWLEC 503

PARTIES: APPLICANT:
W E I Krausman
RESPONDENT:
Parramatta City Council

FILE NUMBER(S): 10494 of 2004

CORAM: Pain J

KEY ISSUES: Development Application :- Brothel - Whether applicant's character is such that development consent should be refused - Whether likelihood of criminal activity is a reason for refusal.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 79C
Sydney Regional Environmental Plan No 28 - Parramatta
Restricted Premises Act 1943, s 3

CASES CITED: Dixon & Anor v Burwood Council [2002] NSWLEC 190

DATES OF HEARING: 01/09/2004
03/09/2004

DATE OF JUDGMENT: 09/06/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M.H. Baird (barrister) instructed by Mr R.S. Creighton (agent)
RESPONDENT:
Mr P. Marincowitz (solicitor) of Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PAIN J

6 SEPTEMBER 2004

10494 of 2004 WEI KRAUSMAN v PARRAMATTA CITY COUNCIL
JUDGMENT

1 Her Honour: This is a Class 1 appeal brought by Wendy Krausman, the Applicant, against the Council’s refusal of her development application seeking development consent to internally fitout and operate a commercial brothel at 12 Euston Street, Rydalmere.

2 The Statement of Issues filed by the Council identified the following three issues:

3 Section 79C(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) provides that:

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and

(iii) any development control plan, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

Sydney Regional Environmental Plan No 28 – Parramatta

4 The Land is zoned “Technology and Enterprise” under the Sydney Regional Environmental Plan No 28 – Parramatta (“the SREP No 28”). Development for the purpose of brothels is permissible with consent in this zone.

The Regulation of Brothels Development Control Plan

5 The Council’s Regulation of Brothels Development Control Plan (“the DCP) applies to…

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: [2004] NSWLEC 503
Decision Date: 09/06/2004

CaseChat Overview and Summary

Wendy Krausman, the applicant, appealed against the Parramatta City Council's refusal of her development application to internally fit out and operate a commercial brothel at 12 Euston Street, Rydalmere. The applicant argued that the Council's refusal was unreasonable because she did not have any criminal convictions and there had been no complaints about the activities taking place at the premises since December 2003. The Council argued that the applicant's character was such that development consent should be refused and that the likelihood of criminal activity was a reason for refusal. The applicant submitted that the character of an applicant for development consent is not a relevant consideration under s 79C of the Environmental Planning and Assessment Act 1979. The court held that the character of a particular applicant for development consent is not a matter for the court to consider on a planning application of this nature. The court held that the evidence from the Police Service relied on by the Council in these proceedings failed to indicate that, should the court determine to grant consent to the applicant's development application, criminal activity would be likely to take place at the brothel. The court held that the Council had failed to establish any grounds on which the development application should be refused and consent should be granted subject to conditions. The court granted the applicant's appeal and imposed conditions on the development consent.

Orders