Li v Hurstville City Council - [2006] NSWLEC 178

Land and Environment Court

of New South Wales

CITATION: Li v Hurstville City Council [2006] NSWLEC 178

PARTIES:
APPLICANT
Li Ya Li
RESPONDENT
Hurstville City Council

FILE NUMBER(S): 11589 of 2005

CORAM: Tuor C

KEY ISSUES: Development Application :- The use of an existing industrial unit as a sex service premises (brothel),
whether near or in view of church or any place frequented by children

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994
Hurstville Development Control Plan No. 2 - Car parking
Hurstville Development Control Plan No. 18 - Crime Prevention through Environmental Design

CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614;
New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154;
Zhang v Ashfield Council [2004] NSWLEC 259

DATES OF HEARING: 06/04/2006

EX TEMPORE JUDGMENT DATE: 04/07/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Burrell, solicitor
of Burrell Solicitors
RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

7 April 2006

11589 of 2005 Li Ya Li v Hurstville City Council
JUDGMENT

Introduction

1 This is an appeal against the refusal by Hurstville City Council (the council) of a development application for the use of an existing industrial unit as a sex service premises (brothel) at 49 Barry Avenue, Mortdale.

The site and locality

2 The site is located on the southern side of Barry Avenue. It is rectangular in shape with a frontage of 15.24m to Barry Avenue and has an area of 650.2sqm. It is occupied by two industrial buildings. The brothel is proposed in the building facing Barry Avenue (the site). This building is set back 4.8m and is single storey to Barry Avenue with a lower level at the rear. It is currently vacant.

3 There is a single storey warehouse at the rear of the site which is currently used for metal works. It does not form part of the proposal.

4 The lower level and the rear warehouse are accessed off Barry Street by a right of way which runs along the western boundary of the site.

5 The locality and adjoining development is industrial, however there are also the following:

a) a Place of Worship the “Next-Generation Christian Centre” located 120 metres west of the site
b) the “Funhouse and Adventure Play Centre” located 105 metres east of the site
c) the Australian Model Railway Association (AMRA) located 61 metres diagonally to the northwest of the site
d) Rogerson Dance Studio located 160 metres southeast of the site.

The proposal

6 The proposal is to use the industrial unit as a brothel with internal fitout to provide four consulting rooms, client and staff waiting areas, office and entry. Two client car spaces are provided in the front which requires alteration to the Barry Avenue façade. Two staff spaces are provided in the lower level which requires alterations to the doorway and columns.

7 The applicant originally sought 24 hour operation 7 days…

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.

Keep reading for free

Create a free CaseChat account to read Li v Hurstville City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWLEC 178
Decision Date: 04/07/2006

CaseChat Overview and Summary

In Li v Hurstville City Council, the applicant, Li Ya Li, sought approval for the conversion of an existing industrial unit into a sex service premises (brothel) located at 49 Barry Avenue, Mortdale. The Hurstville City Council had refused the development application, which Li appealed to the Land and Environment Court of New South Wales. The primary legal issue was whether the proposed brothel complied with the locational requirements set forth in Amendment 7 to the Hurstville Local Environmental Plan 1994, particularly concerning proximity to places frequented by children. The court considered the nature of the surrounding land uses and whether the brothel's location and operation would cause unacceptable impacts.

The court examined the evidence presented, including expert opinions and objections from local residents. The expert appointed by the court, Mr. Steven Layman, concluded that the proposal met the locational requirements as it was not within view or close proximity to places frequented by children, such as schools, churches, or recreational centres. The court accepted this analysis, noting that while there were facilities for children nearby, the brothel would not be visible from these locations, and the separation distance met the criteria set out in the planning controls.

Additionally, the court assessed whether the operation of the brothel would result in undue impacts on the local community, considering factors such as the size of the premises, the management plan, and the operating hours. The court found that the brothel's size and the proposed management plan, including a one-year trial period, would mitigate potential negative impacts. The court also concluded that the proposed operating hours, including a later closing time on Friday and Saturday nights, would not likely result in unacceptable impacts given the distance from residential uses and the nature of surrounding land uses.

Ultimately, the court upheld the appeal, approving the development application subject to certain conditions, including the one-year trial period and other specified conditions to manage potential impacts. The court ordered that the development application for the brothel be approved with the outlined conditions.

Orders