Piao v Willoughby City Council - [2008] NSWLEC 1407

Land and Environment Court

of New South Wales

CITATION: Piao v Willoughby City Council [2008] NSWLEC 1407

PARTIES:
Applicant:
Shuncai Piao
Respondent:
Willoughby City Council

FILE NUMBER(S): 10631 of 2008

CORAM: Roseth SC

KEY ISSUES: Development Application :- brothel

DATES OF HEARING: 15 October 2008

DATE OF JUDGMENT:
17 October 2008

LEGAL REPRESENTATIVES: Applicant:
Mr J Hannaford, solicitor of Hannaford Lawyers
Respondent:
Mr A Pickles, barrister instructed by Mr J Browne, solicitor of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

17 October 2008

10631 of 2008 Shuncai Piao v Willoughby City Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Willoughby City Council (the council) of a development application for a brothel at 1/78 Hampden Road, Artarmon.

2 The site is in the Artarmon shopping centre, which is a traditional shopping strip opposite Artarmon Railway Station. It has a 5.5m frontage to the western side of Hampden Road and a rear boundary to Hampden Lane. The Lane is about 6.5m higher than Hampden Road. The proposed brothel is on the first floor towards Hampden Road (over a take-away chicken shop) and at ground level towards the Lane. The rear of the building is more than 20m from the lane.

3 Adjoining development is similar to the existing building on this site, ie two-storey towards Hampden Street and single-storey towards the lane. A minority of businesses have access only from the Lane.

4 The applicant proposes to renovate the first floor (to Hampden Road) of the building and use it as a brothel. Three parking spaces and a lift for wheelchair access are proposed in the rear.

5 The applicant lodged the application in April 2008. Following notification the council received 17 objections. In June 2008 the council considered a report from its planning department recommending approval. The council rejected the recommendation and requested the Environmental Services Director to provide reasons for refusal. In July 2008 the council refused the application. The applicant lodged the appeal in June 2008 against deemed refusal.

6 Local Environmental Plan 1995 (the LEP) zones the site 3(a) General Business, a zone in which brothels are permissible. Clause 13A of the LEP deals with brothels. The Willoughby Development Control Plan (the DCP) contains a section on brothels, which mostly echoes the provisions of the LEP. Part C4 of the DCP deals with, among other things, parking requirements.

7 The council submitted its Statement of Contentions containing six matters. During the hearing these were reduced to the following two:

· the brothel is prohibited because it is not located at ground level; and

· the on-site parking provided is short by one car space.

8 The Court heard the evidence of Mr W Roderick, who spoke on behalf of Ms X Wu. Ms Wu runs a “relaxation centre” at 88A Hampden Road. Mr Roderick said that the…

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: [2008] NSWLEC 1407
Decision Date: 17 October 2008

CaseChat Overview and Summary

In this appeal, Shuncai Piao challenged the decision of the Willoughby City Council to refuse a development application for a brothel at 1/78 Hampden Road, Artarmon. The site in question is part of the Artarmon shopping centre, directly opposite the Artarmon Railway Station. The proposed brothel would be located on the first floor facing Hampden Road and at ground level towards Hampden Lane. The primary legal issues before the court were whether the brothel was prohibited because it was not located at ground level, and whether the on-site parking provided was adequate.

The court first addressed the requirement that a brothel should be located at ground level. The Local Environmental Plan 1995 (LEP) specifies that brothels are prohibited if they are at ground level within a business zone. However, the court found that the brothel in this case was at ground level towards Hampden Lane and not at ground level towards Hampden Road. The court reasoned that the primary purpose of the clause is to avoid brothels that are at ground level in shopping streets where most buildings have shopfronts. The first-floor location of the brothel towards Hampden Road made it more discreet, and thus, the brothel complied with the clause. The court also noted that if the brothel were on the first floor towards the lane, it would be more conspicuous rather than discreet. Therefore, the brothel was not a prohibited use under clause 13A(2) of the LEP.

The court then considered the adequacy of the on-site parking. The Willoughby Development Control Plan (DCP) requires two parking spaces for the brothel, but the site can only accommodate three parking spaces, including one for disabled drivers and one for the ground floor use (a take-away chicken shop). The court acknowledged that the site is close to a railway station and that public parking is available in Hampden Lane. Given these factors, the court found that the shortfall of one parking space did not justify a refusal of the application. The court concluded that a lesser provision of parking was reasonable due to the proximity to public transport.

The court also discussed the proposed condition limiting the consent to one year, which the applicant opposed as unreasonable. The court agreed, finding that such a time limit would not justify the applicant incurring the costs of building works, including new bathrooms. Moreover, a one-year consent would require the council to reassess the application again, which the court deemed an admission that the application had not been properly assessed. Therefore, the court did not impose this condition.

In summary, the court upheld the appeal, granting the development application for the brothel subject to certain conditions. The exhibits were returned, except for two specified exhibits.

Orders