Pont v Hurstville City Council - [2005] NSWLEC 33

Land and Environment Court

of New South Wales

CITATION:
Pont v Hurstville City Council [2005] NSWLEC 33

PARTIES:
APPLICANT
Lisa Pont
RESPONDENT
Hurstville City Council

FILE NUMBER(S):
10975 of 2004

CORAM:
Bly C

KEY ISSUES:
Development Application :- Fire Safety - Social Impacts - Parking

LEGISLATION CITED:
Hurstville Local Environmental Plan 1994
Development Control Plan No. 2 - Car parking
Development Control Plan No. 13 - Riverwood
Development Control Plan No. 18 - Crime Prevention through Environmental Design
Development Control Plan No. 19 - Assess and Mobility
Draft Local Environmental Plan amendment No. 7 (2004)
Disability Descrimination Act 1992

CASES CITED:
Yada Martyn v Hornsby Shire Council [2004] NSWLEC 614 ;
Zhang v Ashfield Municipal Council [2004] NSWLEC 259;
Perry Properties v Ashfield Council (No 2)[2001] NSWLEC 62

DATES OF HEARING: 22 & 23/11/2004 & 28/01/2005

EX TEMPORE JUDGMENT DATE:
01/28/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Campbell, barrister
instructed by Mr J Sheehan
RESPONDENT
Ms J Hewitt, solicitor
of Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

28 January 2005

10975 of 2004 Lisa Pont v Hurstville City Council
JUDGMENT

1 This appeal relates to development application No 878/2003, which is for the use of the first floor premises at 184B Belmore Road, Riverwood, as a brothel. The brothel is to operate between 10am and 12 midnight Monday to Saturday, and this period is to be divided into two shifts. There are to be three employees and one manager on the premises at any time. Parking for one vehicle is available in a ground floor garage with access off a rear lane. Pedestrian access to the premises is via a stairway off Cairns Street. The applicant has prepared a management plan which is sought to be included in the conditions of consent.

2 The building in which the subject premises is located is situated on the corner of Belmore Road and Cairns Street in the Riverwood commercial centre. It is strata subdivided, comprising five ground floor shops with dwellings above. The existing brothel utilises one of these dwellings. Adjoining the site to the east of the rear lane is a residential area comprising attached dwelling houses and residential flat building.

3 The premises is situated in the 3(c) Business Centre Zone under Hurstville Local Environmental Plan 1994, and in this zone the proposal, being business premises, is permissible with development consent. The objectives of the 3(c) zone are to maintain a commercial and retail focus for larger scale commercial precincts, to allow for residential development in mixed use buildings with non-residential uses on at least the ground level and residential uses above so as to promote the vitality of business centres and to provide opportunities for associated development such as parking, service industries, and the like. I am satisfied that there is no fundamental conflict with these objectives.

4 Also applicable are Development Control Plan No 2 - Car Parking; Development Control Plan No 13 - Riverwood; Development Control Plan No…

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: [2005] NSWLEC 33
Decision Date: 01/28/2005

CaseChat Overview and Summary

The appeal, heard by Bly C of the Land and Environment Court of New South Wales, concerns a development application for the use of the first floor premises at 184B Belmore Road, Riverwood, as a brothel. The application was objected to by the Hurstville City Council and local residents, who cited concerns such as potential illegal parking, traffic congestion, inappropriate behaviour by brothel patrons, overlooking onto residential areas, and the overall impact on the character of the locality. The primary issues for determination by the court were whether the proposal met the requirements of the Building Code of Australia, complied with council’s draft Local Environmental Plan amendment No 7, was accessible to disabled persons, posed adverse social impacts in the locality, and provided sufficient off-street car parking. The court examined the evidence presented by the applicant, local residents, and expert witnesses, and considered the relevant legislation and case law.

The court found that the proposal met the Building Code of Australia requirements, particularly regarding fire safety, and that the draft Local Environmental Plan amendment No 7, which would have prohibited the proposal, was neither imminent nor certain. The court accepted that the proposal would not be accessible to disabled persons given its first-floor location and access via a stairway, but ruled that this did not warrant refusal of the application due to the limited impact on disabled persons and the significant cost of making the premises accessible. Regarding the social impacts, the court concluded that these would be minimal and did not warrant refusal of the application. It further found that the proposal would not cause significant noise or overlooking issues, and that the behaviour of brothel patrons would be indistinguishable from other members of the community. The court ultimately determined that the brothel’s visibility from the residential zone did not justify refusal, and that the potential offence to residents was not significant enough to warrant refusal.

The court upheld the appeal and granted development consent for the proposed brothel, subject to certain conditions, including a time-limited consent of 24 months. The court also ordered that the appeal was upheld, development application No. 878/2003 was granted development consent, and specific exhibits were retained.

Orders