Poonsup v Ku-Ring-Gai Council - [2010] NSWLEC 1304

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Poonsup v Ku-Ring-Gai Council [2010] NSWLEC 1304

PARTIES:
APPLICANT
Poonsup

REPONDENT
Ku-Ring-Gai Council

FILE NUMBER(S):
10265 of 2010

CATCHWORDS:
DEVELOPMENT APPLICATION

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Civil Procedure Act 2005
Disability Discrimination Act 1992
Ku Ring Gai Planning Scheme Ordinance
Ku Ring Gai Local Environmental Plan (Town Centres) 2010

CASES CITED:
Zhang v Canterbury City Council [2001] NSWCA 167; and 115 LGERA 373
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195
Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 126
Kentucky Fried Chicken v Gantidis [1979] HCA 20; vol 140 CLR 675
Martin v Hornsby Shire Council [2004] NSWLEC 614
Manzie v Willoughby City Council [1996] NSWLEC 26
Ali v Liverpool City Council [2009) NSWLEC 1326
Cheung v Ku ring gai Council [2009] NSWLEC 1408

CORAM:
Moore SCMorris C

DATES OF HEARING:
4-5 and 11 August 2010

EX TEMPORE DATE:
12 August 2010

LEGAL REPRESENTATIVES

APPLICANT
Mr M Baird, Barrister
SOLICITOR
Storey & Gough Lawyers

RESPONDENT
Mr J Robson SC
SOLICITOR
Norton Rose

PUBLICATION RESTRICTION:

JUDGMENT:

The Land and
Environment Court
of New South Wales
MOORE SC
MORRIS C
12 August 2010
10265 of 2010 Poonsup v Ku-Ring-gai Council
This decision was given extemporaneously and has been revised and edited prior to publication.

JUDGMENT

COMMISSIONERS: In the iconic Australian comedy, The Castle, Tiriel Mora, playing Dennis Denuto, an advocate seeking to find the basis for his submissions, says:
“In summing-up, it is the constitution. It's Mabo, it's justice, it's the law, it's the vibe and, no, that's it, it's the vibe.”

In this case, the cri-de-coeur from Mr Baird, barrister for the applicant, was that “it is not the vibe”, a proposition that we accept. The vibe is not the basis upon which to consider the application for approval of a brothel in the Gordon Shopping Centre, proper consideration of the genuine planning issues is the only basis upon which we can proceed.
Equally, as we described at the commencement of the onsite evidence from the objectors, the Court is not an arbiter of public morality. With those two observations in mind, we commence our determination of this matter.
The appeal that is before us concerns Development Application 0423/09 which seeks consent to use the first floor of 763 Pacific Highway, Gordon (the premises) as a brothel with four work rooms, four sex workers, a receptionist and to operate seven days a week between 10am and 11pm.
Gordon Shopping Centre is a traditional suburban strip shopping centre bounded at its northern end by the former Gordon Public School (now municipal library) on the eastern side of Pacific Highway; and, on the western side, Ku-Ring-Gai Council (the council) chambers and a large commercial office building. To the south of these intersectional defining buildings are a variety of commercial premises that have, at levels above ground level, various commercial, professional or other service occupations.

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: [2010] NSWLEC 1304
Decision Date: 12 August 2010

CaseChat Overview and Summary

This case involves an appeal by the applicant, Poonsup, against the decision of the respondent, Ku-Ring-Gai Council, to refuse Development Application 0423/09, which sought consent to use the first floor of 763 Pacific Highway, Gordon, as a brothel. The applicant appealed the council's decision, and the case was heard by the Land and Environment Court of New South Wales. The primary issues in the case include the impact on the amenity of the area, safety and security for the premises, inadequate parking, inadequate access for persons with mobility disabilities, and whether the proposal was contrary to the public interest. The court examined the planning framework, including the Ku-Ring-Gai Planning Scheme Ordinance and the Ku-Ring-Gai Local Environmental Plan (Town Centres) 2010, as well as relevant Development Control Plans. The court found that the proposal should be refused on the grounds that it would have an adverse impact on the nearby McDonald's Family Restaurant and because it was located too close to sensitive land uses, such as a music school and a shop where children and adolescents regularly gathered. The court also considered the merits of the case, determining that if the bases for refusal were incorrect, the proposal could be approved with changes addressing the other concerns raised by the council, such as parking, safety, security, and disability access. The court refused to impose a condition requiring the applicant to reimburse the council for the cost of hiring a private investigator to inspect the premises and partake in the services offered by the sex workers.

Orders