Procopiadis v Marrickville Council - [2009] NSWLEC 1241

Land and Environment Court

of New South Wales

CITATION: Procopiadis v Marrickville Council [2009] NSWLEC 1241

PARTIES:
APPLICANT
Procopiadis, Nicholas
RESPONDENT
Marrickville Council

FILE NUMBER(S): 10190 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- brothel; suitability of location; proximity to recreation area; amenity; impact on neighbours; traffic/parking.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001

CASES CITED: Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126
Zhang v Ashfield Council [2004] NSWLEC 259
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
BGP Properties Limited v Lake Macquarie City Council [2004] NSWLEC 399
New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154

DATES OF HEARING: 30 June 2009, 1 July 2009

DATE OF JUDGMENT:
24 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Green (Solicitor)
SOLICITOR
Pikes Lawyers
RESPONDENT
Mr I Hemmings (Barrister)
SOLICITOR
Mr G Christmas (Solicitor)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 July 2009

10190 of 2009 Nicholas Procopiadis v Marrickville Council
JUDGMENT

Background.

1 This appeal was lodged against the deemed refusal of a development application for alterations to an existing building to facilitate its use as a brothel and art/gallery workshop. The property is located at 66 Railway Street, Sydenham.

2 The issues identified for the appeal are summarised as follows:

Inappropriate location.
Unsatisfactory hours of operation.
Inadequate parking and off-street loading/unloading facilities.
Public interest considerations.

The site

3 This site is described as Lot 159 in DP 750. It has a total area of 306.6sq m, a 9.1m frontage to Railway Road and also a 9.3m frontage to the rear Park Lane.

4 The existing improvements on the site include a one part two storey brick and metal roof shop and dwelling with associated outbuildings to the rear.

5 The site is situated within the general business zone that comprises a number of commercial premises along with various residential properties. A part one, part 2-storey house (No 68 Railway Road) adjoins to the north and there is a 2-storey shop and residence (No 64) with brick parapet adjoining to the south.

6 Sydenham Green is located opposite the site across Railway Road. It contains a children’s play area, picnic tables and various pathways. Adjacent to this park area is a basketball area.

The proposal

7 This development application is for alterations and additions to the building so as to enlarge the street front art gallery/workshop area and use the remainder for a brothel. The proposal incorporates 6 on-site car parking spaces.

8 The brothel is primarily on the first and second floors and involves:

8 working rooms, 2 waiting rooms and reception area.
Utilisation of 4 of the on-site car spaces, in stacked formation with access from Park Lane. These spaces to be available for use outside the operating hours of the gallery.
Access is via a covered 1.5m side entry, which fronts Railway Road and is adjacent to No 68 Railway…

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: [2009] NSWLEC 1241
Decision Date: 24 July 2009

CaseChat Overview and Summary

This appeal concerns the deemed refusal of a development application for alterations to an existing building to facilitate its use as a brothel and art/gallery workshop, located at 66 Railway Street, Sydenham. The key issues are the suitability of the location, proximity to a recreation area, amenity, impact on neighbours, and traffic/parking. The site, situated within the general business zone, is adjacent to residential properties and Sydenham Green, a park across Railway Road. The proposal involves using the first and second floors for a brothel, with 8 working rooms, 2 waiting rooms, and a reception area. The brothel is to operate within a plan of management (POM) that includes 2 managers on site at all operating times and a maximum of 8 sex workers, 5 full-time and 3 part-time workers. Admission is by telephone appointment only. The hours of operation are from 6.30pm to 2.30am on Monday to Wednesday, Friday, Saturday and Sunday and 8.30pm to 2.30am on Thursday. The Court considered the evidence presented by the parties, including objections from the Council and neighbours, as well as expert evidence from traffic and town planners. The Court found that the proposal is of a significantly smaller scale and with reduced operating times compared to a previous application, and that the brothel is to operate in accordance with the revised POM, which contains controls to minimise any neighbourhood disamenity. The Court was satisfied that the site in the commercial zone is suitable for a brothel of the proposed scale, which operates in accordance with amended later opening times and the provisions of the POM. The Court also gave considerable weight to the proposed 12-month trial period to enable an assessment of the magnitude of the impacts perceived by the neighbours. The Court orders that the appeal is allowed, development consent is granted for building alterations to the property at No 66 Railway Road, Sydenham subject to the conditions in Annexure A, to permit its use as a brothel for a 12-month trial period, and the exhibits may be returned except 2, 3, 4, A, and F.

Orders