Soueid v Leichhardt Municipal Council - [2004] NSWLEC 343

Land and Environment Court

of New South Wales

CITATION: Soueid v Leichhardt Municipal Council [2004] NSWLEC 343

PARTIES:
APPLICANT
Margaret Soueid
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 11644 of 2003; 10092 of 2004

CORAM: Moore C

KEY ISSUES: Development Application :-
Unapproved use as brothel
Social impact of continued use
Discretion to stay closure order
.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s97, s121B, s121ZK
Leichhardt Local Environmental Plan 2000
.

CASES CITED: Weal v Bathurst City Council (2000) 111 LGERA 181;
Venus Enterprises Pty Limited v Parramatta City Council (1981) 43 LGERA 67;
Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675;
Broad v Brisbane City Council (1986) 59 LGRA 296;
Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62;
Novak v Woodville City Council (1990) 70 LGERA 233;
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154;
Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289;
.

DATES OF HEARING: 24 May 2004

EX TEMPORE
JUDGMENT DATE : 05/24/2004

LEGAL REPRESENTATIVES:

APPLICANT
Dr S Berveling, barrister
RESPONDENT
Mr P Jackson, solicitor
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

24 May 2004

11644 of 2003 & 10092 of 2004 Margaret Soueid v Leichhardt Municipal Council
JUDGMENT

1 COMMISSIONER: These are two appeals concerning premises at 175 Parramatta Road, Annandale. The first of them, pursuant to s 97 of the Environmental Planning and Assessment Act1979 (the Act), is an appeal against a refusal by Leichhardt Municipal Council (the council) of Development Application No. 282/02 for the purposes of permitting the premises to be used as a sex shop and brothel. The premises are presently operating for those purposes without consent. The second is an appeal pursuant to s 121ZK of the Act against an order made pursuant to s 121B of the Act requiring the cessation of those unpermitted uses.

2 It would seem to me that, in dealing with these two appeals, the logical process is to deal first with the appeal against refusal of the refusal of the development consent.

3 It is common ground between the parties that, if I uphold the appeal against the development consent, a number of matters arising out of the operational issues for the premises, relating to management planning, access for disabled purposes and residence of the manager on site and the possibility of a time limit on any consent which might be given, would then require to be dealt with. If the appeal is refused, then issues arise as to whether or not I should grant some period within which an orderly relocation of the existing business should be undertaken, there being two alternatives as to the method by which I might do that, one by in effect staying the order for closure for a period or secondly by granting a consent subject to a limitation.

4 I turn first to the issue of 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: [2004] NSWLEC 343
Decision Date: 05/24/2004

CaseChat Overview and Summary

The case of Soueid v Leichhardt Municipal Council involved two appeals by Margaret Soueid against decisions made by the Leichhardt Municipal Council in New South Wales. The first appeal was against the council's refusal to grant a development consent for Soueid's premises at 175 Parramatta Road, Annandale, to be used as a sex shop and brothel. The second appeal was against an order made by the council for the cessation of these unapproved uses. The Land and Environment Court of New South Wales was tasked with deciding whether the council's decisions were lawful and whether any discretion should be exercised to allow a period for relocation.

The legal issues that the Court had to decide included whether the unapproved use of the premises as a brothel posed an unacceptable impact on nearby places of worship, schools, and recreational areas for children, as well as whether it adversely affected the neighbourhood's amenity. The Court also had to consider the economic impact on nearby businesses and residents, as well as the public interest in the continuation of crisis care activities for at-risk children nearby.

The Court found that while there were concerns about the potential impacts on nearby properties and the community, the most significant factor was the public interest in maintaining the crisis care activities provided by Mr. and Mrs. Huxley, who were caring for at-risk teenagers. The Court concluded that the public interest in preserving these activities outweighed the potential negative impacts, leading to the refusal of the development consent. Additionally, the Court found that no period should be granted for relocation as the applicant had been aware of the council's intention to cease the unauthorised use for an extended period.

In summary, the Court upheld the council's decisions, refusing the development consent and dismissing the appeal against the closure order. The Court's judgment was based on the significant public interest in maintaining the crisis care activities for at-risk children, which outweighed the potential negative impacts of the proposed development.

Orders