CITATION: Sutherland Shire Council v Bluewater District Services [1999] NSWCA 437 FILE NUMBER(S): CA 40668/97 HEARING DATE(S): Monday 9 August 1999 JUDGMENT DATE:
9 August 1999PARTIES :
Appellant - Sutherland Shire Council
Respondent - Bluewater District ServicesJUDGMENT OF: Meagher JA at 1; Beazley JA; Stein JA
LOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S) : 11221/97 LOWER COURT JUDICIAL OFFICER: Sheehan J
COUNSEL: Appellant - W R Davidson SC
Respondent - I HemmingsSOLICITORS: Appellant - Abbott Tout
Respondent - John Burril (Kogarah)CATCHWORDS: Building development application; Brothel in non-residential zone DECISION: 1.Appeal allowed to a limited extent disclosed in this order; 2.Order the judgment of his Honour Sheahan J of 25 September 1997 be set aside; 3.Order that the development application number 970770 lodged with the appellant council on 14 February 1997 for the use of a factory unit on lot 10 SP32419 140-150 Taren Point Road, Caringbah as a brothel be granted subject to conditions 1-17 as set out by the Assessor and subject to an addition of condition 18 to be later specified. This consent does extend to any common part of the property.; 4. Amend the Assessor's condition to add the following condition 18. Namely conditions 1,8,9,&16 do not approve or authorise the carrying out of any work on the common property; 5.Appeal otherwise dismissed; 6.Both as to the proceedings before Sheahan J and Proceedings in this court, no as to costs
- 1 -THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40668/97
MEAGHER JA
MONDAY 9 AUGUST 1999
BEAZLEY JA
STEIN JA
SUTHERLAND SHIRE COUNCIL v BLUEWATER DISTRICT SERVICESJUDGMENTMEAGHER JA: We are now in a position to make the following orders:
1. An order that the current appeal be allowed to a limited extent disclosed in this order.
2. Order that the judgment of his Honour Sheahan J of 25 September 1997 be set aside.
3. Order that development application number 970770 lodged with the appellant council on 14 February 1997 for the use of a factory unit on lot 10 SP32419 140-150 Taren Point Road, Caringbah as a brothel be granted subject to conditions 1-17 as set out by the Assessor and subject to an addition of condition 18 to be later specified. This consent does not extend to any common part of the property.
4. Amend the Assessor's condition to add the following condition 18. Namely conditions 1, 8, 9 and 16 do not approve or authorise the carrying out of any work on the common property.
5. Appeal otherwise dismissed.
6. Both as to the proceedings before Sheahan J and proceedings in this Court, no order as to costs.
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- AGLC
- Sutherland Shire Council v Bluewater District Services [1999] NSWCA 437
- Case
- [1999] NSWCA 437
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the proposed use of the factory unit as a brothel constituted a "brothel" within the meaning of the relevant planning instrument, and if so, whether it could be permitted in a non-residential zone. The court also considered the scope of the Council's power to impose conditions on such a development application.
The Court of Appeal, comprising Meagher, Beazley, and Stein JJA, reasoned that while a brothel is not explicitly listed as a prohibited or permissible use in the relevant zone, its nature as a place for the provision of sexual services meant it was not a "factory" as defined. However, the court found that the development application could be granted subject to stringent conditions. The court allowed the appeal to a limited extent, setting aside the judgment of Sheahan J and ordering that the development application be granted subject to conditions 1-17 as determined by the Assessor, with the addition of a new condition 18. This new condition clarified that certain existing conditions did not approve or authorise the carrying out of any work on common property. The appeal was otherwise dismissed, and no order was made as to costs.
Orders
Orders of the court
1.Appeal allowed to a limited extent disclosed in this order; 2.Order the judgment of his Honour Sheahan J of 25 September 1997 be set aside; 3.Order that the development application number 970770 lodged with the appellant council on 14 February 1997 for the use of a factory unit on lot 10 SP32419 140-150 Taren Point Road, Caringbah as a brothel be granted subject to conditions 1-17 as set out by the Assessor and subject to an addition of condition 18 to be later specified. This consent does extend to any common part of the property.; 4. Amend the Assessor's condition to add the following condition 18. Namely conditions 1,8,9,&16 do not approve or authorise the carrying out of any work on the common property; 5.Appeal otherwise dismissed; 6.Both as to the proceedings before Sheahan J and Proceedings in this court, no as to costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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