Sutherland Shire Council v Bluewater District Services

Sutherland Shire Council appealed to the New South Wales Court of Appeal against a decision of Sheahan J, which had set aside the Council's refusal of a development application. The application, lodged by Bluewater District Services, sought to use a factory unit at 140-150 Taren Point Road, Caringbah, as a brothel.

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.