Wang v Blacktown City Council - [2009] NSWLEC 1044

Land and Environment Court

of New South Wales

CITATION: Wang v Blacktown City Council [2009] NSWLEC 1044

PARTIES:
APPLICANT
Shao Ling Wang
RESPONDENT
Blacktown City Council

FILE NUMBER(S): 11060 of 2008

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- use of an existing factory building for a brothel - SEPP 1 objection - whether unacceptably near and visible to a place of public worship

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan 1988
State Environmental Planning Policy No 1

CASES CITED: Weyton v Rockdale City Council 106 LGERA 213
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Marpet Enterprises v Eurobedalla Shire Council [2000] NSWLEC 156

DATES OF HEARING: 16/02/09

DATE OF JUDGMENT:
24 February 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough
RESPONDENT
Mr T O'Connor, solicitor
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 February 2009

11060 of 2008 Shao Ling Wang v Blacktown City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Blacktown City Council (the council) of Development Application 08-1617 for the use of an existing factory building for a brothel at 15 Bearing Road, Seven Hills (the site).

2 The sole issue raised by the council was that the proposed brothel is unacceptably near and visible to a church at Unit 3/20 Bearing Road.

3 The following owners and occupiers of industrial premises provided evidence on the site view:

The Reverend Heather Wright of the Hope Wesleyan Methodist Church (the Church), Unit 3/20 Bearing Road,
Mr Peter Sterling, 13 Bearing Road,
Mr Jason Dymoch, Unit 1/13 Bearing Road,
Ms Patricia Wilson, Unit 1/9 Bearing Road,
Mr Rod Higgens, 16 Bearing Road, and
Ms Lorraine Colquhoun, Unit 1/11 Bearing Road.

4 They objected to the development for one or more of the following reasons:

a brothel is incompatible with the existing church,
devaluation of properties,
incompatibility with family run businesses,
unacceptable impact on young apprentices,
security,
increase in traffic,
feeling of unease at having to walk past the premises,
damage to reputation of companies in the area,
attraction of undesirable persons, and
conflict with council's planning controls.

5 Reverend Wright provided the following details of the use of the Church:

We own two of the three warehouses in our complex and have a valid DA approval to use 3/20 Bearing Road for Church Ministry. We will have been in Bearing Road for 4 years in March 2009, and expect to be in this area for many years to come.

Our congregation consists of 25 regular attendees, and a further 14 in a clear relationship with the church and receiving ministry from the Church.

Our DA allows for 48 and we have plans that will assist our growth to that number. Further, we hold mid week functions on a regular basis, and Saturday programs on a fairly regular basis.

Our current program consists of the followinq

Sunday

- Morning Worship Service 9am…

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 1044
Decision Date: 24 February 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered an appeal by Shao Ling Wang against the Blacktown City Council's refusal to approve a development application for converting an existing factory building into a brothel. The council's sole objection was that the brothel would be unacceptably near and visible to a church, which they argued contravened planning controls. The applicant argued that strict compliance with the development standard was unreasonable and unnecessary due to the discreet nature of the proposed operations and the lack of direct visibility and interaction with the church. The Court examined the objectives and legal interpretation of the planning controls, including the State Environmental Planning Policy No 1, which provides flexibility in applying planning controls when strict compliance would be unreasonable. The Court found that the underlying objective of the development standard was to separate sensitive land uses to prevent potential conflict or offense, and the visibility of the brothel from the church, even partial, was enough to invoke the development standard. Therefore, the State Environmental Planning Policy No 1 objection was not well founded, and the appeal was dismissed, affirming the council's decision to refuse the development application.

Orders