Wei v Parramatta City Council - [2010] NSWLEC 1046

Reported Decision: 175 LGERA 1

Land and Environment Court

of New South Wales

CITATION: Wei v Parramatta City Council [2010] NSWLEC 1046

PARTIES:
APPLICANT
Xing Xing Wei
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10826 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- Brothel

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1993
Sydney Regional Environmental Plan No 28 - Parramatta
Parramatta Development Control Plan Sex Services and Restricted Premises

CASES CITED: Newbury District Council v Secretary of State for the Environment [1911] AC 578
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Wei v Parramatta City Council [2008] NSWLEC 1157

DATES OF HEARING: 19 February 2010

DATE OF JUDGMENT:
17 March 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Baird, barrister
instructed by Mr B Barrak
of Barrak Lawyers
RESPONDENT
Mr P Marincowitz, solicitor
of Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

17 March 2010

10826 of 2009 Xing Xing Wei v Parramatta City Council
JUDGMENT

1 Commissioner: This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of development application DA/512/2009 seeking approval for the intensification of an approved brothel at Lot 180 DP 14244, 19 Brodie Street Rydalmere.

2 The premises have operated as a brothel with two service rooms and two sex workers pursuant to a development consent granted in consent orders by the Court in 2008: Wei v Parramatta City Council [2008] NSWLEC 1157. That consent included provision of one car space on site. In this application the applicant sought approval for three service rooms, three sex workers, and alterations to the first floor layout to divide the waiting area into two separate waiting rooms. The proposed third service room is currently used as a change room, and the application will require the installation of a shower in that room. It was apparent on the site view that the work to divide the waiting area into two separate waiting rooms has already been carried out, and leave was granted during the hearing to amend the application.

3 The issues between the parties concern the Plan of Management and traffic and parking. The Council contends that if the application is approved the Plan of Management for the premises should include provisions for business identification and contact requirements, record keeping procedures for employees, and the number and role of security personnel. The applicant submits that the amended plan of Management provided is adequate. In relation to traffic and parking the Council contends that if the application is approved there should be a condition restricting the number of employees on site during the hours of 6.00am to 5.00pm Monday to Friday to 2 sex workers, 1 receptionist and 1 cleaner. The applicant opposes that limitation, and proposes in the alternative a condition that on site staff be limited to…

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: [2010] NSWLEC 1046
Decision Date: 17 March 2010

CaseChat Overview and Summary

Xing Xing Wei applied for development consent in relation to a proposed intensification of an approved brothel at Lot 180 DP 14244, 19 Brodie Street, Rydalmere. The proposed intensification included an increase in the number of service rooms and sex workers, and alterations to the first floor layout. The Parramatta City Council refused the application, and the applicant appealed to the Land and Environment Court of New South Wales. The issues before the Court were whether the Plan of Management should be amended and, if so, what amendments should be made; and whether the consent should include a condition relating to the number of employees permitted on-site at particular times. The Court concluded that the Parramatta City Council Development Control Plan for Sex Services and Restricted Premises should be given limited weight. The Court held that the Plan of Management should be amended to include the name and contact details of the manager in addition to those of the operator; that it should include a provision that a roster or sign on/sign off payroll sheet be available to allow the Council to ascertain how many employees are actually on site at any time; and that it was not necessary to impose a requirement that private security be available. The Court held that the consent should include a condition limiting the number of employees on-site at particular times. The Court held that the proposed annual monitoring fee was not authorised by the Local Government Act 1993 and should not be imposed as a condition of consent. The Court concluded that the application could be approved, subject to the amendment of the Plan of Management and the imposition of a condition limiting the number of employees on-site at particular times.

Orders