Yan v Marrickville Council - [2001] NSWLEC 71

Land and Environment Court

of New South Wales

CITATION: Yan v Marrickville Council [2001] NSWLEC 71

PARTIES: APPLICANT
Xia YAN
RESPONDENT
Marrickville Council

FILE NUMBER(S): 10156 of 2000

CORAM: Sheahan J

KEY ISSUES: Question of Law :- existing use - change of use of premises to brothel

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1980
Environmental Planning and Assessment Regulation 1994
Marrickville Planning Scheme Ordinance

CASES CITED: Auburn Council v Constanti (2000) 109 LGERA 355;
Auburn Council v Nehme (1999) 106 LGERA 19;
Shire of Perth v O'Keefe (1963) 10 LGRA 147;
Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123

DATES OF HEARING: 08/02/2001

DATE OF JUDGMENT:
04/19/2001

LEGAL REPRESENTATIVES:
APPLICANT
Barrister
Mr A Pickles
Solicitors
Bowen & Gerathy
RESPONDENT
Mr A Hudson Solicitor
Solicitors
Wilshire Webb

JUDGMENT:

XIA YAN

Applicant

MARRICKVILLE COUNCIL

Respondent

JUDGMENT

Introduction

1. Mr Yan wishes to use premises at 260 Unwins Bridge Road, Sydenham for the purposes of a brothel.

2. The premises have a long-standing history as a “shop”.

3. The Council rejected Mr Yan’s development application and he lodged a class 1 appeal on 25 February 2000.

4. On 26 October 2000, the Council filed Class 4 proceedings (40166 of 2000), seeking, against Mr Yan, orders restraining the use of the subject premises for the purposes of a brothel or massage parlour, or as commercial premises, including as a brothel or massage parlour. Consequential relief requiring removal of beds, etc. associated with such use, and an order for costs, are also sought.

5. In the Class 1 appeal the following “preliminary questions of fact and law” have been raised:

1 Given that the property has the benefit of a consent in force and acknowledging that the use for which consent was granted is not continuing, whether on the hearing of the appeal, the Court may grant consent to change the use of the premises from the use for which consent was granted to another use prohibited under the Marrickville Planning Scheme Ordinance pursuant to s108 of the EP&A Act and clause 39 of the Environmental Planning and Assessment Regulation.
2 If the answer to question 1 is “no”, does the premises have the benefit of existing use rights within the meaning of s106 of the EP&A Act.
3 If the answer to question 2 is “yes”, whether the existing use rights [sic] been abandoned.

6. As Duty Judge on 4 December 2000, I ruled that these preliminary questions in the class 1 proceedings should be dealt with first, and ordered that the Class 4 proceedings stand adjourned until the delivery of the court’s judgment on those questions.

7. This judgment deals now with the preliminary questions.

The factual background

8. The parties agreed upon a statement of facts, from which the following are noted.

9. The premises on land at 260 Unwins Bridge Road, Sydenham (“the land”) comprise a two storey brick building.

10. In 1941,…

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: [2001] NSWLEC 71
Decision Date: 04/19/2001

CaseChat Overview and Summary

Xia Yan sought to change the use of premises at 260 Unwins Bridge Road, Sydenham, from a shop to a brothel. The Marrickville Council rejected the development application and sought orders restraining the use of the premises for the purposes of a brothel or massage parlour, or as commercial premises, including as a brothel or massage parlour. The Land and Environment Court had to determine whether the applicant could rely on existing use provisions to change the use of the premises to a brothel. The key issues included whether the existing use of the premises could be changed to another use prohibited under the Marrickville Planning Scheme Ordinance, whether the premises had the benefit of existing use rights, and whether those rights had been abandoned.

The court found that the existing use rights to the premises had been abandoned. The applicant's interpretation of the effect of the two Auburn Council decisions was incorrect, and the newsagency use could not be reactivated and changed again under the "existing use" scheme in the Environmental Planning and Assessment Act 1979. The court concluded that the applicant could not change the use of the shop from "newsagency" to "brothel" in reliance on the "existing use" provisions. The answers to the questions posed were: 1. No, 2. No, and 3. Does not apply.

The Land and Environment Court dismissed the applicant's appeal and ordered that the class 1 and class 4 proceedings be listed for callover by the Registrar on Friday 27 April 2001. Exhibit M1 should remain in the class 1 file.

Orders