Yang v Blacktown City Council - [2005] NSWLEC 282

Land and Environment Court

of New South Wales

CITATION:
Yang v Blacktown City Council [2005] NSWLEC 282

PARTIES:
APPLICANT
Eric Yang
RESPONDENT
Blacktown City Council

FILE NUMBER(S):
11371 of 2004

CORAM:
Hoffman C

KEY ISSUES:
Appeal :- Brothel -carparking - security measures - social and economic impacts - issues raised by objectors

LEGISLATION CITED:
Blacktown Local Environmental Plan 1998
Blacktown Development Control Plan 1992

CASES CITED:
Parry Properties Pty Ltd v Ashfield Municipal Council No. 2 [2001] NSWLEC 62;
Venus Enterprises v Parramatta City Council, [1981] 43 LGERA 67;
Cartier Holdings Pty Ltd v Newcastle CC [2001] NSWLEC 70;
Martyn v Hornsby SC [2004] NSWLEC 614

DATES OF HEARING: 07-08/03/20051

EX TEMPORE JUDGMENT DATE:
05/19/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Creighton, agent
RESPONDENT
Mr T O'Connor, solicitor
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

19 May 2005

11371 of 2004 Eric Yang v Blacktown City Council

JUDGMENT

1 This is a class 1 appeal, No. 11371 of 2004 between Eric Yang and Blacktown Council in regard to refusal of a brothel in industrial unit Nos. 11 and 12 in an existing development at No. 12 Forge Street, Blacktown.

2 The applicant sought opening hours of seven days a week, 24 hours a day. The area is zoned 4(A) Industrial under the Blacktown Local Environmental Plan 1998. The use for a brothel is permissible with consent of the responsible authority. Part E of the Blacktown Development Control Plan 1992 stated controls on brothels in the industrial zone in Ch 6, Pt E. The Local Environmental Plan contains statutory provisions in cl 43(A).

3 The brothel occupies industrial units having direct street frontage with an entry door immediately beside a take-away food shop that services the industrial area. Outside the shop are some tables and chairs used by shop patrons whilst consuming food.

4 Just inside the front boundary through the drive entry gates to the shared carpark there are two roller doors to garages one in each of the brothel units. At the time of the on-site hearing one was fitted out as a CCTV security camera office, with TV screens, telephones, files and office furniture. The other roller door and garage was used for storage.

5 The two industrial bays had been joined by the opening of doorways through the fire separation walls. The customer service rooms had showers installed by breaking up the concrete slabs to lay pipes. There was cracking of the concrete masonry walls in places, both inside and outside. Air conditioning units have been installed on the roof and external flood lights installed in various places.

6 The secretary of the Owners Corporation of Strata Plan No. SP70989, the Industrial Bay Development of which the brothel was part, gave uncontested evidence that these works had been done without consent of the body corporate. The council indicated there was no council consents either.

7 At the rear of the brothel units was a shared carpark.…

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: [2005] NSWLEC 282
Decision Date: 05/19/2005

CaseChat Overview and Summary

The applicant, Eric Yang, sought to establish a brothel in industrial units at 12 Forge Street, Blacktown, NSW. The Blacktown City Council refused consent for the proposed brothel. The matter was heard in the Land and Environment Court of New South Wales, where the primary judge was Hoffman C. The key issues before the court were whether the proposed development provided adequate carparking, suitable security measures, and complied with the local environmental plan. Other issues included the social and economic impacts on the surrounding community and whether the brothel's location was suitable.

The court found that the proposed development did not make adequate provision for carparking, as only two carparks were available for a business requiring nine spaces. The court also found that the proposed security measures were not satisfactory, as the brothel's accesses were prominent and likely to cause offence to the surrounding community. Additionally, the court found that the location of the brothel was unsuitable, as its street entry was directly beside an existing shop and its customer tables and chairs, causing brothel clientele to interact with other owners, employees, and customers in the industrial development.

The court dismissed the appeal and refused consent for the proposed brothel, stating that the three determinative impacts of the brothel's operation, including offence to a considerable number of adjoining and adjacent business owners, their employees, their customers, and concern for minors either unaccompanied or accompanying adults, could not be ameliorated to acceptable levels through the proposed hours of operation and plan of management.

Orders