Zhang v Ashfield Council - [2004] NSWLEC 259

Land and Environment Court

of New South Wales

CITATION: Zhang v Ashfield Municipal Council [2004] NSWLEC 259

PARTIES:
APPLICANT
Hai Hang Zhang
RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S): 10027 of 2004

CORAM: Bly C

KEY ISSUES: Development Application :- Brothel - inappropriate location - social impact - management

LEGISLATION CITED: Ashfield Local Environmental Plan 1985
Environmental Planning and Assessment Act 1979
Restricted Premises Act

CASES CITED:

DATES OF HEARING: 03-04/05/2004

DATE OF JUDGMENT: 06/01/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D J Galpin, barrister
RESPONDENT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10027 of 2004

Bly C

1 June 2004

Hai Hang Zhang
Applicant

Ashfield Municipal Council

Judgment

Introduction
1. This appeal relates to a development application for the use of the first floors of the two adjoining premises at Nos. 293 and 295 Liverpool Road, Ashfield, as a brothel. The applicant has conceded that the premises above No. 295 have been operated without the necessary development consent as a brothel for a number of years. These premises are to be extended into No. 293 by making openings in the party wall. There are to be six working rooms with associated waiting, service and amenity rooms. Other minor internal building works are proposed.
2. The site is located at the north-eastern corner of Liverpool Road and Chessel Lane in the Ashfield shopping/commercial centre. Development in the vicinity of the site comprises a wide mixture of retail, commercial, residential and community activities and facilities including an apartment building, hotel, schools and a church. The heavily trafficked Liverpool Road has two bus stops in close proximity to the site. The Ashfield Railway Station and bus interchange is located a short distance to the north.
3. There are to be no more than six sex workers and one manager/receptionist on the premises at any one time. The proposed hours of operation were to be 24 hours per day seven days per week but on the advice of the applicant’s consultant town planner this has been changed to exclude Sundays between 8 a.m. and 8 p.m. and all-day on Good Friday and Christmas Day.
4. The entrance to the brothel is via a single doorway and stair off Liverpool Road. There are stairs at the rear providing access to Chessel Lane. Again, on the advice of the applicant’s town planner, the use of this rear access is to be limited to staff and emergency egress.
Statutory provisions
5. The site is situated in Zone No. 3(a) General Business Zone of Ashfield Local Environmental Plan 1985 ("the LEP") in which zone the proposal, being commercial premises, is permissible with development consent. There are no objectives for this zone but the respondent says that, in this case, the relevant objective of the LEP is to:

Promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment.

6 . Council…

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: [2004] NSWLEC 259
Decision Date: 06/01/2004

CaseChat Overview and Summary

In Zhang v Ashfield Municipal Council, the Land and Environment Court of New South Wales was required to determine an appeal against the decision of the Ashfield Municipal Council to refuse a development application for the use of premises at 293 and 295 Liverpool Road, Ashfield, as a brothel. The primary issues were whether the brothel was inappropriately located and whether it would have an adverse social impact on the community. The Court found that the brothel would be sufficiently discreet, and that the proposed location was not inappropriate despite its proximity to schools and churches. The Court concluded that the brothel would not have an adverse social impact on the community, and that the proposal was consistent with the objective of promoting the orderly and economic development of Ashfield. The appeal was upheld, and conditional development consent was granted subject to various conditions, including a deferred commencement condition requiring the preparation of a revised plan of management. The Court also included additional conditions to protect the amenity of existing development and to restrict the use of the rear doors to emergency egress only.

Orders