Canterbury City Council v Wang & Anor; Fowler & Anor v Canterbury City Council [2008] NSWLEC 99

Canterbury City Council v Wang & Anor; Fowler & Anor v Canterbury City Council [2008] NSWLEC 99

Having considered the affidavit and documentary evidence, Council's submissions, and the relevant planning instruments including the LEP and DCP, the Court was satisfied that the two consent declarations were appropriate because they clarified the nature of the existing development consent and the status of any suitable brothel use as identified development, allowing the related Class 1 questions of law to fall away.

Jurisdiction
Australia
Judgment Date
04 March 2008
Procedural Posture
Class 4 Proceedings to Restrain the Use of Premises as a Brothel Without Consent; Class 1 Appeal Against Refusal of Development Consent / Ex Tempore Judgment Making Declarations and Orders by Consent; Class 1 Proceedings Part Heard and Class 4 Proceedings Stood Over
Outcome
Declarations and procedural orders made by consent; costs reserved.
Legal Topics
['declarations' 'brothel Use' 'health Consulting Rooms' 'identified Development' 'permissibility' 'local Environmental Plan' 'development Control Plan']
['planning and Environmental Law' 'development Consent' 'land Use'] ['declarations' 'brothel Use' 'health Consulting Rooms' 'identified Development' 'permissibility' 'local Environmental Plan' 'development Control Plan']

Case Brief

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Procedural Posture

Class 4 Proceedings to Restrain the Use of Premises as a Brothel Without Consent; Class 1 Appeal Against Refusal of Development Consent / Ex Tempore Judgment Making Declarations and Orders by Consent; Class 1 Proceedings Part Heard and Class 4 Proceedings Stood Over

Legal Issues

  1. 1 ['Whether Development Consent 910/2005 for the premises was a consent for development for the purpose of health consulting rooms as defined in Canterbury Local Environmental Plan No.148 – Campsie Precinct.' 'Whether, if the premises are found suitable for use as a brothel, that use will fall within the definition of identified development under Canterbury Local Environmental Plan No.148 – Campsie Precinct.' "How the Class 4 proceedings and the part-heard Class 1 appeal should proceed after the parties' agreement."]

Ratio Decidendi

Having considered the affidavit and documentary evidence, Council's submissions, and the relevant planning instruments including the LEP and DCP, the Court was satisfied that the two consent declarations were appropriate because they clarified the nature of the existing development consent and the status of any suitable brothel use as identified development, allowing the related Class 1 questions of law to fall away.

Court Disposition

Declarations and procedural orders made by consent; costs reserved.

Orders

  • ['The Consent to Development Application Numbered by the Applicant as 910/2005 to use Lot B DP 368248 being 269 Canterbury Road, Canterbury for proposed fitout and use as a Chinese acupuncture and therapeutic massage clinic is a consent to carry out development for the purpose of health consulting rooms as defined...