Alexander Avenue Centre Pty Ltd v Sutherland Shire Council [2013] NSWLEC 1188

Alexander Avenue Centre Pty Ltd v Sutherland Shire Council [2013] NSWLEC 1188

The expanded brothel could be approved because the parking shortfall before 2pm was addressed by conditions limiting use before 2pm on weekdays to five work rooms and five sex workers, while nine spaces would be available after 2pm through shared use of takeaway café spaces. Clause 36(5)(i) of the Sutherland Local Environmental Plan 2006 did not apply because the development was confined to internal alterations and use of the first floor and was not development for the purpose of a building; even if it applied, the SEPP 1 objection would be upheld. A condition requiring 4% landscaping could not be imposed because the internal works had no visual impact and the condition was not shown to...

Jurisdiction
Australia
Judgment Date
09 October 2013
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Final Determination After Hearing
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application for Brothel Expansion' 'car Parking Requirements' 'landscaping Development Standard' 'state Environmental Planning Policy No 1 Objection' 'conditions of Consent']
['environmental Planning and Development' 'land Use Planning'] ['development Application for Brothel Expansion' 'car Parking Requirements' 'landscaping Development Standard' 'state Environmental Planning Policy No 1 Objection' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether the proposed expansion from three to eight work rooms and extended hours provided appropriate levels of on-site car parking under cl 53 of the Sutherland Local Environmental Plan 2006 and Chapter 7 of the Sutherland Shire Development Control Plan 2006.' 'Whether the brothel should be restricted before 2pm on weekdays because only six car parking spaces were available before the takeaway café closed.' 'Whether cl 36(5)(i) of the Sutherland Local Environmental Plan 2006 applied to internal building works for expansion of the brothel and required 10% landscaped area.' 'Whether, if cl 36(5)(i) applied, the State Environmental Planning Policy No 1 objection should be upheld.' 'Whether a condition requiring 4% landscaping at the front of the site could lawfully or appropriately be imposed.']

Ratio Decidendi

The expanded brothel could be approved because the parking shortfall before 2pm was addressed by conditions limiting use before 2pm on weekdays to five work rooms and five sex workers, while nine spaces would be available after 2pm through shared use of takeaway café spaces. Clause 36(5)(i) of the Sutherland Local Environmental Plan 2006 did not apply because the development was confined to internal alterations and use of the first floor and was not development for the purpose of a building; even if it applied, the SEPP 1 objection would be upheld. A condition requiring 4% landscaping could not be imposed because the internal works had no visual impact and the condition was not shown to...

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application DA12/0614 for an increase in rooms, staff numbers, and trading hours for a brothel at 64 Alexander Avenue Taren Point, is approved subject to the conditions in Annexure A.' 'The exhibits are returned except for exhibits A, E, 1, 8 and 11.']