Boston Blyth Fleming v Kogarah City Council [2011] NSWLEC 1050

Boston Blyth Fleming v Kogarah City Council [2011] NSWLEC 1050

The application was approved because, despite non-compliance with the locational development standards in cl 23, the separation and walking distance from nearby dwellings, the lack of visible and physical connections to sensitive premises, the site's location within an area identified by the DCP for brothels, and the agreed Management Plan and consent conditions meant that the proposal would be consistent with the zone objectives and DCP controls; compliance with the cl 23 standards was unreasonable and unnecessary and the SEPP 1 objection was well founded.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Appeal Under S 96(1) of the Environmental Planning and Assessment Act, 1979 Against the Deemed Refusal of a Development Application / Consent Orders; Principal Judgment
Outcome
The appeal was upheld and Development Application No. 384/2010 was approved subject to conditions.
Legal Topics
['development Consent' 'brothel Use' 'proximity to Sensitive Land Uses' 'development Standards' 'sepp 1 Objection' 'consent Orders']
['planning and Environment Law'] ['development Consent' 'brothel Use' 'proximity to Sensitive Land Uses' 'development Standards' 'sepp 1 Objection' 'consent Orders']

Case Brief

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Procedural Posture

Appeal Under S 96(1) of the Environmental Planning and Assessment Act, 1979 Against the Deemed Refusal of a Development Application / Consent Orders; Principal Judgment

Legal Issues

  1. 1 ['Whether development consent should be granted for the fitout and use of an existing building at No. 65 Planthurst Road, Carlton as a brothel.' 'Whether the proposed brothel, with conditions and a Management Plan, would be consistent with the zone objectives and Development Control Plan No. 15 - Regulation of Brothels.' 'Whether the objection to the development standards in cl 23(1)(a) and (b) of Kogarah Local Environmental Plan 1998 was well founded under State Environmental Planning Policy No 1 - Development Standards.']

Ratio Decidendi

The application was approved because, despite non-compliance with the locational development standards in cl 23, the separation and walking distance from nearby dwellings, the lack of visible and physical connections to sensitive premises, the site's location within an area identified by the DCP for brothels, and the agreed Management Plan and consent conditions meant that the proposal would be consistent with the zone objectives and DCP controls; compliance with the cl 23 standards was unreasonable and unnecessary and the SEPP 1 objection was well founded.

Court Disposition

The appeal was upheld and Development Application No. 384/2010 was approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No. 384/2010 for the fitout and use of an existing building at Lot 6 DP 217221 No. 65 Planthurst Road, Carlton for the purposes of a brothel is approved subject to the conditions in Annexure "A".' 'The exhibits, other than Exhibit A, can be returned.']