Wang and Anor v Canterbury City Council [2013] NSWLEC 1098

Wang and Anor v Canterbury City Council [2013] NSWLEC 1098

The application had to be determined without regard to the 2012 Local Environmental Plan because the savings clause required the plan to be treated as not having commenced, including when considered through the public interest. The alleged feared risks to children were unsupported by evidence of a realistic likelihood. The identified amenity, surveillance, litter, parking, privacy and compliance concerns did not justify refusal because they could be addressed by conditions, including CCTV and data retention conditions and the proffered privacy condition. However, because past failures and uncertainty about mitigation meant the Court could not be satisfied that an open-ended consent was...

Jurisdiction
Australia
Judgment Date
20 May 2013
Procedural Posture
Class 1 Appeal Concerning Development Consent for Continued Use of Premises as a Brothel / Decision in Principle That the Appeal Will Be Upheld and a Time Limited Consent Granted Subject to Conditions, Including a Deferred Commencement Condition, When Conditions Have Been Settled and Filed
Outcome
Decision in principle that the appeal will be upheld and a time-limited development consent granted subject to settled conditions, including a deferred commencement condition.
Legal Topics
['development Consent' 'brothel Use' 'local Environmental Plan Savings Clause' 'deferred Commencement Condition' 'time Limited Consent' 'amenity Impacts' 'past Conduct and Planning Impacts']
['planning and Environment Law' 'local Government Law'] ['development Consent' 'brothel Use' 'local Environmental Plan Savings Clause' 'deferred Commencement Condition' 'time Limited Consent' 'amenity Impacts' 'past Conduct and Planning Impacts']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Development Consent for Continued Use of Premises as a Brothel / Decision in Principle That the Appeal Will Be Upheld and a Time Limited Consent Granted Subject to Conditions, Including a Deferred Commencement Condition, When Conditions Have Been Settled and Filed

Legal Issues

  1. 1 ['Whether the development application for continued use of the premises as a brothel should be determined without regard to the 2012 Local Environmental Plan because of the savings clause.' 'Whether the 2012 Local Environmental Plan prohibition on brothel use could be considered as a matter of public interest under s 79C(1)(e) of the Environmental Planning and Assessment Act 1979.' 'Whether amenity, parking, privacy, security, surveillance and past compliance issues justified refusal or could be addressed by conditions.' 'Whether any development consent should be ongoing or time-limited.']

Ratio Decidendi

The application had to be determined without regard to the 2012 Local Environmental Plan because the savings clause required the plan to be treated as not having commenced, including when considered through the public interest. The alleged feared risks to children were unsupported by evidence of a realistic likelihood. The identified amenity, surveillance, litter, parking, privacy and compliance concerns did not justify refusal because they could be addressed by conditions, including CCTV and data retention conditions and the proffered privacy condition. However, because past failures and uncertainty about mitigation meant the Court could not be satisfied that an open-ended consent was...

Court Disposition

Decision in principle that the appeal will be upheld and a time-limited development consent granted subject to settled conditions, including a deferred commencement condition.

Orders

  • ['The appeal should be upheld when a settled condition of consent is imported dealing with closed-circuit television camera installation and preservation of data, on a deferred commencement basis, and the condition contained in Exhibit C is incorporated.' 'When those conditions are finalised and provided to the...