Gioxle Pty Ltd v Canada Bay Council [2010] NSWLEC 1003

Gioxle Pty Ltd v Canada Bay Council [2010] NSWLEC 1003

Even assuming cl 6.6(1)(b) was a development standard capable of variation, the applicant's request did not satisfy cl 4.6(4)(a). The premises adjoined the Five Dock Library, a community use, and were across the road from a church, so the proposal did not meet the objective of separating sex services premises from sensitive uses to minimise potential conflict. The Court was not satisfied that compliance was unreasonable or unnecessary, that there were sufficient environmental planning grounds for contravention, or that the proposal was in the public interest. The development application therefore could not be approved and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
08 January 2010
Procedural Posture
Appeal Pursuant to S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Judgment Determining the Appeal
Outcome
Appeal dismissed; development application refused.
Legal Topics
['change of Use to Sex Services Premises' 'canada Bay Local Environmental Plan 2008' 'development Standards and Variations' 'impacts on Children and Sensitive Land Uses' 'brothel Location Criteria']
['planning and Environment Law' 'development Consent'] ['change of Use to Sex Services Premises' 'canada Bay Local Environmental Plan 2008' 'development Standards and Variations' 'impacts on Children and Sensitive Land Uses' 'brothel Location Criteria']

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Procedural Posture

Appeal Pursuant to S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Judgment Determining the Appeal

Legal Issues

  1. 1 ['Whether cl 6.6(1)(b) of Canada Bay Local Environmental Plan 2008 prohibited the proposed sex services premises or was a development standard capable of variation under cl 4.6.' "Whether the applicant's written request under cl 4.6 adequately demonstrated that compliance with cl 6.6(1)(b) was unreasonable or unnecessary and that there were sufficient environmental planning grounds to justify contravention." 'Whether the proposed development would be in the public interest because it was consistent with the objectives of the standard and the B4 Mixed Use zone.' 'Whether likely impacts on children and sensitive uses, including the library and church, made the proposal unacceptable.']

Ratio Decidendi

Even assuming cl 6.6(1)(b) was a development standard capable of variation, the applicant's request did not satisfy cl 4.6(4)(a). The premises adjoined the Five Dock Library, a community use, and were across the road from a church, so the proposal did not meet the objective of separating sex services premises from sensitive uses to minimise potential conflict. The Court was not satisfied that compliance was unreasonable or unnecessary, that there were sufficient environmental planning grounds for contravention, or that the proposal was in the public interest. The development application therefore could not be approved and the appeal was dismissed.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' "The development application (DA118/09) for a proposed change of use from a previously approved 'Muscular, Joint and Aromatherapeutic Clinic' to a 'Sex Services Premises' at 133 Great North Road, Five Dock is refused." 'The exhibits may be returned.']