Hack, Hack and anor v Randwick City Council [2010] NSWLEC 1053

Hack, Hack and anor v Randwick City Council [2010] NSWLEC 1053

The proposed brothel was unacceptable because its common access arrangements with residential and commercial units and its street-front intercom access created an unacceptable potential for conflict, offence, disturbance and congregation of patrons, contrary to the Martyn planning principles and inconsistent with the relevant zone and cl 42D objectives. Development consent for DA/586/2009 therefore could not be granted. The proposed modification of Development Consent No. 778/2005 would not be substantially the same development because deleting the restriction to remedial massage, removing staff restrictions and extending hours would qualitatively and fundamentally change the approved use...

Jurisdiction
Australia
Judgment Date
16 March 2010
Procedural Posture
Three Related Appeals Concerning Use of Unit 6, 878 890 Anzac Parade, Maroubra as a Brothel: Appeal Against a Brothel Closure Order, Appeal Against Refusal of Da/586/2009, and Appeal Against Refusal to Modify Development Consent No. 778/2005. / Judgment After Hearing
Outcome
Appeal No 10796 of 2009 dismissed and DA/586/2009 refused; Appeal No 10842 of 2009 dismissed and modification application refused; for Appeal No 10258 of 2009, the Court found an order requiring cessation of use as a brothel appropriate and allowed further short submissions on the form of order before final orders.
Legal Topics
['brothel Development Application' 'brothel Closure Order' 'modification of Development Consent' 'zone Objectives' 'maroubra Junction Town Centre Objectives' 'planning Principles for Locating Brothels' 'substantially the Same Development Test']
['planning and Environment Law' 'land Use and Development Control'] ['brothel Development Application' 'brothel Closure Order' 'modification of Development Consent' 'zone Objectives' 'maroubra Junction Town Centre Objectives' 'planning Principles for Locating Brothels' 'substantially the Same Development Test']

Case Brief

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Procedural Posture

Three Related Appeals Concerning Use of Unit 6, 878 890 Anzac Parade, Maroubra as a Brothel: Appeal Against a Brothel Closure Order, Appeal Against Refusal of Da/586/2009, and Appeal Against Refusal to Modify Development Consent No. 778/2005. / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the site was suitable for use as a brothel having regard to zone objectives, cl 42D objectives and planning principles in Martyn v Hornsby Shire Council [2004] NSWLEC 614.' 'Whether DA/586/2009 to use Unit 6 as a brothel should be approved or refused.' 'Whether Development Consent No. 778/2005 could be modified by deleting conditions restricting the premises to remedial massage and limiting employees, and by extending hours of operation.' 'Whether the consent as modified would be substantially the same development as the development for which consent was originally granted.' 'Whether an order requiring the applicant to cease using the site for a brothel was appropriate.']

Ratio Decidendi

The proposed brothel was unacceptable because its common access arrangements with residential and commercial units and its street-front intercom access created an unacceptable potential for conflict, offence, disturbance and congregation of patrons, contrary to the Martyn planning principles and inconsistent with the relevant zone and cl 42D objectives. Development consent for DA/586/2009 therefore could not be granted. The proposed modification of Development Consent No. 778/2005 would not be substantially the same development because deleting the restriction to remedial massage, removing staff restrictions and extending hours would qualitatively and fundamentally change the approved use...

Court Disposition

Appeal No 10796 of 2009 dismissed and DA/586/2009 refused; Appeal No 10842 of 2009 dismissed and modification application refused; for Appeal No 10258 of 2009, the Court found an order requiring cessation of use as a brothel appropriate and allowed further short submissions on the form of order before final orders.

Orders

  • ['In Appeal No 10796 of 2009, the appeal is dismissed.' 'DA/586/2009 to use Unit 6, 878-890 Anzac Parade, Maroubra as a brothel is refused.' 'In Appeal No 10796 of 2009, the exhibits are returned, except exhibits A, B, 2, 3 and 4.' 'In Appeal No 10842 of 2009, the appeal is dismissed.' 'The application to modify...