Simply Healthy v Burwood Council [2009] NSWLEC 1440

Simply Healthy v Burwood Council [2009] NSWLEC 1440

While the draft Burwood LEP 2008 is entitled to significant weight, the proposed brothel is not inconsistent with the objectives of the draft instrument or the B4 zoning; the site is not inappropriate for a brothel given absence of specific impact evidence or proximity to sensitive land uses; accordingly, consent should be granted.

Parties
Applicant: Simply Healthy; Respondent: Burwood Council
Jurisdiction
Australia
Judgment Date
31 December 2009
Procedural Posture
Appeal Against Refusal of Development Application / Judgment at First Instance
Outcome
Appeal upheld; development consent granted
Legal Topics
Development Applications, Land Use Zoning, Brothels Regulation, Draft Planning Instruments, Merits Review
Planning Law Environmental Law Administrative Law Development Applications Land Use Zoning Brothels Regulation Draft Planning Instruments Merits Review

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Parties

Simply Healthy

Applicant

Burwood Council

Respondent

Procedural Posture

Appeal Against Refusal of Development Application / Judgment at First Instance

Legal Issues

  1. 1 Whether the draft Burwood Town Centre Local Environmental Plan 2008 prohibiting brothels should be given significant weight in determining the development application for a brothel
  2. 2 Whether the proposed location is unsuitable due to proximity to sensitive uses or potential concentration of brothels

Ratio Decidendi

While the draft Burwood LEP 2008 is entitled to significant weight, the proposed brothel is not inconsistent with the objectives of the draft instrument or the B4 zoning; the site is not inappropriate for a brothel given absence of specific impact evidence or proximity to sensitive land uses; accordingly, consent should be granted.

Court Disposition

Appeal upheld; development consent granted

Orders

  • The appeal is upheld.
  • Development consent is granted to Development Application DA 2008/185 for the change of use of an existing two-storey building at 8 Railway Parade Burwood subject to specified conditions.