Ai v The Council of the City of Newcastle [2003] NSWLEC 123

> Reported Decision : 126 LGERA 194

Land and Environment Court of New South Wales

CITATION : Ai v The Council of the City of Newcastle [2003] NSWLEC 123 APPLICANT Xiao Ping Ai PARTIES : RESPONDENT The Council of the City of Newcastle FILE NUMBER(S) : 10314 of 2002 CORAM: Pain J KEY ISSUES: Appeal :- s 56A appeal - whether Commissioner erred at law - proposed brothel development - whether residential occupation is prohibited development in Zone No 4(a) under Newcastle Local Environmental Plan 1987 - whether the Commissioner should have had any regard to the fact that a neighbouring property was unlawfully residentially occupied in applying DCP 46 - whether the Commissioner should have had greater regard to the zone objectives - Commissioner held that the application failed based on a locational requirement in the DCP - whether the Commissioner should have considered other relevant matters under s 79C(1) Environmental Planning and Assessment Act 1979 s 79C Environmental Planning and Assessment Model Provisions 1980 LEGISLATION CITED: Land and Environment Court Act 1979 s 56A Land and Environment Court Rules 1996 Pt 13 r 14 Newcastle Local Environmental Plan 1987 cl 9, cl 12 Newcastle Development Control Plan 46 cl 6.1 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Ervin Mahrer & Partners v Strathfield Municipal Council [2002] NSWLEC 47; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Parramatta City Council v Hale (1982) 47 LGRA 319; CASES CITED: Randwick Municipal Council v Crawley (1986) 60 LGRA 277; Russo v Kogarah Council (1995) 86 LGERA 300; Weal v Bathhurst City Council (2000) 111 LGERA 181; Wyong Shire Council v Ardi Pty Limited (2000) 112 LGERA 85; Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 73 LGRA 47; Zhang v Canterbury City Council (2001) 115 LGERA 373 DATES OF HEARING: 18/03/2003 DATE OF JUDGMENT: 05/28/2003