Hong Hang v Holroyd City Council [2006] NSWLEC 804

Land and Environment Court of New South Wales

CITATION : Hong Hang v Holroyd City Council [2006] NSWLEC 804

APPLICANT Hong Hang PARTIES : RESPONDENT Holroyd City Council

FILE NUMBER(S) : 10024 of 2005

CORAM: Hussey C

KEY ISSUES: Development Application :- Section 96 Modification, deferred commencement conditions on drainage, disabled access provisions, BCA

LEGISLATION CITED: Environmental Planning and Assessment Act Holroyd Local Environmental Plan 1991

DATES OF HEARING: 23/10/2006, 04/12/2006 and 13/12/2006

EX TEMPORE JUDGMENT DATE : 12/13/2006

APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES:

RESPONDENT Mr R Creighton, agent and Mr J Boers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Hussey

13 December 2006

10024 of 2005 Hong Hang -v- Holroyd City Council

JUDGMENT This decision was given as an extempore decision. It has been revised and edited prior to publication.

1 This s 96 modification application was made in respect of a development consent that was granted for adjoining properties at No.178 and No.179 Military Road, Guildford. It is a staged consent whereby stage 1 envisages the maintenance with some improvements to an existing cottage on No. 178 as a temporary brothel for 12 months, to be used pending the construction of a purpose-built brothel at No. 179, the adjoining property. 2 The original consent imposed deferred commencement conditions. The main condition in this regard related to the provision of downstream stormwater drainage and that required on the acquisition of an easement over downstream properties. 3 The s 96 modification application was made by Mr Creighton and it was filed on 10 July 2006. It is a general application against conditions of consent, which lacks specificity. 4 The appeal commenced by way of an on-site hearing and that was on 23 October 2006 where there was a detailed site inspection. Arising out of that site inspection, Directions were made requiring the applicant to clarify details of the site, particularly the arrangements for the disabled access to the cottage at No.178, so there would be consistency with the other conditions of consent requiring compliance with the BCA provisions. Those Directions specified that a minimum width of 3.6 m was required for the disabled car space. 5 The matter was then adjourned and resumed on 4 December 2006. The final plans were still not in an acceptable position on resumption. At that hearing there was some confusion about the representation of the applicant at the appeal and the modified plans, in my view, were not in a position to be approved. Even though an access ramp at the rear of the dwelling had been tentatively located, there was no certainty that it was workable and complied with existing site levels and constraints such as the position of existing buildings.