BANKSTOWN CITY COUNCIL v. JOSEPH ATTALLAH [1998] NSWLEC 23

Land and Environment Court of New South Wales

CITATION : BANKSTOWN CITY COUNCIL v. JOSEPH ATTALLAH [1998] NSWLEC 23 PARTIES : BANKSTOWN CITY COUNCIL v. JOSEPH ATTALLAH FILE NUMBER(S) : 40107 of 1998 CORAM: Cowdroy J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Walsh v Bankstown City Council 96 LGERA 62; CASES CITED: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341; Fatsel Pty Limited v ACR Trading Pty Limited & Another [3] (1987) 64 LGRA 177 DATES OF HEARING: 23 September 1998 DATE OF JUDGMENT: 09/25/1998

Mr A Seton Solicitor LEGAL REPRESENTATIVES: Mr W G Hodgekiss Barrister

JUDGMENT: 4 Zoning

1. By Application Class filed 4 June 1998 Bankstown City Council ("the Council") seeks declarations and orders to restrain the use of premises situated at 2 Clements Avenue, Bankstown ("the premises") from being used for the purpose of prostitution. Such premises are located within Zone 4(a) Industrial General "A" under the Bankstown Planning Scheme Ordinance ("the Ordinance"). Within such zone, commercial purposes other than rag collecting and dealing is prohibited. Specifically, the use of a brothel is prohibited in such zone pursuant to Clause 77D as detailed hereunder which was inserted into the Ordinance on 24 April 1998 in consequence of the gazettal on that date of the Bankstown Local Environmental Plan No 201 ("the LEP").

2. Clause 4(1) of the Ordinance was amended the LEP by insertion of the following definition:- "brothel" means premises habitually used for the purposes of prostitution or are designed for the purpose. Premises may constitute a brothel even though used by only one prostitute for the purposes of prostitution. A brothel cannot, for the purposes of this Ordinance, be considered to be commercial premises or a home business. The second amendment to the Ordinance was the insertion of Clause 77D which provides:- "(1) Despite any other provision of this Ordinance, brothels are prohibited on the land to which this Ordinance applies, subject to subclause (2). (2) A person may, with the consent of the Council, carry out development for the purpose of a brothel on certain industrial land in Villawood, Greenacre, Milperra and South Bankstown, as shown edged heavy black on Sheets 1-4 of the map marked "Bankstown Local Environmental Plan No. 201 (Location of Brothels) deposited in the office of the Council."