Land and Environment Court New South Wales Medium Neutral Citation: Bai Yi Jian v Blacktown City Council [2011] NSWLEC 1258 Hearing dates: 23 August 2011 Decision date: 24 August 2011 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)Development consent is granted to DA -10-2062 for the use of an existing unit as a brothel and associated internal alterations of the premises at lot 1, SP 30825, 1/18 Forge Street, Blacktown is approved subject to conditions in annexure "A". (3)The exhibits are returned except for exhibit A. Catchwords: Appeal - Development application for use of a factory unit as a brothel, hours of operation, plan of management, security and parking. Legislation Cited: Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1988 Blacktown Development Control Plan 2006 Category: Principal judgment Parties: Applicant Bai Yi Jian Respondent Blacktown City Council Representation: Ms Saw Applicant (counsel) Mr O'Connor Respondent (solicitor) Applicant N/A Respondent Houston Dearn O'Connor Lawyers File Number(s): 10452 of 2011 JUDGMENT This determination was given extemporaneously and has been edited prior to publication. 1The applicant seeks consent to fit out and use an existing factory unit at 1/18 Forge St, Blacktown for the purposes of a brothel. 2The detail of the amended application is found in Exhibit A. It includes 5 working rooms, waiting areas, amenities, staff and utility areas. The brothel is proposed to operate from 6am until 5pm Monday to Friday - and from 6am to 3pm on Saturdays subject to consent from the body corporate in accord with Strata Special By Law 1. 3As council's planner Mr Apps records - in council's statement of facts and contentions dated 7 July 2011- the site is the front unit of a block of 5 units with parking at the rear. It is within an industrial area and the land is zoned 4(a) - General Industrial pursuant to the Blacktown Local Environmental Plan 1988 . Development for the purpose of a brothel is permissible with consent. 4Despite the development's permissibility council refused its consent to the original development application on 7 June 2011. This is because the council did not accept the proposed 24-hour operation of the brothel, seven days a week. In council's assessment nighttime operation of the brothel raises security issues for the site and the adjoining factory units. The owners of the adjoining units and their tenant confirmed this concern at the view. They told me that the parking area behind the brothel adjoins the parking area for their units in the strata. Presently a locked gate secures the parking area of the strata after 5pm. This is done to avoid vandalism of property within the parking area at night. In short if this brothel were to operate after 5pm, then the gate would need to be open and this would pose a security risk for the other factory units in the complex. It would also breach the recently introduced Special Strata By Law no 1 (which requires the gate to be locked after 5pm). 5By the time of the hearing however, the applicant had amended his application to seek consent to operate from 6am to 5pm on Monday to Friday. The objectors, the Council and Blacktown Police agree that there is no security issue arising from daytime trading. 6The other contentions listed in council's statement of facts and contentions about onsite security and drainage are also addressed by the amended application and the conditions of consent (exhibit E). The conditions (which the applicant accepts) introduce security patrols of the site and camera surveillance and require operation of the brothel in accordance with a comprehensive plan of management. 7The planners, Mr Apps and Ms Gordon support the amended application and council's draft conditions of consent (exhibit G). 8Having regard to the zoning and the planning evidence of Ms Gordon and Mr Apps, and; the relevant statutory controls in Blacktown Local Environmental Plan 1988 and Blacktown Development Control Plan 2006 - Part A and Part E, and; the matters raised by the Blacktown Local Area Command's letter to council dated 18 October 2011 I am satisfied that the amended application should be approved subject to the agreed conditions. Accordingly, the Court orders: (1)The appeal is upheld. (2)Development consent is granted to DA -10-2062 for the use of an existing unit as a brothel and associated internal alterations of the premises at lot 1, SP 30825, 1/18 Forge Street, Blacktown is approved subject to conditions in annexure "A". (3)The exhibits are returned except for exhibit A. Susan Dixon Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2011