7-Eleven Stores Pty Limited v City of Sydney Council

Introduction 1 This is a challenge to the validity of cl 4.2 of the City of Sydney Convenience Store Development Control Plan 2003 ("the DCP"), which effectively prohibits the location of a convenience store within 75 metres of another convenience store. 2 A DCP is made under s 72 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") which relevantly provides: (1) If a council considers it necessary or desirable: (a) to provide more detailed provisions than are contained in a local environmental plan or a draft local environmental plan in respect of a part or parts of the land to which that plan or draft plan applies, or …. it may prepare or cause to be prepared a development control plan. ….. (3) Such a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies. …. 3 Clause 4 of the DCP provides controls for convenience stores and states: Clauses 60 and 61 of the Central Sydney Local Environmental Plan 1996 (LEP 1996) has the intent of maintaining the amenity and high quality streetscape values of the City of Sydney by minimising the impact of certain intrusive land uses. This may be achieved through: · ensuring that retail uses such as convenience stores are not overly concentrated together; and · that the cumulative impact of such businesses is carefully considered in the development assessment process. In the assessment of development applications for convenience stores, clauses 60 and 61 of CSLEP 1996 are to be applied. ….. 4 Clause 4.2 of the DCP is the particular provision that is challenged and is as follows: 4.2.1 Objective To prevent any adverse impact from excess concentration of convenience stores in any area. 4.2.2 Background In order to maintain a high level of amenity in the City of Sydney and promote the attractiveness of the area for a broad variety of uses it is essential to prevent an excessive concentration of convenience stores. Excessive concentration of convenience stores is considered to occur when: · the prevalence of such businesses acts as a disincentive for other uses such as residential, other types of retail, commercial or cultural activities; and · the accumulation impact of such businesses has an adverse impact on the streetscape and is contrary to the established or desired character of the area, and detracts from the diversity of retail uses in the City of Sydney. 4.2.3 Controls for concentration of convenience stores The following controls will apply to the location of convenience stores: · the minimum distance between convenience stores is 75m as measured in accordance with the following diagram 5 Under the Central Sydney Local Environmental Plan 1996 ("Central Sydney LEP"), shops are permitted with development consent in all relevant land use zones, namely, "City Centre", "City Edge", "Residential", "Maritime and Transport", and "Parks and Community Places". The Dictionary in Sch 1 of the Central Sydney LEP states: Shop means a building or place used for selling, exposing or offering for sale goods, merchandise or materials, including grocery and convenience retailing… 6 Convenience stores, therefore, are permitted with development consent on all land within the relevant zones under the Central Sydney LEP. 7 Clauses 60 and 61 of the Central Sydney LEP set out special provisions for certain uses. Clause 60 states: The objectives of the provisions for this Part of the plan are: (a) to minimise the impact of certain uses which may degrade the amenity of Central Sydney, such as amusement arcades, brothels, restricted premises, late opening pubs and the like, and (b) to ensure that such uses are not concentrated together, and that their cumulative impact is assessed, and (c) to improve the character and attractiveness of Central Sydney for residential, retail, commercial and cultural activities. 8 Clause 61 of the Central Sydney LEP states: The consent authority may only consent to the carrying out of development for the purposes of amusement arcades, brothels, restricted premises, late opening pubs, and the like, if it is satisfied that: (a) the proposal would not have a detrimental impact on the amenity of the area and the desired character of the area, and (b) the proposal would not result in an inappropriate concentration of that use and, together with other of the above uses in the area, result in a detrimental cumulative impact, and (c) the proposal would not be detrimental to other uses considered to be more consistent with the objectives of the zone. The Parties' Submissions 9 Mr B J Preston SC, appearing for the applicant, relies upon the following submissions. (a) Clause 4.2 of the DCP operates to prohibit a convenience store within 75 metres of another convenience store, notwithstanding that the use is permissible. (b) Clauses 60 and 61 of the Central Sydney LEP purport to be the source of the power to make the provisions in the DCP: see cl 4 of the DCP. (c) Clauses 60 and 61 of the DCP do not apply to convenience stores. Upon an ordinary construction and the application of the ejusdem generis rule to the clauses, a convenience store is not a use within the words "and the like". The ejusdem generis rule should be applied. That rule of construction is that where particular words are followed by general words, the general words are limited to the same kind or genus as the particular words. The common and dominant feature of amusement arcades, brothels, restricted premises and late opening pubs is that they are all places where there is a real and genuine risk that socially undesirable activities may occur and, as a result, are likely to have an impact on the amenity of an area. Convenience stores do not share this feature and therefore do not fall within cll 60 and 61 of the Central Sydney LEP. Consequently the DCP cannot purport to rely on these provisions and is ultra vires s 72(3) of the EP&A Act and is invalid. (d) The DCP does not generally conform to the provisions of the Central Sydney LEP as required by s 72(3) of the EP&A Act. The DCP fails to generally conform to the Central Sydney LEP because it has the character of an absolute prohibition rather than the character of a development standard (North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222; Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275). A development standard deals with the carrying out of development, not whether development can be carried out at all (Mayoh; Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319). In determining the character of the DCP, regard should be had to substance rather than form (North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 at 30). In substance, the DCP has the effect of prohibiting the development of convenience stores notwithstanding that the use is permissible under the Sydney Central LEP. The DCP does not regulate the circumstances in which use is permissible by providing requirements about how the development is to be carried out. Nor does the DCP have an internal exception within cl 4.2 which would convert a prima facie prohibition to a provision in the nature of a development standard (distinguishing Warringah Shire Council v K V M Investments (1981) 45 LGRA 425 and Zhang v Canterbury City Council (2000) 105 LGERA 18). Consequently it does not have the permissible character of a prohibition unless certain circumstances are satisfied; nor of a development standard, which permits a development only on satisfaction of certain criteria (Ligon at 30 per Cole JA; Ambercone Pty Limited v Rockdale City Council (2000) 108 LGERA 171). (e) Clause 4.2 of the DCP is contrary to the wider planning scheme because it creates an absolute prohibition on the use of land for convenience stores in areas where that use is permissible with development consent under the LEP (Ligon). The facts in Zhang v Canterbury City Council (2000) 105 LGERA 18 should be distinguished because the DCP provision that was there considered was expressed as a locational standard and in conditional terms. The otherwise prohibitory provision of the DCP in that case took on the character of a development standard because it allowed the council a discretion to depart from it. (f) The stated objective of cl 4.2, to prevent the clustering of convenience stores, is contrary to the Trade Practices Act 1974 (Cth) and the National Competition Policy (Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 at 378; Competition Policy Reform Act (New South Wales) 1995; Competition Policies Agreement cl 5 and cl 7). By giving priority to existing competitors the DCP achieves an anti-competitive consequence, which is outside the scope of the objectives of the EP&A Act. 10 Mr D P F Officer QC, appearing for the respondent, relies upon the following submissions. (a) The respondent's source of power for the DCP is s 72 of the EP&A Act, which posits the relevant state of mind as that of the council ("If a council considers it necessary or desirable.."). Clause 1.4 of the DCP states that it generally complements the provisions of the "relevant environmental planning instruments as they apply to the City of Sydney". The DCP provides more detailed provisions than are contained in the Central Sydney LEP. These provisions are not limited to cll 60 and 61 of the Central Sydney LEP. Under s 72(1)(a) of the EP&A Act, the council considers which provisions make it necessary and desirable to prepare a DCP. Clause 4.2 can be read as a more detailed provision of either cl 11, or the definition of "shop", within Sydney Central LEP. The DCP may also be read as more detailed provisions of other clauses of the Central Sydney LEP (cll 12, 13, 14, 15, 18, 19, 20, 21, 22, 23, 24, 25 and 28D(1)). Consequently, the proper construction of cll 60 and 61 of the Central Sydney LEP is irrelevant to the question of whether the council had power to make the DCP. (b) If the proper construction of cll 60 and 61 is relevant, the ejusdem generis rule cannot be applied. There is no genus established by "amusement arcades, brothels, restricted premises, late opening pubs and the like". The prefacing of the list with the words "such as" reinforces this. If, however, there is a genus of the type contended by the applicant, convenience stores would fall within this genus. Alternatively, it is contended that the genus is "facilities that may degrade the amenity of the City of Sydney". (c) Section 72(3) of the EP&A Act does not preclude a DCP from providing that development, otherwise permissible under the Central Sydney LEP, shall not be carried out in the circumstances specified in the DCP. (d) The DCP generally conforms to the Central Sydney LEP. The operation of a DCP is dictated by s 79C(1)(a)(iii) of the EP&A Act. A DCP operates as a matter to be taken into consideration under s 79C; not as a permission or prohibition under s 76A or s 76B (Ligon at 26). The form of a DCP does not go to validity (Ligon at 31). Although the provisions of a DCP may take the character of prohibition or a development standard, its substantive operation remains that provided for in s 79C. Moreover, provisions of such a character may still generally conform to an LEP (Ligon at 30 to 31). A DCP may in substance restrict the land on which a permissible use may be carried out whether the form it takes is a "prohibition" or "development standard". The aspect of Guideline Drafting on which the applicant relies has been held to have been wrongly decided (Ligon at 31). (e) The question of whether cl 4.2 of the DCP is a development standard is a different question to whether the clause generally conforms to the Central Sydney LEP. A prohibition unless certain criteria are met is different to a development standard (Ligon at 30 and 31). (f) If the DCP is found to contain a provision that does not generally comply with the Central Sydney LEP, the breach of s 72(3) of the EP&A Act does not necessarily render the provision invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Smith v Wyong Shire Council [2003] NSWCA 322 per Spigelman CJ). 11 Clauses 2.1 and 2.2 of the DCP demonstrate that it is made purely for planning purposes, consistently with the objectives of the EP&A Act. Consideration Does the Council have power to make the DCP? 12 Section 72(1) of the EP&A Act gives the council the power to make a DCP where it considers it necessary or desirable to provide more detailed provisions than are contained in a local environment plan in respect of a part or parts of the land to which that plan applies. Such a DCP must generally conform to the provisions of the local environmental plan which applies to the land to which the DCP applies (s 72(3)). Clause 1.4 of the DCP states: This DCP generally complements the provisions of the relevant environmental planning instruments as they apply to the City of Sydney. 13 The Central Sydney LEP is a relevant environmental planning instrument. Accordingly the council has purported to make the DCP to provide more detailed provisions than are contained in the Central Sydney LEP in respect of land within the City of Sydney. 14 There is nothing to suggest that Sydney City Council did not consider it necessary or desirable to make more detailed provisions than are contained in the Central Sydney LEP. This requisite state of mind is reflected in the stated purpose and objectives of the DCP, which are set out in cl 2 of the DCP, as follows: 2.1 Purpose The purpose of this DCP is to provide consistent and relevant planning controls for assessing the impacts associated with establishing and operating convenience stores in the City of Sydney. The unrestricted proliferation of convenience stores in the City of Sydney has generated streetscape, amenity and clustering impacts that require specific planning policy responses. This DCP seeks to facilitate the appropriate location and operation of convenience stores, while minimising adverse impacts of such uses for the wider community. 2.2 Objectives The objectives of this DCP are: · to prevent the excessive proliferation of certain types of businesses and encourage a broad range of different land use opportunities within the City of Sydney; · to apply consistent planning controls to all convenience stores within the City of Sydney; · to minimise potential adverse amenity impacts from convenience stores on surrounding properties; and · to enhance the scenic quality and amenity of streetscapes and public places within the City of Sydney by restricting the quantity of signage, lighting and shopfront clutter associated with convenience stores. 15 The respondent's submission, that the council has power to make a DCP containing more detailed provisions than are contained in the LEP as a whole, must be accepted. The DCP in the present case provides more detailed provisions than are generally contained in the Central Sydney LEP. It is not necessary for the respondent to limit the more detailed provisions to particular clauses of the Central Sydney LEP. 16 Counsel for the applicant contends that cll 60 and 61 of the Central Sydney LEP are the purported source of the DCP. Although it is not necessary for the respondent to restrict its power to make the DCP to particular clauses of the Central Sydney LEP, I shall now nevertheless consider the applicant's submission that cll 60 and 61 cannot be relied upon as applying to convenience stores. 17 Clauses 60 and 61 relate to "certain uses which may degrade the amenity of Central Sydney, such as amusement arcades, brothels, restricted premises, late opening pubs and the like". I have noted that counsel for the applicant submits that the ejusdem generis rule should be applied in the construction of the words "and the like" in this phrase. The rule provides that where general words follow particular words, the general words are limited to the same kind or genus as the particular words. The rule can only be applied, however, where a genus can be established in the series of particular words. In R v Regos and Morgan (1947) 74 CLR 613 at 624, Latham CJ described a genus as "some common and dominant feature". Senior counsel for the applicant submits that the particular uses nominated are all places where there is a real and genuine risk that socially undesirable activities may occur. I reject this submission. The particular uses nominated are merely examples of uses which may degrade the amenity of Central Sydney, as reflected in the words "such as" which precede the nominated list of uses. They do not constitute the genus suggested by the applicant. The ejusdem generis rule cannot be applied. 18 In addition to showing a genus, the party seeking to apply the rule must show that the general words are to be limited by the particular words, as noted by Latham CJ in R v Regos (at 623). In Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] 53 ALJR 522, the High Court considered the words "without limiting the generality of the foregoing", a phrase which is not entirely dissimilar to "such as". Barwick CJ, Mason and Aikin JJ concluded that these words indicated an intention that the general words should not be restricted by reference to the more specific words that followed. In particular, Aickin J said (at 525): In some cases the particular words which follow may be such as necessarily to indicate an intention to restrict the operation of the preceding general words. In each case it will be a matter requiring examination of the actual words used, both general and particular, as well as the context as a whole. 19 The use of words "such as" and "and the like" in cll 60 and 61 demonstrate an intention that the particular uses should not restrict the preceding general words. Consequently, the words "amusement arcades, brothels, restricted premises, late opening pubs, and the like" do not limit, nor are they an exhaustive expression of, the uses which may be considered to degrade the amenity of the area. The ejusdem generis rule, therefore, should not be applied to the construction of these clauses. As a matter of ordinary construction, the question is whether an unrestricted or excessive proliferation or concentration of convenience stores may constitute a use which may degrade the amenity of Central Sydney. In my opinion, it is reasonably open to the Council to come to the view that a proliferation or concentration of convenience stores may degrade the amenity of Central Sydney. Consequently, the DCP contains more detailed provisions than cll 60 and 61 contained in the Central Sydney LEP. Does cl 4.2 of the DCP generally conform to the Central Sydney LEP? 20 As required by s 72(3) of the EP&A Act, the DCP must generally conform to the provisions of the Central Sydney LEP. Convenience stores are a permissible use with development consent under the Central Sydney LEP. The issue, therefore, is whether cl 4.2 fails to generally conform with a permissible use under the Central Sydney LEP in applying a control to the location of convenience stores within zones where such use is otherwise permissible. 21 In Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275, Bignold J considered a clause of a DCP that purported to restrict the location of refreshment rooms to the ground floor of buildings. In holding that the clause did not generally conform to the relevant LEP, his Honour said (at 278): Where the provisions of the local environmental plan allow, with development consent, refreshment rooms to be developed in buildings without spatial or locational limitation (as in the present case) a development control plan that absolutely prohibits the establishment or use of a refreshment room other than on the ground floor of a building cannot be reasonably regarded as "generally conforming" to the provisions of that local plan. 22 The applicant submits that this decision should be applied to the present case. I reject this submission. Although Guideline Drafting was referred to with apparent approval by two of the three judges of the Court of Appeal in Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78 at 89, it was expressly disapproved by three members of the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23. In Ligon, Cole JA, with Meagher JA and Abadee AJA concurring, after expressly disagreeing with the decision in Guideline Drafting, said (at 31): I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a North Sydney Local Environmental Plan is granted, should not be regarded as conforming with the wider North Sydney Local Environmental Plan. In my opinion that aspect of the decision in Guideline Drafting should be regarded as wrongly decided... A detailed plan which contained a provision contrary to the wider plan would not be in conformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision. 23 Sheahan J cited this passage with approval in Dent v Hastings Council [1999] NSWLEC 9 at [31]-[33]. I reject the submission of Mr Preston SC that Cole JA's disapproval of this passage was limited to the characterisation of the particular clause and was not a disapproval of the test applied. Cole JA clearly reformulates the test to be applied and expressly rejects the test in Guideline Drafting. 24 In Ligon, the Court of Appeal held that a clause, which restricted the height of residential flat buildings in a particular zone to three storeys, generally conformed to a local environmental plan that permitted (with consent) residential flat buildings within that zone. Cole JA said (at 30): Generally the development control plan must conform to the North Sydney Local Environmental Plan (s 72(3)). However that does not mean that where a use is permissible with consent under a North Sydney Local Environmental Plan , "more detailed provisions" regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in which a use is permissible with consent. There is no reason in principle why those "provisions" would not have the character either of a "prohibition" unless certain criteria are satisfied, or of a "development standard", which permits a development only on satisfaction of certain criteria. 25 This passage has been approved as the appropriate test: see Zhang v Canterbury City Council (1999) 105 LGERA 18 per Talbot J at 23, whose judgment was upheld by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373; also Ambercone Pty Limited v Rockdale City Council (2000) 108 LGERA 171 at 174; and Dent v Hastings Council at [34]. Consequently, this is the relevant test to be applied. In applying the test, regard must be had to the content and not the form of the provision, as explained by Cole JA in Ligon at 30. 26 I firstly consider whether cl 4.2 of the DCP can be described as having the character of a development standard which permits a development only on satisfaction of certain criteria. 27 The definition of "development standard" was considered in North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222. In a passage that has been subsequently followed and applied on many occasions, Mahoney JA said (at 232-233): First, the definition applies, in the first instance, only to provisions which are "provisions … in relation to the carrying out of development". Therefore that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed. And the requirements or standards are to be those fixed "in respect of" "that development". Secondly, the use of the phrase "requirements are specified or standards are fixed" provides some (though, of course, not conclusive) support for the view that that with which the definition deals is the details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all. 28 In that case, the clause in dispute (cl 14a(1)(a)) restricted a residential flat building from being erected where a principal building on adjoining land was less than three storeys in height. Mahoney JA and Clarke JA (Kirby P dissenting) held that the provision was not a development standard because it did not relate to the carrying out of development. Mahoney JA said (at 234): I do not think that cl 14 a (1)(a) is a provision "in relation to the carrying out of development …". There is, in my opinion, a distinction in the provisions between a provision which in form provides: "On land of characteristic X no development may be carried out" and a provision which in form provides: "On such land development may be carried out in a particular way or to a particular extent." 29 Clarke JA expressed a similar view (at 236): I would conclude, therefore, that it is erroneous to categorise cl 14 a (1)(a) as a development standard relating to an aspect of a permitted development. In my opinion it lays down a prohibition against a specific land use applying to blocks of land within the zone which have the characteristics set out in the clause. 30 The point is reinforced by the fact that cl 14a(1)(a) lays down an absolute prohibition on the use of certain land for a particular purpose whereas development standards lay down requirements or standards against which the proposed development is to be measured: see Warringah Shire Council v K V M Investments Pty Ltd (1981) 45 LGRA 425 at 432, 440. There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development. 31 The majority decision in Mayoh has been subsequently followed and applied in a number of cases, including for example, Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103 at 109-110 and Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 per Giles JA (Heydon JA concurring) at 333-334 and per Young CJ in Eq. at 347. In Poynting, Young CJ in Eq. noted that a development standard may contain a prohibition, but that this prohibition would relate to the carrying out of development, not to whether development was possible at all. His Honour said (at 347): The dichotomy between a development standard and an absolute prohibition provides a valuable guideline as long as it is remembered that a development standard may contain expressly or impliedly some sort of prohibition. However the sort of prohibition involved is a prohibition on the extent of the development, not a prohibition as to whether development is possible at all. 32 A provision will only have the character of a development standard if it regulates the carrying out of development. Clause 4.2 prohibits the carrying out of the development of convenience stores on identified land; that land being land within 75 metres of another convenience store. By prohibiting the placement of convenience stores within 75 metres of each other, the provision controls whether development may be carried out at all on particular land. Clause 4.2 does not set standards and requirements relating to how the development is to be carried out. Consequently, it does not control or regulate the carrying out of permissible development. Clause 4.2 of the DCP, therefore, does not have the character of a development standard which permits a development only on satisfaction of certain criteria. 33 But that is not the end of the matter. There is also the question of whether cl 4.2 of the DCP has the character of a "prohibition unless certain criteria are satisfied", referred to by Cole JA in Ligon (at 30). Mr Preston SC submits that a clause must be a development standard or have the character of a development standard to fall within this part of the test in Ligon. He submits that Cole JA's reference to a "prohibition unless certain criteria are satisfied" is simply stating that a development standard, or a clause in the nature of a development standard, could be expressed in either a permissive or prohibitive form. The applicant contends that if cl 4.2 does not have the character of a development standard then, it follows that, it cannot satisfy the test in Ligon. 34 This submission is rejected. Cole JA clearly distinguishes between a "prohibition unless certain criteria are satisfied" and a "development standard, which permits a development only on satisfaction of certain criteria". These are two distinct categories. In determining whether a provision falls within either one of them, the court must then look to the substance of the provision. The case law provides some guidance as to whether cl 4.2 has the character of a "prohibition unless certain criteria are satisfied". 35 Although Poynting involved the issue of whether a clause of an Ordinance was a development standard, the judgment of Giles JA helpfully distinguishes between different levels of prohibition. The clause in question in Poynting provided that consent shall not be given to the erection of dwellings on land where the land has an area of less than 560 square metres, notwithstanding that such use is otherwise permissible. In considering the prohibitive nature of the provision, Giles JA said (at 344): Reading the provision as part of the Ordinance as a whole, this is not a prohibition on the erection of a building for the stated purposes on residential 2(a) land in any circumstances. It is prohibitory so far as it precludes development in particular cases, but not prohibitory of development by erection of a building for the stated purposes on residential 2(a) land. The development is permissible in the circumstances (negatively) expressed in cl 41(2). 36 Applying this reasoning to cl 4.2 it is apparent that the provision is prohibitory to the extent that it precludes development where it is within 75 metres of another convenience store. However, the clause is not prohibitory of development for the stated use that is permissible with consent under the Central Sydney LEP. Convenience stores are still permissible with consent where they do not fall within 75 metres of another convenience store. Consequently, cl 4.2 of the DCP operates as a prohibition on the development of convenience stores unless certain criteria are satisfied. The criterion in this instance is that the development must not be situated within 75 metres of another convenience store. Once this criterion is satisfied, the development remains a permissible use with consent. Clause 4.2 does not purport to absolutely prohibit any development of a convenience store. If it did it would not be in conformity with the Central Sydney LEP. Instead, the provision has the character of a prohibition unless certain criteria are satisfied. Clause 4.2, therefore, generally conforms to the Central Sydney LEP. 37 Clause 4.2 also falls within the description of a prohibition unless certain critera are satisfied in another way. In Zhang v Canterbury City Council (1999) 105 LGERA 18, a clause of a DCP stated that a brothel shall not be located within 200 metres walking distance of certain places. However, the DCP also provided that applicants could provide written submissions detailing why the locational standard should be varied for their development. Talbot J held that the clause generally conformed to the local environmental plan under which brothels were a permissible use with consent. He said (at 23): There is nothing which flows from the decision of the Court of Appeal in Ligon (No 2) which leads to a conclusion that the provision regarding the location of a brothel adjoining or within 200 m walking distance of a place of worship is not in conformity with the LEP. This is particularly so in light of the note to that provision in cl 4 which requires the applicant to provide a written submission detailing why the standard should be varied. Thus it was for the applicant to show why this particular brothel should be allowed in circumstances where a church is located immediately to the east of the subject site within the prescribed distance of 200 m. 38 In that instance, the clause operated as a prohibition except in the circumstances where an applicant successfully applied for the locational standard to be varied for their brothel. 39 Similarly, in relation to cl 4.2, there are circumstances where the prohibition may not apply. Under s 79C of the EP&A Act, a consent authority is only required to take the DCP into consideration. The DCP does not have the force of a local environmental plan, regulation or statute and there may be circumstances in which it need not be applied. For example, a proposed development of a convenience store could be located within 75 metres of another but be located in an adjoining street so as not to impact on the streetscape of a street where there is already a convenience store; so that even though cl 4.2 is framed as a prohibition, its practical effect is that it is not necessarily so. As explained by Cole JA in Ligon, a control in a DCP may have the character of a prohibition unless certain criteria are satisfied. In my opinion, cl 4.2 is of the character of a prohibition unless certain criteria are satisfied. The criterion on this alternative basis is that the circumstances of the particular case may justify a departure from the DCP. Is cl 4.2 contrary to the objectives of the EP&A Act? 40 Clause 4.2 is consistent with the objectives of the EP&A Act as evidenced in the purpose and objectives set out in cl 2 of the DCP. I note in passing that although cl 4.2 would appear to contravene Part IV of the Trade Practices Act 1974 (Cth), the enforcement of that Act is outside the scope of the jurisdiction of this Court. Conclusion and orders 41 The applicant has not demonstrated that cl 4.2 of the City of Sydney Convenience Store Development Control Plan 2003 is invalid. The application is dismissed. It would also normally follow that there be an order that the applicant pay the respondent's costs, but since costs have not been argued then that question is formally reserved. 42 The Court makes the following orders: (1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be returned. ********** I hereby certify that the preceding 42 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.