Issue 2
68. The second issue is whether the Commissioner erred in taking into account the modification in behaviour of the members of the Church community. The relevant part of the Commissioner's judgment is par 47 (and the words in par 48 identified above) which states that:
The history of this particular brothel is such as to indicate that persons using Burleigh Street have little need to be concerned for their personal safety. Despite this, it is clear that there has been a social impact resulting from the existence of the brothel, which in turn has resulted in members of the church community modifying their behaviour whilst they are in the vicinity of the brothel. This arises from a perception of their physical safety as well as the moral and religious safety of children and young women who attend the church and are particularly at risk.
(a) Moral and religious safety
69. The evidence relating to change in behaviour due to a concern for moral and religious safety is based on that community's moral and sexual standards, but I do not see that as something which should be disregarded in relation to considering social impact. This is an important consideration about the evidence as, on first examination, it may appear that to uphold acceptance of evidence of this nature is out of step with the existing case law referred to earlier that moral objections alone, and unsupported or irrational fears about brothel activity, are insufficient bases for objection. However, the Commissioner's reliance on such evidence should not, in my opinion, be interpreted in this manner. Such evidence will again be relevant in determining whether there is a demonstrable social impact which results from "antagonism between a particular development and the religious or cultural values of an immediately affected and identifiable group". The Church community's change in behaviour due to a concern for moral and religious safety obviously arises from their religious values, beliefs and practices, which are "inimical" to a brothel development. There is therefore, no error disclosed in relying on such evidence.
70. It seems to me there are circumstances where a social impact resulting from strongly held religious or cultural views resulting in behavioural changes in relation to a brothel can be relevant in terms of assessing social impact. There was evidence of both lay witnesses and expert testimony of a town planner and a social planner on this issue. The Commissioner is entitled to have regard to that evidence when considering the merits of the matter. Further, in my opinion, evidence of this nature has been contemplated by Cripps J in Venus Properties, Talbot J in Croucher, Murrell AJ in Liu and Cowdroy J in Perry Properties [No 1].
(b) Physical safety
71. The consideration of physical safety is in a different category, however. The Commissioner identified that the fears of the community in relation to physical safety were unfounded on the evidence. He nevertheless appears to take into account that members of the Church community modified their behaviour due to a perception of physical safety. In Perry Properties [No 1] Cowdroy J held that "A rational fear, or one having a real basis is a matter for consideration" and found that the Commissioner had erred in that case by relying on an apparent fear in relation to inappropriate behaviour of patrons and brothel workers when there was no rational foundation to support that fear. In my opinion, reliance on evidence of modification of behaviour due to a perception of concern for physical safety, when there is no evidence to support a concern for physical safety falls squarely within the matters identified in Perry Properties [No 1] that cannot be taken into consideration. Where there is no evidence of a "rational fear, or one having a real basis" in relation to physical safety, it will also be irrelevant that members of the community, or a particular section of the community (here a Church community), have modified their behaviour arising from the unjustified fear for physical safety. In my opinion, the Commissioner erred to the extent that he took such matters into consideration in determining the social impact that resulted from the brothel. Grounds 2 and 7 are therefore upheld in relation to the issue of physical safety.