Dixon v Marrickville Council

Land and Environment Court (NSW)|2000-07-28|Before: Lloyd J

The applicant submits that the clause operates contrary to section 23 of the Disability Discrimination Act 1992 (Cth) and in the case of such inconsistency the Commonwealth legislation prevails.

Section 23 of the Disability Discrimination Act provides as follows:

(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that person's associates: a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or c) in relation to the provision of means of access to such premises; or d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or e) in terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or f) by requiring the other person to leave such premises or cease to use such facilities. 2) (2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if: a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access. 15. The applicant submits that in conformity with section 23 the plan for the development provides a bedroom at street level to cater for disabled persons who visit the brothel. In the applicant's submission clause 60A(5) discriminates against such persons by prohibiting such a facility at street level and is contrary to paragraph (c) and (d) of sub-section (1) of section 23.

It seems to me, however, that there are two answers to the applicant's submission. The first is that it ignores the effect of sub-section (2) of section 23. In particular, the phrase " unjustifiable hardship " is defined in the Act (section 4) as having the meaning given by section 11. Section 11 provides:

For the purposes of the Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including: … (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; …

It would seem that having regard to the fact that the subject premises comprises an existing building, there is arguably an available defence to any infringement of section 23(1) in both paragraphs (a) and (b) of sub-section (2). It does not follow that there must be an inconsistency between clause 60A(5) and section 23 in their application to the facts in the present case.

The second answer to the applicant's submission is that clause 60A(5) is not a prohibition. SEPP No.1 may be applied to it. In applying SEPP No.1 and the relevant considerations thereunder, the application might be approved. Again, it does not follow that there must be an inconsistency between clause 60A(5) and section 23 in their application to facts in the present case.

The answer to this question is clearly in the affirmative. The only part of a brothel which the clause allows at street level is access. As noted in paragraph 4 above, the development application plans show a number of parts of the brothel at street level apart from the access. Those parts of the brothel at street level are the various rooms which I have itemised (in paragraph 4).

The question of law as framed by the respondent does not completely answer the issues raised in argument. I have re-formulated the question as follows: 1. Is clause 60A(5) of the Marrickville Planning Scheme ordinance a prohibition or a development standard?

Is clause 60A(5) of the Marrickville Planning Scheme Ordinance inconsistent with section 23 of the Disability Discrimination Act 1992 (Cth)?

Does the proposed development as shown on the plans accompanying the development application infringe clause 60A(5) of the Marrickville Planning Scheme Ordinance

Answer: Yes, but is subject to the possible application of SEPP No.1

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18. The second answer to the applicant's submission is that clause 60A(5) is not a prohibition. SEPP No.1 may be applied to it. In applying SEPP No.1 and the relevant considerations thereunder, the application might be approved. Again, it does not follow that there must be an inconsistency between clause 60A(5) and section 23 in their application to facts in the present case.

19. The answer to this question is clearly in the affirmative. The only part of a brothel which the clause allows at street level is access. As noted in paragraph 4 above, the development application plans show a number of parts of the brothel at street level apart from the access. Those parts of the brothel at street level are the various rooms which I have itemised (in paragraph 4).

20. The question of law as framed by the respondent does not completely answer the issues raised in argument. I have re-formulated the question as follows:

Is clause 60A(5) of the Marrickville Planning Scheme ordinance a prohibition or a development standard?

Is clause 60A(5) of the Marrickville Planning Scheme Ordinance inconsistent with section 23 of the Disability Discrimination Act 1992 (Cth)?

Does the proposed development as shown on the plans accompanying the development application infringe clause 60A(5) of the Marrickville Planning Scheme Ordinance

Answer: Yes, but is subject to the possible application of SEPP No.1

Planning and Assessment Act 1979

Environment Court Rules 1996

Discrimination Act 1992

CITATION : Dixon v Marrickville Council [2000] NSWLEC 161 APPLICANT: Tammy Dixon PARTIES : RESPONDENT: Marrickville Council FILE NUMBER(S) : 10200 of 2000 CORAM: Lloyd J KEY ISSUES: Development :- development standards - proposed brothel with ground floor rooms - EPI prohibition on ground floor rooms in brothels - whether prohibition or development standard - whether disability discrimination

Disability Discrimination Act 1992 (Cth) s 23, s 11 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4(1) State Environmental Planning Policy No.1 - Development Standards cl 4 Marrickville Planning Scheme Ordinance cl 60A(5) Bell v Shellharbour Municipal Council (1993) 78 LGERA 429; Currey v Sutherland Shire Council (1998) 100 LGERA 365; CASES CITED: Marpet Enterprises v Eurobodalla Shire Council [2000] NSWLEC 159, unreported; North Sydney Municipal Council v P D Mayoh Pty Limited [No.2] (1990) 71 LGRA 222; Vassallo v Blacktown City Council [1999] NSWLEC 267, unreported; Weynton v Rockdale City Council (1999) 106 LGERA 213 DATES OF HEARING: 01/06/2000 DATE OF JUDGMENT: 07/28/2000

My conclusion that the clause is a development standard is consistent with other decisions on similar clauses in this court (for example, Vassallo v Blacktown City Council [1999] NSWLEC 267, unreported; Weynton v Rockdale City Council (1999) 106 LGERA 213; Marpet Enterprises v Eurobodalla Shire Council [2000] NSWLEC 159, unreported). Unlike the clause in question in Currey v Sutherland Shire Council (1998) 100 LGERA 365, upon which the council relies, clause 60A(5) does not relate to a feature of the land which operates as a pre-condition to the exercise of the power to consent and which was found in that case to be a prohibition.

(1998) 100 LGERA 365

(1999) 106 LGERA 213

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