Huang v Hurstville City Council

Appellant's submissions 10The relevant principles are identified by the Court of Appeal in Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; 150 LGERA 130 at 137 adopting Jagot J at first instance ( Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74) . This was repeated by the Court of Appeal in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 at [61] including the two step approach of Giles JA in Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 that: Her Honour properly adopted, as she no doubt felt bound to do, the two-step approach endorsed by Giles JA in Poynting, namely: 1 Is the development proposed in respect of the site prohibited in any circumstances by cl 29.2 construed in the context of the LEP as a whole; and 2 If it is not so prohibited, does cl. 29.2 relevantly specify a requirement in respect of any aspect of the proposed development? 11Addressing the first step of whether the proposed development is prohibited in any circumstances, Hurstville Local Environment Plan 1994 (Amendment No 7) must be construed as part of the whole LEP. Sex services premises are defined and are permissible only in Zone No 4 (light industrial). All subclauses in cl 16A(2) relate to proximity which in turn relates to the objective in cl 16A(1)(b). Clause 16A(2)(b)(ii) is clearly a development standard (this is accepted by the Council). Subclause (a) does not prohibit such development under any circumstances, a factor considered by Giles JA in Poynting at 343. The opening words "despite any other provision" do not state that development "may not be carried out at all unless...". Sex services premises are permissible in the circumstances expressed in cl 16A(2)(a), relying on Jagot J in Laurence Browning at [26(5)]. It is not a complete prohibition. 12No separate type of sex services premises are created under cl 16A. This matter is unlike Woollahra Municipal Council v Carr (1985) 62 LGRA 263 (the definition of professional consulting rooms including a limit on the number of employees was held to be a prohibition) and Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 where the permissible development was "fruit and vegetable store with a specified maximum floor area" and this acted as a prohibition of such use on a larger site. 13There is no provision in the zoning map in the LEP identifying particular lots where sex services premises may not be located, unlike Laurence Browning . The opening words of cl 16A(2)(a) are not prohibitive. 14In relation to the second question in Poynting of whether the clause specifies a requirement in respect of any aspects of the proposed development, there are two questions. Firstly, is the clause in relation to any aspect of development and, secondly, is the clause in relation to the carrying out of development. The subclause is within the definition of development standard in s 4(a) and (c). Authority suggests that a wide view should be taken to determine whether a provision is in respect of any aspect of the carrying out of the development (per Giles JA in Poynting and Lowy v The Land and Environment Court of New South Wales [ 2002] NSWCA 353; (2002) 123 LGERA 179 ). The provision can be contrasted with that in North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 ( Mayoh No 2 ) which concerned an aspect of the land adjoining the subject development, namely the height of the buildings on adjoining land. Clause 16A(2)(a) concerns an attribute of the land itself specifying proximity or siting of premises relative to other kinds of land uses. The clause is concerned only with locational aspects of proposed sex services premises and is a development standard.

Ground 3 15In relation to ground 3, the Commissioner erred in her construction of "near" by equating it with a specific distance at [20] - [22] of the judgment. "Near" connotes a qualitative foundation separate from a specific distance. This was an error of law.

Council's submission 16Amendment No 7 which introduced cl 16A into the LEP in 2006 must be considered in the context of the LEP as a whole. It provides a stand alone section within the LEP to deal with sex services premises for the first time, including the objectives in cl 16A(1) which refer to planning controls and ensuring that: ... This amended the LEP and provides that notwithstanding sex services premises are permitted in zone 4 they are not capable of being approved unless these comply with the objectives in cl 16A(1). The objective includes subclause (b) of ensuring that .. 17"Near" is used in two ways in the clause, as a precondition which is a prohibition in subclause (2)(a) and as a development standard in subclause (2)(b). 18The clear intent of cl 16A(2) is to create a prohibition operating as a condition precedent to the granting of consent. This is similar to the provision in Mayoh No 2 . The clause operates similarly to the preconditions to the approval of development considered in Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; (1999) 105 LGERA 370 and Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436; (2004) 136 LGERA 356. 19The Council concedes that cl 16A(2)(b) is a development standard but the different language in cl 16A(2)(a) confirms that it is not. The requirement for Council's "satisfaction" in subclause (a) suggests that the matter is a prohibition. Council's satisfaction is also difficult to consider in a SEPP 1 application which must identify whether a variation of a development standard is unreasonable or unnecessary.

Ground 3 20In relation to ground 3, the Commissioner made a finding of fact in relation to the meaning of "near" in cl 16A(2)(a). There is no error of law raised in the ground of appeal. A finding of fact can only be challenged if it is unreasonable according to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223; [1947] 2 All ER 680 and no such challenge is made.

Clause 16A(2)(a) is a prohibition not a development standard 21As identified by the Council each case must be determined on its own facts meaning the particular provision of the LEP before the Court. It is to this environmental planning instrument that the relevant principles must be applied. There was no disagreement that these are as outlined at [61] in Chase that: It is convenient to set out the following propositions adopted by her Honour as I regard them as accurately summarising the principles articulated by Giles JA in Poynting : "(1) The provision in question must be 'seen as part of the environmental planning instrument as a whole' ( Poynting at 342 [94]). The 'wider context' of the provision, as part of the instrument overall, should be considered in construing the provision ( Lowy v The Land and Environment Court of NSW & Others [2002] NSWCA 353; (2002) 123 LGERA 179 at 182 - 183 [2] per Mason P). (2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of 'development standard', that fact alone does not mean that the provision is thereby a development standard. The provision must be 'in relation to the carrying out of development' and must fix requirements or standards in respect of an aspect of the development ( Poynting at 333 -334 [58]). (3) Although [there is a distinction] between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between 'regulation' and 'prohibition' cannot replace the definition in the EPA Act. As this conceptual division 'will bring finely divided decisions', 'care must be taken lest form govern rather than substance' ( Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard ( Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then 'in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development'. Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. ( Poynting at 343 [98]). (6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development ( Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269-270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of 'development standard' is that the 'requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development' ( Carr at 269 -270 per McHugh JA). (8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of 'development standard' shows that 'a broad view of what is an aspect of a development should be taken' ( Poynting at 343 [99])." 22Authorities confirm that the LEP as a whole must be considered. That a provision can be considered as meeting the definition of development standard in s 4, here (a) and (c) are relied on by the Appellant, and that there is no reference in the LEP map to prohibited areas, are not conclusive that cl 16A(2)(a) is a development standard. Prior to Amendment No 7 to the LEP "sex services premises" was not separately defined as a prohibited or permissible use in Zone No 4. Amendment No 7 includes particular objectives specified in cl 16A(1) and as a result there are no objectives to which cl 8(3) of the LEP applies. Clause 16A(2) specifies that it applies "despite any other provision of the plan" whereas cl 8(2) states at the outset "except as otherwise provided by this plan". As submitted by the Council, the zoning table operates in relation to Zone No 4 except as otherwise provided in the plan, and here cl 16A otherwise provides. 23I agree with the Council's submission that in light of Amendment No 7, cl 16A(2)(a) contains an essential element of the permissible development. Clause 16A(2)(a) is an exception to that permissible use. It specifies a condition precedent which must be satisfied of whether the land meets the essential condition of not being near or within view of any of the other stated uses referred to in the subsection, and only if the Council is satisfied can development consent be granted. 24The satisfaction of the Council in relation to the specified matter is required before development consent for sex services premises can be given. This provision is as much concerned with land use as cl 8(2). I agree with the Council that it prohibits the use of land enjoying the specified characteristics for the named purpose. 25The Council relied on Mayoh No 2 (Court of Appeal) as the most analogous to cl 16A(2)(a). In that case the distinction was made: "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". 26I agree that the first description is analogous to cl 16A(2)(a). The Court of Appeal in Codlea Pty Ltd considered cl 45 of Byron Local Environmental Plan 1988 which provided: The council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land. (emphasis added) 27The Court considered cl 45 as in the nature of a condition precedent to the granting of consent. The Council's function of achieving satisfaction in cl 45 of a certain matter was a function within the meaning of s 39(2) of the Court Act. While not couched in the language of development standard or prohibition the provision is analogous to cl 16A(2)(a). 28Similarly in Billgate Pty Limited Bignold J dealt with cl 25 (2) of the Woollahra Local Environmental Plan 1995 which provided: The Council must not grant consent for the carrying out of development on land or subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to development. 29Bignold J at [17] stated: In the present case, where Clause 25 (2) of the LEP operates as a condition precedent to the granting of development consent ... 30At [19] his Honour observed: The Court may not grant consent unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop in terms of Clause 25 (2) of the LEP. 31Once again the case does not use the language of development standard or prohibition but the reasoning applies by analogy to cl 16A(2)(a). 32I also adopt and apply the Council's submissions based on the majority in the Court of Appeal in Agostino , rather than the minority approach relied on by the Appellant . In the leading majority judgment Tobias JA observed that prior to the insertion of cl 41 into the Penrith Local Environmental Plan No 201 (Rural Lands), a fruit and vegetable store was a prohibited use. Clause 41 was inserted as an exception to that general prohibition to provide for a particular permissible use on a particular parcel of land. His Honour at [44] observed that the description of that permissible use was to be found in cl 41(3) and the council's submission that the proper description of that use being "fruit and vegetable store with a maximum floor area of 150m 2 " should be accepted so that any such store with a floor area exceeding that maximum would fall outside the purview of cl 41(3) and be prohibited. 33Similarly, cl 16A(2)(a) was inserted to provide permissibility for sex services premises within Zone No 4 in closely defined circumstances. The proper description of that permissible use should be regarded as sex services premises not near or within view of any educational establishment, place of public worship or hospital, or any place frequented by children. Consistent with his Honour's approach at [46] in Agostino a lack of nearness in the subject appeal should form an essential condition in determining whether the particular development proposed is permissible. The two step process identified by Giles J in Poynting applies on the basis that the development proposed in respect of the site is prohibited in the circumstances identified in cl 16A(2)(a) when construed in the context of the whole LEP. In relation to step two, the clause does not specify a requirement in respect of any aspect of the proposed development. 34Contrary to the Appellant's submissions in reply, the reference to planning controls in cl 16A(1)(a) is not limited to regulation as opposed to prohibition applying an ordinary meaning to these words, if the definition in s 4 of the EPA Act of "control" as a verb, which includes "prohibit", cannot apply. "Ensure" in cl 16A(1)(b) provides relevant context for the consideration of cl 16A(2) as one of the objectives specifically directed to the provisions regulating approval of sex services premises in the LEP. 35My reasoning above means that I do not agree with the Appellant's submission in reply that cl 16A(2)(a) is a requirement within subsection (a) of the definition of development standard in s 4, while cl 16A(2)(b) is a development standard under subsection (b). Further inquiry about the context of the LEP is necessary beyond the description of development standard. 36I consider Mayoh No 2 applies contrary to the Appellant's submission and it is not land within Zone No 4 on which particular development may be carried out if it fails to satisfy subclause (a). 37Further reliance on Weynton v Rockdale City Council [1999] NSWLEC 273; (1999) 106 LGERA 213 and Vassallo v Blacktown City Council [1999] NSWLEC 267 by the Appellant does not assist as the LEP provisions were different. 38I do not agree that cl 16A(2)(a) is in relation to an aspect of the development or in relation to the carrying out of the development. I consider cl 16A(2)(a) does operate as a prohibition, not a development standard. There is no error of law in the Commissioner's finding to that effect.

No error of law identified in ground 3 39Ground 3 states that the Commissioner erred in holding that premises were "near" each other if they were within 100m of each other in a straight line regardless of context. I agree with the Council's submissions that this was a finding of fact made in reliance on the planning evidence before the Commissioner. No error of law is raised by this ground and it cannot therefore be raised in this s 56A appeal.

Order 40The Court orders that the s 56A appeal is dismissed. 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: 29 September 2011