At the respondent's request, pursuant to s36(5) of the Land Environment Court Act 1979 the Assessor referred the following question of law for determination by a judge.

Whether, in exercising its power pursuant to s39 of the Land and Environment Court Act 1979 in an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 relating to a development application seeking development approval for the use of premises as a brothel, the Court must, once raised, consider as a relevant consideration the relevant community standards and views of the morality of the proposed use?

The applicant Beauty Holdings Pty Limited lodged a development application with the respondent seeking to use as a brothel premises which were formerly utilised for "stress management and reflexology" purposes. Among the objectors were a principal and a relieving principal of a local high school. Some objections to the proposed development were based on grounds that brothels are used for the purpose of prostitution and may expose school students to immorality. On 20 September 1996 the applicant appealed against the respondent's deemed refusal of the application. On 28 October 1996 the respondent refused the application. The matter was referred to a judge on the same question of law as that referred in the matter of Liu.

The applicant Lonza lodged a development application with the respondent seeking approval for the conversion of a former home improvement store to an "adult swingers

club". A document annexed to the development application describes the proposed

The business is to operate as an adult swingers club. The patrons, both male and female will be charged an admission fee on entry. Upon having entered, the entertainment, snacks, and refreshments will be free. The patrons are free to mix with other patrons and have sexual relations in the rooms provided. Videos is one form of entertainment. Strippers will perform on stage at about 9.00pm Wednesdays and Fridays for approximately 20 minutes. The maximum number of patrons at any one time should be about 20 people.

A plan annexed to the development application describes each of three areas in the premises as a "sexual encounter room".

On 20 September 1996 the applicant Lonza appealed against the respondent's deemed refusal of his development application. The matter was referred to a judge on two questions of law. The first question is that referred in the Liu and Beauty Holdings matters. The second is in the following terms.

Whether the proposed development is "an entertainment facility" as defined in Fairfield LEP 1994 and is therefore prohibited within zone 3(c) Local Business Centre wherein the subject land is located?

Morality in the context of section 90(1)

The respondent properly concedes that the matter of community moral standards could be relevant to a consent authority's determination of a development application only if that matter fell within one of the heads of consideration enumerated in s90(1) of theEnv,ironniental Planning and Assessment Act 1979 (the EP&A Act 1979). It is apparent from the scope, terms and context of s90(1) that the list of considerations there enumerated is exhaustive of the matters to be considered by a consent authority: see The Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1985-86) 162 CLR 24 at 39.

"Morality" is not expressly identified as a s90(1) factor. However, the respondent contends that morality falls within the s90(1)(d),(o),(q) or (r) heads of consideration.

90(1) In determining a development application, a consent authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application:

(d) the social effect and the economic effect of that development in the locality;

(o) the existing and likely future amenity of the neighbourhood;

Morality is concerned with abstract matters of right and wrong, good and evil. Generally, s90 is concerned with concrete planning matters. The capacity of councillors to inquire into and determine a predominant public standard on a matter of morality must be doubted. It would be surprising if a council acting as consent authority under s90(1) was required to consider matters ranging as far from concrete planning matters as might issues of morality.

It would be contrary to the public interest that consent be granted for an otherwise illegal use. A consent authority should decline to consider or should refuse a proposed development for an illegal use: Lee v Sydney City Council (1983) 50 LGRA 382, Parramatta City Council v Locker (1989) 68 LGRA 334. The latter case concerned a development application for a brothel. At the time, the keeping of a brothel was a common law misdemeanour.

A more generous approach to the question of consent to illegal use was taken in Bodyline Spa and Sauna (Sydney) v South Sydney City Council (1992) 77 LGRA 432. The Court considered an appeal against the refusal of consent for a "gay men's social club", being a "sex on premises" venue for men to have sex with men. The council submitted that the proposed use of the premises was likely to constitute the common law indictable offence of keeping a disorderly house in that the proposed activities would be "an an outrage of public decency". It was submitted that consent should not be granted to an unlawful use of premises. Stein J. found himself unable to conclude that a properly instructed jury would he likely to convict on a charge of the common law misdemeanour. His Honour found that the possible commission of a common law offence was not a sufficient discretionary planning factor upon which to refuse consent.

Prostitution was "decriminalised" with the passing of the Prostitution Act 1979.

Prior to the commencement of the Disorderty Houses Amendment Act 1995 (the Amendment Act), the keeping of a brothel was a common law offence. Section 3(1)(e) of the Disorderly Houses Act 1943 enabled the Supreme Court to declare premises to be a disorderly house where those premises were habitually used for the purpose of prostitution, whether or not the premises were "disorderly" in the ordinary sense of that term: Sibuse Pty Limited v Shaw (1988) 13 NSWLR 98. The effect of such a declaration was that people in, on, entering or leaving the premises could be convicted of an offence, and the repetition of prostitution upon the premises might render an owner or occupier guilty of an offence.

The Amendment Act was designed to overcome the effect of Sibuse Pty Limited v Shaw by omitting s3(1)(e) of the Disorderly Houses Act 1943 and expressly providing that a disorderly house declaration could not be made solely on the ground that premises were a brothel. By introducing s580C of the Crimes Act 1900, the Amendment Act abolished the common law offence of keeping a brothel and related common law offences.

Section 17 of the Amendment Act creates a vehicle whereby, upon the making of a complaint by local residents or occupiers, a council may apply to the Land and Environment Court for an order that an owner or occupier of a brothel is not to use or allow the use of the premises for the purposes of a brothel. Section 17(5) of the Amendment Act exhaustively enumerates the matters which the Court is to consider in making such an order. Generally, the enumerated matters are planning matters, eg proximity to schools, traffic and amenity. The final relevant consideration is contained in s17(5)(g), which provides:

(g) any other matter that the Land and Environment Court considers is relevant.

This provision reflects amendments advanced in the Legislative Council. In the original bill, s17(5)(g) read:

(g) any other environmental planning matter that the Land and Environment Court considers is relevant.

In the Legislative Council, it was proposed that s17(5)(g) be amended to read:

(g) whether the operation of the brothel is against public morals or good order.

That amendment was strenuously opposed by the government on the basis that the Court was a court of law and not a court of morals, and that it was inappropriate for judges to decide cases on the basis of their own moral views. However, the subsequent amendment, which ommitted from s17(5)(g) the words "environmental planning", was not opposed by the government.

Perhaps it may be deduced from the above that, on an application for a s17 order, tne Court may consider matters beyond "environmental planning" matters, but not whether the operation of a brothel is "against public morals or good order".

In address, counsel referred extensively to the Amendment Act. However, the Amendment Act has limited significance in relation to the first point of law which I am asked to consider. It "decriminalises" the use of premises as a brothel, thereby removing the impediment of illegality formerly attaching to the grant of development consent to a brothel. Once operating with consent, a brothel may not be closed on the basis that its operation offends public morality. Except insofar as the criminal law may be taken to reflect public morality, and questions of morality are caught up in questions of legality, the Amendment Act has little bearing on the first point of law which I am asked to consider.

In interpreting the scope of s90(1)(d), regard may be had to s5 of the Act, which contains the objects of the Act. Section 5 provides:

(i) The proper management, development and conservation of natural and man-made resources ... for the purpose of promoting the social and economic welfare of the community and a better environment;

In s4, "environment" is broadly defined as follows.

"environment" includes all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings;

Section 90(1)(d) extends the scope of what were traditionally regarded as planning considerations: Bauer Holdings Pry Limited v Sydney City Council (1981) 48 LGRA 356 at 365. However, this head of consideration is not open-ended. Rarely, if ever, could material establishing personal upset and offence, or the fears that some individuals may hold about a potential for moral corruption, demonstrate that a particular development in a particular locality would have a detrimental social effect. The position may be different where, by expert or other evidence, antagonism between a particular development and the religious or cultural values of an immediately affected and identifiable group can be demonstrated. Such evidence would need to address the likely effect of the development

The neighbourhood amenity to which s90(1)(o) refers comprises those aspects of the physical surroundings which give pleasure.Various physical matters affecting amenity are dealt with elsewhere in s90(1). For example, s90(1)(c) addresses the effect of a proposed development on the landscape or scenic quality of "the locality".

I agree with the approach of Talbot J. in Henderson v Sydney City Council (8 May 1995) that amenity includes such matters as aesthetics and the physical impact of noise or smell. The "amenity" of a neighbourhood must relate to physical attributes of the environment, rather than to claimed circumstances which lack a physical manifestation.

In Venus Enterprises Pty Limited v Parranwtta City Council (1981) 43 LGRA 67, Cripps J. considered whether development consent should be granted in relation to a "sex shop". The council submitted that the activities to be carried on upon the premises would be so offensive to the ordinary citizens of Parramatta that the application should be refused having regard to the existing and likely future amenity of the neighbourhood. The developer submitted that matters of taste and morals were not relevant. At 69-70 Cripps

I'm not persuaded, as a matter of law, that matters of taste and morality must necessarily be put to one side when determining whether or not a development is appropriate. It must always be a question of fact whether the amenity of a neighbourhood will be or is likely to be adversely affected by a development. It is not difficult to envisage a development which may cause such great offence to a significantly large part of a community that for that reason it ought not to be permitted on town planning grounds. I have no doubt, however, that the Court ought never to allow its own personal view of matters of taste or sexual morality to be a substitution for the evidence or to fill a vacuum left by the evidence. It is in this sense that it could be said that it is not for the Court to impose standards of morality.

Cripps J. concluded that the grounds of objection (including the allegation of adverse impact on existing and likely future amenity) were not established.

The above passage was cited with approval by McLelland CJ. in Dennis v Parramwa City Council (1981) 43 LGRA 71 at 74.

I agree with the general sentiments expressed by Cripps J., but disagree that offence to a particular group should be considered as a matter affecting "amenity". A diminished enjoyment of the perceived general moral environment (as opposed to the neighbourhood physical environment) is not a matter which may properly be taken into account pursuant to s90(1)(o) of the Act.

The respondent submits that community standards on moral views are most appropriately to,be taken into consideration under s90(1)(q) or (r) of the EP&A Act 1979.

In Cacolot Pty Limited v Fairfield City Council (1996) 91 LGERA 413, the Court considered a s56A appeal against the approval of a "sex shop". While this matter was not important to a determination of the appeal, Bannon J commented upon the Court's ability to determine for itself community standards regarding indecency and obscenity. At 416 His Honour said..

The portion of the assessor's decision in which he referred to the enlightened times of 1996 is not the subject of appeal. However, it is proper when matters such as these come before the Court for review to emphasise that the test of indecency or obscenity does not depend on how many or how few people raise objections to a proposed development. It is the responsibility of the Court to reach a decision on the matter if it is one of the issues, and it is a responsibility which cannot be abnegated by taking a statistical approach. That is not to say, of course, that the views of principals of public schools responsible for the education of young people and of elected councillors should be ignored. They must be of some assistance to a Court in determining the question of community standards.

If His Honour was intending to suggest that lawful but "immoral" development may be refused because general conununity moral standards are a relevant matter under s90(1)(q) or (r), then I respectfully disagree.

When s90(1)(q) refers to the "circumstances of the case", it refers to the distinguishing circumtances of a particular case, rather than to general matters affecting all such cases. General community standards of morality in relation to brothels could not fall within the s90(1)(q) head of consideration.

Section 90(1)(r) must be read in the context that the other s90(1) heads of consideration are environmental and planning considerations. The appropriate legal vehicle for any regulation of morality is the criminal law. In New South Wales, both prostitution and brothel operation have recently been "decriminalised". It could not be in the public interest that local councils or this Court now assume the mantle of moral arbiter.

Community standards and views on the morality of brothels are not relevant under any s90(1) head of consideration. While the morality issue per se is irrelevant, the demonstrable social effect of a particular brothel use is relevant under s90(1)(d).

The Lonza application seeks to develop land in the 3(c) local business centre zone as an "adult swingers club". In that zone, "entertainment facilities" are prohibited.

Pursuant to clause 5(1) and the dictionary to the Fairfield Local Environment Plan 1994 (the LEP), "entertainment facility" is defined as follows:

"entertainment facility" means a building or place used for the purpose of sport, entertainment, exhibitions or displays and includes sport stadiums, showgrounds, racecourses and places of public entertainment, but does not include a building or place defined elswhere in the plan.

The applicant Lonza submits that the use in question is not use as an "entertainment facility" because it is use as a "club", which is defined elsewhere in the LEP.

"Club" is defined by clause 5(1) and the dictionary to the LEP as follows.

"Club" means a building or place used for the gathering of persons for social, literary, political, sporting, athletic or other lawful purposes and includes a club registered or intended to be registered under the Registered Clubs Act 1976.

The applicant submits that there is insufficient material to enable a decision to be made as to whether the dominant purpose of the proposed "adult swingers club" is to provide m entertainment' or is to provide a "club". I reject this submission. It is abundantly clear that the dominant if not the sole purpose of the proposed "adult swingers club" is to enable adults to amuse themselves and others by engaging in casual sex.

Clearly, a use cannot acquire the status of "club" use merely by adopting the nomenclature "adult swingers club".

Reference to the Shorter Oxford and Macquarie Dictionaries shows that a "club" is a group or association of people regulated by rules upon which the members have agreed. At the very least, there must be some sort of "association". Ordinarily, there will be at least rudimentary rules governing the structure of the association: South Sydney City Council v Spanos Enterprises Pry Limited (Pearhnan J., 9 December 1994).

The applicant relies upon the decision in Bodyline Spa as establishing that premises of the type in question are a "club" and consequently are not an "entertainment facility". In Bodyline Spa the premises operated as a members' club. There was a membership policy and rules.

There is no suggestion of a "membership" requirement or of any structure promoting an ongoing association between patrons of the proposed "adult swingers club". Upon payment of an admission fee, a patron may enter and engage in the available activities.

I consider that where the LEP definition of "Club" refers to "the gathering of persons" it implies some continuity to the gathering in the sense ordinarily contemplated by the expression "club" and ordinarily manifested in a membership policy and rules. The proposed use does not contemplate such a continuity of gathering.

The answers to the questions of law are detertnined as follows.

First question:Whether, in exercising its power pursuant to s39 of the Land and

Environment Court Act 1979 in an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 relating to a development application seeking development approval for the use of Dremises as a brothel. the Court must, once raised, consider as a relevant consideration the relevant community standards and views of the morality of the proposed use?

Second question:Whether the proposed development is "an entertainment facility" as

defined in Fairfield LEP 1994 and is therefore prohibited within zone 3(c) Local Business Centre wherein the subject land is located?

I HEREBY CERTIFY THAT THIS AND THE PRECEEDING 8 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF HER HONOUR ACTING JUSTICE H.G. MURRELL.