Marpet Enterprises v Eurobodalla Shire Council

Speaking of a similar statutory control in Weynton v Rockdale City Council (1999) NSW LEC 273, the Chief Judge has recently held that the purpose of a statutory provision that a brothel not "be located…(ii) near or within view of any church, hospital or school or from any other place regularly frequented by children for recreational or cultural activities" was "to preserve a sensitive use from the potential impact of a brothel": see at par 28.

In my opinion, the purpose of cl 31(1)(b) of the LEP is the specification of locational constraints on the development of a brothel on land within Zone No 4(a) Industrial where such constraints are based upon a spatial or geographic relationship (physical proximity or visibility) between (i) the site of such proposed brothel development; and (ii) the existence of any of the enumerated types of development (eg a church).

Moreover, it is to be noted that the enumerated types of development include developments that are prohibited purposes within Zone No. 4(a) - eg residences (dwelling-houses or residential flat buildings); hospitals and medical centres, from which it may be reasonably deduced that the "visibility" component of the spatial or geographic relationship postulated by the subclause necessarily extends beyond the physical limits of the Industrial Estate into neighbouring zones in which such purposes are permissible developments which are distant at least 150 m from the development site.

Moreover, and contrary to the Applicant's argument, there are textual matters in cl 31(2) of the LEP that demonstrate that cl 31(1)(b) of the LEP is not simply to prohibit a brothel development that has an adverse impact upon the amenity of existing development of the enumerated types.

I here specifically refer to cl 31(2)(b) and (e). If the purpose of cl 31(1)(b) were to eliminate brothels, having such an adverse impact, there would be no need for cl 31(2)(b) and (e) to require the Council to take into consideration whether the proposed brothel "would cause disturbance to the neighbourhood" (par (b)) or "would interfere with the amenity of the neighbourhood" (par (e)).

The separateness of considerations of (i) the physical proximity or visibility of a brothel development to certain types of other existing development; and (ii) disturbance in the neighbourhood or interference with the amenity of the neighbourhood, that is discernible in the provisions of cl 31(1)(b) and cl 31(2)(b) and (e) of the LEP reflects the same separateness of those considerations in the express provisions of s 17(5) of the Disorderly Houses Act 1943 as inserted into the Act by the Disorderly Houses Amendment Act 1995 (Act No 53) which obviously is the original inspiration for the similar provisions found in cl 31 of the LEP.

Coming to the relevant specific expressions contained in cl 31(1)(b) of the LEP, the Applicant makes the following submissions: (i.) The expression "adjacent to" does not require the properties to share a common boundary. However, it implies a closer degree of proximity than merely being in the same "vicinity" as one another. (ii.) The word "adjoins" is a narrower concept than "adjacent to". It requires contiguousness of properties. (iii.) The expression "within view of" does not, in context, mean "in line of sight from" otherwise absurd results would flow eg a church on an elevated site overlooking the industrial estate would preclude development for the purposes of a brothel anywhere on the estate, regardless of considerations of distance separation and lack of visual impact. (iv.) For an object to be "viewed", it must be possible that the viewer see and appreciate what the particular object distinctively is. It is not enough that it is possible to view from various vantage points some sections of the roof and wall elevations of the warehouse in which the brothel is to be conducted, where what is viewed is an undifferentiated version of a roof or wall of any type of warehouse building located in the Industrial Estate. (v.) It is conceded that the Bay Roller World premises is relevantly a "place frequented by children". However, it cannot be said that the road carriageway or pedestrian footpath section of Kylie Crescent in the vicinity of the development site is "a place frequented by children". The transitive verb "to frequent" does not encompass the transient act of passing by, as a pedestrian or passenger in a motor vehicle or bus. Rather, "to frequent" a place requires a continuing act of being present or in attendance at that place.

I preface my adjudication by noting that the preliminary issue raises mixed questions of fact and law in the manner expounded by Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512/512 in a passage adopted by Mason J in Hope v Bathurst City Council (1980) 144 CLR 1.

My determination of the questions raised in the present case will, conformably to the parties' mutual desire, necessarily include any ultimate findings of fact.

In this sense, the determination is not confined to a determination of a question of law, because to leave any ultimate question of fact unanswered, would be to largely defeat the parties' common objective of seeking the Court's determination of a preliminary issue. Since the parties have fully presented the competing cases on the issue, it is entirely appropriate that the issue be determined at this stage in the proceedings, rather than being left for decision at any further hearing on the planning merits.

Turning to the proper interpretation of cl 31(1)(b) of the LEP, I am of the opinion that the various words employed in the statutory formulation of what I have held to be the "spatial or geographic relationship" between a proposed brothel development and existing developments of the types enumerated in the subclause, are ordinary English words or expressions and prima facie, should receive their ordinary or natural meanings.

However, the words "adjacent" and "adjoin" are flexible words and their true meaning will be considerably influenced by considerations of context and legislative purpose.

Considerations of context include - (i.) the fact that subclause (1) specifies a minimum separation of 50 m from "land zoned for residential use"; (ii.) the fact that the spatial or geographic relationship is expressed by reference to a compound expression "must not be located on property adjacent to, adjoining, or within view of, any church etc". (iii.) the fact that cl 31(2)(b) and (e) of the LEP require the Council to consider whether the operation of the proposed brothel "could cause a disturbance in the neighbourhood" or "would interfere with the amenity of the neighbourhood"; and (iv.) the fact that some of the enumerated types of development are for purposes that are prohibited in Zone No 4(a) but are permissible in other zones (eg the Residential Zone) situate beyond the physical limits of the Industrial Estate.

These several contextual considerations by no means speak with one voice or lead unerringly in one direction. However, they do suggest, as I have earlier mentioned, two discrete components of the spatial or geographic relationship between the site of a proposed brothel and other existing development of the enumerated types, namely (i) physical proximity - by the use of the terms "adjacent to" or "adjoining"; and (ii) visibility by the use of the expression "within view of".

The ordinary dictionary meanings and usage of the words "adjacent" and "adjoin" clearly indicate that the former has a wider meaning than the latter.

In their statutory collocation in cl 31(1)(b) of the LEP, "adjoining" clearly carries its ordinary and narrow meaning of being contiguous. The present statutory context means that the cases which have interpreted "adjoining" in a loose sense do not apply, eg Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276; Hornsby Council v Malcolm (1986) 60 LGRA 429; and Parkes and Spencer v Rastogi (1992) 78 LGERA 71.

Concerning the word "adjacent", as the Privy Council observed in Mayor of Wellington v Mayor of Lower Hutt (1904) AC 773:

Adjacent is not a word to which a precise and uniform meaning is attached by ordinary usage. It is not confined to places adjoining and it includes places close to or near.

Considerations of context and statutory purpose in the present case justify adopting as the meaning of the expression " adjacent to " - lying near to, close or neighbouring.

Applying that adopted meaning to the facts of the present case leads me to the ultimate finding that the property on which the proposed brothel is to be located is relevantly "adjacent to" the Bay Roller World premises, that being "a place frequented by children" within the meaning of cl 31(1)(b) of the LEP.

Coming next to the expression "within view of", I am of the opinion that that expression means "in sight of": see Macquarie Dictionary. It is important to determine what precisely it is that is within view. Clause 31(1)(b) clearly enough indicates that it is "the property" on which the proposed brothel development is to be located. This means in the present case, the development site and the existing warehouse building erected thereon.

If that "property" is within "sight of" any of the enumerated types of development, the locational constraint is relevantly enlivened. Does it matter that only some part of the property be visible rather than the entire property? I do not think so, subject to the possible application of the de minimis principle.

On the facts of the present case, the only possible application of the de minimis principle to a part only of the building that is visible, concerns the rooftop view of the warehouse building from the Bay Roller World site.

If the facts were that this was the only relevant visibility of "the property", from all relevant viewing sources, I would be inclined to apply the de minimis principle.

However, the facts indicate that much more substantial parts of the warehouse building are visible from the place in Kylie Crescent at which the bus delivers and collects children into patronise the Bay Roller World development. That is also a place frequented by children.

Additionally, the facts indicate that substantial parts of the warehouse building are visible from at least five residences situate some 150 to 170 metres distant from the development site.

Visibility of substantial parts of the warehouse building from these places, in my judgment independently enlivens the locational constraints of cl 31(1)(b) of the LEP.

In so concluding, I do not accept the Applicant's submission that the locational constraint is only enlivened if the relevant viewer can distinguish the brothel premises, by virtue of some external mark or identification, from the other warehouse and industrial type buildings that are also located in the Industrial Estate. In my opinion, this submission puts an impermissible gloss on the statutory language. As I have earlier noted, the object relevantly within view is "the property" on which the proposed brothel development is to be established. On the facts of the present case, "that property" includes the existing warehouse building erected on the development site, within part of which the brothel is proposed to be accommodated. It may safely be assumed that the exterior of that building would remain unchanged, notwithstanding the establishment therein of the proposed brothel. In other words, the existence of the brothel within the warehouse building would presumably be discreetly unnoticed externally. But these features of the exterior appearance of the building does not mean that it ceases relevantly to be "the property on which the proposed brothel is located" within the meaning of cl 31(1)(b) of the LEP.

The Applicant referred to the decision of Talbot J in Mavrik Pty Ltd v Tweed Shire Council (1997) 98 LGERA 354 as providing some support for its submission that visibility of something distinctive to the brothel use, was required rather than merely visibility of some non-descript elements of the exterior of a building. In that case, his Honour did make the following observations at p 358:

I have already dealt with the evidence in respect of the relationship to the bus stop and the public school. In neither case is the use of the upstairs of the premises for a brothel likely to have any adverse impact upon impressionable children. From the point of view of the school, all that can be seen is the rear of a building which gives no indication of the use. Patrons or customers using the premises are unlikely to be identified as such by any school user. So far as the bus stop is concerned, the use of the premises will not be discernible from any external point. The doorway leading to the upstairs section of the building will be identified only by a street number.

However, his Honour's observations were part of his appraisal of the planning merits of a development appeal in respect of a brothel proposal. In particular, they were not directed to a statutory provision like cl 31(1)(b) of the LEP. Rather, the relevant controls on brothel development were contained in a development control plan and the controls on visibility were focussed " on the points of public access " to the brothel.

In the circumstances, I do not think that the decision in Mavrik supports or assists the Applicant's present submission, which I would reject for the reasons I have given.

Finally, I would also find that that part of Kylie Crescent in the vicinity of the development site where the warehouse building is entirely within view of children passing by (either as passengers in motor vehicles or buses or as pedestrians) coming and going from the Bay Roller World premises is relevantly "a place frequented by children".

In so concluding, I would adopt the dictionary meaning of the transitive verbs "to frequent", namely "to be often in": see Macquarie Dictionary.

For all the foregoing reasons, I am of the opinion that the proposed brothel infringes cl 31(1)(b) of the LEP in the manner and to the extent I have identified in my preceding adjudication.

It follows that the preliminary question must be answered in the affirmative.

However, this answer must be qualified in recognition of the possibility that cl 31(1)(b) of the LEP relevantly imposes "development standards" within the meaning of the EP&A Act which are susceptible to the dispensational power conferred by State Environmental Planning Policy No 1 - Development Standards (SEPP No 1).

Unfortunately, the Applicant, in its case preparation in response to the Council's initiative in raising the question of law for preliminary determination had not considered the question of the potential availability of dispensational relief under SEPP No 1 in the event of the Court accepting the Council's argument on the preliminary question. However, the Council's written legal submissions had fully addressed the question of the possible operation of SEPP No 1, contending that cl 31(1)(b) of the LEP did not impose any relevant development standards, but instead operated to absolutely prohibit brothel development within Zone No 4(a) if the locational requirements of cl 31(1)(b) of the LEP were not satisfied.

A formidable difficulty confronting the Council's argument is the decision of the Chief Judge in Weynton where her Honour considered a statutory provision not materially different from cl 31(1)(b) of the LEP.

The statutory provision considered in Weynton was contained in the following clause of the Rockdale Planning Scheme Ordinance:

46B(1) Despite any other provision of this Ordinance, a building may be erected or used for the purposes of a brothel only if: (a) ……. (b) (it) is not located: (ii) near or within view from any church, hospital or school or from any other place regularly frequented by children for recreational or cultural activities.

In a fully reasoned judgment, the Chief Judge held that the whole of cl 46B (1)(b) was a development standard. In so concluding, she also relied upon her then recent decision (delivered just a few weeks earlier) in Vassallo v Blacktown City Council (1999) NSWLEC 267).

I have read these decisions (which were helpfully cited in the Council's list of authorities) and I am familiar with all of the cases cited in support of the Council's argument.

Although it is established that the question whether a provision of an environmental planning is or is not a development standard in terms of the EP&A Act is to be determined as a matter of statutory construction, it is obvious that decided cases dealing with the same or similar statutory provisions will normally provide significant assistance, if only by way of illustration, in that task.

In this respect, I can discern no material difference between cl 31(1)(b) of the LEP and the statutory provision construed in Weynton to be a development standard.

If this be so, then realistically, any ultimate acceptance of the Council's argument that cl 31(1)(b) of the LEP is not a development standard, would inevitably require a decision that Weynton not be followed.

If I were now called upon to decide the issue on the basis of the Council's written submissions and the brief and incomplete submissions in reply by the Applicant, I would, as presently advised, respectfully be inclined to follow the decision in Weynton. I would add that my reasons for judgment in Fencott Drive Pty Ltd v Lake Macquarie Council [2000] NSWLEC 146 delivered subsequent to the completion of the hearing in the present case, reinforces my present inclination.

However, since the question was not fully argued by either party and the Applicant expressly wished the opportunity to advance additional argument, I do not feel free to decide the point.

The inevitable result must be that my determination of the question of law must be qualified by expressly reserving the question whether dispensational relief is available under SEPP No 1 in respect of the requirements of cl 31(1)(b) of the LEP.

Having reached this point, the parties might sensibly agree (particularly having regard to the decision in Weynton) that rather than revive the outstanding question by way of a further preliminary hearing of the matter, the Applicant might choose to submit to the Council any objection under SEPP No 1 it may wish to make in respect of the requirement of cl 31(1)(b) of the LEP, so as to seek the Council's decision on the merits of such an objection. (In this regard, I would interpose that since the Council's determination of the Applicant's development application proceeded on the basis that the proposed development was for a permissible purpose with the Council's consent, there had been no prior consideration by the Council or the Applicant of the possible operation of SEPP No 1 in respect of cl 31(1)(b) of the LEP).

However, if the parties mutually desire to obtain a preliminary determination in respect of the possible application of SEPP No 1 to cl 31(1)(b) of the LEP, I shall of course reserve liberty to restore on three days' notice.

For all the foregoing reasons I make the following orders:

1. The question whether the proposed development is prohibited by cl 31(1)(b) of the LEP be answered as follows:

Yes - but subject to any possible application of SEPP No 1. 2. Grant liberty to restore on three days' notice.

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.

33. However, the facts indicate that much more substantial parts of the warehouse building are visible from the place in Kylie Crescent at which the bus delivers and collects children into patronise the Bay Roller World development. That is also a place frequented by children.

34. Additionally, the facts indicate that substantial parts of the warehouse building are visible from at least five residences situate some 150 to 170 metres distant from the development site.

35. Visibility of substantial parts of the warehouse building from these places, in my judgment independently enlivens the locational constraints of cl 31(1)(b) of the LEP.

36. In so concluding, I do not accept the Applicant's submission that the locational constraint is only enlivened if the relevant viewer can distinguish the brothel premises, by virtue of some external mark or identification, from the other warehouse and industrial type buildings that are also located in the Industrial Estate. In my opinion, this submission puts an impermissible gloss on the statutory language. As I have earlier noted, the object relevantly within view is "the property" on which the proposed brothel development is to be established. On the facts of the present case, "that property" includes the existing warehouse building erected on the development site, within part of which the brothel is proposed to be accommodated. It may safely be assumed that the exterior of that building would remain unchanged, notwithstanding the establishment therein of the proposed brothel. In other words, the existence of the brothel within the warehouse building would presumably be discreetly unnoticed externally. But these features of the exterior appearance of the building does not mean that it ceases relevantly to be "the property on which the proposed brothel is located" within the meaning of cl 31(1)(b) of the LEP.

37. The Applicant referred to the decision of Talbot J in Mavrik Pty Ltd v Tweed Shire Council (1997) 98 LGERA 354 as providing some support for its submission that visibility of something distinctive to the brothel use, was required rather than merely visibility of some non-descript elements of the exterior of a building. In that case, his Honour did make the following observations at p 358:

I have already dealt with the evidence in respect of the relationship to the bus stop and the public school. In neither case is the use of the upstairs of the premises for a brothel likely to have any adverse impact upon impressionable children. From the point of view of the school, all that can be seen is the rear of a building which gives no indication of the use. Patrons or customers using the premises are unlikely to be identified as such by any school user. So far as the bus stop is concerned, the use of the premises will not be discernible from any external point. The doorway leading to the upstairs section of the building will be identified only by a street number.

38. However, his Honour's observations were part of his appraisal of the planning merits of a development appeal in respect of a brothel proposal. In particular, they were not directed to a statutory provision like cl 31(1)(b) of the LEP. Rather, the relevant controls on brothel development were contained in a development control plan and the controls on visibility were focussed "on the points of public access" to the brothel.

39. In the circumstances, I do not think that the decision in Mavrik supports or assists the Applicant's present submission, which I would reject for the reasons I have given.

40. Finally, I would also find that that part of Kylie Crescent in the vicinity of the development site where the warehouse building is entirely within view of children passing by (either as passengers in motor vehicles or buses or as pedestrians) coming and going from the Bay Roller World premises is relevantly "a place frequented by children".

41. In so concluding, I would adopt the dictionary meaning of the transitive verbs "to frequent", namely "to be often in": see Macquarie Dictionary.

42. For all the foregoing reasons, I am of the opinion that the proposed brothel infringes cl 31(1)(b) of the LEP in the manner and to the extent I have identified in my preceding adjudication.

43. It follows that the preliminary question must be answered in the affirmative.

44. However, this answer must be qualified in recognition of the possibility that cl 31(1)(b) of the LEP relevantly imposes "development standards" within the meaning of the EP&A Act which are susceptible to the dispensational power conferred by State Environmental Planning Policy No 1 - Development Standards (SEPP No 1).

45. Unfortunately, the Applicant, in its case preparation in response to the Council's initiative in raising the question of law for preliminary determination had not considered the question of the potential availability of dispensational relief under SEPP No 1 in the event of the Court accepting the Council's argument on the preliminary question. However, the Council's written legal submissions had fully addressed the question of the possible operation of SEPP No 1, contending that cl 31(1)(b) of the LEP did not impose any relevant development standards, but instead operated to absolutely prohibit brothel development within Zone No 4(a) if the locational requirements of cl 31(1)(b) of the LEP were not satisfied.

46. A formidable difficulty confronting the Council's argument is the decision of the Chief Judge in Weynton where her Honour considered a statutory provision not materially different from cl 31(1)(b) of the LEP.

47. The statutory provision considered in Weynton was contained in the following clause of the Rockdale Planning Scheme Ordinance:

46B(1) Despite any other provision of this Ordinance, a building may be erected or used for the purposes of a brothel only if:

(ii) near or within view from any church, hospital or school or from any other place regularly frequented by children for recreational or cultural activities.

48. In a fully reasoned judgment, the Chief Judge held that the whole of cl 46B (1)(b) was a development standard. In so concluding, she also relied upon her then recent decision (delivered just a few weeks earlier) in Vassallo v Blacktown City Council (1999) NSWLEC 267).

49. I have read these decisions (which were helpfully cited in the Council's list of authorities) and I am familiar with all of the cases cited in support of the Council's argument.

50. Although it is established that the question whether a provision of an environmental planning is or is not a development standard in terms of the EP&A Act is to be determined as a matter of statutory construction, it is obvious that decided cases dealing with the same or similar statutory provisions will normally provide significant assistance, if only by way of illustration, in that task.

51. In this respect, I can discern no material difference between cl 31(1)(b) of the LEP and the statutory provision construed in Weynton to be a development standard.

52. If this be so, then realistically, any ultimate acceptance of the Council's argument that cl 31(1)(b) of the LEP is not a development standard, would inevitably require a decision that Weynton not be followed.

53. If I were now called upon to decide the issue on the basis of the Council's written submissions and the brief and incomplete submissions in reply by the Applicant, I would, as presently advised, respectfully be inclined to follow the decision in Weynton. I would add that my reasons for judgment in Fencott Drive Pty Ltd v Lake Macquarie Council [2000] NSWLEC 146 delivered subsequent to the completion of the hearing in the present case, reinforces my present inclination.

54. However, since the question was not fully argued by either party and the Applicant expressly wished the opportunity to advance additional argument, I do not feel free to decide the point.

55. The inevitable result must be that my determination of the question of law must be qualified by expressly reserving the question whether dispensational relief is available under SEPP No 1 in respect of the requirements of cl 31(1)(b) of the LEP.

56. Having reached this point, the parties might sensibly agree (particularly having regard to the decision in Weynton) that rather than revive the outstanding question by way of a further preliminary hearing of the matter, the Applicant might choose to submit to the Council any objection under SEPP No 1 it may wish to make in respect of the requirement of cl 31(1)(b) of the LEP, so as to seek the Council's decision on the merits of such an objection. (In this regard, I would interpose that since the Council's determination of the Applicant's development application proceeded on the basis that the proposed development was for a permissible purpose with the Council's consent, there had been no prior consideration by the Council or the Applicant of the possible operation of SEPP No 1 in respect of cl 31(1)(b) of the LEP).

57. However, if the parties mutually desire to obtain a preliminary determination in respect of the possible application of SEPP No 1 to cl 31(1)(b) of the LEP, I shall of course reserve liberty to restore on three days' notice.

58. For all the foregoing reasons I make the following orders:

1. The question whether the proposed development is prohibited by cl 31(1)(b) of the LEP be answered as follows:

Yes--but subject to any possible application of SEPP No 1.

2. Grant liberty to restore on three days' notice.