Soueid v Leichhardt Municipal Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11644 of 2003 & 10092 of 2004 Margaret Soueid v Leichhardt Municipal Council

JUDGMENT 1 COMMISSIONER: These are two appeals concerning premises at 175 Parramatta Road, Annandale. The first of them, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act), is an appeal against a refusal by Leichhardt Municipal Council (the council) of Development Application No. 282/02 for the purposes of permitting the premises to be used as a sex shop and brothel. The premises are presently operating for those purposes without consent. The second is an appeal pursuant to s 121ZK of the Act against an order made pursuant to s 121B of the Act requiring the cessation of those unpermitted uses.

2 It would seem to me that, in dealing with these two appeals, the logical process is to deal first with the appeal against refusal of the refusal of the development consent. 3 It is common ground between the parties that, if I uphold the appeal against the development consent, a number of matters arising out of the operational issues for the premises, relating to management planning, access for disabled purposes and residence of the manager on site and the possibility of a time limit on any consent which might be given, would then require to be dealt with. If the appeal is refused, then issues arise as to whether or not I should grant some period within which an orderly relocation of the existing business should be undertaken, there being two alternatives as to the method by which I might do that, one by in effect staying the order for closure for a period or secondly by granting a consent subject to a limitation.

4 I turn first to the issue of the appeal against the refusal of the development consent.

5 Effectively, matters to which I am taken both by the council's formal Statement of Issues and from the objections raised by a number of residents or occupiers of premises in the vicinity of the site fall to be considered against the provisions of cl 23(5) of the Leichhardt Local Environmental Plan 2000 (the LEP). The matters that are contained in subcl (5) of that clause are preceded by the words that consent must not be granted to the carrying out of development for the purposes of a brothel or sex shop unless consideration has been given to those matters which are enumerated in (a) to (d) of that provision. It is not mandatory that I refuse to grant the application if I am concerned about any of those matters. 6 In addition, the council's without prejudice conditions of consent proposed a number of matters be dealt with by way of deferred commencement condition. I indicated that I was not prepared to consider that because I was concerned that it would offend against the decision of the Court of Appeal in Weal v Bathurst City Council 111 LGERA 181. I also indicated that the appropriate course to be followed, if I were minded to grant a consent, would be for an agreed plan of management subject to the matters which I had dealt with in my reasons for decision being brought back to the Court at some later time in the future.

7 Essentially, the issues that arise are those which, for determination (as opposed to condition), arise out of cl 23(5)(a) and (b) that is the possibility of impacts on places of public worship or schools or any place regularly frequented by children for recreational or cultural activities and the issue of adverse amenity on the neighbourhood.

8 There are some seven specific matters, it seems to me, that fall to be dealt within that structure.

9 The first is the issue of whether or not there would be an impact on the children's wear and play equipment shop in the vicinity of the premises. I am satisfied that within the terms of the LEP such shop does not constitute a place regularly frequented by children for recreational or cultural activities and, despite the evidence of Mrs Nardile about her children's attendance at the shop and the restrictions that she places thereupon, I am not satisfied that such an impact would warrant the refusal of the application.

10 The second two premises that fall into the second issue for consideration are the dance studios, one being on the same side as the subject premises and the other being on the opposite side of the road. Although evidence was given by Ms Rodriguez that on Saturdays there were children's dance classes undertaken in her premises which are on the opposite side of the road to the subject premises at 248 Parramatta Road and that the clientele range from two and a half years to older adolescents and that such activities took place between 11 am and 7 pm on Saturdays, I am not satisfied that the impact of premises separated from that dance studio by a wide and busy road would be such that children would be at risk from use of the premises. I have insufficient detailed evidence with respect to the premises on the northern, that is the subject site's side of Parramatta Road, to draw any adverse conclusion to the present application. 11 The third relates to the location of the Holy Convent which is some distance to the north-east of the subject premises. I am not satisfied (and there is no evidence before me that would lead me to conclude) that it is a place of public worship, merely a place of residence for members of a religious community and those who stay with them from time to time, including overseas students. I am satisfied from the nature of the locality and the distance between those premises and the subject site that there would be no adverse impact.

12 The fourth location is the premises of the Loyal Orange Institution of New South Wales located at 161 Parramatta Road. In evidence before me is a letter of objection, not contradicted by any evidence on behalf of the applicant, which includes the statement that, besides holding regular lodge meetings both day and night, religious services are also conducted on the premises. The latter activity involves the teaching of Sunday school to young children. The first point to be made by that is that this Court is not a court of morality, as Cripps J said in Venus Enterprises v Parramatta City Council (1981) 43 LGRA 67, so that the issue of whether or not the operation of the premises are unchristian activity is not something that properly falls for my consideration. However, the concern with respect to the teaching of Sunday school to young children on Sundays is a proper consideration. The evidence, however, from the applicant's town planner, Mr Brindle, is that business is "not brisk" on Sunday mornings and, although that was given in the context of the dance studio, his evidence was that on Sunday mornings there was unlikely to be any significant conflict between those attending the Loyal Orange Institution and those seeking to attend the subject premises. Although that risk might well be exacerbated by the agreed requirement that all access to the premises be from Parramatta Road rather than from Albion Lane, I am not satisfied that that would warrant refusal of the application.

13 The fifth impact is the economic impact, which was the basis of the objections from Mr Yakamanous and Mrs Sincich who were concerned that the regularisation of the operation of the premises would act to affect their economic interests as proprietors of premises in the vicinity and the evidence that was given that tenants were threatening to leave. Contrary to the submission that was made by Dr Berveling, the economic impact that was dealt with by Stephen J in Kentucky Fried Chicken v Gantidis [1979] 140 CLR 675 did deal with the concept of economic impact on premises that were not premises of a similar nature. Had this been a submission that was made concerning the economic impact on a brothel in competition in the vicinity, the decision of the High Court in that case would preclude it from being considered as a legitimate planning matter. In the present case, however, the economic impact is not an impact on a competitor but is an economic impact on others in the local community. It is therefore a legitimate matter of forensic concern in these proceedings. The question that I have to determine is whether this concern, which was obviously legitimate from the evidence that was given during the site hearing this morning, amounts to such as to warrant either by itself or in consideration with other impacts the refusal of the application. As a first step I would indicate that I am not satisfied that the economic impact would by itself warrant refusal but it is appropriate to be weighed together with the other matters which I might consider are unacceptable impacts in determining whether in totality they warrant refusal. 14 The sixth matter is the matter of amenity of residents. There are three sub-elements to this. The first is the evidence that was given by Father Devrey and Mr Ford concerning the impact on other members of the Saint Fiacre's school community other than the children of Mr and Mrs Nardile who reside in the property to the east of the premises. I am not satisfied, because of the distance from the subject premises to the school which is at some considerable distance to the north-west of the subject premises, that despite the evidence of Father Devrey that some 40% of the school's catchment is to the south of Parramatta Road there would be sufficient impact on pupils walking to and from the school to warrant that being a matter of significant concern. Evidence of the second class of impact on adjacent residents in the vicinity was given by Ms Moy and Ms Gunn, who reside at 6 Annandale Street, concerning the impact, particularly the impact on Ms Gunn of noise in the adjacent laneway at nights arising from rowdy behaviour of persons who she believed might well be patrons or intending patrons of the premises. This rowdiness was questioned by Dr Berveling on behalf of the applicant as to whether she could be certain that such noise could be attributed to patrons of the premises. However I accept, in light of the evidence given by Mr Huxley that he had heard words in the laneway in the early hours of the morning to the effect of "let's go into the brothel", that at least some of the noise that is experienced by Ms Gunn from her bedroom window is attributable to the patrons of the premises with the present rear lane access to the premises.

15 A more serious condition arises with respect to Mrs Nadile who resides immediately to the east and upstairs from the premises. Mrs Nadile has four daughters aged five, ten, eleven and thirteen and she had expressed fears that the contest that had already been occasioned on a number of instances between patrons of the brothel seeking the location of the brothel and inquiries made at the entrance way to her premises in Albion Lane would continue and that that was inappropriate and that she had fears for the safety of her children. I am satisfied that those fears are not merely irrational fears without foundation. Indeed I was taken in this context, by Mr Jackson for the respondent council, to the decision of the Full Court of the Supreme Court of Queensland in Broad v Brisbane City Council (1986) 59 LGRA 296. Following the decision in Broad I was taken also by Mr Jackson to the decision in Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62 concerning the need for me to have regard to the likely impacts. In that case Bignold J cites Jacobs J in the Full Court of the South Australian Supreme Court in Novak v Woodville City Council (1990) 70 LGERA 233, quoting approvingly, from the decision in Venus Enterprises: "It must always be a question of fact whether the amenity of the neighbourhood will or is likely to be adversely affected by a development. It is not difficult to envisage a development which may cause such a great offence to a significantly large part of the community that for that reason it ought not be permitted on town planning grounds". Bignold J adopted this expansive position as a consequence of the statutory scheme derived from s79C of the Act and I consider it appropriate to follow that approach. 16 It would seem to me that that position has subsequently been dealt with by Lloyd J in a decision involving Baulkham Hills Shire Council and a proposed Muslim prayer centre at Annangrove which was opposed by a significantly large portion of the community but where there were no legitimate town planning grounds for such opposition: see New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154.

17 The question that arises for me to determine in this matter is not whether there is an apprehension or whether there is a fear but whether there is a reasonable likelihood of the apprehension or fear of an adverse impact being realised. I am satisfied that, although the relocation of the entrance to the premises to Parramatta Road would have a significantly ameliorative effect on Mr and Mrs Nadile, they would nonetheless have at least some real and residual apprehension of an adverse impact. Again the question that arises for my determination is whether that, coupled with any other impacts, is sufficient to warrant refusal of the application. I am not satisfied that, by itself, it would.

18 In my mind, however, outweighing all of those impacts is the question of the public interest in the continuation of the activities undertaken by Mr and Mr Huxley at 128 Albion Street where they accept young female children at risk for care through a fostering or caring arrangement with Barnardos Australia. In the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289, at par 81 of the decision of the Court, Mason P, with whom both Spigelman CJ and Ipp AJA concurred: "The power of this Court to make findings of fact on the public interest going well beyond the ordinary scope of planning documents and the like is confirmed" and indeed it goes so far as to say: "For one thing the government is not the only source of wisdom in this area. A consent authority may range widely in search for material as to the public interest". 19 The evidence that was given by Mr Huxley commences with the material contained in his letter of objection dated 12 July 2002. I propose to quote it in full with respect to the crisis care activities he and his wife undertake. It said: "We are registered crisis carers for the Department of Community Services and Barnardos who take in teenagers in need including wards of the state. The location and placement of teenagers in care is carefully assessed by the Department and other agencies prior to the actual placement being made. One of the key considerations is the location of the home/residence to brothels/sex shops. We have been advised that should the application for 175 Parramatta Road be granted, then that would probably eliminate us from acting as carers. Carers in the inner west are very limited in number with demand exceeding supply by approximately twenty to one. That is twenty children are requiring care for every one available carer (the Department of Community Services figures 2001). On several occasions children in care with us have been approached by potential customers of the current illegal brothel on the site and asked how do they gain access and if they work there". 20 Mr Huxley also gave oral evidence to the Court concerning this matter. He confirmed that Barnardos had expressed concern at the approval of the brothel if it were to occur. In response to a question asked by me, he indicated that he did not become aware of the operation of the present activities on the site until mid-2002 and that he advised Barnardos of this shortly after that. Barnardos' had advised him that, as the premises were not "registered", being the word he used, then they did not know of them officially and that no action would be taken at that time. It is reasonable to infer from that that qualitatively the attitude of Barnardos would change if the premises were to be approved as opposed to being a presently unapproved occupancy.

21 In the course of questioning by me, Mr Brindle indicated that he had made contact with Mr Bill Hoyles of the Bay Street headquarters of Barnardos in Australia; he had had this contact made by a research staff person in his office rather than contact being made personally. However, it was his evidence that the questions that were raised with Barnardos did not relate to the issue of approval or otherwise of Mr and Mrs Huxley's activities if the brothel were to be regularised but merely as to whether or not Mr and Mrs Huxley were registered with Barnardos. The conflict of evidence between Mr Brindle's written statement of evidence that they would not confirm the Huxleys' involvement and Mr Huxley's evidence on this issue is, to my mind, satisfactorily resolved by Mr Huxley's evidence as to the non-revealing of addresses and the like and Mr Brindle's quite proper concession that he could understand and accept why that would be the case. The questioning that was put on behalf of his office to the Department of Community Services was responded to on the basis that they could not comment but they would have to have a look at it.

22 I am satisfied, given the nature of the activities undertaken by Mr and Mrs Huxley and the very strong public interest in the continuation of those activities in light of Mr Huxley's uncontradicted evidence as to the demand for those services in the inner west, that it is strongly in the public interest that no risk to the continuation of those activities ought be permitted. I am satisfied that the cumulation of the impact on the Nadiles, together with the possibility of the economic impact on Mr Yakamannatis and Mr Sincich warrant refusal. But I would wish it to be recorded quite expressly that, even if the impact were not made out of that nature on the adjacent property owners or on the adjacent residences, the public interest in maintaining the activities of the Huxleys is in itself sufficient sole reason for warranting refusal of the present application. 23 Having reached that conclusion, it then turns to me to determine whether or not I should permit a time period for relocation, the decision that I have just enunciated being a decision as to what might be regarded as an ongoing and open ended consent for the use of the premises. I am satisfied that the alternatives that are available to me are those that were canvassed by the parties Dr Berveling on behalf of the applicant putting the position to me that the appropriate course of events to be followed would be in effect a twelve months stay of the order made pursuant to s 121B of the Act, the council's view being that if I were minded to grant a consent for twelve months that should be by way of time limited consent rather than by way of staying of the order in order to ensure that the conditions of consent relating to disabled access and all the other manners of details that I have not gone into at length would be the appropriate course, but that if it was for a period of less than twelve months, (or, I inferred, significantly less than twelve months), it ought to be by way of stay to the order in order to avoid the applicant having to undertake extensive works to the premises for a comparatively short period of time.

24 In the context of this element of the matters that fall to me to determine, I have had tendered to me a consent that has been granted by the Council of the City of Sydney in Development Application 126/02 to that council which has been modified pursuant to s 96 of the Act, which is a consent to the applicant to establish a substantial, permitted commercial brothel and the like to operate at 136 Parramatta Road, Camperdown, some distance to the east along Parramatta Road from the subject premises. That consent was determined by the granting of consent on 22 August 2003 and modification pursuant to s 96(1)(a) of the Act on 20 February 2004. The terms of the modifications relate to matters of timing of payment to the council and by the operation of the period of the consent, it being amended significantly from the date of approval to the date of issue of an occupation certificate as to its terms of operation.

25 It was put to me by Dr Berveling that as the applicant's business had been in occupation and operation at the present premises for some nine or ten years, it an appropriate response, if the business were to be closed, that the applicant be allowed an orderly period of time. It was Mr Brindle's evidence that twelve months was necessary for that and that matters of certainty had to be reached prior to that consent being taken up together with securing of an architect, builder and finance. I think it reasonable to assume that the architect would have had to have been procured before the application could be made because it would have been subject to plans, but I accept that it might well be necessary for the applicant to obtain finance and arrange for a builder to carry out and give effect to that consent. 26 On the other hand, the council has taken me to the history of this matter which contained in the bundle of documents tendered in the proceedings relating to the proposed order. They demonstrate that at least since late 2001 the council has been taking steps with the applicant to ensure that the present unauthorised use of the property should cease. In effect the applicant has had some two and a half years notice from the council of their wish to have the premises cease operation.

27 Whilst I accept that the consent to the application to Sydney City Council was made in 2002 and only determined by way of approval in August 2003, I am not satisfied that the applicant could not have made appropriate alternative arrangements for cessation or transfer of her business elsewhere. I have no evidence that is before me as to economic hardship to the applicant that would warrant me considering this matter on that basis. On a public policy basis, I am satisfied that the applicant has had sufficient notice of the council's intention to cease the present unauthorised use.

28 I am, therefore, not satisfied that the applicant has met the onus that there ought to be any deferral of the operation of the order and therefore the appeal pursuant to s 121ZK is also dismissed. Given the lateness of the hour, I will issue appropriate orders in chambers and return the exhibits with those orders.

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