Vassallo v Blacktown City Council

Blacktown Local Environmental Plan 1988 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1

DATE OF JUDGMENT DELIVERY: 12/09/1999

APPLICANT Mr M H Tobias QC with Mr M S Campbell (Barrister)

SOLICITORS Craig Milne & Company LEGAL REPRESENTATIVES: RESPONDENT Mr D R Parry (Barrister)

SOLICITORS Michell Sillar

IN THE LAND AND 10185 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 9 December 1999

JOSEPH VASSALLO Applicant v BLACKTOWN CITY COUNCIL Respondent

This is an appeal brought by Blacktown City Council against the decision of Commissioner Watts in which he granted conditional approval to a brothel.

This appeal is brought under s 56A of the Land and Environment Court Act 1979, and is confined to an error of law. The sole ground of appeal is as follows: The Commissioner erred in law in his determination that cl 42A(1)(d) of Blacktown Local Environmental Plan 1988 is a development standard and not a prohibition upon development for the purposes of brothels on the subject land.

The land the subject of the Commissioner's decision is described as Unit 18, 11 Romford Road, Kings Park, being lot 18 in SP 48457. ("the site"). It is zoned No 4(a)(General Industrial) under the Blacktown Local Environment Plan 1988 ("the LEP") and development for the purpose of a brothel is permissible with consent within that zone.

Clause 42A(1)(d) of the LEP is as follows: 42A(1) Despite any other provision of this plan, development for the purpose of a brothel must not be carried out if the relevant premises are: (a) …. (b) …. (c) …. (d) within 100 metres from a road zoned Special Uses - Arterial Road and Arterial Road Widening or Special Uses - Local Road and Local Road Widening.

The Commissioner held that cl 42A(1)(d) was a development standard, and thus was amenable to an objection lodged by the applicant under State Environmental Planning Policy No 1 ("SEPP 1"). The Commissioner went on to apply SEPP 1 and found that the objection was well founded and that the standard was unnecessary or unreasonable in the circumstances of the case. Is cl 42A(1)(d) a development standard or a prohibition?

The expression "development standards" is defined in s 4 of the unamended Environmental Planning and Assessment Act 1979 ("the EP&A Act") as follows: "development standards" means provisions of an environmental planning instrument in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of [subparas (a) to (o)].

Subparagraphs (a) to (o) of the definition comprise a number of matters which include, so far as relevant to this case, the following matters: (a) … the distance of any land, building or work from any specified point; … (c) the … location, siting … of a building or work.

In North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222, Mahoney JA discussed the meaning of the definition of "development standards" in the following passage at p 232: If the definition is to be construed according to its terms, three things may be said. First, the definition applies, in the first instance, only to provisions which are "provisions … in relation to the carrying out of development". Therefore that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed. And the requirements or standards are to be those fixed "in respect of" "that development".

Secondly, the use of the phrase "requirements are specified or standards are fixed" proves some (though, of course, not conclusive) support for the view that that with which the definition deals is the details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all.

And, thirdly, the matters detailed in subpars (a) to (n) of the definition, in so far as a pattern can be seen from them, provide further support for this view …. They deal, for example, with the "siting" of a … building which is to be erected on the land and "the distance of" relevant things from any specified point.

It is, of course, necessary to construe the particular provision having regard to its context and purpose and in the light of this definition. For that purpose, it is necessary to have regard to other provisions of the LEP.

The word "brothel" is defined in cl 6 of the LEP to mean "… premises used for the purposes of prostitution by one or more prostitutes".

Clause 9(2) of the LEP is a conventional clause, which provides that, "except as otherwise provided by this plan" , regard must be had to the zoning table under the LEP for the purposes for which development may be carried out without development consent, or for which development may be carried out only with development consent, or which are prohibited.

Furthermore, cl 42A was inserted into the LEP as a consequence of amendment no 107 which was made on 20 July 1998. The aims and objectives of the amendment were specified as follows: This plan aims: (a) to specify appropriate planning controls and distance separation requirements relating to the use of premises as a brothel; (b) to ensure that the operations of brothels do not cause disturbance to, or interfere with the amenity of, neighbourhoods; and (c) to further regulate the location of brothels.

In submitting that, on its proper interpretation, cl 42A(1)(d) was a prohibition, Mr Parry laid some emphasis on the fact that cl 9(2) of the LEP is expressed to operate "except as otherwise provided by this plan" and that cl 42A(1) is expressed to operate "despite any other provision of this plan". In his submission, these words support a conclusion that cl 42A(1)(d) is a land use or "zoning" requirement, and therefore a prohibition, because it operates despite the zoning table under which development for the purpose of a brothel is permissible with consent.

In support of that proposition, Mr Parry pointed to the definition of "brothel" in the LEP as referring to "premises used for the purposes of prostitution" and he contended that, consistent with that definition, the reference to "premises" in cl 42A(1)(d) must be a reference to land use.

For further support, he relied upon the following passage from the judgment of Clarke JA in North Sydney Council v Mayoh, where, in reference to the provision being construed in that case, his Honour said at p 235 : But the table operates … except as provided elsewhere in the plan. Clause 14A(1)(a) falls within the exception. It provides otherwise … It is as much concerned with land use as cl 9 for it prohibits the use of land enjoying the specified characteristics for the named purpose.

In addition, Mr Parry emphasised the prohibitory nature of the words used in cl 42A(1)(d), namely, "development for the purpose of a brothel must not be carried out."

However, the proper approach, as illustrated by the passage from the judgment of Mahoney JA at p 232 in North Sydney Council v Mayoh which I have quoted above, and which Mr Tobias QC appearing for the applicant referred to as a first principles approach, is to consider whether cl 42A(1)(d) is, properly construed, a provision relating to whether development may be carried out at all, or whether it relates to what occurs in the carrying out of the development.

Although reference to different provisions in other decided cases is only of limited assistance, it seems to me that a useful exercise in the proper approach to be adopted in that task is to compare, on the one hand, the decision of Holland J in Kruf & Anor v Warringah Shire Council (15 December 1988, unreported) and, on the other hand, the decision of Cripps J in Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114, and then to consider the remarks about both those cases by Clarke JA in North Sydney Council v Mayoh.

In Kruf v Warringah , the provision under consideration was in the following terms: 28A A person shall not on any land within zone No 1(a) carry out development for a purpose specified in Schedule 9(A) if any means of vehicular or pedestrian access exists between that land and - (a) a main road or, (b) any part of a public road (other than a main road) that is within 90 metres of the intersection of that road with a main road.

Holland J held, at p 6, that the provision under consideration was a prohibition, stating that "it is not possible sensibly to say that an absolute prohibition on a form of development in a specified locality … is setting a standard for that form of development. It is saying that there shall be no such development …".

In Quinn O'Hanlon v Leichhardt Council , the provision under consideration was in the following terms: 22(1) Subject to subclauses (2) and (3), a building shall not be erected between a foreshore building line and foreshore to which that line relates. Cripps J held that that provision was a development standard.

In North Sydney Council v Mayoh at p 236, Clarke JA referred to Kruf v Warringah Council as giving some force to the point that there is "… a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development". Later, when dealing with Quinn O'Hanlon v Leichhardt Council , Clarke JA noted, at p 238, that the relevant provision in that case "… did not prohibit the erection of a dwelling-house on the land. It simply laid down a requirement that it be sited in a particular part of the land".

Having regard to all these matters, I have formed the opinion that cl 42A(1)(d) is a development standard. It sets, as a standard against which the development is to be measured, a requirement that the development be located, sited or distanced not less than 100 m from an arterial road or a local road. It does not prohibit the use of identified land for a purpose which would otherwise be permissible under the zoning table (cf Clarke JA in North Sydney Council v Mayoh at p 235), that is, it is not a provision relating to whether development may be carried out at all. Rather, it operates to set a standard in relation to the siting, or location, or distance from a specified point of the proposed development. These particular matters relate, not to whether the development may be carried out at all, but to an aspect of the development when it is being carried out.

Furthermore, as Mahoney JA pointed out in North Sydney Council v Mayoh at p 232, some support may be gained from reference to the matters listed in subparas (a) and (c) of the definition of "development standards", which comprise the particular matters I have referred to in par 23 above .

Finally, my opinion that cl 42A(1)(d) is a development standard rather than a prohibition is reinforced by the aims and objectives of amendment 107. Although Mr Parry called those aims and objectives "equivocal" , I think they are clear enough. They are aimed towards distance separation requirements and the location of brothels, linked to an objective relating to amenity of the neighbourhood. The reference to "appropriate planning controls" is no more than a reference to these controls as furthering the aims of the amendment. Having regard to those aims and objectives, cl 42A(1)(d) was intended, I think, to impose distance separation requirements and to regulate the location of brothels, rather than prohibiting the carrying out of development for the purpose of brothels at all.

I should not leave this judgment without reference to two further decisions. The first is True Item Pty Ltd v Baulkham Hills Shire Council and Anor (Stein J, 31 May 1996, unreported). It is necessary to refer to this decision because, in his judgment, the Commissioner distinguished it from the present case. It was a case where Stein J, as he then was, held the provision in question to be a prohibition. Mr Parry submitted that the decision is relevantly indistinguishable from the present case, whereas Mr Tobias submitted that the Commissioner was correct in distinguishing it. The provision there under construction is of quite a different kind from cl 42A(1)(d), and I do not find the decision to be of any assistance in the task of construction to be performed in this case. The same may be said of the decision in Pancho Properties Pty Ltd v Wingecarribee Shire Council (Talbot J, 29 October 1999, unreported). The relevant provision in that case was held to be a development standard. Once again, it is a quite different provision to the provision under consideration in this case, and it is of assistance only to note that, in coming to his conclusion, Talbot J referred, as I have, to the decisions in North Sydney Council v Mayoh, Kruf v Warringah Council and Quinn O'Hanlon v Leichhardt Council.

For the foregoing reasons, I have concluded that the Commissioner did not commit an error of law in holding that cl 42A(1)(d) is a development standard, and accordingly the council has failed to establish its ground of appeal.

(1) The appeal is dismissed. (2) The council must pay the costs of the applicant of this appeal as agreed or as assessed. (3) The exhibit may be returned.

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