Wang and Anor v Canterbury City Council

Judgment 1SENIOR COMMISSIONER: In Sydney's inner west, there is a brothel that is operating at 269 Canterbury Road, Canterbury. It has been the subject of two earlier sets of proceedings in this Court, one of them before Brown C, in 2008, when a time-limited development consent was granted for the purposes of use of the premises for a brothel (see Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146), and again in 2010 when Hussey C gave a further development consent for use of the premises as a brothel, subject to a time limit to that consent of three years (see Fowler and Anor v Canterbury City Council [2010] NSWLEC 1089). 2I have had the opportunity to inspect the premises this morning with the legal representatives of the parties and those advising them for the purposes of determining these third proceedings where an application is now made for a further development consent for continued use of the premises as a brothel. During the course of this morning's site inspection, I had the opportunity to hear evidence from a variety of residents living in the vicinity of the premises, both at residences fronting Canterbury Road and those on the side-street that is used for access and parking to the brothel. 3I should observe, at the outset, concerning one element of the evidence that I heard this morning given by a resident who traversed two separate and quite distinct concerns about the continued use of the brothel. One of them relating to parking is a matter of planning concern, to which I will return. The other expressed a fear that patrons of the brothel would, in his assessment, pose a risk to children who lived in the vicinity, particularly in the premises between the northern end of Phillips Avenue in the vicinity of his own residence, and the brothel on the corner of Phillips Avenue and Canterbury Road. 4I have no doubt those fears were expressed honestly this morning, and reflect fears honestly and genuinely held by him and by others who have signed petitions in objection to the brothel. I should state that it has long been the position adopted in merit appeals in the Court (in a variety of aspects of its jurisdiction) that fears, no matter how genuinely and honestly held, are not to be given any weight unless there is some realistic likelihood that that which is feared will come to pass and have the impacts that are apprehended by those holding such fears. 5There is no evidence in these proceedings, based on the matters arising out of the past activities of the brothel, that could cause me to reach the conclusion that there was any prospect of those fears being realised. I need to make that observation at this stage, lest there be some concern that those fears were not heard and considered by me within the legal framework to which I am obliged to operate. 6The brothel has operated, as I have indicated, subject to two earlier consents. The earlier consents have imposed conditions on the brothel, and, following the 2010 decision of Hussey C, required certain works to be done to the brothel to minimise, if carried out, the impacts on the amenity of the residences in the immediate vicinity. 7The nature of the conditions in that last consent imposed a deferred commencement condition that required that a range of works be undertaken prior to the consent becoming operative. The applicant in those earlier proceedings, also the applicant in these proceedings, after some time carried out those works, appointing the Council as the principle certifying authority for those purposes. A Council occupation certificate was given in response to the completion of those works. 8The matter now comes before me on this application seeking an ongoing consent that would inure and run with the land for the continued operation of the brothel. The council opposes that application on a variety of bases. The first, and perhaps the most challenging for the applicant is that, pursuant to the 2012 Local Environmental Plan, a plan that came into effect after the present application was lodged with the Council, development for a brothel in this location will be transmuted from the prior position where such a use was permissible with development consent, into one that would be prohibited under the new instrument. 9The Council puts to me, through its advocate, Mr Jackson, that I should give significant weight to that prohibition, notwithstanding the provisions of the savings clause contained in the LEP. The savings clause in the LEP is in these terms: "If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan...had not commenced." 10Dixon C considered the impact of such a provision, in Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302, compared to an earlier draft that appeared in the standard template LEP which qualified it by requiring that the plan be treated as exhibited, rather than the bald assertion "as if this plan had not commenced". 11She dealt with the difference in the legal position arising, in her view, as a consequence of the new wording of the transitional provision compared to the position that had been adopted by the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289. My colleague held in Alamdo that, notwithstanding the provisions of cl 1.8A, for the purposes of s 79C1)(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979, the new Local Environmental Plan, as a consequence of cl 1.8A should be regarded as not existing, in effect. 12It was also put to her in those proceedings [as has been put to me in these proceedings by Mr Jackson], that, notwithstanding her conclusion with respect to s 79C(1)(a) that the provisions of that 2012 Local Environmental Plan were required to be considered as a matter of the public interest - that arising under s 79C(1)(e). 13I am satisfied that is a correct and appropriate interpretation. However, that question was also dealt with by Dixon C in Alamdo, where she held that, notwithstanding the failure to engage the new Local Environmental Plan by virtue of s 79C(1)(a), s 79C(e) was engaged to call up the LEP for consideration. She held that that consideration immediately brought into play the terms of cl 1.8A of the LEP - with the LEP having been imported by 79C(1)(e), it automatically excluded itself from further consideration as a consequence of clause 1.8A. 14I am satisfied that her reasoning in Alamdo Holdings is correct, not only in excluding consideration of the merits of the provisions of the new LEP as an instrument, but also from considering them as matters arising from the public interest. 15It is, therefore, necessary in these proceedings for me to proceed to hear and determine this development application without having regard to and setting aside any knowledge of, anything at all of any nature contained on the 2012 LEP. I therefore proceed on that basis. 16That leaves me with the position to which I am obliged to turn as to the merits of the proposed development. During the course of the site inspection, I indicated that if there were to be a development consent, a matter would be required to be addressed by condition in response to concerns raised by Mr McKeon, relating to privacy issues arising if he were to proceed to a second-storey redevelopment of his house. The applicant has proffered a satisfactory condition in Exhibit C that would respond to that. 17I then turn to the question of the merits. It is clear from a careful reading of the decision of Hussey C in 2010, that most of the matters relating to amenity and merit of the internal fit-out of the building were dealt with expressly or by necessary inference in that decision. Although Hussey C was concerned that a number of matters of lack of amenity were established, he dealt with those by the requirement for works in the deferred commencement condition. 18A number of matters, however, arise in the present proceedings where there are either demonstrated departures from the conditions that were required expressly by Hussey C's conditions of consent, or by the importation of the plan of management into those conditions of consent, a plan of management that has, for the purposes of these proceedings, been proffered as one appropriate to be adopted on this occasion. 19First, despite Mr Winnacott's attempts to assure me about the security provisions, I am not satisfied on the evidence that there is sufficient satisfaction of the provision about the surveillance required to be undertaken at two-hourly intervals in the immediate vicinity of the premises described as "the area adjacent to the premises", nor that the requirement that those areas be kept clear of litter and other materials, have been observed. That is not, in my view, a basis upon which it is appropriate to refuse the application but it is a matter to which I will subsequently return. 20Similarly there is a requirement that there be a closed-circuit TV camera erected to provide surveillance of the entrance to the premises from Phillips Avenue, in order to ensure that that entrance is not being used by patrons, and is used only for emergency purposes, as envisaged by the consent conditions before Hussey C. 21Finally, there is a modest intensification of use from the ten to twenty patrons per day envisaged in the consent given by Hussey C to fifteen to twentyfive patrons per day envisaged by the Statement of Environmental Effects in this application. All of this is accompanied in circumstance where there is evidence from the residents giving instances of ringing on doorbells of inappropriate premises seeking the services provided by the brothel on the basis of misunderstanding or misidentification of the location where the premises are operating; from inappropriate parking behaviours; noise and things of that nature. 22All of those, it seems to me, in the absence of expressly identified instances that would demonstrate, for example, that the public urination apprehended by the residents was urination that was able, with certainty, to be identified as being by patrons of the brothel are all, taken together, not sufficient, in my view, to withhold a development consent for the ongoing operation of the brothel. 23It is appropriate in that regard, as I indicated to Dr Berveling, counsel for the applicant, that there be a deferred commencement condition imposed (to be settled between the parties) requiring the installation of the closed-circuit television camera over the secondary entrance, and the establishment, by condition, of the maintenance of the data recorded from that camera and from the camera over the main entrance for a sufficient period of time for it to be able to be accessed if there were any appropriate lawful reason for this to be occasioned. 24All of these matters are, in my view, consistent with the matters that are discussed by Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 (2006) 144 LGERA 408, as to the circumstances where past conduct, whether or not it is unlawful, may have given rise to unacceptable impacts or impacts that should be taken into account in the terms of any consent that might be given in the future. 25If the impacts are unacceptable, as some of them clearly are, it may be as a result of the failure, for example, to have the secondary closed-circuit television camera or a failure to have adequate security supervision in the immediate area of the premises. In adopting the new conditions that incorporate that, it is appropriate to have regard to whether they are likely to mitigate the impacts to an acceptable level. As his Honour observed, past use would, therefore, be of relevance, but it is for proper planning reasons, not because the past use happened to be unlawful by, for example, in this instance, failure to abide by conditions of development consent. 26Those failures, whether of omission or commission, are such that I cannot be satisfied on an open-ended and ongoing basis that it would be able to be cured by the conditions of the development consent that will result from these proceedings and from the works that are required to be carried out on a deferred commencement basis. 27Lack of that certainty of mitigation of the outcomes is, in my view, an appropriate reason why, consistent with the approach taken by both Brown C and Hussey C in past proceedings, there should be a time-limited development consent applied to this development consent for use of the premises as a brothel. 28I have, therefore, reached the conclusion: