Wang v Blacktown City Council

This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act.

Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.

Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6." 7 A SEPP 1 objection requires answers to the questions identified in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46, 130 LGERA 79 at [26] - 27 per Lloyd J: "…SEPP No 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the policy, and in particular, does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.) Fifth, is the objection well-founded?

Memel Holdings Pty Ltd v Pittwater Council , to which I have referred, was an appeal against a decision of the senior commissioner. Talbot J said (at 221): 'The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision.'" 8 The commissioner identified the "underlying objective" of cl 42A(1)(c) which was not expressly stated in the LEP. The adjective "underlying" seems to have originated in the classic statement of the approach to a SEPP 1 objection in Hooker Corporation Pty Ltd v Hornsby Shire Council (unreported, Land and Environment Court of NSW, Cripps J, 2 June 1986) which was quoted in Winten at [25]. In my respectful view, it is surplusage.

GROUNDS OF APPEAL 9 The grounds of appeal from the commissioner's decision are as follows: "1. That the Commissioner erred in law in holding that the underlying objective of the development standard contained in cl 42A(1)(c) of the Blacktown Environmental Plan 1998 was: 'to separate disparate land uses, or ideologically opposed land uses so as to remove the potential for offence or conflict, and to eliminate contact between staff and clients of the brothel with patrons of sensitive land uses.' 2. That the Commissioner erred in law in holding that ideological objections to the use of the premises for the purpose of a brothel was a relevant planning consideration." 10 The appellant's submissions indicate that there is really only one ground of appeal, ground 2, and that it arises because of the words quoted in appeal ground 1, particularly the word "ideologically". COUNCIL'S SUBMISSIONS

11 The council submits that: (a) the grounds of appeal disclose no error of law; (b) even if the alleged error is one of law (and not of fact), the commissioner did not, on a proper reading of the judgment, make the finding alleged in the grounds of appeal; in any case, ideological objections are a relevant planning consideration; (c) even if the alleged error is one of law and the commissioner made the alleged findings, they do not amount to an error of law that vitiates the decision. QUESTION OF LAW

12 The council submits that the determination of the objective of a development standard is not a "question of law", as s 56A of the Land and Environment Court 1979 requires, but one of fact only; that is because it does not involve a question of statutory interpretation but is merely a matter of factual classification about which minds may differ; and as there was evidence before the commissioner which permitted him to make that finding of fact there was no error of law. I do not accept the submission.

13 In Billgate Pty Ltd v Woollahra Municipal Council [2007] NSWLEC 655, 156 LGERA 380, which I decided, it was common ground in a s 56A appeal that determination of the objective of a development standard involves a question of law.

14 Generally, an error in the interpretation of a statute involves a question of law. Some qualifications to the general principle were identified and criticised in Collector of Customs v Agfa - Gevaert Ltd [1996] HCA 36, 186 CLR 389 at 395 - 397 but they are irrelevant for present purposes. The object or purpose of a statute is ascertained by a process of statutory interpretation: Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28, 194 CLR 355 at [91]; s 33 Interpretation Act 1987 (NSW). The same principles apply to an environmental planning instrument, such as a local environment plan, under a statute: s 3 Interpretation Act. In my opinion, the object of a development standard in an environmental planning instrument is ascertained in the same way, by a process of interpretation of the instrument. Consequently, in my opinion, this appeal raises a question of law.

IDEOLOGICALLY 15 The appeal is based on the presence of the word "ideologically" in the quotation from [19] of the judgment, which is set out in appeal ground 1. The appellant submits that the commissioner erred in law in preferring at [31] of the judgment the formulation of the objective of the development standard by the applicant's planning expert Mr Apps, quoted at [19] of the judgment, which included the word "ideological". That is said to be because "ideology or morality are not relevantly planning issues" and the object of a development standard cannot be "a matter that is not a relevant planning consideration". In essence, the appellant submits that the commissioner erred in law in finding that ideological objections are the objective of the subject development standard. The council submits that the commissioner did not make that finding; and that in any case ideological objections are a relevant planning consideration and may be a permissible objective of a development standard.

16 In my opinion, the commissioner did not make that finding but, rather, found that the objective of the development standard was the separation of disparate and sensitive land uses, a brothel and a church, separated in the sense of their physical relationship and the visibility between them. In order to explain this conclusion, it is necessary to put [19] and [31] of the judgment, on which the appellant focuses, in context.

17 At [16] of the judgment the commissioner described the evidence of the applicant's planning expert, Mr White, as to the objective of the development standard: "As LEP 1988 does not contain objectives of the development standard Mr White states that the underlying objective is:

'to ensure young children/families are not unreasonably exposed to the brothel activities, noise emanating from the brothel or have direct contact with clients/working girls of the brothel' ." 18 The commissioner set out Mr White's reasons and conclusion that the strict application of the development standard is unreasonable and unnecessary: at [17], [18].

19 The commissioner then turned to the contrary evidence of the council's planner, Mr Apps, concerning the objective. At [19] and [20] the commissioner quoted or summarised Mr Apps' evidence, including his use of the word "ideological" on which this appeal turns: "19 Mr Apps does not accept that the SEPP 1 objection is well founded. He states that the underlying objective of the development standard is: ' to separate disparate land uses, or ideologically opposed land uses so as to remove the potential for offence or conflict, and to eliminate contact between staff and clients of the brothel with patrons of sensitive land uses. ' 20 He states that the locational relationship between the brothel and the Church is not a matter that can be overcome. The uses are diametrically opposed in terms of ideology and the requirements of cl 42A(1)(c) are designed to separate sensitive land uses such as the Church and the brothel. The location of the brothel and its ability to be viewed by patrons of the Church, even if only in part, is likely to be offensive and potentially may lead to reduced patronage, particularly as Bearing Road has only one access and that requires all patrons of the Church to pass the brothel."

20 The commissioner went to the heart of the disagreement between the planners as to the objective of the development standard, at [24]: "There was agreement that the proposed brothel was near or within view of the Church so cl 42A(1)(c) is activated. Where Mr Apps and Mr White disagree is on the underlying objective of the development standard. In the opinion of Mr Apps, the underlying objective of the development standard does not require a consideration of the physical or tangible impacts of the brothel (as advocated by Mr White) but a different question dealing simply with the physical relationship and visibility between the Church and the brothel." 21 The commissioner then said that some direction on the objective of the development standard could be gained from comments in Weynton v Rockdale City Council [1999] NSWLEC 273, 106 LGERA 213 and Marpet Enterprises v Eurobodella Shire Council [2000] NSWLEC 159, 108 LGERA 432, which he analysed at [25] - [27]. As he noted at [25], in Weynton the chief judge said that the purpose of such a development standard was "to protect sensitive uses from the potential impact of a brothel". That notion permeates Mr Apps' evidence referred to at [19] and [20] of the commissioner's judgment.

22 Finally, the commissioner concluded that he preferred the underlying objective formulated by the council's planner, at [31]: "In the light of the findings in Weyton and Marpet Enterprises , the underlying objective of the development standard formulated by Mr Apps must be preferred. The reasons in the SEPP 1 objection that there will be a lack of impact from the brothel does not address the underlying objective of the development standard. The consequence is that there is no basis for a finding that strict compliance with the development standard is unreasonable and unnecessary in this instance. It follows that the SEPP 1 objection is not well founded and the appeal must fail."

23 The appellant's submission referred to at [15] above, draws an analogy between ideology and morality. The Macquarie Dictionary, 3rd ed (1998) defines "morality" as including "conformity to the rules of right conduct; moral or virtuous conduct". It defines "ideology" as including "the body of doctrine, myth and symbolism of a social movement, institution, class or large group."

24 The development standard in the present case is broadly reflective of planning principles concerning brothels formulated in Martyn v Hornsby Shire Council [2004] NSWLEC 614 at [18]. The principles stated that the aim was to locate brothels where they are least likely to offend. One of the specific principles was that "the relationship of brothels to places of worship (which are likely to attract people who are offended by brothels) is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather."

25 The appellant seeks support in cases concerning the relevance of the morality of brothels when considering the merits of brothel development applications. That is a somewhat different area of discourse to the present. In an early case in this Court, Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGERA 67, Cripps J held that the Court ought not to allow its own personal matters of taste or sexual morality to be a substitute for evidence or to fill a vacuum left by the evidence, and that in this sense it is not for the Court to impose standards of morality: at 70. The cases were reviewed in Dixon v Burwood Council [2002] NSWLEC 190, 123 LGERA 253 by Pain J who concluded that although morality alone is an insufficient basis for objection, it is relevant to consider whether a particular brothel development would cause antagonism or affront to an immediately affected and identifiable group because of their religious or cultural values or beliefs such as to demonstrate a detrimental social impact: at [66], [69].

26 The position was authoritatively stated by the Court of Appeal in Fairfield City Council v Liu Lonza & Beauty Holdings [1997] NSWSC 37 when dismissing an application for leave to appeal out of time from a decision of a commissioner of this Court in Liu v Fairfield City Council (1996) 130 LGERA 230. Mason P (Dunford AJA agreeing) held: "Her Honour discussed the possible grounds upon which that evidence might be admitted and concluded that community standards and views on the morality of brothels are not relevant under any s 90(1) head of consideration. While the morality issue per se is irrelevant the demonstrable social effect of a particular brothel use is relevant under s 90(1)(d)".

27 At that time s 90(1) of the Environmental Planning and Assessment Act 1979 mandated that a consent authority take into consideration a list of matters as are of relevance to a development the subject of a development application, including "(d) the social effect and economic effect of that development in the locality". Section 90 has since been replaced by s 79C which contains a reformulated list of mandatory matters for consideration. The old s 90(1)(d) is now subsumed in s 79C(1)(b) which refers to "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". 28 Section 79C(1) (and formerly s 90(1)) contains a list of matters that are mandatory considerations, if relevant. Although there may be other relevant matters that are not mandatory considerations, it is difficult to see circumstances in which morality alone, divorced from its likely impacts, might be relevant. 29 The appellant's submissions assume that morality and ideology are analogous such that, as morality per se is an irrelevant consideration when determining a development application, then so is ideology per se; and, further, that each per se is irrelevant when determining the object of a development standard in an environmental planning instrument. 30 Assuming without deciding that to be so, it does not assist the appellant in this case because, in my opinion, the commissioner did not accept that ideology or ideological objection per se is the object of the development standard. In the passage from the planner's evidence quoted at [19] of the judgment, the words "ideologically opposed land uses" immediately followed and were used to describe a type of "separate disparate land uses" which, in the council planner's perception, included the difference between a brothel and a church. The use of the word "ideological" (and similar in [20]) was loose because, in my view, it is not uses but users of land that may attract the description "ideological". However, that is not significant for present purposes. The planner's immediately following words, quoted at [19] of the judgment, were "so as to remove the potential for offence or conflict, and to eliminate contact between staff and clients of the brothel with patrons of sensitive land uses". Those words were reiterated or reinforced at [20] and [24] of the judgment. They make it clear that it was not ideology or ideological objection per se that was found to be the objective of the development standard but the separation a brothel and a church, in the sense of their physical relationship and visibility. The reason for that objective is different from the objective itself. According to the explanation in Martyn, the reason is to locate brothels so that their visible presence does not offend persons attending churches who are likely to find brothels offensive. That in turn is relevant to potential social impacts to which s 79C(1)(d) of the Environmental Planning and Assessment Act 1979 refers.

31 Thus, the appellant's case fails that the commissioner found an impermissible planning consideration to be the objective of the development standard. It is unnecessary to consider the council's remaining submissions.

ORDERS 32 The appeal is dismissed. The applicant is to pay the respondent's costs of the appeal. The exhibit may be returned.

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