Wang v City of Canterbury-Bankstown Council - [2017] NSWLEC 1120 - NSWLEC 2016 case summary — Zoe

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Wang v City of Canterbury-Bankstown Council

[2017] NSWLEC 1120

Land and Environment Court (NSW)|2016-11-07|Before: Mr P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-11-07

Before

Mr P

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

The Application

The Applicant initially attempted on 22 March 2016, unsuccessfully, to lodge an application to modify the Consent under s.96 (2) of the EPA Act to continue use of the Site. That application was not accepted by the Council due to the provision of insufficient information. The Applicant's application under section 96AA (Application) was accepted by the Council on 5 May 2016. The Application sought the deletion of Condition 6 of the Consent issued by the Court on 21 May 2013. The Application was made prior to the expiry of three years from the date of the last decision of the Court; in other words, while the Consent was still on foot. The significance of this is discussed further below.
For completeness, section 96AA is reproduced below: 96AA Modification by consent authorities of consents granted by the Court (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with: (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

[3]

What is the status of the Development Consent?

The Consent granted by the Court on 20 May 2013 contained a deferred condition (which was concerned with the installation and operation of CCTV). The deferred commencement condition required certain works to be undertaken prior to the consent becoming operative, and is in the following terms: "Deferred Commencement Condition Pursuant to section 80(3) of the EP and A Act 1979, this consent will not become operative until the Applicant satisfies Canterbury City Council in accordance with the regulations within 3 months of the date of this consent, that the following matters have been carried out…"
The Court also has power to impose a condition which limits the period during which development may be carried out in accordance with the consent granted: s.80 A (1)(d) EPA Act.
The Council informed the Applicant on 15 August 2013 that the matters the subject of that condition had been satisfied.
The plain language of that condition is that the consent - and its attendant conditions - does not become operative until the matters specified have been attended to. In my view, it then follows that the condition limiting the period of consent - condition 6 - does not commence until the work is done.
There was dispute between the parties as to the date on which the most recent consent commenced. The Council's view was that the proper date was 21 May 2013 while the Applicant contended that the date of commencement was 15 August 2013, being the date on which the Council advised the Applicant that the condition had been satisfied.
I am of the view that the date of commencement of the consent (and thus the conclusion of the condition) is not determinative of the outcome of the present case, as the critical question for present purposes is the date on which the application to amend the consent was made. Provided this application to modify was made while a valid consent was in place, it is of little moment when the three years of the consent the subject of this proceeding actually commenced.
The date of commencement of the most recent consent is relevant insofar as it defines the period that the brothel may have been operating without appropriate approval. However, issues with respect to enforcement have not been agitated in these proceedings.

[4]

Has the Development Consent Lapsed?

The Council through its advocate, Mr Jackson, contends that the Consent has lapsed. Mr Jackson says the Consent expired on 21 May 2016, three years after consent was granted by the Court on the last occasion: Kendall Street Developments Pty Limited v Byron Shire Council (No.2) [2004] NSWLEC 530; (2004) 138 LGERA 360.
The consequence of this, using the Council's reasoning, is that there is nothing for the Court to modify, as the consent expired on 21 May 2016. Put another way, the Council contends that there is no utility in modifying the Consent as it is no longer on foot. Further, the Council submits that there is no development which is capable of being modified. This is the position, says the Council, even if there is consent.
The Applicant through Dr Berveling disputes this, stating that the Consent has not lapsed, and remains operative subject to its conditions. Condition 6, according to Dr Berveling, does no more than impose a period during which development may be carried out in accordance with the consent. Dr Berveling also contends that there is no facility for development consent to lapse other than through s 95 of the EPA Act, which is concerned with lapsing of consent if work or use has not commenced. As the Consent has not expired or lapsed, Dr Berveling says any continued use of the premises is a breach of condition, not an operation in the absence of development consent.
The Applicant relies on Kendall at [16] and [17]. In particular, in that case, Lloyd J held that a temporal limitation had been imposed on the development, while no such limitation was imposed on the consent. His Honour further held at [18] that Since the development consent continues to exist in the current circumstances, it follows that the development consent may be the subject of an application for modification, notwithstanding that the development itself has become unlawful.
Mr Betros, the town planning expert for the Council, expressed the view that "it is typical for a trial consent to state that, before the expiration of the three year period, that a separate section 96 must be submitted… and there is no such wording in the condition": Exhibit 2 at [15]. While this may be so, the absence of such a consent condition ought not lead to the inference that the consent thus expires or ceases to have effect.
On any view it is more than three years since the consent was granted. However, I find that the development consent itself has not lapsed, and is therefore able to be modified.
A broadly similar position confronted Moore J in TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150. In that matter, his Honour was faced with the position where development consent for a brothel was subject to an operative period (expressed as a trial period) which had expired. Although (unlike in this case) the development consent included a provision that preserved the operation of the brothel to continue whilst ever an application to extend the period of operation of the brothel remained undetermined by the Council, such an application had, in fact, been made and rejected by the Council. The appeal to the Court in those Class I proceedings being dealt with by his Honour was filed while the development consent was operative.
It is clear from his Honour's decision that His Honour considered that the commencement of proceedings within the life of the existing consent preserved the right to treat the consent as remaining on foot until after the application to the Court had been determined. The sole difference between that with which his Honour was dealing and the circumstances of this case is that in TL Tradings, when the brothel continued trading after the expiry of its trial period, Parramatta City Council served a brothel closure order. That order resulted in operation ceasing until orders giving effect to his Honour's conclusion - that it was appropriate to grant a further trial period for that brothel - were made.
Although the brothel here involved has apparently continued to trade after the expiry of the period nominated in its development consent, the question of whether or not the Council could or should have sought to require the cessation of that trading pending determination of these proceedings is not a matter arising for my consideration of this application. Enforcement activity of that type is entirely outside the scope of matters engaged by an appeal such as this.
As the approach taken by his Honour reflects a considered, recent determination by the Court as to the approach to be taken in circumstances generally analogous to those which arise in these proceedings, I consider it appropriate to adopt that approach for my consideration of this application.
Accordingly, I find that the commencement of proceedings by the Applicant within the life of the existing consent condition preserves the right to treat the consent as remaining on foot pending the decision of this Court.
The consent is thus open to be amended. I accept the Applicant's submission that development consent continues to exist, albeit that carrying out development would be in breach of condition 6.
In the event, for the reasons set out above, it is not necessary for me to decide this dispute on the basis of existing use rights. Accordingly the arguments as to whether or not they exist are, for the purposes of this case, moot.

[5]

Is the Development Consent capable of modification as proposed?

In order for the consent to be able to be modified, it must be in respect of development which is substantially the same development as that for which consent was originally granted: EPA Act s.96AA (1) (a).
The Council contends that the Court has no jurisdiction to approve the modification sought under s.96AA of the EPA Act, because the consent, if modified, will not be substantially the same as the development for which the consent was originally granted. There were both legal arguments and expert planning evidence given on this question.
The word "substantially" when used in s.96AA means "essentially or materially or having the same essence". Further, the submission is made on behalf of the Council that the imposition of condition 6 (limiting the operation of the brothel to a 3 year period) was an integral component concerning the proposed use of the brothel, and that the brothel use must be assumed to include the length of time in which the development is to be carried out, that is, for a limited three year period.
I turn first to the question of "essence". According to the Council, the consent as sought to be modified for a period of 10 years is essentially different to the consent as initially granted by the Court, and is not substantially the same, because it is not the same "essence". Council argues that the decision in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 supports its argument that the development is not substantially the same. In that case Stein J held that "in my opinion "substantially" when used in section 102(1) (a) means essentially or materially having the same essence".
The onus is on the Applicant to show that the modified development is substantially the same, and that it is not enough to point to the development being for a certain use: Vacik. Indeed, in that case Stein J cautioned that "one should not fall into the trap of saying that the development was for a certain use… and … it will be for precisely the same use and accordingly is substantially the same development".
In Moto Projects (No 2) Pty Ltd v North Sydney C [1999] NSWLEC 280, Bignold J set out the following test: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development.56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).
This approach was also evident in Council of Trinity Grammar School v Ashfield Council [2015] NSWLEC 1086, in which Dixon C stated that a development "must be assumed to include the way in which development is to be carried out": at [97].
In Mr Betros' opinion, the 10 year period sought by the Applicant represents a substantial intensification of usage of the brothel, as it is over three times longer than the period permitted in the previous judgement. Further, the incompatibility and inappropriate siting exacerbates the impact of the continued use of the proposal:
Mr Winnacott for the Applicant, on the other hand, argues that the "substantially the same" test is satisfied, as the proposed modification relates only to the period during which the development may be carried out: Exhibit 2 at [26].
Under cross-examination, Mr Winnacott rejected Mr Jackson's argument that the time difference in operation of the brothel (from 3 years to 10 years) amounted to an intensification of the use. Mr Winnacott opined that rather than intensification, it would be a continuation of the development as presently consented to but for an extended period of time. The proper characterisation, according to the Applicant's expert, include matters such as the scale of the business; the number of people working in it; the hours of operation; the number of patrons and the facilities available.
I do not accept the Council's argument as to intensification. The development to which the consent as proposed to be modified relates is a brothel, the development for which consent was originally granted. The operating hours are to remain the same, as will the number of staff. There is no application to increase the size of the premises, nor is there any application otherwise to alter the activities. The development remains the same. Accordingly I find that the development is "substantially the same", thus conferring jurisdiction upon the Court to modify the condition.

[7]

Non-compliance with Zoning

The Council contends that the operation of the premises as a brothel, which is a prohibited use of the premises, for a further ten year period (now, less than seven years) will frustrate the strategic intent of the LEP and will not result in the orderly development of the land. Council's planning expert also expresses the opinion that not only is the use prohibited in the zone, it is inconsistent with the zone objectives: Exhibit 2 at [31]. The provisions of the LEP are set out above.
Turning first to the objectives of the zone, in Council's view the brothel can never achieve the zone's objectives. These objectives include achievement of ground level retail uses with residential units above and the creation of mixed use developments with a high standard of design.
Previously, consent has relied upon the brothel's being able to operate in a discreet manner, including no open windowed frontage and an inactive eastern elevation to the cul-de-sac at Philips Street. However, this mode of operation (says the Council) will not achieve the strategic planning intent of permissible uses having regard to zone objectives. Further, recent development in the area includes large areas of glazing at ground floor level for street activation as well as setbacks from the current building alignments.
The Applicant's town planning expert makes the argument that a continuation of the approved use is consistent with the zone objectives.
Mr Winnacott's opinion is that clause 2.3(2) of the LEP requires the consent authority to have regard to (emphasis mine) the objectives for development in a zone when determining a development application in respect of land within that zone, and not in the case of an application for modification consent: Exhibit 2 at [35]. Notwithstanding this, Mr Winnacott says that there is a degree of compatibility between the zone objectives and the operations of the brothel. This includes the contribution by the brothel to the mix of business along Canterbury Road, with the provision of services to some members of the Canterbury and broader community, and the provision of employment opportunities in a location which is accessible by public transport: Exhibit 2 at [35].
The Business Development Zone permits with consent a wide range of retail, commercial and residential uses. The Applicant contends that there is potential in the future for the site to be developed in conjunction with other sites fronting Canterbury Road to the west: Exhibit 2 at [35].
The Applicant further contends that the existence of the brothel does not appear to conflict with or stifle the LEP zone objectives supporting urban renewal, having regard to the extent of commercial and residential development occurring and proposed: Exhibit 2 at [38].
There are new objectives for the locality where the brothel is located. I find that the continuation of the brothel in the zone will not permanently impact the achievement of those objectives, albeit that they may be delayed. The operation of the brothel will postpone the achievement of some zone objectives for the period while the brothel operates. The pace of change in this area, reflective of the updated zoning, will necessarily be incremental over time.
Even the question of delay may be somewhat moot, having regard to the affidavit of Mr Russo insofar as that touches upon the absence of any indication that there are plans afoot to redevelop the Site or the property immediately adjacent to it.
On the question of the future use of the Site, the affidavit of Russo (at [29] above) states that the Site together with the site immediately to its west are currently not the subject of any development consent for redevelopment (in contrast with the site to the east), and redevelopment would most appropriately and most likely be carried out in conjunction with redevelopment of the site immediately to its west. This site is not owned by the Applicant and redevelopment would therefore be contingent upon both separate owners agreeing to pursue it: Affidavit at [8].

[8]

Non-compliance with DCP

The question of the weight to be afforded the DCP in this case remains somewhat open. The Council's view is that it is to be used as guidance only, given that the DCP only refers to permissible, and not prohibited, uses. Nonetheless, compliance with the DCP has been raised in argument, and will be considered in this judgment, albeit that this aspect of the decision is not determinative of the outcome.
Concerns raised by the Council include that the continued use of the premises as a brothel would be contrary to the locational requirements of the DCP, and be incompatible with the existing and likely future land uses and built forms.
Mr Winnacott's response for the Applicant in summary is that the DCP objectives can be met by the brothel: Exhibit 2 at [50]. Moreover, with respect to the 100 metre separation standard, he argues that flexibility is warranted, applying s.79C (3A) of the EPA Act: Exhibit 2 at [51]. Mr Winnacott's opinion is that the brothel either complies with the requirements of Pt 5.4, or to the extent there are departures - which he conceded there were in cross-examination - these are acceptable. He provided detailed evidence on the brothel's location and relationship to other land uses. His inspection of the premises reveals them to be run in a quiet, discreet and orderly manner: Exhibit 2 at [53].
As to the emphasis that should be given to the DCP, Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373 deals with, inter alia, the issue of consideration of relevant provisions of a DCP in determining whether or not to grant development consent. From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. Firstly, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but is not in itself determinative.
On one hand, the mere fact that a proposal meets the requirements of the DCP does not automatically mean that Development Consent will be granted. However, on the other hand, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the EPA Act.
I concur with the Applicant. The intent of the DCP is to protect residential and other areas from the impact of the operation of a brothel. This is apparent from the text of the DCP at 5.4 which provides as follows: While providing employment and a service for groups within the community, these activities can result in amenity problems, particularly if located close to residential areas, because of the 24 hour nature of activity. They can also result in unsafe conditions for workers, patrons and the general community: Extract of DCP, Exhibit 5.
Moreover, I note that the brothel's hours of operation - 9 am to 7 pm, six days per week - are much more limited than the seven day, 24 hour operation contemplated by the DCP. Further, the DCP contemplates proposals to establish restricted premises, and is not concerned with existing premises.
However, the evidence also discloses that in the over eight years of operation of the brothel, there have been no adverse impacts of any significance of the nature sought to be prevented by the DCP. See also discussions below regarding the objections to the proposal.
Accordingly, I find that the provisions of the DCP are no bar to the granting of the Application.

[10]

Adverse impact on Residential Amenity and Objectors' Submissions

The Council argues that there are adverse amenity impacts occasioned by the absence of parking in Phillips Avenue and Canterbury Road: Exhibit 2 at [43]. I agree with the conclusion reached in an earlier decision about this brothel that the mere presence of a brothel or patrons parking their vehicles in Phillips Avenue would not, however, be a matter that would warrant the refusal of the development application: Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146.
The Council notified the Application and received seven submissions of which three were pro forma letters: List of Objectors, Exhibit 4.
In general terms, resident objections confirm "the undesirable nature of the proposal and incompatibility with the surrounding residential area to the south and east": Exhibit 2 at [44]. Submissions from objectors are set out in further detail below.
Three objections were in identical terms, stating that "as the area becomes increasingly residential, we think it is inappropriate to encourage the growth of a business which is not an ideal environment for children or our families": Exhibit 4. Other concerns were expressed in relation to negative impact on property values; potential safety problems; brothels not meeting the demands of locals who want restaurants and cafes; parking and access for brothel users; non-compliance with DCP considerations and harassment of neighbours. I note that no objectors sought to be heard during the site inspection.
According to the Council's Statement of Facts and Contentions this Application was referred by the Council to its community safety officer, fire safety officer and compliance officer. From these referrals "no issues were raised for the subject application": Statement of Facts and Contentions at [6.4].
The Applicant disagrees that there will be such an adverse impact, pointing to the absence of complaints over the last three years of operation. The letters of objection do not point to any evidence of impact on residential amenity: Exhibit 2 at [45]. Given the last three years' operations history, there is no justification for the Council's claim as to a history of adverse impact: Exhibit 2 at [46]. I also note that there was no evidence proffered in relation to impact on property prices.
I accept the evidence from the Applicant's town planner that the premises are used for a legal form of business under NSW State legislation and there is no indication that it causes any adverse impact on the surrounding area: Exhibit 2 at [37].
In considering the manner in which the brothel has been operating, expert evidence was provided on behalf of the Applicant (Exhibit 7: Council's Bundle of Documents at Folio 10) in the following terms: During the most recent trial period the business has been the subject of scrutiny by the Council. Council has not raised any issues of concern regarding the operation of the business. It is apparent that the business is operating in accordance with the conditions of consent and has not been the subject of complaint. There is no indication that the business has caused any disturbance to the amenity of the surrounding area:
Based on the evidence, I find that the objections and concerns as to interference with residential amenity are unfounded, are of insufficient strength to persuade, and provide no basis for the Court to refuse the Application.

Parties

Applicant/Plaintiff:

Wang

Respondent/Defendant:

City of Canterbury-Bankstown Council

Legislation Cited (1)

Environmental Planning and Assessment Act 1979(NSW)ss 79C(1), 79C(3A), 80(3), 80A(1)(d), 95, 96(2), 96AA, 97AA, 102(1)(a)

Cases Cited (11)

JUDGMENT

On the corner of Canterbury Road and Phillips Avenue, Canterbury, is a small brothel, which has been operating largely without incident since 2008. It is well-known to this Court as the Canterbury-Bankstown Council, or its predecessor (the Council) has opposed its operation, unsuccessfully, on three prior occasions, as set out in the following decisions: Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146 (Brown C, 23 April 2008) Fowler and Anor v Canterbury City Council [2010] NSWLEC 1089 (Hussey C, 29 March 2010) Wang and Anor v Canterbury City Council [2013] NSWLEC 1098 (Moore SC, 20 May 2013)
Most recently in May 2013, the brothel was granted a further trial period of three years in which to operate. This trial period has expired. Moreover, following zoning changes, brothels are now prohibited in the area in which this brothel is located. The Council is deemed to have refused an application made by the brothel operator, Ms Jenny Wang (the Applicant), to modify the Development Consent. In that application, she is seeking a further period of time in which the brothel can be permitted to operate. Ms Wang has appealed to the Court under s 97AA of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).
For Ms Wang to succeed in this appeal, she must:

establish that there exists a development consent which is capable of modification;
demonstrate that the consent sought is capable of modification as proposed; and
demonstrate that merit considerations, including submissions from objectors, are no bar to her application.

For the reasons set out in this judgment, none of these matters establishes a bar to the upholding of this appeal.

[1992] NSWLEC 8

(2004) 138 LGERA 360

(2001) 115 LGERA 373