Finding
34The determination of whether a planning control is a prohibition or development standard is a question of statutory construction. The council submits that the reasoning of the Court in Agostino v Penrith City Council (2010) NSW CA 20, 3 March 2010 is relevant in my determination of this appeal and interpretation of cl 16A. At paras [50] - [57] the Court in Agostino discusses the approach to be taken and the first question to be asked is:
"Precisely what is the permissible or as Giles JA described it in Poynting at para [79] the non-prohibited development. For it is only when one determines what precisely is permissible that one can measure that which is proposed against it in order to determine whether it is permissible or prohibited: if you like the first step described by Giles JA in Poynting."
35The zoning table to Zone No 4 (Light Industrial Zone) as a consequence of Amendment No 7 allows the carrying out of development for the purposes of sex service premises only on land within Zone No 4 (Light Industrial Zone). However, an objective of cl 16A (also inserted by Amendment No 7) is to specify appropriate planning controls relating to the use of the premises as sex service premises and by definition (s 4 of the EP & A Act) the controls in 16A(2) can mean " to consent to, permit, regulate or prohibit that development ".
36Accordingly, council submits that cl 16A(2) can override the zoning table because it lists essential elements that can be treated in the same way as the zoning table, para [55] of Agostino supports this submission. It is also consistent with the reasoning of Basten JA and Lawrence Browning at para [81] .
37Basten JA said, and it is quoted in Agostino :
"It does not follow that only those elements that are included in the zoning table of a planning instrument are to be included as essential elements of the development to define permissibility."
38As was the case in Agostino I accept the submission of council that cl 16A(2) defines by description permissible development despite the fact that the provision is outside the zoning table. I do not accept the applicant's submission that cl 16A(2) is a development standard for the following reasons.
39The words in cl 16A(2) are different to the words in the provisions considered by the Court in the decision cited by the applicant. None of the cases cited by the applicant in support of the submission that cl 16A(2) is a development standard considers a provision which states:
"16A(2) Despite any other provision of this plan, the council may grant consent to the carrying out of development for purposes of sex services premises only if:
(a)the council is satisfied that the premises will not be near or within view of any ... place of public worship ... or any place frequented by children."
40The development standard in Vassallo read:
"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:
(d) within 100 metres from a road, zoned special uses arterial road and arterial road widening of special uses, local road and local road widening."
41It was held that that clause was to fall within the definition of development standard in cl 4 of the EP and A Act because:
"It sets a standard against which the development is to be measured, a requirement that the development be located cited or distanced not less than 100 metres from the 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... That it is not a provision relating to whether development may be carried out at all." (at paragraph 23 of Vassallo).
42Similarly, in Weyton the Court dealt with a provision that controlled the citing of a building for the purpose of a brothel. The Court uses the words 'building', 'only if' and 'near' but in that context they are clearly words in a development standard specifying a location or requirement of permissible development.
43I accept council's submissions that the principles in Agostino are relevant authority for determining whether cl 16A(2)(a) prohibits the carrying out of development for sex services premises in this appeal. The clause defines permissibility not an aspect of the development. I accept council's submissions that it is reasonable to define the word 'near' in the Clause in 16A(2)(a) to mean 100 m for the reasons stated above.
44I prefer Mr Betros's measurements as to the distance between the premises and the boundary of the place of worship as 60 m (as the crow flies), and between the premises and Hobby Depot a place frequented by children as between 70 and 80 m and the residence opposite about 100 m. I am satisfied on the evidence that the premises are near or within 100 m of a place of public worship and a place frequented by children and within 100 m of land used for residential purposes.
45Having made those findings of fact I am not satisfied that the premises will not be near a place of public worship ... or any place frequented by children as required by cl 16A(2)(a). Therefore, despite any other provision in the plan including the zoning table in Zone No 4, cl 16A(2) precludes me from granting consent to the carrying out of the development for the purpose of the sex services premises in this appeal.
46Because I have determined that the development is not permissible I do not need to deal with the merits of the application or the applicant's SEPP 1 Objections in exhibits A, B and C. However, having said that if I am wrong in my interpretation of cl 16A and it is a development standard then based on the evidence I would have determined that the SEPP 1 Objections should have been upheld because they are well founded based on the circumstances of the case having regard to the tests discussed in Winton Property Group Pty Limited v North Sydney Council (2001) 130 LGRA 79 at 89 and Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 .
47The development application was notified and the sensitive users, which cl 16A(1) seeks to protect, did not lodge objection to the application. If cl16A is a development standard then on the facts the premises do not undermine the underlying objectives or purposes in cl 16A(1) of that standard. The premises are small and a low-key operation, the sensitive users, the church, and the Hobby Depot cannot view the premises. While the residence opposite the site can see the driveway such a view would not have been reason to refuse the application because they only view a shared driveway used by many users. I accept the applicant's submission it would be impossible to tell who was using it at any time. I would have held that there was sufficient separation between the sex services from the sensitive uses.
48I would have held that compliance with the development standard would have been unreasonable and unnecessary in the circumstances of the case on the evidence before me. I would have upheld the SEPP 1 objections in exhibits A, B and C because to do so would not have hindered the obtainment of the objectives specified in s 5A(i) and (ii) of the EP & A Act. I would have found the SEPP 1 Objections are well founded because the underlying objectives in cl16A (1) are achieved. An assessment of the merits of the application under s 79C of the Act (including consideration of the relevant provisions of DCP No 1, Parts 1, 2, 3, Part 5.1, 5.2 and 5.3 as required by Zhang v Canterbury City Council [2001] NSWCA 167) supports an approval of this application. The trial period produced no evidence of a problem.
49Based on the above, I am not satisfied about the preconditions in by cl 16A(2) therefore I determine that the Court may not grant consent to the use of this premises for sex services. Accordingly, the Court Orders:
(1)The appeal is dismissed.
(2)Development consent for sex services premises at unit 2/15 -17 Stanley Street, Peakhurst in Development Application 10/DA0330 is refused.
(3)The exhibits are returned.
Susan Dixon
Commissioner of the Court
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Decision last updated: 01 July 2011