Zhang v Canterbury City Council

KEY ISSUES: Section 56A Appeal :- failure to give real consideration to DCP - onus of proof - time limited consent to enable assessment of impact

LEGISLATION CITED: Land and Environment Court Act 1979 s 56A

DATE OF JUDGMENT DELIVERY: 09/08/1999

APPLICANT/RESPONDENT: Mr P W Larkin (Barrister)

SOLICITORS: Steven Klinger LEGAL REPRESENTATIVES: RESPONDENT/APPELLANT: Mr W R Davison SC

SOLICITORS: Pike Pike and Fenwick

IN THE LAND AND Matter No. 10748-9 of 1998 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 8 September 1999

Julie Zhang Applicant/Respondent v Canterbury City Council Respondent/Appellant

In a reserved judgment dated 11 March 1999, Commissioner Brown upheld an appeal against the refusal of a development application for the use of part of a building at the rear of 303 Beamish Street, Campsie as a brothel.

The council, represented by Mr Davison SC, has appealed against the Commissioner's decision pursuant to s 56A of the Land and Environment Court Act 1979.

Having identified the site and described the building and the location of the brothel within it, the Commissioner described the environs of the land, including the St Philips Uniting Church immediately to the east of the subject site. He referred to a church building and two community halls.

A chronological history provided by the Commissioner shows that development consent to use the premises for "Body Massage and Relaxation Centre" was granted for 12 months on 8 July 1996 and extension of the use, including a brothel, had been under consideration since the expiration of that consent.

It was acknowledged that DCP 23 applied and the Commissioner set out the general objectives as well as the objectives and standards contained in cl 4. DCP 23 is directed to the control of development legalised by State Parliament under the Disorderly Houses (Amendment) Act 1995.

In particular cl 4 of DCP 23 provides "(a) brothel should not be located adjoining or within 200 m walking distance of any place of worship, school, community facility, childcare centre, hospital, rail station, bus stop, taxi stand, or any place regularly frequented by children for recreational or cultural pursuits" .

The aim of this standard can be identified by reference to the stated objective to ensure that brothels are located at a reasonable distance from residential occupancies and other sensitive land uses.

There is a note to the DCP which indicates that if there are circumstances when it is not relevant to comply with the locational standard, applicants must provide a written submission detailing the reasons why this standard should be varied.

The Commissioner made the following observation at p 9 of the judgment:- While the Council's case was based, to a large extent, on the non-compliance with DCP 23, it must be remembered that the distance standards within DCP 23 cannot be read as prohibiting brothels within these distances. To do so would be to give DCP 23 greater power than LEP 148 in this regard.

Reference is made to the decisions of this Court in Deborah Leanne Croucher v Fairfield City Council unreported 10630 of 1996 2 July 1997, and Lui Lonza Beauty Holdings Pty Ltd v Fairfield City Council unreported 10384, 10555 and 10556 of 1996 9 December 1996 after which the Commissioner made the following observation:- The general thrust of these decisions is that any impacts must be demonstrable. It is not enough to simply rely on a brothel's presence to justify its unacceptability, irrespective of its location and neighbours.

The evidence presented at the hearing, in my view, was not of sufficient severity to suggest that the brothel should not be granted approval, although for the reasons set out later in the judgment I am not convinced that it should be unlimited.

Turning to the question of whether the consent should be unlimited, as proposed by the applicant, or time limited, as suggested by the respondent council, the Commissioner referred to "the unreliability of relying on the previous history of the site to justify its unlimited ongoing use" .

While he found that the evidence did not suggest any problems of a severity that would warrant refusal, he accepted that "there is a fundamental incompatibility with a brothel and those land uses set out in DCP 23" .

Furthermore, he found that the absence of any evidence on number of clients, peak times and particular operating conditions places great doubt on any reliance on previous operations to support the current proposal. For this reason, he determined it appropriate that a 12 month limit be placed on any approval.

The Commissioner concluded as follows:- In my view, the evidence presented to the Court could not justify the refusal of the application. The instances where there was interaction between the community, the Church or the school and the brothel could not be seen as offensive or objectionable. The mere presence or knowledge of the brothel is not sufficient for its refusal when considered in a planning context, and the existing legislative requirements.

The 12 month limit will allow the opportunity for a more detailed assessment of the operation and any impacts that may be generated by the brothel.

In the interim, I do not see that the proposal conflicts with the general objectives of DCP 23.

Commenting earlier in the judgment on the evidence of Mr Ross Flemming, a consultant town planner, the learned Commissioner made the following observations:- He conceded that there were variations to DCP 23 but concluded that these variations were justified in this instance. The location is in excess of 100 m from the nearest residential address and is physically separated by other buildings and public roads.

Mr Flemming also sees no problem with the relationship with the school. In his opinion, the view is sufficiently indirect and only of the northern wall of the subject premises. He also sees no problem with children using Hill Lane as they are only one of the activities using the lane during the day.

In terms of the proximity to the Church, Mr Flemming sees no conflict because the public entrance to the Church and the entrance to the brothel are not in view of each other and the church is functionally orientated away from the subject site. This relationship is also reflected in the lack of any concern by the Church in the past.

Mr Davison's primary submission is that, by failing to give proper, genuine and realistic consideration to the DCP, the Commissioner displayed a fundamental misunderstanding of the statutory scheme.

He also misapplied the decisions in Croucher and Lui Lonza .

Furthermore, by assuming that the council bore an onus to demonstrate relevant incompatibility with the surrounding land uses, the Commissioner fell into legal error.

Finally, the council contends that the power to grant time limited approvals does not extend to a situation where there is fundamental incompatibility with a DCP and the Court is not satisfied that there is sufficient evidence to justify an unlimited approval.

In North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 at 28 Cole JA said the following:- It is apparent that whilst his Honour stated that he had "given weight to the Development Control Plan" that statement was made against his clear view that the document to which he was purportedly giving weight was invalid and, accordingly, of no effect. Further, he determined not to apply it. The consequence must be that, in truth, his Honour did not give any real consideration to or have regard for the provisions of the Development Control Plan ( Parramatta City Council v Hale (at 339)). There has not been a "proper genuine and realistic consideration" of the application having true regard to the Development Control Plan ( Broussard v Minister for Immigration & Ethnic Affairs (1989) 98 21 FCR 472 at 483 per Gummow J; Turner v Minister for Immigration & Ethnic Affairs (1981) 55 FLR 180 at 184 per Toohey J.) It follows, in my view, that the reconsideration by the Land and Environment Court was not in accordance with the order of this Court made 28 July 1995 that the matter be determined by the Land and Environment Court in accordance with the decision of this Court which made clear that consideration of the development control plan was required by s 90(1) of the Act.

His Honour went on at 30:- The content of development control plans is addressed by s 72. It is to contain "the more detailed provisions" than are contained in the North Sydney Local Environmental Plan , which council regards as necessary or desirable (s 72(1)). Generally the development control plan must conform to the North Sydney Local Environmental Plan (s 72(3)). However that does not mean that where a use is permissible with consent under a North Sydney Local Environmental Plan , "more detailed provisions" regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in which a use is permissible with consent. There is no reason in principle why those "provisions" would not have the character either of a "prohibition" unless certain criteria are satisfied, or of a "development standard", which permits a development only on satisfaction of certain criteria.

The Commissioner started with the premise that DCP 23 cannot be read as prohibiting brothels within the distances specified in cl 4. Otherwise, he said, the provisions of DCP 23 would have greater force than the LEP.

By accepting the lack of evidence in regard to the severity of impact to justify refusal, the Commissioner appeared to make a judgment that the provisions of the DCP do not control development within the prescribed distances of sensitive land uses. He particularly noted that he was mindful no evidence on the past and future operation of the brothel was produced at the hearing. The absence of the evidence in this respect in his opinion justified a 12 month limit on any approval.

The decision to disregard the distance requirements of the DCP arises out of the Commissioner's understanding of the thrust of the decisions in Croucher and Lui Lonza which he took to mean that any impacts of a brothel must be "demonstrable" .

In Croucher although a draft LEP had been prepared, there was no DCP in force. Murrell AJ in Lui Lonza used the words "demonstrable effect" but only in the context of its relevance in contrast to the issue of community standards and views on the morality of brothels.

There is nothing which flows from the decision of the Court of Appeal in Ligon [No 2] which leads to a conclusion that the provision regarding the location of a brothel adjoining or within 200 metres walking distance of a place of worship is not in conformity with the LEP. This is particularly so in light of the note to that provision in cl 4 which requires the applicant to provide a written submission detailing the reasons why the standard should be varied. Thus it was for the applicant to show why this particular brothel should be allowed in circumstances where a church is located immediately to the east of the subject site within the prescribed distance of 200 metres.

The Commissioner's opinion that the evidence "was not of sufficient severity to suggest that the brothel should not be granted approval" in the light of his acceptance of a "fundamental incompatibility with a brothel and those land uses set out in DCP 23" is difficult to comprehend. The Parish Secretary of St Philips Uniting Church gave evidence that the property is not only used for church purposes but also as a community and drop in centre. A number of community groups, including children, use the site during the week.

Although a development control plan is to contain "more detailed provisions" than are contained in the LEP, those provisions may have the character either of prohibition, except in certain circumstances, or require development to satisfy certain criteria ( Ligon [No 2] at 30).

Clause 4 of the DCP is in the form of a recommendation that a brothel "should" not be located adjoining or within the prescribed distance of a place of worship. The note to the provision makes it clear that the standard may be varied if there are circumstances where it is not relevant to comply with it.

A proper reading of the DCP is that consent should not be granted to a brothel that is to be located contrary to the provisions of cl 4 unless there are circumstances which render compliance with the standard irrelevant.

Mr Larkin submits that the Commissioner was entitled to, and did, accept the evidence of the applicant's consultant town planner that, in terms of the proximity to the church, there is no conflict because the public entrance to the church and the entrance to the brothel are not in view of each other and the church is functionally orientated away from the subject site. Thereafter, the Commissioner appears to accept the view that, because any impact was not "demonstrable" and the evidence did not show sufficient severity to justify refusal, the standard in the DCP could be ignored, notwithstanding the general objectives of the DCP to ensure that brothels are discrete, sensitively located and at a reasonable distance from sensitive land uses.

The question to be decided on this appeal pursuant to s 56A of the Court Act is whether the Commissioner erred in law in coming to the above conclusion.

The DCP says nothing about orientation of a place of public worship or any other relationship to the site of a proposed brothel except distance. The decision to allow the development on a site immediately adjacent to a place of public worship without explaining the grounds for the variation of the standard indicates that the Commissioner did not have proper regard to the provisions of the DCP.

It is evident therefore that he did not give any real consideration to the provisions of the DCP, in the same way as Cole JA found in Ligon [No 2] .

It is not a question of weight given to the DCP by the Commissioner. He incorrectly applied the relevant test by determining that the council had not demonstrated sufficient severity of impact rather than requiring the applicant to provide reasons why the standard should be varied. In that sense the Commissioner asked himself the wrong question and therefore fell into error.

The question of onus does not strictly arise in order to determine whether the Commissioner fell into error in the application of the provisions of the DCP. That issue will be dealt with separately in regard to an argument raised by Mr Davison in respect of the general attribution of onus in class 1 proceedings.

In JR and EG Richards (NSW) Pty Ltd v Scone Shire Council and Anor ( unreported 20249 of 1994 24 November 1995) Stein J expressed the view that in any class 1 or 2 appeal before the Court, the applicant assumes an onus of proof, namely of establishing on the balance of probabilities and on the basis of all the evidence before the Court that it is appropriate to grant the approval which it seeks. This view appears to be a hardening of an earlier tentative opinion expressed by his Honour in Nesbitt and Anor v Warringah Shire Council and Ors (unreported 10021 of 1986 10 September 1986). Cripps J seemed to be of the same opinion in obiter remarks made by him in a slightly different context in Ashland Chemicals (A/ASIA) v Wyong Shire Council (unreported 10668 of 1988 1 October 1989) when he said, "the onus is on the developer to establish that the activity for which development consent is sought is permissible and not prohibited" .

The learned Commissioner speaks only of severity of impacts and demonstrable effect from the brothel. He refers specifically to the absence of any evidence on the past and future operation of the brothel. He accepted the fundamental incompatibility with a brothel and the sensitive land uses set out in DCP 23 but then proceeded to reach his conclusion on the basis that the evidence did not suggest any problems of a severity that would warrant refusal.

I agree that if the Commissioner's finding means that the council bore an onus to produce evidence that the application should be refused rather than that the applicant establish that she was entitled to consent, then he was in error. Although the reasons in his judgment suggest that he fell into such an error in relation to the application of the provisions of the DCP, it is not altogether clear what reasoning he applied generally in regard to the onus of proof. If that was the only ground of appeal, it has not been made out sufficiently to justify upholding the appeal.

The Commissioner explained that, in the absence of any evidence on the number of clients, peak times and particular operating conditions and the doubt about relying on the previous operation to support the current proposal, it was appropriate that a 12 month limit be placed on the approval. He also makes an oblique reference to "the other reasons mentioned previously" . It can be inferred that these included the concerns of the council in relation to the departures from DCP 23 and the fundamental incompatibility with a brothel and the land uses set out in that planning instrument. He mentions in the conclusion that the instances where there was interaction between the community, the church or the school and the brothel could not be seen as offensive and objectionable and that the mere presence or knowledge of the brothel is not sufficient for its refusal. He then explains that the 12 month limit will allow the opportunity for a more detailed assessment of the operation and any impacts that may be generated by the brothel.

Notwithstanding that a condition of development consent may be imposed if it limits the period during which development may be carried out in accordance with the consent so granted pursuant to s 80A(1)(d) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), the reasons given by the Commissioner demonstrate that he failed to take into consideration the likely impacts of the development as required by s 79C(1)(b) and the suitability of the site for the development as required by s 79C(1)(c).

Deferring a more detailed assessment of the operation and any impacts that may be generated by the brothel for a period of 12 months gives credence to a proposition that the applicant is prima facie entitled to development consent merely because brothels are a permitted use under the LEP. If there was insufficient evidence to justify the grant of an unlimited consent, as the Commissioner found, then the only option open to him was to dismiss the appeal.

The Court is required to give consideration to the likely impacts at the date of determination. Instead, this matter was left in abeyance. In my opinion, the Commissioner effectively postponed determination of an essential matter for one year. Adopting that course is no different in principle to leaving to others the adjudication of matters unresolved by the consent that is granted (see King v Great Lakes Shire Council and Anor (1986) 58 LGRA 366 at 384 - 385).

In other words, the Commissioner was obliged to understand the consequences of allowing the use of the premises before the grant of development consent. By failing to do so he fell into legal error.

The Court accepts the council's argument that the Commissioner erred by failing to give proper, genuine and realistic consideration to the provisions of the DCP and in particular the requirement for separation from other sensitive uses.

He also fell into error by determining the application on a basis which required the council to discharge an onus of proof that it did not bear.

The decision to grant a time limited approval in the circumstances means that the Commissioner failed to consider an essential criteria pursuant to s 79C of the EP&A Act (or for that matter the relevant criteria under s 90 of the EP&A Act which applied prior to 1 July 1998) by deferring the adjudication of those matters for the period of 12 months.

49. The matter is remitted to the Commissioner for determination by him in accordance with the decision of the Court.

50. The appellant council is entitled to an order for costs of the appeal.

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