Reported Decision : (2000) 110 LGERA 345 Land and Environment Court of New South Wales CITATION : Perry Properties Pty Ltd v Ashfield Municipal Council [2000] NSWLEC 188 APPLICANT Perry Properties Pty Ltd PARTIES : RESPONDENT Ashfield Municipal Council FILE NUMBER(S) : 10513A of 1999 CORAM: Cowdroy J KEY ISSUES: Section 56A Appeal :- Brothel - finding of widespread adverse community reaction to the development resulting in great offence - offence based upon fear of inappropriate behaviour of sex workers and patrons - factual finding that there was no basis for such concern - adverse community reaction based upon unsubstantiated fear - fear without basis insufficient to constitute social impact - error of law - appeal upheld LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Croucher v Fairfield City Council (1997) NSWLEC 88; Fairfield City Council v Liu NSWCA no 40043 of 1998; Hope v Bathurst City Council (1980) 144 CLR 1; Kulin Holdings Pty Ltd v Penrith City Council [1999] NSWLEC 157; CASES CITED: Liu v Fairfield City Council No 10384 of 1996; NSWLEC 272; McDonald Industries Limited v Sydney City Council (1979-81) 43 LGRA 428 ; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 (CA) ; Rendell v Release on Licence Board (1987) 10 NSWLR 499 ; The Australian Gas Light Co v The Valuer General (1940) 40 SR 126; Venus Enterprises Pty Limited v Parramatta City Council (1981) 43 LGRA 67 DATES OF HEARING: 11/08/00 DATE OF JUDGMENT: 09/21/2000 APPLICANT Mr S Austin QC SOLICITORS Uther Webster & Evans LEGAL REPRESENTATIVES: RESPONDENT Mr M Tobias QC SOLICITORS Deacons Graham & James JUDGMENT: IN THE LAND AND MATTER No. 10513A of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 21/9/00 Perry Properties Pty Limited Applicant v Ashfield Municipal Council Respondent JUDGMENT 1. This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 ("the Court Act") from a determination by Commissioner Bly delivered on 7 April 2000 dismissing an application for a development ("the development") being a brothel at 246 and 246A Parramatta Road Ashfield ("the site"). The site was affected by the provisions of the Ashfield Local Environmental Plan 1985 ("the LEP") and pursuant thereto was zoned Business 3(c) in which zone brothels are permitted with the consent of the respondent. 2. Numerous objections were raised in opposition to the development which the Commissioner distilled into three issues namely: 1. The proximity of the brothel to the bus stop on Parramatta Road, being a place frequented by school children. 2. The effect of the brothel on the quiet enjoyment of 124 Bland Street especially the use of cars in the car park at night. 3. The insufficient provision of off-street car parking and the likelihood of Bland Street being used for parking by brothel patrons. 3. The Commissioner heard lay evidence and expert evidence from consultant town planners namely Mr Paul De Fina on behalf of the applicant and Mr Paul Mitchell a principal of the firm of ERM Mitchell McCotter on behalf of the respondent. The findings of the Commissioner 4. The Commissioner addressed the issue of noise impact from the development on the premises known as 124 Bland Street and concluded that it was ' unlikely to be seriously problematical' ([38]). I take this to be a conclusion that the effect of the development on the quiet enjoyment of such premises was determined in favour of the applicant. 5. The Commissioner also found that there would be sufficient parking for the development and that the access to the premises for cars and pedestrians would be satisfactory, adding at [40]:- I also accept that likely amenity impacts associated with car usage is unlikely to be critical. I also treat such finding as one in favour of the applicant. 6. In relation to the remaining issue identified for consideration by the Commissioner namely the proximity of the brothel to the bus stop on Parramatta Road the Commissioner concluded at [41]:- I am satisfied that this brothel is not located too close to any place frequented by children for recreation or cultural activities although it is very close to a bus stop used by children. In relation to this bus stop and given what Mr De Fina said about its use and the typical nature of suburban brothel partons [sic] and the revised hours of operation it would appear that this relationship may not be problematical. There will be instances when residents, school children and others find themselves in close proximity to or can see sex workers and their patrons. They may even recognise them as such. In this regard there is no persuasive evidence to support the conclusion that sex workers or their patrons typically behave in an inappropriate or anti-social manner. Consequently and given the general observations made by Mr De Fina and those aspects including the suggested conditions of consent which he explained would mitigate possible adverse impacts together with the fact that that applicant has agreed to a twelve month trial period during which time possible impacts can be assessed, it would appear on this analysis that the consent as sought could be granted. 7. Having made the above findings the Commissioner then made an observation that the provisions of the Disorderly Houses Act 1943 could be an ' extremely potent weapon' in addition to any trial period in dealing with inappropriate behaviour. He continued at [44]:- However these measures do not overcome the reasonable fear of inappropriate behaviour that Mr Mitchell said would nevertheless remain for the large number of people who live, work or attend schools in the area. 8. The Commissioner thereafter referred to the decision of Bignold J in Kulin Holdings Pty Limited v Penrith City Council [1999] NSWLEC 157. In that decision the Court found that there was ' widespread community action against the proposed development' which was a ' relevant fact in the "public interest" in the evaluation of the proposal' ( Kulin at 417, 418 per Bignold J). Bignold J concluded that such result was ' a significant fact which significantly contributes and attests to, the likely social impact of the proposed development in the locality' ( Kulin at 418). 9. Commissioner Bly adopted the reasoning of Bignold J in Kulin and in doing so referred to the decision of Cripps J in Venus Enterprises Pty Limited v Parramatta City Council (1981) 43 LGERA 67 where His Honour said at 69:- It must always be a question of fact whether the amenity of a neighbourhood will be or is likely to be adversely affected by a development. It is not difficult to envisage a development which may cause such great offence to a significantly large part of a community that for that reason it ought not be permitted on town planning grounds. 10. Before reaching his final conclusion as to the merits of development application the Commissioner stated that moral concerns would not justify the rejection of the application and adopted the observations of Murrell AJ in Liu v Fairfield City Council (No 10384 of 1996; NSWLEC 272). The Commissioner referred to the submission of the legal representative for the respondent that objections to the development were not based on moral concerns and continued at [55]:- Rather, the residents and others were not so concerned about what happened inside the premises but instead were deeply worried about potential inappropriate behaviour of patrons and sex workers in the vicinity generally. This is essentially the matter which Mr Mitchell said should be given significant weight. Despite Mr De Fina's evidence to the contrary I can understand the concerns and offence felt by the local community as well as the concerns expressed for example by the school leaders mentioned earlier in this judgment. 11. The Commissioner then concluded at [57]:- There is a widespread adverse community reaction to the proposed brothel which has caused great offence. On this basis, applying the principle articulated by Bignold J in Kulin, I accept that there are likely to be adverse social impacts of sufficient magnitude to warrant, in the public interest, the refusal of this application, despite my earlier findings in relation to amenity. The applicant's submissions 12. The applicant submits that the Commissioner erred in law in determining to refuse the development application upon the ground that ' there is a widespread adverse community reaction to the proposed brothel which has caused great offence' , when he had already determined in relation to the specific issues that ' the consent as sought could be granted' . The applicant submits that once objection to the physical impact of the development has been considered and dismissed, refusal of consent based upon a perception of offence is invalid. In this respect the applicant relies upon the decision of Murrell AJ in Liu . The applicant submits that for the Court to consider ' offence ' it must be tangible and not merely perception as explained by Talbot J in Croucher v Fairfield City Council (1997) NSWLEC 88. The applicant submits that Kulin should not be followed and that the decision in Liu is to be preferred. 13. Further the applicant submits that the Commissioner's finding that the residents concerns were based upon worry 'about potential inappropriate behaviour of patrons and sex workers in the vicinity in general' (at [55]) must have been based upon moral concerns even though such concerns were expressly eschewed by the Commissioner in his judgment. 14. Lastly, the applicant submits that the Commissioner, having made the findings above and having disposed of the issues identified for determination was not at liberty to determine the appeal on a different issue namely community offence or concern. Respondent's submissions 15. The respondent submits that the provisions of s 79C(1)(b) of the Environmental Planning & Assessment Act ("the EPA Act") draws the distinction between amenity impacts and social impacts and that over-riding such considerations is the question of the public interest as provided by s 79C9(1)(e) of the EPA Act. The respondent submits that whereas the Commissioner found that the consent could be granted from the perspective of the amenity impact he thereafter considered that the social impact was adverse. The Commissioner's finding that there was a reasonable fear of inappropriate behaviour was sufficient to justify the genuine concern and fears in the local community which constituted adverse social impact. It is submitted that perception, fear or concerns as to potential impact, can constitute a social impact and may be given determinative weight in the assessment. Whilst the Commissioner found that sex workers and their patrons did not typically behave in an inappropriate or anti-social manner there was nevertheless the scope to justify the fear of such behaviour. Analysis of authorities 16. Cripps J in Venus Enterprises identified the circumstances which could warrant refusal of a development namely, the creation of great offence to a significantly large part of the community. His Honour considered that if such offence was proven to exist, a development could be refused on town planning grounds. Such development might for example be of such type and location as would cause obvious affront to a section of the community because the development would be inimical to the practices or beliefs of that group. 17. In Kulin, Bignold J determined that ' widespread community reaction' against a development proposal was a factor to be considered in the context of the public interest. The tavern development in Kulin was proposed for a location directly opposite community facilities for families and young persons and was regarded by His Honour as inappropriate because of such juxtaposition. 18. The Commissioner specifically acknowledged that moral considerations were not regarded by him as sufficient to justify refusal of the application and in doing so adopted Murrell AJ's observation in Liu that:- …a diminished enjoyment of the perceived moral environment (as opposed to the neighbourhood physical environment) is not a matter which may properly be taken into account pursuant to s 90(i)(o) of the Act. The Commissioner continued at [54]:- If Murrell AJ is correct, it would simply be wrong to reject the application based on the number of objections to this proposed brothel. Moreover, if these objections are based on moral concerns again it would be wrong to reject the application. 19. Whilst this Court is not concerned with morals per se, it is obvious that a development such as a brothel might create repugnant social consequences depending upon numerous factors including proximity to antipathetic development. This was recognised by Murrell AJ when she referred to the fact that certain development could result in ' antagonism between a particular development and the religious or cultural values of an immediately affected and identifiable group' . In refusing leave to appeal against Her Honours decision (see Fairfield City Council v Liu (NSWCA no 40043 of 1998) Mason P made the following observation:- While the morality issue per se is irrelevant the demonstrable social effect of a particular brothel use is relevant under s 90(i) of the Act. Talbot J in Croucher v Fairfield City Council (1997) NSWLEC 88 interpreted Her Honour's judgment in a manner which accorded with the observations of Mason P. The Commissioner's error 20. The Commissioner, having determined that moral issues were irrelevant to his determination and that there were no physical amenity issues which warranted rejection of the development found that the residents and others were ' deeply worried about potential inappropriate behaviour of patrons and sex workers in the vicinity generally' which was the basis of the ' widespread, adverse community reaction' that caused ' great offence' . However, the Commissioner had already found as a fact that there was ' no persuasive evidence to support the conclusion that sex workers or their patrons typically behave in an inappropriate or anti-social manner' [42]. Accordingly it is apparent that fear was considered by the Commissioner as sufficient to reject the development application, even though his earlier finding rejected any rational foundation for this fear. There was nothing in the Commissioner's finding beyond the existence of such fear to support the ' widespread adverse community reaction' to the brothel. 21. Unlike the facts in Kulin the specific location of the proposed brothel was not found to be unsuitable. Nor is there any finding to suggest that offence has been caused to any particular section of the community. There is no finding that the proposed brothel, or its patrons would be atypical. The determinative finding is the existence of a nebulous fear of inappropriate or anti-social behaviour. The Commissioner has already found that such behaviour was not typically associated with this type of development. 22. A fear or concern without rational or justified foundation is not a matter which, by itself can be considered as an amenity or social impact pursuant to s 79C(1)(b) of the EPA Act. In Jarasius v Forestry Commission of New South Wales & Ors [No 1] (1990) 71 LGRA 79 Hemmings J considered generalised opposition to a proposed development. His Honour said at 92:- The applicant further submits that the wide definition of environment must involve not only the physical environment, but also include the social effects thereof and their impact on the relations between social groupings. It is therefore submitted that it is a relevant consideration as to whether there is likely to be a "significant" effect on the environment that the activity is a substantially controversial one. If that submission means that an activity which is otherwise not likely to significantly affect the environment could be seen to do so merely because it excited opposition by a section of the public, then I reject it. A similar submission was rejected in Newton v Wyong Shire Council (6 September 1983, unreported) and in so doing McClelland J said:- "I had an uneasy feeling that an attempt was being made to smuggle into planning and environmental law a new doctrine which might be expressed as follows: If local residents, however mistakenly, believe that a proposed scheme will be environmentally damaging, that belief is a factor, and an important one, which determining authorities should take into account in reaching their decisions". 23. A rational fear, or one having a real basis is a matter for consideration. However in view of the factual finding of the Commissioner concerning the absence of anti-social behaviour it is impossible to ascribe any basis to the objectors' concerns which rely upon the very existence of such behaviour. As a result it is an unjustified fear alone which the Commissioner determined was adverse to the application and which the Commissioner found was contrary to the public interest. 24. As a consequence the Commissioner's conclusion cannot be supported. A finding can be disturbed if there is no evidence to support its inferences: see The Australian Gas Light Co v The Valuer General (1940) 40 SR 126 per Jordan CJ at 138; see also Hope v Bathurst City Council (1980) 144 CLR 1 per Mason J at 10. The appeal accordingly succeeds. Orders 25. The Court orders that:- 1. The appeal be upheld. 2. The proceedings be referred to Commissioner Bly. 3. The exhibits be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.