Land and Environment Court of New South Wales CITATION : Ocean Sands Pty Limited v Lake Macquarie City Council [2002] NSWLEC 228 APPLICANT Ocean Sands Pty Limited PARTIES : RESPONDENT Lake Macquarie City Council FILE NUMBER(S) : 10620 of 2001 CORAM: Talbot J KEY ISSUES: Appeal :- whether failure to give real proper and genuine consideration to guiding principles of Development Control Plan - application of wrong test Environmental Planning and Assessment Act 1979 s 79C LEGISLATION CITED: Land and Environment Court Act 1979 s 56A Suitors Fund Act 1951 Development Control Plan No 29 - Development of Brothels cl 6 CASES CITED: Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319; Zhang v Canterbury City Council (2000) 115 LGERA 373 DATES OF HEARING: 4/10/2002 EX TEMPORE JUDGMENT DATE : 10/04/2002 APPLICANT Mr I J Hemmings (Barrister) SOLICITORS Bilbie Dan LEGAL REPRESENTATIVES: RESPONDENT Mr G B Newport (Barrister) SOLICITORS Peter Rees Solicitor JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10620 of 2001 Talbot J 4 October 2002 Ocean Sands Pty Limited Applicant v Lake Macquarie City Council Respondent Judgment Introduction 1 This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 ("the Court Act") against the decision of Commissioner Hussey. Judgment was delivered after three days of hearing in April 2002. Commissioner Hussey upheld the appeal and granted consent to DA 2000/4477 for a brothel at lot 16 DP 840 423 Saltspray Close, Redhead ("the site"), subject to conditions. 2 Lake Macquarie City Council ("the council") appeals on the basis that the Commissioner erred in law by failing to give real, proper and genuine consideration to guiding principles of Development Control Plan No. 29 – Development of Brothels ("the DCP"), being a development control plan directly related to the development of brothels. Furthermore, the council says the Court applied the wrong test to the relevant guiding principles of the DCP requiring that access to or exit from the brothel shall not be within view from any place regularly frequented by children. It is claimed that the Commissioner erroneously took into account a future prospect that it was likely there would be intervening development on the industrial land adjoining the site. 3 The guiding principles contained in the DCP are set out in cl 6 and provide, inter alia, as follows: Council will consider an application for a brothel in General Industry 4(a) zones only. In addition, all brothel applications will have to meet other criteria listed below. These criteria are, § Access to or exit from a brothel shall not be near or within view from land used or reserved for a church, hospital, school, or any place regularly frequented by children for the purposes of recreation or cultural activities. … 4 Other criteria are set out which are not currently relevant. 5 At the foot of the criteria is a note. That note reads as follows: (a) for the purposes of this policy exits from premises exclude emergency exits and any distances referred to are to be measured along the most direct established pedestrian route between the respective premises; (b) for the purposes of this policy near is taken to mean within 100 metres of the said land use. 6 It is the applicant's case, that is the respondent to the appeal, and presumably the hearing proceeded on this basis, that the relevant point in the brothel which constitutes the exit is the point where there is a door into the building itself rather than the exit point from a car park which is situated at the front of the building. Although not directly relevant to what I have to decide today, I do not want it to be thought that the Court necessarily agrees with that construction. If it becomes necessary for this matter to be re-agitated at some future time, it cannot be assumed that the Court necessarily agrees with that conclusion, although I expressly make no finding about it. 7 The argument put by the council is that the Commissioner effectively blended two tests that arise from the guiding principles. That is, two particular tests, namely that the access to or exit from the brothel shall not be near land used for or reserved for the designated purposes and, separately, access to or exit from the brothel shall not be within view from the land used or reserved for the designated purposes. The complaint is that the Commissioner drew the two tests together and effectively considered the question of views in the context of proximity within 100 metres. 8 The particular complaints are raised in respect of par 29, par 30, par 33 and par 55 of the judgment where the Commissioner makes particular findings which, he says, take account of the relevant guiding principle set out in the DCP. The Court's findings with respect to these paragraphs are as follows:- (29) In relation to par 29, in my view, that paragraph discloses that the Commissioner dismissed the prospect of viewing the access to or exit from the brothel within 100 metres of land reserved for a place regularly frequented by children because, in his opinion, the small area of the site within that distance in the adjacent reserve was unlikely to be used by children, having regard to the nature of the vegetation. (30) Paragraph 30 similarly shows that the Commissioner considered the aspect of views in the context of being within 100 metres of the site. He refers to limited views at a point in the playing field "on the border of the 100 metres". (33) In par 33 there is confirmation of this conclusion when he refers to "at the outer edge of the stipulated viewing distance at 100 metres". The only stipulated distance, as will be seen from the extract set out from the DCP above, relates only to whether or not the brothel is near the places identified in cl 6 of the DCP. (55) Contrary to Mr Hemmings' submission, the Court is of the opinion that par 55 shows that the Commissioner gave consideration to proximity or nearness only in the context of views. The issue of whether the access or exit to the brothel is near a nominated place, that is within 100 metres, is a distinct and separate criteria to whether the access or exit can be viewed from the nominated place. 9 Furthermore, par 31 shows that the Commissioner interposed the prospect of views being diminished by future development, about which there were no particulars available to him. 10 I am satisfied that the Commissioner did combine the separate tests and confused the test for proximity with the test for visual aspect of the access to or exit from the brothel. 11 Mr Hemmings, however, says that even if that construction of the judgment is open, the Commissioner nevertheless summed up by saying in par 61 that he considered the application merits conditional consent because it is the type of development allowed in the industrial zone and it demonstrates reasonable compliance with the relevant guiding principles in the DCP. That may well be the case and it certainly shows that the Commissioner took into account the provisions of the DCP as he understood them. 12 I am satisfied, nevertheless, that the Commissioner appears not to have separated the tests as he was required to do and, thereby, fell into error in the application of whether or not the exit from or the access to the brothel can be viewed at any point without necessarily confining it to the 100 metre radius which is stipulated in the note to cl 6 of the DCP. 13 In the circumstances, it cannot be said that the Commissioner gave real, proper and genuine consideration, which is required in regard to the DCP pursuant to s 79C of the Environmental Planning and Assessment Act 1979. The relevant applicable principles were recently dealt with by the Court of Appeal in Zhang v Canterbury City Council (2000) 115 LGERA 373. The overriding relevant principles in relation to whether matters have been taken into consideration were dealt with many years ago in Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319. 14 For all of those reasons, I think it is appropriate that the Commissioner should be given a further opportunity to consider the development application having regard to these reasons. 15 I intend, therefore, to uphold the appeal. I refer the matter back to the Commissioner for re-hearing having regard to the reasons given in this judgment. 16 The exhibits may be returned. 17 I make an order that the respondent to the appeal, the applicant in the proceedings, pay the council's costs of the appeal. I certify that the respondent to the appeal is entitled to a certificate under the Suitors Fund Act 1951. 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.