Land and Environment Court New South Wales Medium Neutral Citation: Yi Yang Huang v Hurstville City Council [2011] NSWLEC 1175 Hearing dates: 12 May 2011 Decision date: 13 May 2011 Jurisdiction: Class 1 Before: Dixon C Decision: (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. Catchwords: DEVELOPMENT STANDARD OR PRECONDITION - sex services premises -proximity to place of public worship and a place frequented by children Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Plan Policy No 1 Hurstville Local Environment Plan 1994 Cases Cited: Agostino v Penrith City Council (2010) NSW CA 20 Billgate Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 436 Gioxle Pty limited v City of Canada Bay Council (2010) NSW LEC 1274 Marpet Enterprises v Eurobodalla Shire Council (2000) NSW LEC 159 Strathfield Municipal Council v Poynting (2001) LGERA 319 Vassallo v Blacktown City Council (1999) NSW LEC 267 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Weynton v Rockdale City Council (1999) NSW LEC 273 Winton Property Group Ltd v North Sydney Council (No 2) 130 LGERA 79 Yang v Hurstville City Council (2008) NSW LEC 89 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Yi Yang Huang (Applicant) Hurstville City (Respondent) Representation: Counsel Dr S Berveling (Applicant) Mr P Rigg (Respondent) Solicitors Mr G Russo Russo & Company (Applicant) Norton Rose Australia (Respondent) File Number(s): 10137 of 2011 ex tempore Judgment 1The applicant seeks development consent pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 to use an existing factory unit at 2/15 - 17 Stanley Street, Peakhurst as sex service premises (the premises). 2The proposal is for the use of two rooms of the premises for sex services plus a waiting room, kitchen area and parking for seven cars. The hours of operation are proposed as 10 am to 11 pm Monday to Saturday and 10 am to 9 pm Sunday. The proposal will employ three sex workers, two managers, receptionist and one security officer after 5 pm to close of business. The development is to be operated in accord with a plan of management (exhibit F). 3The site is located within Zone No 4 (Light Industrial Zone) under the Hurstville Local Environment Plan 1994 (the LEP). Development for the purpose of sex services premises is not listed in items 1 or 3 of the zoning table to Zone No 4 (Light Industrial Zone). Therefore, it falls within item 2 and is permissible " only with development consent" . 4Clause 16A of the LEP also deals with sex services premises. It was introduced into the LEP on 31 March 2006 by Hurstville Local Environment Plan 1994 ( Amendment No 7). The amendment defines sex services and sex premises and provides that such activities are only allowed on land within Zone No 4 (Light Industrial Zone). As stated in the aims of the amendment it provides "... for other controls on the carrying out of development for the purposes of sex service premises ". The aims are set out in clause 2 as follows: 2 Aims of plan This plan aims: (a) to define sex services and sex services premises for the purposes of Hurstville Local Environmental Plan 1994, and (b) to exclude sex services premises from the definition of home activity for the purposes of Hurstville Local Environmental Plan 1994, and (c) to allow, with the consent of Hurstville City Council, the carrying out of development for the purposes of sex services premises only on land within Zone No 4 (Light Industrial Zone) of the City of Hurstville, and (d) to provide for other controls on the carrying out of development for the purposes of sex services premises. 5The interpretation of cl 16A on the facts of this case is essential to the determination of this appeal. This is because the council contends that cl 16A(2)(a) - on the facts of this case - prohibits this sex service premises. Council submits the clause sets out essential criteria or preconditions in respect of the premises, which must be satisfied before development consent may be granted. It contends that the Court cannot, on the evidence and facts of this case be satisfied that the preconditions are met. 6The applicant disagrees. It submits cl 16A(2)(a) and cl 16A(2)(b)(iii) are development standards which are amenable to objection under State Environmental Plan Policy No 1 (SEPP 1) because the clauses specify requirements or fix standards in respect to the development. 7To appreciate how cl 16A operates in this appeal it is necessary to understand the following facts taken from the amended facts and contentions filed with the Court's leave on 10 May 2011 and the evidence. 8The premises are located in a factory unit at the end of an 80 m shared access driveway. Several other factory units used for light industrial purposes surround it. 9At 22 - 27 Stanley Street the council has approved a place of public worship called the Georges River Community Baptist Church. That premises is within Zone No 4, (Light Industrial Zone) and consent was issued on 16 November 2009. Immediately to the north of the premises at the entry to the access driveway is a caretaker's residence at 13 Stanley Street. On the opposite side of the street is a residential premise at 20 - 22 Stanley Street. A model toyshop called 'Hobby Depot' is located at unit 1/9 Stanley Street. The council contends that the toyshop is a place frequented by children, but concedes that the toys are relatively expensive models of boats, planes and helicopters. It accepts that these toys would also be attractive to adults, adolescents and collectors. 10In February 2008, the Court granted a time limited consent for the use of the premises as a brothel. This development consent ended in February 2010. The judgment dealing with the earlier consent is Yang v Hurstville City Council (2008) NSW LEC 89. The facts at the time of this earlier appeal are different to the facts in this appeal. In February 2008 the place of worship and the Hobby Depot shop did not exist, although the residence opposite the site and the caretaker's residence did. I must give weight to the facts, evidence and the law as presented in this appeal. While I accept, as the applicant submits, that consistency of decision making is desirable it can only be achieved if the facts and the law allow that outcome. 11The planners Mr Betros for the council and Mr Winnacott for the applicant have measured the distance between the premises to various boundaries of the place of public worship and the Hobby Depot and the residences. These measurements are recorded on the aerial photograph exhibit 1. There are a range of measurements but council contends that the correct method to measure distance is as the crow flows. Adopting that method Mr Betros's evidence is that the distances between the premise's door and the closest boundaries of the sensitive uses the place of worship, the Hobby Co and the residence in a straight line are within 100 m. 12Mr Winnacott suggested a method of measurement involving measurement across the street frontage and down the access driveway to the front of the premises. His method of measurement may calculate an access route but does not measure the distance directly. I prefer Mr Betros's measurement method to understand the proximity of the premises to the other uses. 13The expert planners agreed that the premises would not be within the view of the place of public worship or any place frequented by children, the Hobby Depot. The Court's site inspection confirmed this evidence. The planners also agreed that the premises would not be within care of the caretaker's unit because of the newly constructed awning and only the driveway to the premises is within view of the residence opposite. 14The applicant has lodged two separate State Environmental Planning Policy No 1 (SEPP 1) objections to compliance with cl 16A(2)(a) in respect of the proximity to a place of public worship, (exhibit B) and in respect of the proximity to Hobby Depot a place frequented by children, (exhibit C) and also a SEPP 1 objection to compliance with cl 16A(2)(b)(iii) " the premises will not be located within 100 metres of land used for residential purpose " (exhibit C). 15Having described the facts in the appeal including the context of the premises in its locality it is necessary now to interpret Cl 16A of the LEP having regard to those facts. Clause 16A of the LEP states: 16A Sex services premises (1)The objectives of this clause are as follows: (a)to specify appropriate planning controls relating to the use of premises as sex services premises, (b)to ensure that sex services premises are not located near or within view of a school, church or hospital or any place frequented by children, or within or near land that is within a residential zone or used for residential purposes, (c)to provide for sufficient separation between sex services premises so that there is not a concentration of those premises in any one locality, (d)to limit the size of sex services premises. a.Despite any other provision of this plan, the council may grant consent to the carrying out of development for the purposes of sex services premises only if: (a)the council is satisfied that the premises will not be near, or within view of, any educational establishment, place of public worship or hospital or any place frequented by children, and (b)the premises will not be located within 100 metres of: (i)land within Zone no 2, or (ii)land within Zone No 5(a) used for the purposes of an educational establishment, place of public worship or hospital, or (iii)land used for residential purposes, and (c)the premises will not be located within 200 metres of the boundary of any land on which there is one or more than one sex services premises lawfully operating, and (d)the council is satisfied that the premises will not contain more than five rooms used, or capable of being used, for the purposes of sex services. b.For the purposes of subclause (2)(d), any room with an area exceeding 18 sq m is taken to comprise two rooms. 16The objectives of cl 16A are set out in 16A(1). An objective of this clause is: (a)to specify appropriate planning controls relating to the use of premises as sex services premises 17I accept as submitted by council that the word 'controls' as defined in s 4(1) of the EP and A Act in relation to development means: (a)consent to, permit, regulate, restrict or prohibit that development. 18Accordingly, there is opportunity for a planning control to prohibit the use of premises as sex services premises. 19Objective (b) provides: "to ensure that sex service premises are not located near or within view of a school, church or hospital or any other place frequented by children or within or near land that is within a residential zone or used for residential purposes." 20The word 'near' is not defined in the LEP. However, the parties agree its ordinary meaning taken from the Macquarie Dictionary as being "a close distance" or " a short distance" is not unreasonable. Council also submits that it is logical to read 'near' in this clause to mean 100 m because of the "indicative use of 100 m in cl 16A(2)(b) with respect to the land use for residential purposes and in objective 16A(1)(b)". Consistent with statutory interpretation, council submits a word repeated in a clause must have the same meaning throughout. 21Council also submits it is necessary to read the word "near' to mean 100m in order to avoid unreasonable interpretations when making the judgment invited by cl 16A(2)(a). 22I accept it is reasonable to define 'near' as within 100 m given the wording of the clause and also because it is consistent with the ordinary meaning of the word as defined in the Macquarie Dictionary as a short distance. For the purposes of this case I accept that "near" is within 100 m. Council's submissions 23It is council's primary submission that the carrying out of the development for the purposes of sex services premises is prohibited in unit two. This is because cl 16A(2) of the LEP overrides the land use table in Zone No 4 (Light Industrial Zone). It provides specific controls or preconditions in respect of that use. It states: "(2) Despite any other provision of the plan the council may grant consent to the carrying out of development for the purposes of sex services premises only if: (a) the council is satisfied that the premises will not be near or within view of, any educational establishment, a place of public worship or hospital or any place frequented by children, and..." 24Council submits, based on Mr Betros's evidence that the premises are near - 60 m as the crow flies - a place of public worship and - 70 - 80 m from the Hobby Depot, a place frequented by children, the Court cannot be satisfied as required by cl 16A(2)(a) " that the premises will not be near any place of public worship or any place frequented by children ." 25Therefore, cl 16A(2) precludes the Court from granting development consent to the carrying out of development for the purposes of sex services premises on this site. According to the council cl 16A(2)(a) operates as a precondition to the granting of consent not unlike cl 25(2) of the Woollahra LEP considered by the Court in the Billgate Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 436 .Unless the Court is satisfied that the pre conditions in cl 16A(2)(a) are met on the facts there is no opportunity to grant consent. 26The council contends that the clause is not a development standard because it does not fall within the definition of development standard in cl 4 of the Act as discussed by the Court in Agostino v Penrith City Council (2010) NSW CA 20. 27Section 4 defines a development standard to mean: "Provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of the development, including, but without limiting the generality of the foregoing, requirements or standards in respect of..." 28In council's submission 16A(2)(a) deals with the permissibility of the use proximate to other land uses. It submits that interpretation of the clause is consistent with the objective in cl 16A(1)(a). The matters listed in cl 16A(2)(a) are essential criteria in determining whether the particular premises are permissible, not requirements or standards in respect of any aspect of that development. The applicant's submissions 29The applicant submits that cl 16A specifies appropriate planning controls relating to the use of premises as sex service premises and these controls are development standards. It submits that cl 16A(2)(a) cannot operate to prohibit this premises because the word 'near' is too imprecise to be read as a prohibition and the clause asks the Court to be satisfied and that requires a judgment. Rather the applicant submits the wording in cl 16A(2)(a) falls within the definition of development standard in s 4 of the EP and A Act, namely, " a provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development ..." 30In support of this submission the applicant relies upon the reasoning of the Court in Weynton v Rockdale City Council (1999) NSW LEC 273. In that case the Court considered cl 46B(1) of the Planning Scheme Ordinance to be a development standard. The applicant says the wording of the clause is similar to cl 16A(2) it opens with the words: "Despite any other provision of the Ordinance, a building may be erected or used for the purpose of a brothel on if: (b) is not located: (ii) near or within view from any church or any place frequented by children for recreation etc..." 31The applicant relies on Weynton to submit that the words in cl 16A(2) " despite any other provision of the plan " do not override the zoning table because those words can be found in development standards. Rather the applicant submits that cl 16A(2)(a) sets locational standards against which the development is to be measured and that is a development standard. 32It submits it is not a provision relating to whether development may be carried out at all as discussed in Vassallo v Blacktown City Council (1999) NSW LEC 267, 9 December 1999, and confirmed by the Court in Marpet Enterprises v Eurobodalla Shire Council (2000) NSW LEC 159 at [52] as per Bignold J in Gioxle Pty limited v City of Canada Bay Council (2010) NSW LEC 1274. 33Accepting that it is a development standard the applicant submits that cll 16A(2)(a) and 16A(2)(b)(iii) are amenable to objection under SEPP 1. It relies on exhibits A, B and C to support a dispensation to compliance with these development standards. 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 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. Decision last updated: 01 July 2011