Bird v Hawkesbury City Council

[2000] NSWLEC 4

Land and Environment Court

of New South Wales

CITATION:	Bird v Hawkesbury City Council [2000] NSWLEC 4
PARTIES:	APPLICANT: Howard Bird RESPONDENT: Hawkesbury City Council
FILE NUMBER(S):	10989 of 1999
CORAM:	Talbot J
KEY ISSUES:	Construction & Interpretation :- whether a brothel is commercial premises as an office
LEGISLATION CITED:
CASES CITED:	Londish v Knox Grammar School and Ors (1997) 97 LGERA 1; Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389
DATES OF HEARING:	19/01/2000
DATE OF JUDGMENT:	01/24/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr D P Wilson (Barrister) SOLICITORS: Malcolm McDonald & Co RESPONDENT: Mr P D McClellan QC With Mr J E Robson (Barrister) SOLICITORS: Abbott Tout

JUDGMENT:

IN THE LAND AND Matter No. 10989 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 24 January 2000

Howard Bird
Applicant

v
Hawkesbury City Council

Respondent

REASONS FOR JUDGMENT


1. The applicant is seeking development consent to use premises in zone (4a) Industrial General for the purpose of a brothel.

2. The council has made an application for the Court to determine the following question as a preliminary issue:-

Whether a brothel is prohibited development in zone (4a) Industrial General under Hawkesbury LEP 1989?

3. Commercial premises are defined in the LEP as follows:-

“commercial premises” means a building or place used as an office, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause


4. Commercial premises are prohibited development in the zone.

5. The Registrar agreed to refer a question in a slightly different form to a Judge for determination as a preliminary issue, presumably on the basis that the answer has the potential to resolve the appeal. Although a question of law is not necessarily raised, I agree it is nevertheless expedient to abide the Registrar’s direction. No facts relevant to the question raised are in dispute.

6. The focus of the council’s argument is on the meaning to be attributed to an office in the context of the definition of commercial premises.

7. The council relies on the meaning of “professional and commercial chambers” defined in the LEP to support a broad construction of the dictionary definition for an office which, it says, encompasses a brothel. Prima facie the council’s proposition, at first, appeared to be untenable. Nevertheless, predictably Mr McClellan QC has skilfully managed to develop a plausible argument.

The council’s argument

8. Mr McClellan places particular emphasis on the primary meaning of “office” taken from the Macquarie Dictionary as follows:-

a room or place for the transaction of business, the discharge of professional duties, or the like

9. He referred to the draftsperson’s expressed intention to distinguish an office use from the specific purposes referred to in Schedule 2 incorporated in the LEP definition of professional and commercial chambers as follows:-


“professional and commercial chambers” means a room or number of rooms or chambers being part of a dwelling-house or other building which is or are used by one or more professionally qualified practitioners

Schedule 2
professionally qualified practitioners
Accountant, Acupuncturist, Archaeologist, Architect, Auctioneer, Biologist, Chiropractor, Clinical Psychologist, Dentist, Economist, Engineer, Geologist, Homeopath (sic), Hypnotherapist, Insurance Broker, Legal Practitioner (solicitor or barrister), Medical Practitioner (general practitioner or specialist), Naturopath, Optician, Optometrist, Orthodontist, Osteopath, Physiotherapist, Podiatrist (chiropodist), Quantity Surveyor, Speech Therapist, Surveyor, Town Planner, Valuer, Veterinary Surgeon


10. According to Mr McClellan the office use is intended to cover most premises where business transactions take place beyond those listed in Schedule 2 or are otherwise specifically defined in the LEP or the Model Provisions. This, he says, explains why the more familiar definition of commercial premises in the Model Provisions was not adopted. He cites examples of a hairdresser, a tailor, a marriage guidance counsellor and a tattooist to support the council’s argument that there are uses which fit in with a wider concept of an office in the present context.

11. Therefore, so the argument proceeds, because a commercial transaction takes place and services are provided in the same way as they are by, say a hairdresser, then the use of premises as a brothel for the purpose of providing sexual services by a prostitute readily equates to other office uses.

12. Subjectively, many professionals regard their place of employment as an office, notwithstanding the use goes beyond or in some cases does not involve any clerical activity. On the one hand Mr McClellan submits that, although a barrister might refer to his room as chambers, the majority of people would regard it as an office. He also referred to often quoted remarks by professional golfer Greg Norman, who has been reported as identifying the golf course as his “office” . However, he would not go so far as to submit that the subject definition of commercial premises thereby embraced a golf course in every case.

13. Arguably, because the parties contend for a different meaning of a non-technical term, a question of law has arisen.

14. In Londish v Knox Grammar School and Ors (1997) 97 LGERA 1 at 7 Stein JA, with whom Mason P and Meagher JA agreed, said:-

It is a question of law whether the primary facts can necessarily fit the statutory description: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. However, whether facts fall within the meaning of an ordinary expression, such as “educational establishment” as a matter of common understanding, is a question of fact.


15. The Federal Court and the High Court also appear to have qualified the proposition that whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law, it is nevertheless probably a mixed question of fact and law in the present case in the light of Mr McClellan’s submission (see Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 395-396). As I have said, it is not necessary to finally determine that aspect on this occasion because the Court has the discretion to resolve the question as a preliminary issue in any event (Pt 31 r 2 Supreme Court Rules).

The applicant’s argument

16. In contrast to Mr McClellan, Mr Wilson submitted that the statutory context of the LEP, primarily directing itself to use, does not suggest that office should be given other than its ordinary meaning. He relied on the Shorter Oxford and Macquarie Dictionaries as follows:-


applied to the room or department in which the clerical work of an establishment is done; also to that in which the business of any department of a large concern is conducted (Shorter Oxford Dictionary)

the room or rooms in which the clerical work of an industrial or other establishment is done (Macquarie Dictionary)


17. Mr Wilson contends that, by excluding the definition of commercial premises in the Model Provisions and including a unique definition, the draftsperson intended that the definition in the LEP have a more confined meaning. In the case of a brothel it is certainly not an office. Thus, being not otherwise defined, it is therefore an innominate use.

18. Mr Wilson points to the qualifying phrases in the definition of commercial premises that exclude uses which might otherwise be included because they are generally regarded as offices. This can be gleaned from a perusal of the uses listed in Schedule 2 for the purpose of the definition of professional and commercial chambers. Another instance of a use otherwise defined and which Mr Wilson says in the ordinary sense would be regarded as an office is a “public building” .

19. Finally Mr Wilson submits that, unless the term “office” includes premises which are not otherwise an office according to the ordinary English usage that should be applied to that term, then the definition of “commercial premises” in the LEP would not include use for the purpose of a brothel.

Conclusion

20. The ordinary English usage is further typified by the dictionary definition of “office” appearing in the recently published Australian Oxford Dictionary as follows:-

office 1 a room or building used as a place of business, esp. for clerical or administrative work. 2 a room or department or building for a particular kind of business ( ticket office; post office) . 3 the local centre of a large business ( our Adelaide office) . 4 US the consulting room of a professional person.


21. The approach taken by the council is, in my view, too artificial in the light of the commonly understood association of an office with clerical or administrative work, rather than business in the wider sense of any commercial transaction. This conclusion finds strong support from the dictionary definitions already referred to.

22. Further corroboration, if needed, can be obtained from going to the explanation which follows the Macquarie definition adopted by Mr McClellan. It specifically identifies “the solicitor’s office” . Later definitions, in addition to the one cited by Mr Wilson, in that same dictionary are as follows:-

3 a room assigned to a specific person or group of persons in a commercial or industrial organisation. 4 a place where tickets, etc., are sold, information given, etc.


23. The Court is satisfied that, upon a proper construction of the definition of commercial premises as a place used as an office, it does not include a brothel. For the purpose of the Hawkesbury LEP, a brothel is an innominate use. It is not listed as a prohibited use and accordingly is permissible with consent in zone (4a).

24. The answer to the preliminary question raised is:-

“No”

25. The matter should be listed before the Registrar for further callover.