Chen v Parramatta City Council

[2010] NSWLEC 1101

Land and Environment Court

of New South Wales

CITATION:	Chen v Parramatta City Council [2010] NSWLEC 1101
PARTIES:	APPLICANT Hua Chen RESPONDENT Parramatta City Council
FILE NUMBER(S):	10705; 10706 of 2009
CORAM:	Brown C
KEY ISSUES:	APPEAL :- modification of existing brothel approval to increase number of sex workers from six to eight and provide internal modifications - whether conditions of consent requiring payment of fee for inspections should be imposed
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Xing Xing Wei v Parramatta City Council [2010] NSW LEC 1046
DATES OF HEARING:	21 April 2010
EX TEMPORE JUDGMENT DATE:	21 April 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle, barrister RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 April 2010

10705 of 2009 Hua Chen v Parramatta City Council
10706 of 2009

JUDGMENT

1 COMMISSIONER: These are two separate but related appeals against the decisions of Parramatta City Council (the council) in relation to an existing brothel located at 32 Berry Street, Granville (the site). The council approved the use of the site for a brothel on 11 December 2002 and has granted modifications to the approval on 20 February 2003 and 18 September 2007.

2 Appeal No. 10705/2009 is an application to modify condition 28 of Development Consent No. DA/1679/2002/B to permit an increase in the number of sex workers employed on the site at any time from six to eight. The contentions raised by the council in the Statement of Facts and Contentions for this appeal are:

1. unacceptable car parking,
2. unacceptable disabled access,
3. contributes to the proliferation of brothels,
4. the public interest, and
5. matters raised by objectors.

3 Appeal No. 10706/2009 is an application for alterations to the internal layout of the brothel. Some works have already been constructed and a Building Certificate was issued by the council for these works on 8 February 2010. The additional works sought, but not constructed, are set out in a schedule (Exhibit D) but do not involve any substantial works. The contentions raised by the council in the Statement of Facts and Contentions for this appeal are:

1. unacceptable sanitary facilities,
2. unacceptable laundry facilities,
3. insufficient information to determine compliance with the Building Code of Australia, and
4. the public interest.

4 Following the submission of further details, including a Plan of Management, additional conditions and amended plans, the council did not press the original contentions in both appeals. What remained in dispute was the imposition of conditions 2, 3 and 4 of the consolidated conditions for both appeals. These conditions state:

Condition 2:
An Annual Monitoring Fee for Restricted Premises and Sex Services Premises must be paid to the council. The Annual Monitoring Fee with be the amount stated from time to time in council’s adopted Fees and Charges. The first payment of the annual monitoring fee must be made to council prior to:
A Construction Certificate being issued if this consent authorises the conduct of works for which a construction certificate is required; or
The premises being used in accordance with this consent, this consent does not authorise the conduct of works for which a construction certificate is required,
And each subsequent annual payment must be made on each anniversary of the date on which the first payment was due to be paid.
Reason: To comply with council’s adopted fees and charges document and how to ensure compliance with conditions of consent.
Condition 3:
An Environmental Enforcement Service Charge is to be paid to council prior to the issue of a construction certificate. The fee paid is to be in accordance with the council's adopted “Fees and Charges” at the time of payment.
Reason : To comply with Council’s adopted Fees and Charges Document and to ensure compliance with conditions of consent.
Condition 4 :
An Infrastructure and Restoration Administration Fee is to be paid to council prior to the issue of a construction certificate. The fee to be paid is to be in accordance with Council’s adopted “Fees and Charges” at the time of payment.
Reason : To comply with council’s adopted Fees and Charges Document and to ensure compliance with conditions of consent.

5 Based on the council’s 2009/10 Fees and Charges : Regulatory Services, the fees are:

Condition 2 : $1000 per approved room annually and $420 for first hour or part thereof and additional time charges at $420 per hour in 15 minute increments for compliance monitoring.
Condition 3 : $300 one-off charge.
Condition 4 : $300 one-off charge.
The submissions

6 Mr Pickup, for the council, submitted that s 608(6) of the Local Government Act 1993 (the LG Act) allows the imposition of a condition requiring the payment of a fee or charge. On this basis, conditions 2, 3 and 4 can be reasonably imposed. “Approval” is defined in the dictionary to the LG Act as follows:

means an approval that is in force under this Act.

7 Mr Pickup submits that the definition of approval should be read in the context of, and in the light of, the subject matter in s 608 as a whole. If this is done, then “approval” must be interpreted not only to include approvals under the LG Act, but also approvals under the Environmental Planning and Assessment Act 1979. Even if this submission is not accepted by the Court, Mr Pickup submits that the conditions could be imposed as they satisfy the Newbury test.

8 Mr Doyle, for the applicant submits that, firstly, there is no power to impose conditions as they must relate to an approval under the LG Act and, `secondly, the fee for the annual monitoring fee was unreasonable and no explanation was provided for the charge and how the monitoring component would be implemented.

Findings

9 Relevantly, s 608 of the LG Act addresses council fees for services. Section 608(6)(a) states:

( 6 )Inspections of premises are reasonably necessary to determine if an approval has been complied with:
(a) an approved fee may be charged for such an inspection only if the charging of a fee has been included as a condition of approval.

10 The same question was put to Commissioner Pearson in Xing Xing Wei v Parramatta City Council [2010] NSW LEC 1046 when dealing with condition 13 of an approval for a brothel. It is a condition similar to condition 2 in this appeal. At paragraphs 43 to 45, Commissioner Pearson states:

43. ….In my view, s 608(6) has a more limited operation than contended by the Council. Subsections 608(4) and (6) refer to “an approval” and both operate to restrict the council’s ability to charge a fee for inspection if that is reasonably necessary to determine if an approval has been complied with (or, in the case of s 608(4), for non-commercial premises in connection with an application for an approval). There is no indication in the context or subject matter that would enable a broader meaning to be given to the term “approval” than that given to it by the L G Act such that it could include a development consent granted under the EPA Act. The purposes listed in s 7 of the L G Act do, as submitted by the Council, include s 7(d), giving councils “the ability to provide goods, services and facilities to carry out activities appropriate to the current and future needs of local communities and of the wider public”. That does not, in my view, necessitate an interpretation of s 608(6) other than in accordance with its terms. If an annual fee for monitoring can properly be charged by the Council, s 608(6) does not provide a basis for concluding that condition 13 must be imposed on a development consent in these proceedings for the fee to be recoverable. If I am wrong on this interpretation of s 608(6), a condition in the form of condition 13 would still have to be a condition that could properly be imposed on a development consent.”
44.On the assumption that there is power to impose an annual charge for monitoring the premises, the issue is whether a condition can or should be imposed requiring the applicant to pay it. The council submits that the condition satisfies the Newbury test in that it is for a planning purpose, fairly and reasonably relates to the development, and is not so unreasonable that no consent authority would have imposed it. The applicant submits that the Court has no power to impose the condition and it is not relevant to the application under consideration.”
45. Clause 79 of the SREP requires consideration of whether the operation of the brothel is likely to interfere with the amenity of the neighbourhood or cause a disturbance in the neighbourhood. The conditions of consent, including in particular that requiring compliance with the Plan of Management, are intended to ensure that impact on amenity or disturbance to the neighbourhood do not occur or are addressed appropriately. It was not in dispute that there is a planning purpose in ensuring compliance with the conditions of development consent. There was no evidence before me that condition 13 is required to enable the council to inspect or monitor the premises to ensure compliance or, if it is, how it would assist. I am not persuaded that condition 13 fairly and reasonably relates to the development, the subject of this application, and should not be imposed.”

11 In terms of condition 2, I find no fault in the reasoning of Commissioner Pearson and, consequently, no reason to come to a different conclusion as the submissions addressed the same issue even though the planning controls were different. Condition 2 can be deleted.

12 Condition 3 requires payment of an Environmental Enforcement Service Charge. It was unclear from the evidence what the charge was in response to, although Mr Pickup helpfully submitted that it was to ensure compliance with health-related conditions in the approval, presumably condition 17 that addresses laundry facilities, condition 18 that addresses sanitary facilities and condition 19 that addresses showering facilities. I see no reason why these facilities require a separate inspection, particularly given the relatively small increase in the operation of an existing approved brothel. Consequently, condition 3 can be deleted.

13 Condition 4 is an Infrastructure and Restoration Administration Fee. As submitted by Mr Pickup, this charge is to ensure that there has been no damage to the council’s infrastructure by the proposed development. Given the relatively small increase in size and the also relatively minor work required by the modification, I see no reason to impose this condition. Consequently, condition 4 can be deleted.

Orders

14 The orders of the Court for Appeal No 10705 of 2009 are:

1. The appeal is upheld.
2. The s 96 modification application to modify condition 28 of Development Consent No.DA/1679/2002/B to increase the number of sex workers from 6 to 8 for the existing brothel at 32 Berry Street, Granville is approved subject to the conditions in Annexure A.
3. The exhibits are returned, with the exception of exhibits 1, 5 and A.

15 The orders of the Court for Appeal No 10706 of 2009 are:

1. The appeal is upheld.
2. The s 96 modification application to modify the internal layout of the brothel approved by Development Consent No.DA/1679/2002/B at 32 Berry Street, Granville is approved subject to the conditions in Annexure A.
3. The exhibits are returned, with the exception of exhibits 2, 5 and A.

___________________

G T Brown
Commissioner of the Court