Dixon v Burwood Council

[2002] NSWLEC 190

Reported Decision: 123 LGERA 253

Land and Environment Court

of New South Wales

CITATION:	Dixon & Anor v Burwood Council [2002] NSWLEC 190
PARTIES:	APPLICANTS Tammy Dixon and Tamara Alexandrovna Doong RESPONDENT Burwood Council
FILE NUMBER(S):	10657 of 2001
CORAM:	Pain J
KEY ISSUES:	Appeal :- s 56A appeal - brothel development - whether Commissioner erred in law - whether questions of law raised or errors of fact - whether non-physical aspects of amenity are relevant - whether the atmosphere of the neighbourhood is relevant to social impact - whether the moral and sexual standards of a church community are relevant - whether the modification of behaviour of members of the church community were relevant to social impact where there was no need to be concerned about personal safety - error of law - whether decision vitiated
LEGISLATION CITED:	Land and Environment Court Act 1979 s 56A Environmental Planning and Assessment Act 1979 s 79C
CASES CITED:	Attorney General (New South Wales) v Quin (1990) 170 CLR 1; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Bauer Holdings Pty Ltd v Sydney City Council (1981) 48 LGRA 365; Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367; Broad v Brisbane City Council (1986) 59 LGRA 296; Carstens v Pittwater Council (1999) 111 LGERA 1; Croucher v Fairfield City Council (Talbot J, NSWLEC, 2 July 1997, unreported); Fairfield City Council v Liu Lonza & Beauty Holdings (Mason P and Dunford AJA, NSWCA, 17 February 1997, unreported); Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275; K Richardson & Associates Pty Ltd v Yarrowlumla Shire Council [2002] NSWLEC 8; McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8; Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611; Novak v Woodville City Council (1990) 70 LGERA 233; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; Perry Properties Pty Ltd v Ashfield Council (No 2) (2001) 113 LGERA 301; Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67
DATES OF HEARING:	13/08/2002
DATE OF JUDGMENT:	10/31/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr AJJ Thompson (barrister) SOLICITORS Russo & Co RESPONDENT Mr D Parry (barrister) SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10657 of 2001

Pain J

31 October 2002

TAMMY DIXON and

TAMARA ALEXANDROVNA DOONG

Applicants

v

BURWOOD 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 determination of Commissioner Bly on 7 February 2002 refusing the Applicants' appeal against the refusal of a brothel development in Burwood town centre by Burwood Council (the Council). In Class 1 matters s 56A(1) of the Court Act allows an appeal to a Judge against a Commissioner's decision on questions of law.

2. The Applicants' Grounds of Appeal set out nine issues but ground 8 was not pursued at the hearing. The grounds which were argued are set out below:

1. Taking into account that the controls in Draft LEP 38 and DCP 13 were not unreasonable and were no more restrictive than similar controls in other local government areas.

2. That the atmosphere of a neighbourhood can be considered when dealing with the social impact of a development proposal.

3. That there was a social impact resulting from the existence of a brothel.

4. Taking into account the moral and sexual standards of the Greek Orthodox religion in identifying the unacceptability of the development proposal.

5. That an objection based upon moral and sexual standards was a relevant consideration.

6. That the social impact was an environmental impact.

7. In accepting that modification in the behaviour of members of the Greek Orthodox Church community inferred an unacceptable social impact from the development proposal.

9. That the decision was against the evidence.

3. It should be emphasised that an appeal under s 56A of the Court Act is restricted to a "question of law". It is not a review on the merits: see K Richardson & Associates Pty Ltd v Yarrowlumla Shire Council [2002] NSWLEC 87 at [19]. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155, Glass JA (with whom Samuels JA agreed) quoted the following passage from McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9 as an "authoritative pronouncement" in relation to whether an appeal raised any question of law, or rather, on proper analysis, only alleged errors of fact:

The question of whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932]1 KB 40 at 110, 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of providing the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it.

4. Furthermore, there are numerous cases in this Court and the Court of Appeal which have criticised an overly legalistic approach to appeals of this nature. A "fine-tooth comb" approach to s 56A appeals is discouraged, as it is to be remembered that the decisions were not written by a lawyer. This approach can be traced from Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367. These comments are relevant to several of the grounds of appeal namely grounds 1, 3, 6 and 9, and I will deal with these grounds first.

Ground 1
"Taking into account that the controls in Draft LEP 38 and DCP 13 were not unreasonable and were no more restrictive than similar controls in other local government areas."

5. The Applicants argued the Commissioner's statement that the controls in draft Burwood Local Environmental Plan No. 38 (draft LEP 38) and draft Development Control Plan No. 13 (draft DCP 13) were not unreasonable were not relevant to his decision. The question was whether the controls applied and what weight should be given to them. The Applicants also argued that as the draft LEP had not been given determining weight, the draft DCP 13 also should not have been given determining weight by the Commissioner.

6. In reply the Council argued that the Commissioner had made findings of fact, not law, in relation to these two matters. The comments made in relation to the draft LEP 38 and draft DCP 13 not being unreasonable, were made in the context of the Commissioner attributing appropriate weight to them. Further, the two draft instruments had been considered as relevant matters for consideration pursuant to s 79C of the EP&A Act at the hearing. There was evidence to support the Commissioner's findings of fact and in any event "No error of law is involved if there was a misattribution of weight to a relevant consideration": Carstens v Pittwater Council (1999) 111 LGERA 1 at 28.

Finding on Ground 1

7. This ground clearly raises two questions of fact, about which the Commissioner is entitled to reach a conclusion. There was reference to evidence in the judgment at p 2, 6, 9 and 10 from which he could form a conclusion. Even if the Commissioner was wrong in his conclusion "there is no error of law in making a wrong finding of fact": Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at 654 per Gummow J. Nor, as Lloyd J said in Carstens is there an error of law in a "misattribution of weight to a relevant consideration". No error of law is raised in ground 1 and accordingly this ground must fail.

Ground 3
"That there was a social impact resulting from the existence of a brothel."

8. The Applicants argued that the Commissioner found there was little need for persons to be concerned for their personal safety but, despite this, found that there was a social impact resulting from the existence of the brothel. This, it was argued, was not justified on the evidence.

9. The last sentence of the Applicants' written submissions stated that "Taking into account the moral perception of church members is contrary to the decision in Liu v Fairfield City Council". This is a separate issue and is discussed later in the judgment in relation to grounds 2, 4, 5 and 7.

10. The Council argued that this ground was self-evidently a finding of fact for which there was ample evidence referred to in the judgment.

11. This ground raises a question of fact not law, about which the Commissioner was entitled to form an opinion. There was evidence referred to throughout the judgment and particularly at par 24 - 29 on which he could found such an opinion. Accordingly this ground of appeal is not upheld.

Ground 6
"That the social impact was an environmental impact"

12. The Applicants' arguments in support of this ground as stated were not clear. In oral argument the Applicants argued that if social impact arose from perception only this was not adequate evidence to take into account. Further, the Applicants' written arguments in support of this ground "that the Commissioner has attempted to elevate the finding in relation to moral and sexual standards and translate them into social amenity…there is no provision in s 79C of the Act for considering such a matter" is not related to the alleged error of law, but refers to the issues raised in relation to grounds 2, 4, 5 and 7.

13. The Council argued that there was no such finding by the Commissioner and even if there had been, that is a question of fact, not law. Furthermore, the Commissioner used "social amenity" interchangeably with "social impact". Although they do not mean the same thing, s 79C of the EP&A Act refers to "social impact" and "environmental impact", which can include amenity. The Applicants are taking an "overly critical or pernickety" approach: Carstens at 24.

Finding on Ground 6

14. This ground as stated does not disclose a question of law, rather it is a question of fact about which the Commissioner had evidence on which to base such a finding (if indeed he did make such a finding at all). The arguments concerning social amenity are dealt with in relation to grounds 2, 4, 5 and 7. In relation to the Applicants' argument that the Commissioner referred to social amenity, rather than social impact as contained in s 79C of the EP&A Act, no error of law is made. Social impact and social amenity are used interchangeably in the judgment without legal error. As I have already noted, the "fine-tooth comb" approach reflected in this ground of appeal should not be taken.

Ground 9
"That the decision was against the evidence"

15. No question of law is raised by this ground of appeal: Azzopardi at 155 - 156 (per Glass JA, Samuels JA agreeing) and cited by Lloyd J in K Richardson & Associates at par 30. Accordingly this ground is not upheld.

Grounds 2, 4, 5 and 7

16. In the course of argument it became clear that the issues in grounds 2, 4, 5 and 7 were interrelated and these will be dealt with together.

17. The key issue underlying grounds 2, 4, 5 and 7 is whether the Commissioner made an error of law in refusing the Applicants' appeal based on non-physical aspects of amenity, including the atmosphere of the neighbourhood (Ground 2), the sexual and moral standards of the Greek Orthodox Church (the Church) and the social impact on members of the nearby Church resulting from the existence of the brothel because of that community's change in behaviour (Grounds 4, 5 and 7). In relation to the social impact, there was evidence that:

members of the Church community [had modified] their behaviour whilst they are in the vicinity of the brothel. This arises from a perception of their physical safety as well as the moral and religious safety of children and young women who attend the Church . (par 47 of the Commissioner's judgment).

18. It was also the evidence that the brothel was within 20 metres of Church offices and was within the distance of 100 metres referred to in cl 78(b)(iv) of the draft LEP 38 in relation to the Church. Draft cl 78(b)(iv) provides that development for the purpose of a brothel is prohibited:

Within 100m, as measured by the most direct pedestrian route, of any educational establishment or place of public worship located within the Burwood local government area or an adjoining local government area.

19. It also fell within draft cl 78k(a), being prostitution related services provided at street level and within draft cl 78k(b)(i) as it was within 50 metres and in the line of sight of a place frequented by children (the Church and church hall).

20. For reasons I will state later, I do not consider Ground 4 discloses any error of law, but as it is closely linked with Ground 5, should be treated as part of this group of grounds of appeal.

21. It was agreed between the parties at the hearing that there is little or no evidence of actual adverse physical effect on any person as a result of the activities at the brothel. This is referred to in the Commissioner's judgment at par 45 where he found:

…there is little or no direct evidence of serious physical impacts and there are few positions from within the church facilities with an outlook to the brothel.

22. It is also referred to at par 47 where the Commissioner stated:

The history of this particular brothel is such as to indicate that persons using Burleigh Street have little need to be concerned for their personal safety.

23. There was evidence referred to in the Commissioner's judgment from a social planner and town planner called by the Council about the social impact of the brothel in the neighbourhood. The evidence focussed particularly, but not exclusively, on the nearby Greek Orthodox church community at par 24, 26, 27 - 31, as well as lay evidence from Mr Sclavenitis about the activities of the Church at par 32 - 35, of the judgment.

24. The basis for the Commissioner taking into account non-physical impacts of amenity and social impact relates to his application of the decisions of the Full Court of the Supreme Court of Queensland in Broad v Brisbane City Council (1986) 59 LGRA 296 and Bignold J in Perry Properties Pty Ltd v Ashfield Council (No 2) (2001) 113 LGERA 301 At par 46 of his judgment the Commissioner, citing Broad and Perry Properties (No 2) in support, stated:

There is now no doubt that non-physical aspects of amenity, including the atmosphere of a neighbourhood, can be considered when dealing with the social impact of a particular development proposal .

25. In Broad the trial judge recognised that amenity could include illusory concepts, not only physical features such as sight, sound and smell. On appeal, de Jersey J (Connolly J agreeing) held at 305:

There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the residents' subjective perception of this locality. Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity .

In Perry Properties (No 2) Bignold J stated:

It is clearly established in the decided cases that the concept of "amenity" in a town planning context (including one that does not include, as a potentially relevant consideration "social impact of the proposal in the locality"), is a concept that transcends merely physical content. (at 317)

Bignold J referred to Broad approvingly in finding that:

the very wide concept of "amenity" expounded in cases like Broad applies with even greater force in a statutory scheme like the EP&A Act, s 79C which in par (b) gives effect to the widest conceivable scope of "likely impacts" of a proposed development, including environmental, economic and social impacts, without employing the term "amenity" (at 318).

26. Bignold J also referred to the Full Court of the Supreme Court of South Australia in Novak v Woodville City Council (1990) 70 LGERA 233 at 236, where Jacobs J states that the amenity of a particular location involves a subjective element. Jacobs J also quoted Cripps J in Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67 at 69 - 70 approvingly, where Cripps J had held that matters of taste and morality could be relevant to determining whether or not development is appropriate, and then Cripps J continued:

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.

27. I also note that Cripps J further stated in Venus Enterprises, at 70:

the Court ought never to allow its own personal view of matters of taste or sexual morality to be a substitution for the evidence or to fill a vacuum left by the evidence.

28. The first issue I have to decide is whether there is a question of law pursuant to s 56A raised by these grounds given the nature of the underlying issue. I consider that there is, given that the Commissioner's approach on the matters of neighbourhood amenity and social impact is based on reliance on case law which, according to the Applicants, may not represent the correct legal approach to these issues. Two questions are raised:

(1) Was the Commissioner in error in relying on the law as reflected in Broad and Perry Properties (No 2)? and

(2) Is the evidence relied on by the Commissioner a correct application of that law?

Question 1
Applicants' argument

29. The Applicants argued that some Judges of this Court have been reluctant to follow the approach adopted in Broad and Perry Properties (No 2) in the absence of objective evidence, relying on Croucher v Fairfield City Council (Talbot J, NSWLEC, 2 July 1997, unreported), Liu v Fairfield City Council (Murrell AJ, NSWLEC, 23 December 1996, unreported) and the decision of Cowdroy J in Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 (Perry Properties [No 1]). The Applicants further argued that the requirement of objective evidence was consistent in Broad where de Jersey J had said the Court:

would, I think, ordinarily prefer views from the residents which find justification in specific, concrete, likely effects of the proposed development (at 304).

I note that his Honour continued:

But, as I have said, I would not exclude evidence of more subjectively based views as being necessarily irrelevant, although in the end a judge may well accord them little weight. (at 304).

30. In Croucher Talbot J also had to consider whether development consent should be given to a brothel. He stated, at 7, that moral issues alone are irrelevant in deciding if development consent ought to be granted. However, general or particular community standards could arguably be relevant in some circumstances. In such cases, the Court should not allow "its own views or morality to interfere with an objective assessment". Talbot J did also note that Mason P (Dunford AJA agreeing) in Fairfield City Council v Liu Lonza & Beauty Holdings (Mason P and Dunford AJA, NSWCA, 17 February 1997, unreported) had stated that the demonstrable social effects of a particular brothel can be relevant under s 90(1) of the EP&A Act (now s 79C EP&A Act) even though morality per se was irrelevant.

31. In Liu, Murrell AJ was required to decide a question of law referred by a Commissioner pursuant to s 36(5) of the Court Act, namely:

Whether, in exercising its power pursuant to s 39 of the Land and Environment Court Act 1979 in an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 relating to a development application seeking development approval for the use of premises as a brothel, the Court must, once raised, consider as a relevant consideration the relevant community standards and views of the morality of the proposed use? (at 1 - 2)

32. Murrell AJ noted that community moral standards could only be relevant if they fell within one of the heads in s 90(1) of the EP&A Act (now s 79C, although different terminology applies), as that list of considerations is exhaustive (at 2 - 3). Thus, her Honour had to consider, inter alia, whether the question of morality could be considered in relation to s 90(1)(d) (social effect) and s 90(1)(o) (amenity of the neighbourhood). Murrell AJ firstly noted at 3 that:

Morality is concerned with abstract matters of right and wrong, good and evil. Generally, s 90 is concerned with concrete planning matters.

33. Murrell AJ stated in relation to s 90(1)(o) (amenity of the neighbourhood):

I agree with the general sentiments of Cripps J [in Venus Enterprises- see par 26 - 27], but disagree that offence to a particular group should be considered as a matter affecting "amenity". A diminished enjoyment of the perceived general moral environment (as opposed to the neighbourhood physical environment) is not a matter which may properly be taken into account pursuant to s 90(1)(o) of the [EP&A] Act. (at 6)

Her Honour also held at 6 that:

The "amenity" of a neighbourhood must relate to physical attributes of the environment, rather than to claimed circumstances which lack a physical manifestation.

In relation to s 90(1)(d) concerning social effect her Honour stated at 5:

Rarely, if ever, could material establishing upset and offence, or the fears that some individuals may hold for moral corruption, demonstrate that a particular development in a particular locality would have a detrimental social effect. The position may be different where, by expert or other evidence, antagonism between a particular development and the religious or cultural values of an immediately affected and identifiable group can be demonstrated. Such evidence would need to address the likely effect of the development on the group in question.

34. Perry Properties [No 1] was also a s 56A appeal from the finding of a Commissioner in relation to a brothel development. Cowdroy J said at 351:

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.

As a consequence, the Commissioner's conclusion cannot be supported.

35. In his analysis of authorities Cowdroy J referred approvingly to the decision of Murrell AJ in Liu. His Honour noted:

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. (at 349)

36. He also considered Cripps J in Venus Enterprises where his Honour had identified circumstances which could warrant refusal of the development including the creation of "great offence to a significantly large part of the community". Cowdroy J thought that this might apply for example to development 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… (at 349)

37. These cases were said by the Applicants to be contrary authority to Broad and Perry Properties (No 2) and urged the Court to depart from those two decisions.

Council's argument

38. The Council argued that Broad and Perry Properties (No 2) were not "bad" law and there was no division in the case law of the Court in relation to the substance of those decisions. Broad has been widely quoted as standing for the contention that amenity is wide and flexible.

39. The Council also relied on Cripps J in Venus Enterprises at 69 - 70, and noted that this passage was referred to approvingly by Bignold J in Perry Properties (No 2). Bignold J specifically considered Liu and Perry Properties [No 1] and rejected an argument that these decisions displaced that in Broad (at 319).

40. The Council made numerous submissions as to why Liu was not in conflict with Broad and Perry Properties (No 2). These included that Murrell AJ was not referred to and did not consider Broad; her comments were made in the context of the question of law she was considering, and her Honour observed that s 90(1)(d) extended the scope of what were traditionally regarded as planning considerations (Bauer Holdings Pty Ltd v Sydney City Council (1981) 48 LGRA 365). Her Honour then made the remarks set out at par 33 above, namely to the effect that while upset and offence or fears of moral corruption could "rarely if ever" demonstrate social effect, expert evidence as to antagonism between the religious values of an immediately affected and identifiable group may do so.

41. The Council also relied on the decision of Cowdroy J in Perry Properties [No 1], as set out above at par 36, where he states that the location of a development may cause affront to a section of the community if it is inimical to their practices or beliefs. The Council submits Cowdroy J was clearly giving an example of how the judgment of Cripps J in Venus Enterprises could apply. Furthermore, Cowdroy J stated that the proposition that "it is obvious that a development such as a brothel might create repugnant social consequences depending upon numerous factors including proximity to antipathetic development" was recognised by Murrell AJ in her statement set out above in par 33.

42. On this basis, the Council submitted that there is no conflict between cases of this Court, as argued by the Applicants.

Finding on Question 1

43. It is not my role in this appeal to decide if this particular development should proceed or not on its merits, that is the role of the Commissioner (Attorney General (New South Wales) v Quin (1990) 170 CLR 1 at 36 per Brennan J, as cited by Lloyd J in K Richardson & Associates at [19]). The question is whether the Commissioner erred in relying on Broad and Perry Properties (No 2) as he did. In relation to the applicable law, it does not seem to me that the various authorities cited by both parties are necessarily in conflict. Each judgment must obviously reflect the particular facts before the court. No judgment I have been referred to has expressly or implicitly overruled or distinguished Broad. Bignold J found in Perry Properties (No 2) that Liu and Perry Properties [No 1] had not displaced the decision in Broad in finding that social impact can relate to less tangible matters. I agree with his Honour’s conclusion.

44. Firstly I note that Broad concerned an objector appeal relating to rezoning of land from residential to special uses (old persons' home). In this respect it was not a case specifically focusing on an objection based on moral grounds. Essentially it was held in Broad that “the concept of amenity is wide and flexible” and can include the “effect of a place on the senses” and the “residents’ subjective perception of this locality” (at 305 per de Jersey J, Connolly J agreeing). In Perry Properties (No 2) Bignold J referred approvingly to Broad and held that the wide concept of amenity expounded in Broad applied in the context of s 79C of the EP&A Act, especially to s 79C(b), which requires the Court to take into account the “likely impacts” that a proposed development will have, including environmental, economic and social impacts (at 318). In my opinion, as was identified by de Jersey J in Broad’s case, it will of course always be a question of the weight that should be attributed to such evidence. That is, although “specific, concrete, likely effects of the proposed development” would be preferred, subjective views are relevant subject to the question of the proper weight to be attributed to such matters in each case (see Broad at 304). In my opinion these two cases stand for the proposition that the concept of amenity itself is wide and flexible and can include the subjective perception of residents in relation to the locality in question (subject to the question of weight). Furthermore, such matters will be relevant to determining the “likely impacts”, most relevantly the social impact, under s 79C of the EP&A Act.

45. The cases referred to by the Applicants which were said to be in conflict with the principles expounded in Broad and Perry Properties (No 2), namely Liu, Perry Properties [No 1] and Croucher are not, in my opinion, in conflict with those decisions. As I have already said, the principles expounded in these cases must be understood in the context of the factual circumstances of each case.

46. The statements of Talbot J in Croucher (see par 30 above) do not appear to be inconsistent with Broad or Perry Properties (No 2). His Honour’s comments were made specifically in the context of the relevance of morality to s 90(1) considerations. His Honour specifically accepted that while morality was not an issue which itself arose out of the considerations in s 90 of the EP&A Act (now s 79C), there could be circumstances where “issues relating to general or particular community standards of morality” could arguably be a relevant consideration under the EP&A Act. His Honour also referred to the statements of Mason P in Liu where his Honour had stated that “while the morality issue per se is irrelevant, the demonstrable social effect of a particular brothel use is relevant under s 90(1)(d)”.

47. In Liu Murrell AJ was required to consider a particular question of law, namely whether the relevant community standards and views of morality in relation to the proposed use of a premises were a relevant consideration in considering a development application. Her Honour’s comments must be understood in that context. The relevant parts of her Honour’s judgment are set out above at par 31 - 33. Her Honour’s judgment establishes, in relation to “social effect” under s 90(1)(d), that while “upset and offence, or the fears … for moral corruption” will “rarely, if ever” be able to demonstrate a detrimental social effect. However, Murrell AJ clearly recognised, at 5, that:

The position may be different where, by expert or other evidence, antagonism between a particular development and the religious or cultural values of an immediately affected and identifiable group can be demonstrated .

48. However, her Honour also stated, at 6, in relation to s 90(1)(o) (amenity of the neighbourhood) that:

I agree with the approach of Talbot J. in Henderson v Sydney City Council (8 May 1995) that amenity includes such matters as aesthetics and the physical impact of noise or smell. The “amenity’ of a neighbourhood must relate to physical attributes of the environment, rather than to claimed circumstances which lack a physical manifestation.

49. I consider that the judgment of Murrell AJ in Liu should not be taken to rule that all intangible matters are automatically irrelevant, such that her judgment is in conflict with Broad and Perry Properties (No 2), but rather should be read in light of her conclusion in relation to s 90(1)(o) of the EP&A Act (as it then was) 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(1)(o) of the Act” (at 6). Further, I note, as already discussed, that her Honour did conclude, in relation to s 90(1)(d) that a detrimental social effect could be shown to exist if there was antagonism between a development and the cultural or religious beliefs of an immediately affected and identifiable group (at 5). I also note her conclusion that “While the morality issue per se is irrelevant, the demonstrable social effect of a particular brothel use is relevant under s 90(1)(d)” (at 7) (see also the comments of Cowdroy J in Perry Properties [No 1] (at 349 - 350) as to the interpretation of the decision of Murrell AJ in Liu).

50. In Perry Properties [No 1] Cowdroy J found that the Commissioner had based his decision to reject the development application on the apparent fear of inappropriate behaviour of patrons and sex workers of the brothel in question, when the Commissioner had already held that there was no rational foundation for that fear. His Honour’s conclusions are set out above at par 34. Essentially his Honour held that the Commissioner had erred by relying on “an unjustified fear alone” in relation to anti-social behaviour. Again, I note his Honour’s comments that a development could 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” (at 349).

51. Question one should be answered in the negative, namely the Commissioner was not in error in relying on Broad and Perry Properties (No 2).

Question 2

52. The Applicants argued that there was evidence before the Commissioner establishing that the amenity of the neighbourhood was not disturbed by the development, and that it did not impact on the appearance of Burleigh Street, and also referred to Croucher in support of this argument. The Applicants argued that the evidence relied on by the Commissioner related only to non-physical attributes of the environment which Murrell AJ in Liu had said was not appropriate in relation to amenity in these circumstances. There was no evidence of physical attacks, but rather an apprehension by members of the Church community and others as to what may occur. There was no objective evidence of physical impact which the Commissioner was entitled to rely on.

53. The Applicants argued that the decision of Cowdroy J in Perry Properties [No 1] supported their argument that as there was no evidence of antisocial behaviour, the Commissioner erred in holding there was a social impact based on the perception of danger and the church members modifying their behaviour. The Commissioner was not entitled to simply quote from and adopt the decision in Broad. That decision did not mean intangible evidence, which was the nature of the evidence relied on by the Commissioner, can be applied to define amenity. There must be evidence that can be objectively assessed before such a finding can be made: see Broad at 304, and par 29 above.

54. The Applicants argued that taking into account the morals of the Greek Orthodox religion was contrary to the decision in Liu, where it was recognised that personal upset and offence is not enough, there must be expert evidence demonstrating an identifiable group and impact.

55. The Applicants submitted that applying Cripps J in Venus Enterprises to the current matter there could be no suggestion that the operation of the brothel was inimical or adverse to the practices or beliefs of the members of the community in that it did not cause them to have to change their practices or beliefs in any way.

56. The Applicants argued that the Commissioner did not undertake an objective assessment but allowed his own view to be substituted for the evidence: see Croucher. Furthermore, it is not appropriate for the court to consider the issues of conscience and morality.

Council's argument

57. The Council submitted this case was a prime example of a development which was "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" (Perry Properties [No 1] at 349). There was ample evidence to support this proposition, which was reflected in par 24, 26, 27, 30, 32, 33, 35 and 45 - 50 of the Commissioner's judgment.

58. Furthermore, the Council argued that the Commissioner did not refuse the development on the basis that, in his opinion, brothels are immoral, but rather that there was a demonstrable social impact. In assessing the social impact in "the Church's environment" (par 48 of the Commissioner's judgment), the nature of the moral and sexual standards of the adherents to the Greek Orthodox faith was a relevant consideration.

59. Finally, Ground 7 relates to a finding of fact, in relation to which there was ample evidence.

Finding on Question 2

60. It is evident from my findings on the applicable law that the Commissioner has not erred in the statements made in paragraph 46 of his judgment in reliance on Broad and Perry Properties (No 2), namely that “non-physical aspects of amenity, including atmosphere of a neighbourhood, can be considered when dealing with the social impact of a particular development proposal.” This answers the actual wording of Ground 2. However, the actual arguments raised in relation to Ground 2 are relevant to Issue 2 discussed below and will be dealt with in relation to that issue.

61. Two separate issues arise in relation to whether the Commissioner has erred in his application of the law on the basis of the grounds of review. Firstly, whether the moral and sexual standards of the Greek Orthodox religion are relevant considerations (Grounds 4 and 5 and one of the argument made in relation to Ground 3, noted at par 9) and secondly, whether the Commissioner erred in taking into account the atmosphere of the neighbourhood and modification in behaviour of church members as evidence of unacceptable social impact (Grounds 2 and 7).

Issue 1

62. In relation to the first issue the relevant part of the Commissioner’s judgment is paragraph 48, which states:

There is little doubt that adherents of the Greek Orthodox religion are conservative in respect of moral and sexual standards, pointing to the unacceptability of brothels generally and thus to a great personal offence at having such a facility within such close proximity as is the case here. While not everyone in the community at large takes this view we are dealing with the social amenity of the Church’s environment and there can be little doubt, accepting the concerns expressed by those representing the Church and the changes to their behaviour , that this amenity has and will continue to be adversely affected. In the circumstances I prefer the evidence of Miss Manion that this is not an appropriate location for a brothel. [emphasis added]

63. The words I have emphasised in this paragraph of the Commissioner’s judgment will be dealt with in relation to the second issue at par 68 - 71.

64. The Commissioner certainly does take into account the concerns of the Church community in his judgment and that community's objections are clearly based on its moral and sexual standards. However, in my opinion, the Commissioner was not simply applying the moral and sexual standards of the Greek Orthodox religion as alleged by the Applicants in Ground 4. Accordingly this ground cannot be upheld.

65. The Commissioner was considering whether there was a detrimental social impact resulting from the development. Indeed due to the close proximity of the development, which the Commissioner clearly identified, the Church community clearly fell within the concept of an immediately affected and identifiable group.

66. The Applicants argued that par 48 of the Commissioner’s judgment was inconsistent with the decision of Murrell AJ in Liu. In my opinion this argument cannot be sustained. In my opinion the Commissioner’s findings are not inconsistent with Liu, and also Perry Properties [No 1]. Those cases clearly establish that where a development causes antagonism or affront to an immediately affected and identifiable group because of their particular religious or cultural values or practices and beliefs then a detrimental social impact may be demonstrated.

67. In considering whether there was antagonism or affront caused between the development (a brothel) and the identified and immediately affected group (the Church community), the moral and sexual standards of the Church community as they relate to the religious beliefs of the Church community and inform its behaviour are relevant. Thus, in my opinion the Commissioner has not made any error in this paragraph, he was clearly considering whether there was any demonstrable social impact resulting from the brothel development. Such an approach is in conformity with the applicable law. Furthermore, there was evidence of both lay witnesses and expert testimony of a town planner and a social planner on this issue to support the Commissioner’s conclusions. In my view Ground 5 should not be upheld.

68. The second issue is whether the Commissioner erred in taking into account the modification in behaviour of the members of the Church community. The relevant part of the Commissioner’s judgment is par 47 (and the words in par 48 identified above) which states that:

The history of this particular brothel is such as to indicate that persons using Burleigh Street have little need to be concerned for their personal safety. Despite this, it is clear that there has been a social impact resulting from the existence of the brothel, which in turn has resulted in members of the church community modifying their behaviour whilst they are in the vicinity of the brothel. This arises from a perception of their physical safety as well as the moral and religious safety of children and young women who attend the church and are particularly at risk.

(a) Moral and religious safety

69. The evidence relating to change in behaviour due to a concern for moral and religious safety is based on that community's moral and sexual standards, but I do not see that as something which should be disregarded in relation to considering social impact. This is an important consideration about the evidence as, on first examination, it may appear that to uphold acceptance of evidence of this nature is out of step with the existing case law referred to earlier that moral objections alone, and unsupported or irrational fears about brothel activity, are insufficient bases for objection. However, the Commissioner’s reliance on such evidence should not, in my opinion, be interpreted in this manner. Such evidence will again be relevant in determining whether there is a demonstrable social impact which results from “antagonism between a particular development and the religious or cultural values of an immediately affected and identifiable group”. The Church community’s change in behaviour due to a concern for moral and religious safety obviously arises from their religious values, beliefs and practices, which are “inimical” to a brothel development. There is therefore, no error disclosed in relying on such evidence.

70. It seems to me there are circumstances where a social impact resulting from strongly held religious or cultural views resulting in behavioural changes in relation to a brothel can be relevant in terms of assessing social impact. There was evidence of both lay witnesses and expert testimony of a town planner and a social planner on this issue. The Commissioner is entitled to have regard to that evidence when considering the merits of the matter. Further, in my opinion, evidence of this nature has been contemplated by Cripps J in Venus Properties, Talbot J in Croucher, Murrell AJ in Liu and Cowdroy J in Perry Properties [No 1].

(b) Physical safety

71. The consideration of physical safety is in a different category, however. The Commissioner identified that the fears of the community in relation to physical safety were unfounded on the evidence. He nevertheless appears to take into account that members of the Church community modified their behaviour due to a perception of physical safety. In Perry Properties [No 1] Cowdroy J held that “A rational fear, or one having a real basis is a matter for consideration” and found that the Commissioner had erred in that case by relying on an apparent fear in relation to inappropriate behaviour of patrons and brothel workers when there was no rational foundation to support that fear. In my opinion, reliance on evidence of modification of behaviour due to a perception of concern for physical safety, when there is no evidence to support a concern for physical safety falls squarely within the matters identified in Perry Properties [No 1] that cannot be taken into consideration. Where there is no evidence of a “rational fear, or one having a real basis” in relation to physical safety, it will also be irrelevant that members of the community, or a particular section of the community (here a Church community), have modified their behaviour arising from the unjustified fear for physical safety. In my opinion, the Commissioner erred to the extent that he took such matters into consideration in determining the social impact that resulted from the brothel. Grounds 2 and 7 are therefore upheld in relation to the issue of physical safety.

72. However, this is not the end of the matter. I must consider whether the Commissioner’s legal error vitiates his decision. The Commissioner's judgment will only be vitiated if the legal error materially affected the decision: Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275. In my opinion, the Commissioner's decision is not vitiated in these circumstances. I am satisfied that if the decision were referred to the Commissioner for further determination the same result would eventuate, namely the development application would be refused. His findings in relation to physical safety were not critical or vital to his decision (as they had been in Perry Properties [No 1]). The Commissioner relied on other grounds as the principal reasons for his refusal in my view.

73. Accordingly, I consider there is no error of law disclosed by Grounds 2, 4, 5 and 7. This also answers the argument made in relation to Ground 3, noted at par 9.

74. The Applicants have been unsuccessful in this appeal and it is therefore dismissed.

Orders
The Court orders that:

1. The Applicants' s 56A appeal is dismissed.

2. The Applicants are to pay the Respondent's costs.

3. Order 2 is stayed for seven (7) days and the parties are granted leave to approach the Court within that seven (7) days if they wish to apply to vary Order 2.

4. The exhibits may be returned.