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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 190
Decision Date: 10/31/2002

CaseChat Overview and Summary

The case of Dixon v Burwood Council was an appeal against the refusal of a brothel development in Burwood town centre by the Burwood Council. The applicants, Tammy Dixon and Tamara Alexandrovna Doong, challenged the Commissioner's decision on several grounds, including whether the Commissioner erred in law and whether certain considerations were relevant to social impact. The court found that the Commissioner had not made any errors of law and that the decision was not vitiated. The appeal was dismissed, and the applicants were ordered to pay the respondent's costs.

The court considered the legal issues raised by the applicants, including whether the Commissioner erred in relying on non-physical aspects of amenity and social impact, and whether the moral and sexual standards of the Greek Orthodox religion were relevant considerations. The court found that the Commissioner had not erred in relying on case law that allowed for the consideration of non-physical aspects of amenity and social impact. The court also found that the moral and sexual standards of the Greek Orthodox religion were relevant considerations in determining whether there was a detrimental social impact resulting from the brothel development.

The court further found that the Commissioner's reliance on the modification in behaviour of the members of the Church community due to a perception of physical safety was an error of law, as there was no evidence to support such a concern. However, the court held that this error did not vitiate the decision, as the Commissioner had relied on other grounds as the principal reasons for his refusal.

In conclusion, the court dismissed the applicants' appeal and found no errors of law in the Commissioner's decision. The applicants were ordered to pay the respondent's costs, and the parties were granted leave to apply to vary the order within seven days.

Orders