Dixon v Marrickville Council
[2000] NSWLEC 161
•07/28/2000
Land and Environment Court
of New South Wales
CITATION: Dixon v Marrickville Council [2000] NSWLEC 161 PARTIES: APPLICANT:
RESPONDENT:
Tammy Dixon
Marrickville CouncilFILE NUMBER(S): 10200 of 2000 CORAM: Lloyd J KEY ISSUES: Development :- development standards - proposed brothel with ground floor rooms - EPI prohibition on ground floor rooms in brothels - whether prohibition or development standard - whether disability discrimination
LEGISLATION CITED: Disability Discrimination Act 1992 (Cth) s 23, s 11
Environmental Planning and Assessment Act 1979 s 4(1)
State Environmental Planning Policy No.1 - Development Standards cl 4
Marrickville Planning Scheme Ordinance cl 60A(5)CASES CITED: Bell v Shellharbour Municipal Council (1993) 78 LGERA 429;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Marpet Enterprises v Eurobodalla Shire Council [2000] NSWLEC 159, unreported;
North Sydney Municipal Council v P D Mayoh Pty Limited [No.2] (1990) 71 LGRA 222;
Vassallo v Blacktown City Council [1999] NSWLEC 267, unreported;
Weynton v Rockdale City Council (1999) 106 LGERA 213DATES OF HEARING: 01/06/2000 DATE OF JUDGMENT:
07/28/2000LEGAL REPRESENTATIVES:
APPLICANT:
A J J Thompson (Barrister)
SOLICITORS:
Russo & Co
RESPONDENT:
A E Galasso (Barrister)
SOLICITORS:
Phillips Fox Lawyers
JUDGMENT:
1
IN THE LAND AND Matter No: 10200 of 2000
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 28 July 2000
Tammy Dixon
Applicant
v
Marrickville City Council
Respondent
REASONS FOR JUDGMENT
1. This is the determination of a separate question of law in an appeal against the deemed refusal of a development application for a brothel. (The determination of any question separately from any other question is permitted by Part 31 Rule 2 of the Supreme Court Rules and which applies in this Court: see the Land and Environment Court Rules 1996, Part 6, Rule 1).
2. The question of law as framed by the respondent (“the council”) is as follows:
Whether development of the property located at 70 Enmore Road, Newtown as described in Development Application No. 199902181 dated 15 December 1999 made by the Applicant is prohibited having regard to Clause 60A(5) of the Marrickville Planning Scheme Ordinance.
3. The relevant environmental planning instrument is the Marrickville Planning Scheme Ordinance. The subject land is zoned 3(a) Business General under the Ordinance. Clause 60A(2) expressly permits development for the purpose of a brothel within such zone, but only with the consent of the council. Clause 60A(5) provides:
(5) The Council must not consent to the carrying out of development for the purpose of a brothel on land in Zone No. 3(a) where any part of the brothel (excluding access) is located at street level.
4. The plans accompanying the development application show a two storey building. The street level or ground floor contains an entry; a reception area; staff rooms; a rooms which appears to function as a stairwell; a laundry and toilet facilities; and room called “ disabled bed room ” containing an en-suite shower. The upper floor shows four bedrooms each with an en-suite shower and in one case a spa bath. The statement of environmental effects includes the following statement:
Proposed use envisages one (1) working room on ground floor fully fitted out for use by wheelchair bound disabled person .
Is clause 60A(5) a prohibition or a development standard?
5. The first question which was argued is whether clause 60A(5) is a prohibition or a development standard. If it is the latter then State Environmental Planning Policy No.1 (“SEPP No.1”) enables consent to be granted to the development notwithstanding the development standard if compliance therewith is unreasonable or unnecessary in the circumstances of the case. The applicant submits that clause 60A(5) is a development standard and the respondent submits that it is not a development standard but is a prohibition.
6. SEPP No. 1 (clause 4) provides that “ development standards ” has the meaning ascribed thereto in section 4(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The Act defines “ development standards ” as “ provisions of an environmental planning instrument or the regulations in relation to the carrying out of development being provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development,…”. The definition goes on to list a number of matters which are included in the definition, none of which are presently relevant.
7. In North Sydney Municipal Council v P D Mayoh Pty Limited[No.2] (1990) 71 LGRA 222, Mahoney JA noted three things that may be said about the definition of “ development standards ” in the following passage (at 232-233):
If the definition is to be construed according to its terms, three things may be said. First, the definition applies, in the first instance, only to provisions which are “provisions… in relation to the carrying out of development”. Therefore that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed. And the requirements or standards are to be those fixed “in respect of” “that development”.
Secondly, the use of the phrase “requirements are specified or standards are fixed” provides some (though, of course, not conclusive) support for the view that that with which the definition deals is the details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out all.
And, thirdly, the matter detailed in subpars (a) to (n) of the definition, in so far as a pattern be seen from them, provide further support for this view. They assume that development of a kind, for example, the erection of a residential flat building, can be carried out and they provide for the things which are required and the standards which are to be observed in the carrying out of that development. They deal, for example, with the “siting” of a flat building which is to be erected on the land and “the distance of” relevant things from any specified point.
8. Mahoney JA also said (at 234):
There is, in my opinion, a distinction in the provisions between a provision which in form provides: “On land of characteristic X no development may be carried out” and a provision which in form provides: “On such land development may be carried out in a particular way or to a particular extent.”
A provision of the former kind is a prohibition and not a development standard. A provision of the latter kind is a development standard.
9. In the same case Clarke JA said (at 236):
There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development.
10. In Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, Cripps JA said (at 433):
There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other. Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some of the cases the Court has held that the relevant clause was an absolute prohibition - in others it was held that the relevant clause was regulatory. But, as was pointed out in Mayoh, the obligation of the Court is to interpret the clause in the instrument before it.
11. In applying the definition of “ development standards ” in the light of the above-mentioned principles to clause 60A(5) in the present case, it becomes apparent that the clause is a development standard. Its opening words show that development for the purpose of a brothel may be carried out, rather than not be carried out at all. The following words set out a requirement to be observed in the carrying out of that development, or in another way, a requirement to be complied with when that development is being carried out. The clause does not say “ on land of characteristic X no development may be carried out ”. It provides that on such land the development may be carried out in a particular way.
12. My conclusion that the clause is a development standard is consistent with other decisions on similar clauses in this court (for example, Vassallo v Blacktown City Council [1999] NSWLEC 267, unreported; Weynton v Rockdale City Council (1999) 106 LGERA 213; Marpet Enterprises v Eurobodalla Shire Council [2000] NSWLEC 159, unreported). Unlike the clause in question in Currey v Sutherland Shire Council (1998) 100 LGERA 365, upon which the council relies, clause 60A(5) does not relate to a feature of the land which operates as a pre-condition to the exercise of the power to consent and which was found in that case to be a prohibition.
Is clause 60A(5) valid?
13. The applicant submits that the clause operates contrary to section 23 of the Disability Discrimination Act 1992 (Cth) and in the case of such inconsistency the Commonwealth legislation prevails.
14. Section 23 of the Disability Discrimination Act provides as follows:
Access to premises
(1) It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of that person’s associates:
a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
c) in relation to the provision of means of access to such premises; or
d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
e) in terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
f) by requiring the other person to leave such premises or cease to use such facilities.
2) (2) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability in relation to the provision of access to premises if:
a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and
b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.
15. The applicant submits that in conformity with section 23 the plan for the development provides a bedroom at street level to cater for disabled persons who visit the brothel. In the applicant’s submission clause 60A(5) discriminates against such persons by prohibiting such a facility at street level and is contrary to paragraph (c) and (d) of sub-section (1) of section 23.
16. It seems to me, however, that there are two answers to the applicant’s submission. The first is that it ignores the effect of sub-section (2) of section 23. In particular, the phrase “ unjustifiable hardship ” is defined in the Act (section 4) as having the meaning given by section 11. Section 11 provides:
For the purposes of the Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
- …
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; …
17. It would seem that having regard to the fact that the subject premises comprises an existing building, there is arguably an available defence to any infringement of section 23(1) in both paragraphs (a) and (b) of sub-section (2). It does not follow that there must be an inconsistency between clause 60A(5) and section 23 in their application to the facts in the present case.
18. The second answer to the applicant’s submission is that clause 60A(5) is not a prohibition. SEPP No.1 may be applied to it. In applying SEPP No.1 and the relevant considerations thereunder, the application might be approved. Again, it does not follow that there must be an inconsistency between clause 60A(5) and section 23 in their application to facts in the present case.
Does the development infringe clause 60A(5)?
19. The answer to this question is clearly in the affirmative. The only part of a brothel which the clause allows at street level is access. As noted in paragraph 4 above, the development application plans show a number of parts of the brothel at street level apart from the access. Those parts of the brothel at street level are the various rooms which I have itemised (in paragraph 4).
Conclusion
20. The question of law as framed by the respondent does not completely answer the issues raised in argument. I have re-formulated the question as follows:
1. Is clause 60A(5) of the Marrickville Planning Scheme ordinance a prohibition or a development standard?
Answer: It is a development standard.
2. Is clause 60A(5) of the Marrickville Planning Scheme Ordinance inconsistent with section 23 of the Disability Discrimination Act 1992 (Cth)?
Answer: No
3. Does the proposed development as shown on the plans accompanying the development application infringe clause 60A(5) of the Marrickville Planning Scheme Ordinance
Answer: Yes, but is subject to the possible application of SEPP No.1
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