Gioxle Pty Limited v City of Canada Bay Council - [2010] NSWLEC 1274

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Gioxle Pty Limited v City of Canada Bay Council [2010] NSWLEC 1274

PARTIES:
APPLICANT
Gioxle Pty Limited

RESPONDENT
City of Canada Bay Council

FILE NUMBER(S):
10350 of 2010

CATCHWORDS:
DEVELOPMENT APPLICATION :- the internal fit out and use of an existing three-storey building for a sex service premises - whether proposed development prohibited - whether proposed development inappropriately located given the proximity to a number of sensitive uses

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Canada Bay Local Environmental Plan 2008

CASES CITED:
Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74
Martyn v Hornsby Shire Council [2004] NSWLEC 614
North Sydney Municipal Council v P D Mayoh Pty Ltd (1990) 71 LGERA 222
Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323
Strathfield Municipal Council v Poynting [2001] 116 LGERA 319

CORAM:
Brown CSmithson AC

DATES OF HEARING:
23,24 September 2010

JUDGMENT DATE:
13 October 2010

LEGAL REPRESENTATIVES

APPLICANT
Dr S Bervelling, barrister

RESPONDENT
Mr A Pickles, barrister
SOLICITORS
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Brown C and Smithson A/C
13 October 2010
10350 of 2010 Gioxle Pty Limited v City of Canada Bay Council

JUDGMENT

COMMISSIONERS: This is an appeal against the refusal by the City of Canada Bay Council (the council) of Development Application No. 118/2009 for the internal fit out and use of an existing three-storey building for a sex service premises at 227 Great North Road, Five Dock (the site).
The contentions raised by the council can be summarised as:
1. the proposed development is prohibited by way of cl 6.6 as "the premises will be located on land that adjoins land used for… community uses",
2. the proposed development is inappropriately located given the close proximity to a number of sensitive uses in places where children regularly gather, and
3. the proposed development does not provide any on-site parking.

The site

The site is Lot A in DP 384646. It is generally rectangular in shape with a frontage to Great North Road of around 7.1 m, side boundaries of around 16.5 m and 15.8 m and an area of approximately 408 sq m. A three-storey building is located at the Great North Road frontage and is currently vacant. An open area is located behind the existing building on the site. Lot 7 in DP 14625 adjoins the rear boundary and has access to East Street. This lot is in the ownership of the applicant company but does not form part of this development application. There is no legal right of access to the part rear of Lot A over Lot 7.
The site is at the northern end of the Five Dock shopping area that extends along Great North Road.
The proposal
The proposal seeks to refurbish the existing building to provide for a sex services premises. The proposal includes:
•15 treatment rooms,
•a maximum of 16 staff,
•operating hours between 9 a.m. and 1 a.m., seven days per week, and
•a Plan of Management.
It was agreed that Lot A could not provide any off street parking without access over the adjoining Lot 7. Dr Berveling, for the applicant, submitted that the Court could require car parking to be provided elsewhere by way of the power available through s 80A(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act). This was not a submission accepted by Mr Pickles, for the council. For the expeditious disposal of the appeal, it was ultimately accepted by the parties that the Court would deal with the prohibition or development standard argument and the planning merits of the appeal and in the event that there was no barriers to the approval of the application, beyond the question of off street car parking, then the opportunity would be provided for the parties to provide further evidence on this matter.
Relevant planning controls
The site is located within the B4 Mixed Use zone under Canada Bay Local Environmental Plan 2008 (LEP 2008). The proposed use is permissible in this zone with consent. Clause 2.3(2) of LEP 2008 provides that the consent authority must have regard to the zone objectives when determining a development application in respect of land within the zone. The objectives are:
To provide a mixture of compatible land uses.
To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
Clause 6.6 of LEP 2008 provides specific requirements for sex services premises. This clause states:
6.6Restriction on consent for particular sex services premises
(1) Development consent must not be granted for development for the purposes of sex services premises if the premises will be located on land that adjoins, or that is separated only by a road from, land:
(a) in Zone R1 General Residential, Zone R2 Low Density Residential or Zone R3 Medium Density Residential, or
(b) used for community, school or church uses, or
(c) in Zone RE1 Public Recreation.
(2) In deciding whether to grant consent to any such development, the consent authority must take into account the impact that the proposed development would have on children who use the land.
Canada Bay Development Control Plan 2008 (DCP 2008) applies. Relevantly, Pt 7.8 provides requirements for car parking.
The evidence
Mr Bruce Goldsmith provided expert town planning evidence for the applicant and Mr Dimitri Gotsis provided expert town planning evidence for the council.
Additional evidence was provided for the council by a number of owners and occupiers of commercial properties in the vicinity of the site and a resident of Trevanion Street, Five Dock. Their concerns related to:
•the proximity of the site to a bus stop frequented by children,
•the proximity of the site to the existing 7-Eleven store that is open 24 hours a day, is frequented by children and is a communal gathering place for local youth,
•the existing inadequate car parking in the area,
•the existence of a number of sex service premises in the area,
•the proximity to other businesses that employ a high percentage of females and have customers who are children,
•the proximity to a number of other “sensitive” uses, including a church, scout hall and learning facility, and
•the potential for unacceptable interaction between clients of the sex service premises and customers and staff of nearby businesses.

Is the proposed development prohibited?

Notwithstanding that sex services premises are a permissible use within the B4 Mixed Use zone, cl 6.6(1) restricts the granting of consent in certain circumstances. The issue is whether cl 6.6(1) is a prohibition or a development standard. If cl 6.6(1) is a prohibition, then the development application must be refused as there is no power to grant consent. If cl 6.6(1) is a development standard, then there is power to consider the development application but subject to cl 4.6 and a merit assessment.
The dispute is based on cl 6.6(1)(b) as the sex services premises will be located on land that adjoins…. land used for community…. uses,.. The community use is the Five Dock Learning Centre (the Centre).
There was no dispute that the site shares a common boundary with the Centre. The Centre provides Italian language and culture courses that specialise in the teaching of Italian as a second language to individuals with both an Italian and non-Italian background, including students undertaking the Higher School Certificate. The classes are conducted on two floors of the adjoining three-storey building. The operator of the Centre provided evidence to the Court and stated that the total number of people attending the Centre per week was around 120 with around 40 people per day over three days between 10 a.m. to midday, 4 p.m. to 6 p.m. and 6 p.m. to 8:30 p.m. The general breakdown of people attending was around 30% for 14 to 18-year-olds (years 7 to 12) and 70% adults. The majority of the 14 to 18-year-olds attend between 4 p.m. to 6 p.m. although some attend between 6 p.m. to 8:30 p.m.

Mr Gotsis and Mr Goldsmith agreed that the Centre would be characterised as a community use, although Mr Goldsmith stated that it would be at a “low level”. The term "community use" used in cl 6.6 is not separately defined in LEP 2008 although the term "community facility" is defined but the Centre would not fall within this definition. It was also agreed that the Centre would not fall within the definition of "school" in LEP 2008.
Dr Berveling and Mr Pickles differed on whether the restriction on the use of sex services premises was a prohibition or a development standard. If the restriction in cl 6.6 is a prohibition, then the appeal must be dismissed and development consent to refused. If the restriction in cl 6.6 is a development standard, then the opportunity exists for consent to be granted but subject to the provisions of cl 4.6 of LEP 2008.
The definition of development standard in s 4 of the EPA Act is:
"development standards" means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:
(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,
(b) the proportion or percentage of the area of a site which a building or work may occupy,
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,
(d) the cubic content or floor space of a building,
(e) the intensity or density of the use of any land, building or work,
(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,
(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,
(h) the volume, nature and type of traffic generated by the development,
(i) road patterns,
(j) drainage,
(k) the carrying out of earthworks,
(l) the effects of development on patterns of wind, sunlight, daylight or shadows,
(m) the provision of services, facilities and amenities demanded by development,
(n) the emission of pollution and means for its prevention or control or mitigation, and
(o) such other matters as may be prescribed.
The prohibition argument
Mr Pickles submits that the appropriate test is found in Strathfield Municipal Council v Poynting [2001] 116 LGERA 319 where Giles J at [342-344] sets out a process to be undertaken in two steps, the first step at [96] and the second step at [97]. If a provision prohibits a development under any circumstances, the process fails the first step. Whether a provision specifies a requirement or fixes a standard in relation to an aspect of the (non prohibited) development is the second step.
Mr Pickles focuses on the second step. He submits that the introductory paragraph to the definition of a development standard provides for the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, (our emphasis). In his submission, Mr Pickles states that cl 6.6 deals with the characterisation of adjoining land and not land the subject of the development application. Clause 6.6 does not prohibit development for the purposes of sex services premises in all circumstances. Clause 6.6(1) does not specify a requirement or fix a standard in relation to an aspect of the (non prohibited) development but rather the land that adjoins the site. Mr Pickles rhetorically asks what is a standard in question that relates to the proposed development?
Mr Pickles further submits that the circumstances in this case directly relate to the circumstances in the decision of Mahoney J (in a majority decision with Clarke JJA) in North Sydney Municipal Council v P D Mayoh Pty Ltd (1990) 71 LGERA 222. Importantly, Mayoh was relied upon by Giles J in Poynting [at 96]. In Mayoh, the requirement in question provided that a residential flat building shall not be erected on land in a specific zone if any principle building on adjoining land is less than three storeys in height. In finding that the requirement was a prohibition Mahoney J (at 222 and 223) makes three relevant points, being:
1. The definition of development standard applies, but only to provisions which are "provisions…. in relation to the carrying out of development"
2. The use of the phrase "requirements are specified or standards are fixed" provides some support to the view that the definition deals with 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 at all.
3. The matters detailed in subpars (a) to (o) provide further support for the proposition identified in 2. in that they provide for the things which are required and the standards which are to be observed in the carrying out of the development.
Mr Pickles further submits that the findings in Poynting and Mayoh clearly establish that cl 6.6(1) is a prohibition and as such the proposed development must be refused.
The development standard argument
Dr Berveling submits that cl 6.6 is a development standard and as such can be varied pursuant to cl 4.6 of LEP 2008. He submits that the proposed development satisfies the definition in that it is the carrying out of development being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development,..
Reliance is placed on Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323 , where Tobias JA summarises the propositions set out by Jagot J in Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 [26] – [31]. These can be further summarised as:
1. The provisions in question must be "seen as part of the environmental planning instrument as a whole".
2. If a provision falls within one of the matters in subpars (a) to (o), that fact alone does not mean that the provision is there by a development standard.
3. The dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act.
4. A provision that prohibits the development under any circumstances controls development, but is not a development standard.
5. Control by complete prohibition will not leave room for requirements or standards but anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard.
6. It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard.
7. An essential condition of the definition of development standard is that the requirements must be requirements or standards which are external to the aspects of the development.
8. The key consideration over the second step in Poynting is identifying a relevant aspect of the development. The list of aspects in subpars (a) to (o) show a broad view of what is an aspect of a development.
Dr Berveling also relies on Poynting and specifically the findings (at 94) that a provision "must be seen as part of environmental planning instrument as a whole. Regulation or prohibition may depend on the governing characteristic perceived in the provision." Dr Berveling submits the analysis carried out by Mr Goldsmith (Exhibit B Tab 3) indicates the extent of the B4 zones within the local government area is small by comparison to other zones and that the provisions of cl 6.6(1) effectively limits the location of sex service premises to very few properties within the B4 zone.
Dr Berveling also relies on the findings (at 125 and 126) of Poynting where it states:
125 The analysis of Giles J sets out the true and workable approach to these problems.
126 The dichotomy between a development standard and an absolute prohibition provides a valuable guideline as long as it is remembered that a development standard may contain expressly or impliedly some sort of prohibition. However the sort of prohibition involved is a prohibition on the extent of the development, not a prohibition as to whether the development is possible at all.
Dr Berveling submits that the requirements of cl 6.6(1) fall within the former category in par 126, that is a development standard may contain expressly or impliedly some sort of prohibition.
Prohibition or development standard?
To answer the question of whether cl 6.6(1) is a prohibition or a development standard it is necessary to have regard to the definition of development standard in s 4 and apply this definition to the particular words in cl 6.6 in the context of the whole of LEP 2008.

On this basis, we accept the submissions of Mr Pickles. We are satisfied that cl 6.6(1) is a prohibition as it does not specify a requirement or fix a standard for the carrying out of development ….in respect of any aspect of that development,.. Clause 6.6(1) does not regulate an aspect or feature of the development of the land the subject of the application. We do not accept that the requirement in cl 6.6(1) could be seen as a development standard that contains some form of prohibition.
We do not accept the submission of Dr Berveling that the limitations placed on the location of sex service premises within the B4 zone should be seen as being in conflict with the consideration of “the environmental planning instrument as a whole" in the overall assessment of whether cl 6.6 was a development standard or a prohibition. The fact that the council had placed limitations on the location of sex service premises should, in our opinion, be seen simply as the council performing their legitimate planning role in providing more detailed planning requirements for a specific land use that requires some isolation from more sensitive land uses. The fact that there are limited areas within the B4 zone for sex services premises would not be a valid reason to support the submission that the proposed development was a development standard rather than a prohibition.
While both parties provided additional authorities on the prohibition or development standard question; we are satisfied that the authorities identified in the preceding paragraphs are more than sufficient to answer the question in dispute.
We find that Mayoh provides helpful guidance in determining the issue given the similarity of the circumstances between the two cases. We have placed reliance on the comments of Clarke JA (at 236) where he states:
I would conclude, therefore, that it is erroneous to categorise cl 14A(1)(a) as a development standard relating to an aspect of a permitted development. In my opinion it lays down a prohibition against a specific land use applying to blocks of land within the zone which have the characteristics set out in the clause.
The point is reinforced by the fact that cl 14A(1)(a) lays down an absolute prohibition on the use of certain land for a particular purpose whereas development standards laid down requirements or standards against which the proposed development is to be measured….
As the proposed development is prohibited, the appeal must be dismissed and the development application refused however if we are incorrect in coming to this conclusion, we propose to deal briefly with the applicants argument that cl 6.6(1) is a development standard and the other planning contentions.
Clause 6.6(1) as a development standard
Clause 4.6

Notwithstanding the findings in the previous paragraphs, and assuming cl 6.6(b) is a development standard, cl 4.6 of LEP 2008 provides the opportunity to vary this development standard in lieu of the normal approach through State Environmental Planning Policy No 1 - Development Standards. Clause 4.6 relevantly states:
4.6 Exceptions to development standards
(1)The objectives of this clause are:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, and
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3)Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) there are sufficient environmental planning grounds to justify contravening the development standard.
(4)Consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Director-General has been obtained.
(5)In deciding whether to grant concurrence, the Director-General must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

The evidence

Mr Goldsmith and Mr Gotsis agreed on the underlying object or purpose of the development standard in the absence of a specific objective in LEP 2008. The agreed objective of the standard is:
To ensure identified land uses for the mixed use of zones that are considered to be sensitive to the location of sex services premises (SSP) are separated from SSPs and in so doing provide the required level of separation between these uses.
Mr Goldsmith provided a written request to justify the contravention of the development standard. The written request, pursuant to cl 4.6(3)(a) states that compliance is unreasonable and unnecessary in the circumstances of this case because the proposed sex services premises will have a discreet access, will be appropriately managed, will be visually benign in the local streetscape, has an exemplary history of compatibility with other uses in the town centre (based on the use operating in another location in the Five Dock shopping area) and minimises conflicts.
Pursuant to cl 4.6(3)(b), the written request states that there are sufficient environmental planning grounds to justify contravening the development standard because the operator has been operating a similar business in the area with no environmental or social harm and any impact on the Centre is likely to be in perception only.
Pursuant to cl 4.6(4)(a)(ii), the written request states that the proposed development is in the public interest as it is consistent with the objectives of the development standard and consistent with the objectives of the B4 zone.
This was not a conclusion accepted by Mr Gotsis. He states that compliance is not unreasonable and unnecessary in the circumstances of this case because the proposed development is inconsistent with the zone objective "to provide a mixture of compatible land uses". LEP 2008 provides land uses for each zone that are supplemented by additional provisions to address the needs of specific land uses or individual sites, as required. In this instance, sex service premises are permissible in the B4 zone but only where they also meet the provisions of cl 6.6(1). The community expectation is that the different but related provisions of LEP 2008 will be applied concurrently, thereby achieving a separation of the sex service premises from sensitive uses in the B4 zone.
Findings
Clause 4.6 provides that consent must not be granted unless the written request demonstrates that:
•compliance is unreasonable or unnecessary in the circumstances of the case,
•there are sufficient planning grounds to justify the contravention, and
•the proposed development will be in the public interest, specifically in relation to whether it is consistent with the objectives of the standard and the zone objectives.
As the Court assumes the concurrence powers of the Director-General in accordance with s 39(6) of the Land and Environment Court Act 1979, the following matter is also relevant
•the public benefit of maintaining the development standard.
In considering the evidence of Mr Goldsmith and Mr Gotsis, we are not satisfied that the written request justifies the contravention of the development standard. In our understanding of the B4 zone, and while sex service premises is a permissible use within this zone, their location is limited by their proximity to a range of land uses which have been identified as being sensitive to the proximity of sex service premises. This is not an unusual planning approach and underpins the planning principles in Martyn v Hornsby Shire Council [2004] NSWLEC 614. By allowing a sex services premises immediately adjoining a land use that is identified in LEP 2008 as being unsuitable for such a location, in our view, fundamentally undermines the planning approach of the council for the location of sex service premises.
While there may be circumstances where it may be possible to justify the contravention of the development standard, such as where a sex service premise and a sensitive land use may share a common boundary but have access points that potentially do not conflict; this is not the situation in this case. The proposed development has it’s sole access point onto Great North Road in relatively close proximity to a range of sensitive land uses such as the Centre, a Scout Hall and a bus stop servicing a local school. Given the access the site (including the amended location), we do not accept that the entrance to the proposed development could be described as discrete, even with the absence of signage or is sufficiently separated from other land uses to overcome the approach advocated by cl 6.6(1) to separate sensitive land uses from sex services premises.
Even if cl 6.6 was a development standard, we find that there are insufficient environmental planning grounds to justify the contravention of the development standard. The proposed development will not be in the public interest because it is inconsistent with objective of the development standard and the zone objective requiring a mixture of compatible land uses. We also find that the proposed development is inconsistent with objective (b) in cl 4.6(1) in that a better planning outcome will not be achieved by the contravention of the development standard.
We also find there is a significant public benefit in maintaining the development standard because of the need to provide separation between sex service premises and other sensitive land uses that are permissible within the B4 zone. The consequence being that compliance is reasonable and necessary in the circumstances of this case. It follows that the appeal could be dismissed and development consent refused as the written request does not support the variation to the development standard.
Impact on children
Clause 6.6(2) requires that the consent authority must take into account the impact that the proposed development would have on children who use the land. There was agreement between the parties that a reference to the words "the land" is not a reference to the site of the sex service premises but to land in the general vicinity of the sex service premises.
Mr Gotsis states that the concentration of sensitive uses surrounding the proposed development, which is unable to remain discrete due to parking limitations and access arrangements, means that the community expectation that there is a separation between sex service premises and sensitive uses (particularly when the nature of the sensitive uses relate to uses where children are involved) cannot be met. The sensitive uses relied upon by Mr Gotsis are a Scout Hall on the opposite side of Great North Road, some 50 m the site, the Centre adjoining the site, the bus stop to the north of the site used by school children, the Awesome Church, one property to the south and the Seven-11 convenience store adjacent to the bus stop.
Mr Goldsmith accepts the uses identified by Mr Gotsis but maintains that the Scout Hall is well separated from the site, the Awesome Church does not have council approval and is at best a Christian meeting place, the Centre is approved as an "adult" learning centre, the bus stop is not immediately in front of the site and is sufficiently distant to have adequate separation, as is the Seven-11 convenience store.
The issue will on the potential impact on children is essentially a moot point, given the earlier findings on the prohibition or development standard argument and the assessment on the written request if cl 6.6(1) was a development standard. We have however formed the view that the location of the proposed sex service premises is unsuitable. It may well be that each identified land use may not be sufficient to individually warrant the refusal of the development application however the cumulative effect of the proximity of the range of uses that attract children use, in our view, is sufficient to warrant the refusal of the application.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application No. 118/2009 for the internal fit out and use of an existing three-storey building for a sex service premises at 227 Great North Road, Five Dock is refused.
3. The exhibits are returned.

__________
G T Brown
Commissioner of the Court

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J L Smithson
A/Commissioner of the Court