Huang v Hurstville City Council
[2012] NSWCA 177
•07 June 2012
Court of Appeal
New South Wales
Case Title: Huang v Hurstville City Council Medium Neutral Citation: [2012] NSWCA 177 Hearing Date(s): 7 June 2012 Decision Date: 07 June 2012 Jurisdiction: Before: Allsop P at [1]; [15]; [17]
Macfarlan JA at [2]
Sackville AJA at [16]Decision: Application for leave to appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: LAND AND ENVIRONMENT - application for leave to appeal against decision of Land and Environment Court on a question of law - whether requirements of Hurstville Local Environment Plan concerning location of premises used for sex services were "development standards" as defined in Environmental Planning and Assessment Act 1979 - previous decisions of Court of Appeal identify relevant principles - no special features of case warranting grant of leave to appeal
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979Cases Cited: Agostino v Penrith City Council [2010] NSWCA 20; 172 LGERA 380
Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; 67 NSWLR 672; 150 LGERA 130
Strathfield Municipal Council v Poynting [2001] NSWCA 270; 116 LGERA 319Texts Cited: Category: Principal judgment Parties: Yi Yang Huang (Applicant)
Hurstville City Council (Respondent)Representation - Counsel: Counsel:
S Berveling (Applicant)
P Rigg (Solicitor) (Respondent)- Solicitors: Solicitors:
Gino Russo & Co (Applicant)
Norton Rose Australia (Respondent)File number(s): CA 2011/313677
Decision Under Appeal - Court / Tribunal: - Before: Pain J - Date of Decision: 05 September 2011 - Citation: Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 - Court File Number(s) 10463 of 2011 Publication Restriction:
JUDGMENT
ALLSOP P: Justice Macfarlan will deliver the first judgment.
MACFARLAN JA: On 24 August 2010 Ms Yi Yang Huang, the applicant in this Court for leave to appeal, lodged with the respondent Council an application for development consent for the use of premises for sex services. The Council had previously issued a time-limited consent for the use of the premises for that purpose which expired in February 2010.
Upon refusal of the application, Ms Huang appealed under s 97 of the Environmental Planning and Assessment Act 1979 ("EPA Act") to the Land and Environment Court ("LEC"). By decision of 13 May 2011, Commissioner Dixon dismissed that appeal on the basis that the proposed use did not comply with the provisions in clause 16A of the Hurstville Local Environment Plan 1994 ("LEP") concerning the distancing of premises used for sex services from educational establishments, places of worship, hospitals and the like.
The Commissioner rejected Ms Huang's submission that the State Environmental Planning Policy No 1 Development Standards (NSW) ("SEP No 1") gave the Council (with the concurrence of the Director-General) the power to depart from those provisions in certain circumstances (see clause 7). Such power exists only where, as the Commissioner held not to be the position in the case of clause 16A, the relevant provisions constitute "development standards" as defined in s 4 of the EPA Act.
Ms Huang appealed pursuant to s 56A of the Land and Environment Court Act 1979 ("LEC Act") to a judge of the LEC. By judgment of 5 September 2011, Pain J dismissed the appeal, also taking the view that the requirements of clause 16A of the LEP were not "development standards" as defined in the EPA Act. Her Honour referred to relevant case authorities, including the decisions of this Court in Strathfield Municipal Council v Poynting [2001] NSWCA 270; 116 LGERA 319; Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; 67 NSWLR 672 and Agostino v Penrith City Council [2010] NSWCA 20; 172 LGERA 380.
Ms Huang now seeks leave to appeal to this Court against the decision of Pain J. Whilst s 57 of the LEC Act confers a right of appeal to this Court against decisions of the LEC in Class 1, 2 or 3 of its jurisdiction on a question of law, the appeal does not lie without the leave of this Court from a decision, such as the present decision of Pain J, on an appeal to a judge of the LEC under s 56A of the LEC Act (see s 57(4)(c)).
The sole issue sought to be raised by Ms Huang on appeal to this Court is the question of law determined adversely to her in the LEC of whether the relevant provisions in clause 16A of the LEP constitute "development standards" as defined in the EPA Act.
She submits first that leave should be granted to provide certainty concerning the true character of clause 16A, as this will facilitate the disposition of other applications for consent to the use of premises for sex services. Secondly she submits that this Court should "determine whether a prohibition or condition precedent to the carrying out of such development can otherwise be claimed to exist merely through the satisfaction of the consent authority with respect to an elastic concept". Thirdly she submits that if the decision below is not reversed she will suffer hardship by losing her sole source of income.
Notwithstanding the respondent Council's consent to the grant of leave, I do not consider that leave to appeal should be granted. The question sought to be agitated on appeal is undoubtedly a "question of law" within the meaning of s 57(1) of the LEP Act but the legislative intent manifested by s 57(4) is that that circumstance is insufficient of itself to entitle a party to appeal to this Court against a decision such as that of Pain J. Something more is required.
Ms Huang's submissions point out that Pain J's decision may be of significance in the determination of other applications for development consent. However that will almost always be so where a judge of the LEC determines a question of law. Section 57 makes it clear that the legislature intended that in some, and perhaps many, cases the LEC's decision on a question of law will not be subject to appeal.
It is also of significance that the planning provision in question, clause 16A of the LEP, applies only to uses of property for very limited purposes and only in the Hurstville area. It has not been suggested that LEPs applicable to other areas have provisions cast in the same form as clause 16A of the Hurstville LEP.
In determining the question of law before her, the primary judge had the guidance of decisions of this Court in which the proper approach to such questions was authoritatively stated. Her decision was a thorough one which would in my view be unlikely to be reversed if leave to appeal were granted.
The only other matter raised by Ms Huang is the hardship that refusal of development consent would impose on her. However, the economic consequences of the refusal must be balanced against the competing community interests recognised in clause 16A of the LEP. The relevant question of law has been determined adversely to Ms Huang in two decisions of the LEC. As Ms Huang has been unable to point to any circumstances that mark this case out as having special features that warrant this Court's attention to the question of law that she seeks to agitate again, it is in my view consistent with the legislative intent that she be refused leave to do so.
I accordingly propose that the application for leave to appeal be dismissed with costs.
ALLSOP P: I agree. I would add the following. The principles governing this case have been set out in decisions of this Court. No request is made to revisit those cases or the principles within them. The debate is upon the characterisation of the provisions of the LEP in the light of those decisions. Like all questions of characterisation (whether legal or factual, here legal), minds might reasonably differ about the proper characterisation. Here, I am not persuaded of any error in the primary judge's approach or conclusion. I would express my gratitude for both parties' assistance in submissions which were both succinct and clear. I agree with the orders proposed by Justice Macfarlan.
SACKVILLE AJA: I agree with the orders proposed by Justice Macfarlan and with his Honour's reasons. I also agree with the additional observations made by the presiding judge.
ALLSOP P: The order of the Court is: application for leave to appeal dismissed with costs.
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