Miller v Canterbury City Council

[2006] NSWLEC 755

Land and Environment Court

of New South Wales

CITATION:

Miller v Canterbury City Council [2006] NSWLEC 755

PARTIES:

APPLICANT
Satya Miller
RESPONDENT
Canterbury City Council

FILE NUMBER(S):

10040 of 2006

CORAM:

Pain J

KEY ISSUES:

Question of Law :- whether brothel a recreation facility or commercial premises

LEGISLATION CITED:

Canterbury Planning Scheme Ordinance 1970 cl 4(1), cl 22

CASES CITED:

Botany Municipal Council v Tsolakis & Ors [1988] NSWLEC 92;
Jackie Walsh v Bankstown City Council (1997) 96 LGERA 62;
Mavrik Pty Ltd v Tweed Shire Council (1997) 98 LGERA 354

DATES OF HEARING:

13/04/2006

EX TEMPORE JUDGMENT DATE:

04/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Campbell
Instructed by Mr J Sheehan, Chartered Town Planner

RESPONDENT
Mr A Seton (solicitor)
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

13 April 2006

10040 of 2006 Satya Miller v Canterbury City Council

EX TEMPORE JUDGMENT

1 Her Honour: A question of law has arisen in these Class 1 proceedings as follows:

Whether the proposed development is for “commercial premises” as defined in clause 4 of the Canterbury Planning Scheme Ordinance 1970 (the CPSO) and is therefore prohibited on land within the Industrial General 4(a) zone under the CPSO.

2 The proposed development is at 136 Bonds Road Riverwood. Details are set out in the statement of basic facts filed in the proceedings which demonstrates that the development is a brothel which is already operating in zone 4(a) Industrial General.

3 Under the Canterbury Planning Scheme Ordinance 1970 (the CPSO) cl 22 identifies the buildings and works permissible in an industrial zone. Specific uses are prohibited including commercial premises (other than auction rooms, premises used for the purpose of rag collection and dealing or recreation facilities). Commercial premises are defined in cl 4(1) of the CPSO as:

… a building or place used or intended for use as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used or intended for use for a purpose elsewhere specifically defined in this clause or for a roadside stall.

4 Recreation facilities are defined in the CPSO as “a building or place used for sporting activities, recreation or leisure activities, whether or not operated for the purpose of gain, but does not include a building or place elsewhere defined in this clause”.

5 The term “brothel” is not defined but the parties appear to agree that a brothel is a commercial premises unless it falls within the exceptions in the definition being a building or place elsewhere defined. The Macquarie Dictionary (Revised Third Edition), The Macquarie Library, Macquarie University, 2001, defines brothel as “a house for prostitution” and prostitution as “the act or practice of engaging in sexual intercourse for money”.

6 The Applicant argues that a brothel falls within the definition of recreational facility and therefore is permissible in the industrial zone.

7 It appears that this is the first time anyone has made such an argument in this Court and the Applicant’s arguments are scanty to say the least.

8 The Applicant argues that in the absence of a definition of recreation, leisure and sporting in the CPSO that the ordinary dictionary meaning of these words as found in the Macquarie Dictionary should be applied. It relies in particular on the definition of recreation. The dictionary states that recreation includes a pastime, diversion, exercise, or other resource affording relaxation and enjoyment. The Applicant’s counsel has simply submitted that the activities at a brothel are for recreation as they are a diversion, exercise or other resource affording relaxation and enjoyment. The Council argues that sex at a brothel has not ever been in any case they can find, nor in the commonly understood meaning of these words, ever been considered to be a recreational activity. While the Court was referred to cases where this Court has considered whether brothels are commercial premises and it has been held that they are (see Jackie Walsh v Bankstown City Council (1997) 96 LGERA 62, Mavrik Pty Ltd v Tweed Shire Council (1997) 98 LGERA 354, these cases simply do not raise the issue argued here. In Botany Municipal Council v Tsolakis & Ors [1988] NSWLEC 92, Holland J had to consider whether an injunction should issue to restrain the use of premises for a brothel and he briefly considered whether a brothel could satisfy the definition of a recreational facility (he held it did not) amongst other phrases but that case concerned circumstance different to that before me.

9 I am considering here the meaning of recreational facilities in the context of a planning instrument. The fact that the Applicant may form the view that sex at a brothel is a recreational activity as defined in the Macquarie Dictionary and as proposed by his counsel is simply irrelevant in my view. Essentially that is what has been submitted to the Court. The definition of recreational facility in this planning instrument is not intended to encompass sex obtained for payment at a brothel in the way the words used in the dictionary definition of recreational facilities are ordinarily understood. There are an infinite range of services for which people pay and which may give rise to relaxation and enjoyment such as visiting the hairdresser but that does not qualify the places where these activities take place as being recreational facilities within the meaning of the CPSO.

10 I do not think the reason this argument has not been raised before is because the provisions of the CPSO are unusual or peculiar. The argument is inappropriate in a planning context.

11 I answer the question of law raised as follows:

The proposed development is for ”commercial premises” as defined in cl 4 of the CPSO and is therefore prohibited on land within the General Industrial 4(a) zone under the CPSO.