PEARCE and CITY OF WANNEROO
[2010] WASAT 77
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PEARCE and CITY OF WANNEROO [2010] WASAT 77
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 27 MAY 2010
FILE NO/S: DR 51 of 2010
BETWEEN: TRACEY PEARCE
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning Development application 'Massage centre' Preliminary issue Classification Whether 'massage centre' is 'medical centre' under local planning scheme Whether 'massage centre' is an unlisted use Whether premises will be used as a brothel Whether sham application Illegality Whether proposed use is illegal Need for evidence Assertion is not evidence Words and phrases: 'ailment', 'consulting room', 'injury', 'health consultant', 'massage', 'medical centre'
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.3, Sch 2, Table 1
Criminal Code (WA), s 190(1)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 31(1), s 32(2)
Result:
'Massage centre' is not classified as 'medical centre' but rather is an unlisted use under the City of Wanneroo District Planning Scheme No 2
Category: B
Representation:
Counsel:
Applicant: Mr PS Bates
Respondent: Mr M Gregory with Mr D McMullen
Solicitors:
Applicant: PSB Legal
Respondent: Minter Ellison
Case(s) referred to in decision(s):
Builtwell Corporation Pty Ltd v Town of Port Hedland [2000] WATPAT 13; (2000) 24 SR (WA) 380
Dennis v Parramatta City Council (1981) 43 LGRA 71
Sydney City Council v Hurzeler & Anor (1981) 46 LGRA 240
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms Tracey Pearce sought development approval from the City of Wanneroo for the use of premises as a 'massage centre'. The City of Wanneroo refused to grant development approval on the basis that a 'massage centre' is a 'medical centre' under the local planning scheme and is therefore prohibited. Ms Pearce sought review of this decision by the Tribunal. The parties identified a preliminary issue as to the proper classification of the proposed use under the City of Wanneroo District Planning Scheme No 2.
The Tribunal determined that a 'massage centre' is not a 'medical centre' as it does not comprise two or more 'consulting rooms'. A 'consulting room' is defined under the City of Wanneroo District Planning Scheme No 2 as '[a] building used by not more than one health care consultant at any one time for the investigation or treatment of human injuries or ailments and for general patient care'. The Tribunal found that a 'health care consultant' is relevantly a medical practitioner or other health care practitioner, such as a nurse or physiotherapist. A building used by a masseuse is not a 'consulting room' and consequently a 'massage centre' is not a 'medical centre'. Rather, a 'massage centre' is an unlisted use under the scheme and is, therefore, capable of approval.
The City of Wanneroo argued, in the alternative, that the site is likely to be used for the purposes of prostitution, which is an illegal activity in Western Australia, and that approval of the proposed use would therefore be contrary to the public interest. The City of Wanneroo asserted that the site has previously been used as a brothel and escort agency by Ms Pearce's son. However, as the City of Wanneroo did not present any evidence in support of this assertion, it could not be inferred that the development application is, in essence, a sham and that the use that is likely to be carried out under the guise of a development approval for a 'massage centre' will be a brothel. Nonetheless, the Tribunal observed that it would be contrary to orderly and proper planning to grant development approval to an application in circumstances where the planning authority is satisfied on the evidence that, in reality, the proposal would involve an illegal activity.
The Tribunal gave the City of Wanneroo an opportunity to seek further information and clarification from Ms Pearce in relation to Ms Pearce's current business and the nature of the activity proposed to be carried out at the site. The Tribunal invited the City of Wanneroo to then make a decision in relation to the development application on its merits.
Introduction
Ms Tracey Pearce is the registered proprietor of Unit 4, No 32 Buckingham Drive, Wangara (Lot 9 on Strata Plan 29763) (site) which is located within the district of the City of Wanneroo (City or Council). On 2 December 2009, Ms Pearce applied to the City for development approval under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme) and the Metropolitan Region Scheme to authorise the use of the site as a 'massage centre'. Ms Pearce's letter enclosing the development application included the following information:
The existing property has 2 rooms, a reception area and a large store room located at the rear of the building, 8 car bays to accommodate 2 clients and 2 staff per hour. All clientele are required to book to ensure we can accommodate parking for their visit. It is expected that [the] majority of our clients will visit between 5pm9pm when more parking becomes available from the surrounding businesses closing for the day. In our experience with running the telephone business from the property over recent years, there has never another vehicle parked in the car park after 6.30pm.
Currently we provide a mobile service and would like to utilise Unit 4/32 Buckingham Drive, Wangara as the Permanente [sic] premises. We propose the hours of use to be 8am9pm.
The letter also stated that, if the City required further information, it should contact Ms Pearce. Ms Pearce provided her mobile telephone number and email address. However, it does not appear that the City sought any further information from Ms Pearce in relation to the development application.
On 3 February 2010, the Council refused to approve the development application for the following reason:
The proposed use falls within the use class 'Medical Centre' defined in [DPS 2] as follows:
'Medical Centre: means premises accommodating two or more consulting rooms.'
A Medical Centre is a prohibited use ('X' use) within the Service Industrial Zone and cannot be supported.
On 26 February 2010, Ms Pearce sought review by the Tribunal of the City's decision under s 252(1) of the Planning and Development Act 2005 (WA). At the first directions hearing on 19 March 2010, the following preliminary issue was identified for determination by the Tribunal:
What is the proper classification of the proposed use under DPS 2?
Parties' contentions
It is common ground that a 'medical centre' is a prohibited land use in the Service Industrial Zone under DPS 2. As noted in the Council's reason for refusal, the land use 'medical centre' is defined in Sch 2 of DPS 2 to mean 'premises accommodating two or more consulting rooms'. The term 'consulting room' is defined in Sch 2 of DPS 2 to mean:
[a] building used by not more than one health consultant at any one time for the investigation or treatment of human injuries or ailments and for general patient care.
Ms Pearce contended that the proposed 'massage centre' is not a 'medical centre' within the meaning of DPS 2. Ms PS Bates, counsel for Ms Pearce, submitted that:
The definitions of 'Medical Centre' and 'Consulting Room' … clearly convey the impression of a medical or allied health usage. This impression is particularly evident from the use of words such as, 'medical centre', 'consulting room', 'health consultant', 'treatment', 'human injuries or ailments' and 'patient care' all of which bring to mind conventional medical centres as exist throughout the country.
Mr Bates submitted that as the proposed 'massage centre' is not specifically mentioned in the Zoning Table (Table 1) and cannot reasonably be determined as falling within the interpretation of one of the use categories under the Scheme, it is an 'unlisted use' for the purposes of cl 3.3 of DPS 2. Clause 3.3 of DPS 2 provides that, in the case of an unlisted use, the Council may:
(a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or
(b)determine that the proposed use may be consistent with the objectives and purposes of the zone and thereafter follow the 'D' procedures of Clause 6.6.2 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted.
The City advanced two alternative contentions. The City's first argument was expressed as follows:
If the Proposed Use is for the provision of massages of a therapeutic nature, which clients of [Ms Pearce] will seek for health reasons, the [City] submits that the Proposed Use is properly classified as a 'medical centre' under DPS 2, by reason that the [site] would contain two 'consulting rooms'.
The City referred to the definitions of the noun 'health' in The Macquarie Dictionary (4th ed, 2005) (The Macquarie Dictionary) at 659, which include the following:
1. soundness of body; freedom from disease or ailment. 2. the general condition of the body or mind with reference to soundness and vigour: good health.
The City relied on the second definition of 'health' (although it did not quote the example of 'good health' given in the second definition) and submitted that:
A 'health consultant' as used in DPS 2, means any person who provides services directed at benefiting 'the general condition of the body or mind'.
Furthermore, the City submitted that:
(a)bodily aches and pains fall within the normal and common meaning of an 'ailment';
(b)'injuries' encompasses a wide range of afflictions, including those treatable using massage techniques; and
(c)a person administering massage either for the treatment of bodily 'ailment' or 'injuries' falls within the normal and common meaning of a 'health consultant'.
The City expressed its alternative argument as follows:
If the Proposed Use of the [site] is not as a 'medical centre', the [City] submits that it is to be classified as an illegal and unlisted use, which would involve the provision of services in the nature of prostitution.
The City asserted in its submissions that the site has 'previously been used as an escort agency and a brothel by [Ms Pearce]'s son'. However, the City presented no evidence in support of this assertion. The City also observed that Ms Pearce:
… has provided the [City] with no details of the types of massage which has been offered since escort and brothel activities are claimed to have ceased. Nor has [Ms Pearce] provided details of the types of massage which the Proposed Use would entail.
However, the City provided no evidence in support of its statement that escort and brothel activities, if they ever occurred at the site, have ceased. Furthermore, as noted earlier, the City does not appear to have requested any further details of the proposed 'massage centre' use from Ms Pearce, although Ms Pearce offered to provide further information upon request.
Based solely on its assertions and observation in its submissions, the City contended that it has:
reasonable grounds to infer that if the [site is] not used as a 'medical centre' providing massages of a therapeutic nature, then [it] will continue to be used for services of the kind previously offered when the [site was] being used as an escort agency or brothel.
As the site is likely to be used for the purposes of prostitution, which is illegal in Western Australia in consequence of s 190(1) of the Criminal Code in the Schedule to the Criminal Code Act 1913 (WA), the City submitted that the granting of planning approval in this case would be contrary to the public interest and that the development application should be refused in accordance with the principle stated by the Town Planning Appeal Tribunal in Builtwell Corporation Pty Ltd v Town of Port Hedland [2000] WATPAT 13; (2000) 24 SR (WA) 380 (Builtwell)
Is a 'massage centre' a 'medical centre'?
Contrary to Mr Bates' submission, it is not permissible to consider the ordinary meanings of the terms 'medical centre' and 'consulting rooms', as these are defined terms under the Scheme. However, it is appropriate and necessary to have regard to the ordinary meanings of words used within these definitions under the Scheme.
The second meaning of 'health' in the dictionary definition referred to earlier, namely, 'the general condition of the body or mind with reference to soundness and vigour', is not apposite, having regard to the other words within the definition of 'consulting room' and the example of the second meaning given in the dictionary, namely, 'good health'. A 'health consultant' within the meaning of the definition of 'consulting room' under DPS 2 is not, as submitted by the City, 'any person who provides services directed at benefiting "the general condition of the body or mind"'. Rather, a 'health consultant' is a person who 'investigate[s] or treat[s] … human injuries or ailments [or who provides] general patient care' (adapting the words of the definition of 'consulting room'). A 'health consultant', in this context, is not concerned with 'the general condition of the body or mind with reference to soundness and vigour' in terms of the second definition of 'health', but rather is concerned with 'soundness of body; freedom from disease or ailment' in terms of the first definition of 'health'. Furthermore, the City's suggested meaning of a 'health consultant' would include a vast array of professional and nonprofessional people, such as personal trainers, gym instructors, teachers and ministers of religion. It could not have been the intention of the Scheme to include this array of people in the definition of 'consulting room' and, consequently, 'medical centre'.
The noun 'massage' is defined at 882 of The Macquarie Dictionary as:
the act or art of treating the body by rubbing, kneading or the like, to stimulate circulation, increase suppleness, etc.
A masseuse is not a consultant providing services in relation to soundness of body or freedom from disease or ailment. It is clear from the relevant dictionary definition of 'health' that a 'health consultant' refers to a medical practitioner or other health care practitioner, such as a nurse or a physiotherapist. This interpretation is confirmed by the words 'the investigation or treatment of human injuries or ailments' and 'general patient care'.
Contrary to the City's submission, bodily aches and pains do not fall within the ordinary meaning of an 'ailment'. The noun 'ailment' is defined in The Macquarie Dictionary at 28 relevantly as 'a morbid affection of the body or mind'. The adjective 'morbid' is defined at 930 of The Macquarie Dictionary as follows:
1. suggesting an unhealthy mental state; unwholesomely gloomy, sensitive, extreme, etc. 2. affected by, preceding from, or characteristic of disease. 3. relating to diseased parts: morbid anatomy.
Therefore, an 'ailment' refers to a significantly more serious physical or mental affection than mere bodily aches and pains. Furthermore, contrary to the City's submission, while 'injury' involves 'harm of any kind done or sustained' (The Macquarie Dictionary at 732), and while massage may possibly prevent injuries or ailments, it does not involve the investigation or treatment of injuries or ailments.
Finally, the noun 'patient' is relevantly defined as 'someone who is under medical or surgical treatment' (The Macquarie Dictionary at 1050). The client of a masseuse is not a 'patient' and massage therefore does not involve 'general patient care'.
It follows that a building used for massage is not a 'consulting room' within the meaning of DPS 2. Consequently, a 'massage centre' is not a 'medical centre' within the meaning of the Scheme. As a 'massage centre' is not specifically mentioned in the Zoning Table (Table 1) of DPS 2 and cannot reasonably be determined as falling within the interpretation of one of the use categories under the Scheme, it is an unlisted use for the purposes of cl 3.3 of the Scheme.
Will the site be used for an illegal purpose?
In Builtwell, the Town Planning Appeal Tribunal said, at [6], that:
It is contrary to the public interest that the Tribunal grant consent to a use that is illegal.
In Builtwell, the Tribunal refused to grant development approval for development described as 'Consulting rooms for massage and stress relief', as it was 'satisfied on the evidence that it is likely to be used for an illegal purpose', namely, 'the keeping of a brothel': at [24].
While the public interest principle referred to in Builtwell is sound, the decision itself is clearly distinguishable from the present case, at least on the evidence (or, more correctly, the lack of evidence) presented to the Tribunal. In Builtwell, it was conceded under crossexamination that the applicant was intending to operate at least part of the business for which consent was sought as a brothel. However, in this case, there is neither a concession nor any other evidence that the site is likely to be used as a brothel. While the Tribunal is not bound by the rules of evidence (see s 32(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)), it must exercise its jurisdiction based on evidence. An assertion in a submission is not evidence. Furthermore, while Ms Pearce indicated her willingness to provide further information, the City did not seek any information in relation to the types of massage being or proposed to be offered at the site. Given the absence of any evidence, it could not be inferred that the development application is, in essence, a sham and that the use that is likely to be carried out at the site under the guise of a development approval for a 'massage centre' will be a brothel.
It would be contrary to orderly and proper planning to grant development approval to an application in circumstances where the planning authority is satisfied, on the evidence before it, that the proposal involves an illegal activity. The evidence may establish that a proposed development involves an illegal activity whether or not the illegality is disclosed in the development application and irrespective of how the proposed development is described or characterised in the development application.
A development application that purports to seek development approval for a legal activity, whereas, in reality, the proposed development involves an illegal activity, is a sham. In Dennis v Parramatta City Council (1981) 43 LGRA 71, McClelland CJ refused development approval for a development described as a 'health and beauty salon' in Western Sydney. At 74 75, his Honour said the following:
'[T]he circumstances of the case' which must be taken into consideration by the Council and the Court include the proven fact that the applicant has, until quite recently, used the premises as a brothel and that he did not see fit to give evidence as to his future intentions or to rebut the overwhelming inference that the use proposed in his development application is a sham and that he intends to continue to put the premises to use as a brothel.
There have always been euphemisms for this ancient trade. For all practical purposes, the term 'massage parlour' has come to be synonymous with a brothel. …
In my view, it would be naïve in the extreme for the Council or the Court to conclude that the present application is in reality for a health and beauty salon and it would be a disservice to that reputable trade to launch it into the process of becoming yet another synonym for brothel.
There are those who believe that brothels should be legalised in order to satisfy[,] under controlled conditions[,] a demand which no law has ever managed to suppress. But it is not the role of councils or courts to usurp the function of the legislature. In this case the reality is that the Court is being asked to consent to the conduct of a brothel. In construing what is a permissible use under an ordinance or an interim development order[,] a council or the court is entitled, indeed obliged, to have regard to what is permissible under the laws of the State.
In this case, the Council or the Court is entitled, in the exercise of their discretion in the determination of a development application[,] to look behind the words of such an application to the real use which is intended by the applicant.
Similarly, in Sydney City Council v Hurzeler & Anor (1981) 46 LGRA 240, Cripps J refused to grant development approval for a use described in the development application as a 'health studio'. The applicant for development approval indicated that the proposed 'health studio' would provide weight reduction classes, fitness exercises and massages. At 242 243, Cripps J said the following:
Mrs Hurzeler gave evidence denying the premises had been used as a brothel. She claimed to be a qualified masseuse and claimed the only services supplied were massages. Her explanation for the presence of the equipment in the massage room on the second floor [namely, 'leather bondage equipment including belts, whips and articles of clothing'] and her reason why she advertised the availability of 'escorts' were wholly unconvincing. In my opinion[,] the evidence establishes quite clearly that the premises have been used for the purpose of prostitution. I am further of the opinion that it is intended in the future that the premises will be used for this purpose and that the application before the court is a sham. I have no doubt that if permission were given to Mrs Hurzeler to use these premises for the purpose of a health studio she would use them as a brothel.
Mr Dent submitted that his client was not asking for permission to use the premises as a brothel. She seeks permission to use them for the purpose of a health studio which is permissible with consent because such a use is embraced by the words 'professional chambers'. He submits that, because no town planning grounds have been advanced why the premises would not be used as a health studio, I should not refuse permission merely because it is possible that the premises may be used for a different and illegal purpose. It is submitted that in the event that that happens[,] the council has remedies available to it.
It is unnecessary for me to decide whether the activities encompassed by the words 'professional chambers' are restricted to traditional professional activities, e.g. the practice of law, medicine, dentistry and accountancy[,] or whether the words encompass a wider range of activities as, for example, that of chiropractor, hypnotist, health promotion classes, etc. What is clear, in my opinion, is, except perhaps as a joke, noone would refer to a brothel as 'professional chambers'.
I have already indicated that the present application is a sham. I am satisfied, that is to say, that Mrs Hurzeler does not intend to use the premises for the purpose for which permission is being sought, but intends to use them for a different and illegal purpose. …
It is no doubt true that consent would not be withheld merely because the premises the subject of the application might be used illegally but a council, and hence a court, is, in my opinion, entitled to refuse an application which in its view is a sham: see Dennis v Parramatta City Council (1981) 43 LGRA 71 and Sutton v Waverley Municipal Council (1949) 17 LGR (NSW) 162.
Having regard to the evidence as to what activity is, in reality, proposed by a development application, it is for the planning authority to characterise the proposed land use and then determine the application on its planning merits. As it would be contrary to orderly and proper planning to grant development approval for an illegal activity, a sham development application that, in reality, proposes an illegal activity will generally be refused development approval.
In this case, it would be reasonable for the Council to seek further information and clarification from Ms Pearce in relation to the current business and the proposed activity at the site. In particular, it would seem that, in order to be able to determine the application under cl 3.3 of DPS 2, the Council would require details in relation to:
•the type or types of massage that are currently offered by the 'mobile service' referred to in Ms Pearce's letter to the City and that are proposed be provided at the site;
•the nature of the 'telephone business' referred to in Ms Pearce's letter to the City that has been operated from the site over recent years;
•the number of masseuses who would be employed at the site;
•the qualifications and professional registrations and accreditations that are held by the masseuses who currently provide the 'mobile service' and would be required for masseuses employed at the site; and
•the proposed hours of operation, including an explanation as to why the majority of clients are expected to visit the site between 5 pm and 9 pm.
Finally, the Tribunal notes that, consistently with the observation of the Town Planning Appeal Tribunal in Builtwell at [20], if there were evidence presented of the previous use of the site as a brothel or escort agency, then:
questions [would be] entitled to be asked [of Ms Pearce at the hearing in relation to past and likely future use as] illegal activity is a relevant consideration that weighs on the ultimate decision as a matter of public policy.
Conclusion
A 'massage centre' is not a 'medical centre' for the purposes of DPS 2. A 'massage centre' is, therefore, not prohibited under DPS 2. Rather, it is an unlisted use for the purposes of cl 3.3 of DPS 2.
As the Council has not considered the application on its merits, it is appropriate to invite the Council to reconsider its decision under s 31 of the SAT Act. Furthermore, it is appropriate to give the City sufficient time to first request the further information and clarification referred to earlier and such further details as it considers necessary in order to exercise its planning discretion.
Orders
The Tribunal makes the following orders:
1.A 'massage centre' is an unlisted use for the purposes of cl 3.3 of the City of Wanneroo District Planning Scheme No 2.
2.By 4 June 2010, the respondent is to seek further information and clarification concerning the applicant's current mobile and telephone business and the proposed development from the applicant.
3.By 11 June 2010, the applicant is to provide such further information and clarification as sought by the respondent.
4.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision by 30 June 2010.
5.The proceeding is adjourned to a further directions hearing at 10.30 am on 2 July 2010 in order to await the reconsideration and to make further programming orders.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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