Perry Properties Pty Ltd v Ashfield Council (No 2)

[2001] NSWLEC 62

Reported Decision: 113 LGERA 301

Land and Environment Court

of New South Wales

CITATION:	Perry Properties Pty Ltd v Ashfield Council (No 2) [2001] NSWLEC 62
PARTIES:	APPLICANT: Perry Properties Pty Ltd RESPONDENT: Ashfield Council (No 2)
FILE NUMBER(S):	10513 of 1999
CORAM:	Bignold J
KEY ISSUES:	Section 56A Appeal :- Remitted proceedings requiring re-determination of development appeal - social impact of proposed brothel development - constructive failure to consider
LEGISLATION CITED:	Land and Environment Court Act 1979 s 56A, s 38(4) Environmental Planning and Assessment Act 1979, s 79C
CASES CITED:	Broad v Brisbane City Council (1986) 59 LGRA 296; Graham Richter and Associates Pty Ltd v Campbelltown City Council (unreported 10 July 2000); Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1982) 56 LGRA; Liu v Fairfield Council (1996) NSWLEC 272 ; Minister Administering the Heritage Act 1977 v Haddad (unreported 4 February 1991); Novak v Woodville City Council (1990) 70 LGERA 233; Venus Enterprises v Parramatta City Council (1981) 43 LGERA 67
DATES OF HEARING:	23/03/01
DATE OF JUDGMENT:	04/04/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Austin QC SOLICITORS Utter Webster and Evans RESPONDENT: Mr B McClintock SC with Mr S Flanigan SOLICITORS Deacons Graham and James

JUDGMENT:

IN THE LAND AND

Matter No. 10513 of 1999

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

4 April 2001

PERRY PROPERTIES PTY LIMITED

Applicant

v

ASHFIELD COUNCIL (NO. 2)

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Land and Environment Court Act 1979, s 56A (the LEC Act) against the decision of Commissioner Bly delivered on 3 November 2000 allowing an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) and granting development consent, subject to conditions, for the establishment of a brothel at premises known as Nos 246 and 246A Parramatta Road, Ashfield.

2. The Commissioner’s decision was given in proceedings which had been remitted to him by orders made on 21 September 2000 by Cowdroy J following a successful appeal pursuant to the LEC Act, s 56A brought by the Applicant against the Commissioner’s original decision refusing development consent.

3. The present appeal which is brought by the Council is limited to error of law. In its Notice of Motion instituting the appeal, the Council, conformably to the Rules of Court (Pt 13 r 37) had stated five separate grounds of appeal, but on the hearing of the appeal did not press two of those grounds, leaving the following three grounds (upon which it relies):
(i.) The Commissioner erred in law in holding that the component of his decision which led to the refusal of the application (which was not, according to Mr Justice Cowdroy, supportable on the evidence) was severable from the remainder of the Commissioner’s decision and therefore the appeal could be upheld.
(ii.) The Commissioner erred in law in finding that his only function on having the proceedings remitted back to him was to uphold the appeal and to impose conditions of consent.
(iii.) The Commissioner erred in law in failing to give any consideration to the issue of social impact in the locality pursuant to the Environmental Planning and Assessment Act 1979, s 79C(1)(b) and as raised in the statement of issues.

4. Before considering these grounds, it is necessary to refer in some detail to the litigation history which provides the relevant background to the present appeal.

B. THE LITIGATION HISTORY

5. To date, there have been four distinct stages to the present proceedings, namely—
(i.) the original determination by Commissioner Bly on 7 April 2000 in respect of the Applicant’s development appeal, refusing development consent to the proposed brothel development;
(ii.) the determination by Cowdroy J on 21 September 2000 (reported in 110 LGERA 345) of the Applicant’s appeal pursuant to the LEC Act, s 56A allowing the appeal, setting aside the Commissioner’s determination and remitting the proceedings to the Commissioner;
(iii.) the further determination on the remitted proceedings by Commissioner Bly on 3 November 2000 upholding the appeal and granting development consent for the proposed brothel development; and
(iv.) the present s 56A appeal brought by the Council against the Commissioner’s decision, which was heard by me on 23 March 2001.

6. By way of amplified background, the following additional matters need to be noted concerning the earlier stages in the current proceedings, although it is the remitted proceedings and the Commissioner’s further determination in respect of them, that is the principal focus of attention for the present appeal.

(i) The original determination by the Commissioner

7. The hearing of the appeal which occupied four days included a considerable body of documentary evidence relating to the Council’s processing of the development application (which included notification of the proposal and the receipt of a number of submissions), together with testimony from four expert witnesses (a consultant town planner and an acoustical engineer was called by each party) eight residents, a clergyman and a representative of the Master Plumbers Association (which owns or occupies nearby premises attended by students or apprentices).

8. In his reasons for judgment, the Commissioner identified that the principal issue that had been raised by the Council on the hearing of the appeal was whether the development site was appropriate for the proposed brothel development particularly in the context of the public interest (par 12 of his reasons) or put in his own words, “the central issue involved the question whether the proposal will so adversely affect those people who live or work in or use the area surrounding the proposed brothel, that the application should be refused” (vide par 16).

9. In his reasons for judgment, after considering the evidence given at the hearing at par 10 to par 40 (including his intermediate and primary findings on matters in dispute), the Commissioner makes the following findings at par 41 to par 44:
41. I am satisfied that this brothel is not located too close to any place frequented by children for recreation or cultural activities although it is very close to a bus stop used by children. In relation to this bus stop and given what Mr De Fina said about its use and the typical nature of suburban brothel patrons and the revised hours of operation it would appear that this relationship may not be problematical.
42. There will be instances when residents, school children and others find themselves in close proximity to or can see sex workers and their patrons. They may even recognise them as such. In this regard there is no persuasive evidence to support the conclusion that sex workers or their patrons typically behave in an inappropriate or anti-social manner.
43. Consequently and given the general observations made by Mr De Fina and those aspects including the suggested conditions of consent which he explained would mitigate possible adverse impacts together with the fact that that applicant has agreed to a twelve month trial period during which time possible impacts can be assessed, it would appear on this analysis that the consent as sought could be granted.
44. In addition to the trial period, the extremely potent weapon in the form of the DH Act as referred to by the Senior Commissioner (Jones v Ashfield 10486 of 1998) is not to be discounted in dealing with actual instances of inappropriate behaviour. However these measures do not overcome the reasonable fear of inappropriate behaviour that Mr Mitchell said would nevertheless remain for the large number of people who live, work or attend schools in the area.

10. In the immediately following passages in his reasons for judgment, the Commissioner refers to my decision in Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 upon which the Council in its final submissions had relied.

11. Following his analysis of the decision in Kulin, the Commissioner at par 50makes the following statement in respect of the present case, by way of comparison with the Kulin case:

Even though there are fewer objections in the subject case there is clearly an adverse widespread community reaction to the proposed brothel. Hence, without delving into the moral aspects of brothels it is not difficult, despite the lack of determinative amenity impacts (discussed earlier) to understand the likely social impact of the proposal.

12. Thereafter, the Commissioner refers to two earlier decisions of this Court (Venus Enterprises v Parramatta City Council (1981) 43 LGERA 67 per Cripps J and Liu v Fairfield Council (1996) NSWLEC 272 per Murrell AJ) before expressing the following reasons and findings at par 54 to par 57 inclusive which give rise to his ultimate conclusion that development consent to the proposed brothel should be refused:

54. If Murrell AJ is correct, it would simply be wrong to reject the application based on the number of objections to this proposed brothel. Moreover, if these objections are based on moral concerns again it would be wrong to reject the application.
55. However, Mr Rigg explained that the objections were not based on moral concerns. Rather, the residents and others were not so concerned about what happened inside the premises but instead were deeply worried about potential inappropriate behaviour of patrons and sex workers in the vicinity generally. This is essentially the matter which Mr Mitchell said should be given significant weight. Despite Mr De Fina’s evidence to the contrary I can understand the concerns and offence felt by the local community as well as the concerns expressed for example by the school leaders mentioned earlier in this judgment.
56. Mr De Fina also gave evidence of examples of where brothels were said to happily co-exist in residential areas. I give little weight to this in the context of what Bignold J said in Kulin about using such examples

as a general planning principle. Instead I have dealt with this application on its own merits.

57. There is a widespread adverse community reaction to the proposed brothel which has caused great offence. On this basis, applying the principle articulated by Bignold J in Kulin, I accept that there are likely to be adverse social impacts of sufficient magnitude to warrant, in the public interest, the refusal of the application, despite my earlier findings in relation to amenity.

(ii) The determination by Cowdroy J of the first s 56A appeal

13. The reported judgment of Cowdroy J records at p 348 and p 349 the competing submissions advanced on the hearing of the appeal. In particular the Applicant submitted “that once objection to the physical impact of the development has been considered and dismissed, refusal of consent based upon perception of offence is invalid” (p 348).

14. It also submitted that the relevant “offence” must be “tangible and not purely perception” and that the decision in Kulin should not be followed and that the decision in Liu was to be preferred.

15. The Respondent’s competing arguments included the submission that the Commissioner’s finding “that there was a reasonable fear of inappropriate behaviour was sufficient to justify the genuine concern and fears in the local community which constituted adverse social impact”: p 349.

16. Cowdroy J in the following passages at pp 350 - 351 identified legal error in the Commissioner’s determination.
20. The Commissioner, having determined that moral issues were irrelevant to his determination and that there were no physical amenity issues which warranted rejection of the development found that the residents and others were deeply worried about potential inappropriate behaviour of patrons and sex workers in the vicinity generally which was the basis of the widespread, adverse community reaction that caused great offence. However, the Commissioner had already found as a fact that there was no persuasive evidence to support the conclusion that sex workers or their patrons typically behave in an inappropriate or anti-social manner [42]. Accordingly it is apparent that fear was considered by the Commissioner as sufficient to reject the development application, even though his earlier finding rejected any rational foundation for this fear. There was nothing in the Commissioner’s finding beyond the existence of such fear to support the widespread adverse community reaction to the brothel.
21. Unlike the facts in Kulin the specific location of the proposed brothel was not found to be unsuitable. Nor is there any finding to suggest that offence has been caused to any particular section of the community. There is no finding that the proposed brothel, or its patrons would be atypical. The determinative finding is the existence of a nebulous fear of inappropriate or anti-social behaviour. The Commissioner has already found that such behaviour was not typically associated with this type of development.
22. A fear or concern without rational or justified foundation is not a matter which, by itself can be considered as an amenity or social impact pursuant to s 79C(1)(b) of the EPA Act. In Jarasius v Forestry Commission of New South Wales & Ors [No 1] (1990) 71 LGRA 79 Hemmings J considered generalised opposition to a proposed development. His Honour said at 92:-

The applicant further submits that the wide definition of environment must involve not only the physical environment, but also include the social effects thereof and their impact on the relations between social groupings. It is therefore submitted that it is a relevant consideration as to whether there is likely to be a “significant” effect on the environment that the activity is a substantially controversial one.

If that submission means that an activity which is otherwise not likely to significantly affect the environment could be seen to do so merely because it excited opposition by a section of the public, then I reject it. A similar submission was rejected in Newton v Wyong Shire Council (6 September 1983, unreported) and in so doing McClelland J said:-

I had an uneasy feeling that an attempt was being made to smuggle into planning and environmental law a new doctrine which might be expressed as follows: If local residents, however mistakenly, believe that a proposed scheme will be environmentally damaging, that belief is a factor, and an important one, which determining authorities should take into account in reaching their decisions.

23. A rational fear, or one having a real basis is a matter for consideration. However in view of the factual finding of the Commissioner concerning the absence of anti-social behaviour it is impossible to ascribe any basis to the objectors’ concerns which rely upon the very existence of such behaviour. As a result it is an unjustified fear alone which the Commissioner determined was adverse to the application and which the Commissioner found was contrary to the public interest.

24. As a consequence the Commissioner’s conclusion cannot be supported. A finding can be disturbed if there is no evidence to support its inferences: see The Australian Gas Light Co v The Valuer General (1940) 40 SR 126 per Jordan CJ at 138; see also Hope v Bathurst City Council (1980) 144 CLR 1 per Mason J at 10. The appeal accordingly succeeds.

17. The formal orders made by Cowdroy J (as recorded in the Court’s sealed Minute of Order) were as follows:

1. The appeal be upheld.
2. The determination of Commissioner Bly made on 7 April 2000 is set aside.
3. The proceedings are remitted to Commissioner Bly for determination in accordance with this judgment.
4. The exhibits may be returned.

18. Some significance attaches to the orders made remitting the proceedings to the Commissioner in view of the fact that the Applicant’s Notice of Motion appealing the Commissioner’s determination had sought an order, in the event of the appeal being successful, that development consent be granted to the proposed brothel development. This requested disposition of the appeal is also reflected in the Applicant’s written submissions filed in support on its appeal.

19. In this respect, there is no doubt that the power conferred upon the Court by the LEC Act, s 56A(2)(b) includes the power, in appropriate cases, to finally dispose of the proceedings in consequence of a successful appeal: cf Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1982) 46 LGRA 29where the Court of Appeal exercised the statutory power then conferred upon it in identical terms to the power now vested in this Court by s 56A(2)(b), by upholding the appeal and refusing development consent.

20. However, Cowdroy J declined to exercise the power conferred by s 56A(2)(b). Instead, he exercised the power conferred by s 56A(2)(a) by remitting the proceedings to the Commissioner for “determination” (meaning re-determination in view of the order setting aside his original determination in accordance with his Honour’s judgment).

(iii) The Commissioner’s further determination on the remitted proceedings

21. Upon the hearing of the remitted proceedings, the Council sought leave to call additional evidence which it claimed to be relevant to the issue of the social impact of the proposed brothel development. The Applicant opposed leave being given and in the result, the Commissioner refused to allow the Council to call further evidence.

22. In respect of this ruling, it is to be noted that the Council’s grounds of appeal had originally included an appeal against the Commissioner’s decision not to allow the Council to call further evidence. However, on the hearing of the appeal, this ground was not pressed.

23. Despite this outcome, I should say something about the Commissioner’s ruling, because it vitally reflects on the true nature of the Commissioner’s task in respect of the remitted proceeding. It is the manner in which that remitted task was undertaken, as much as the outcome of that task, that is at the heart of the Council’s present appeal. Accordingly, it will be necessary to examine in some detail the course of the hearing in respect of the remitted proceedings.

24. The orders made by Cowdroy J in allowing the appeal, were essentially twofold—
(i.) to set aside the Commissioner’s determination; and
(ii.) to direct the Commissioner to determine the proceedings afresh “in accordance with the (appeal) judgment”.

25. The combined effect of these orders was to leave nothing surviving from the Commissioner’s original determination, but to require a re-determination of the development appeal in accordance with the appeal judgment. As will hereafter be shown, it was the failure to appreciate this effect of the orders that has produced legal error which vitiates the Commissioner’s further determination

26. Although not in terms required by the Orders, the effect of Cowdroy J’s orders was in the nature of an order for a re-trial or a re-hearing. However, importantly in this respect, in the interests of justice and economy, the manner in which such a re-hearing was to proceed was very much governed by the joint and reasonable wishes of the parties. (In the present case no such joint approach was forthcoming—indeed, the parties adopted opposing views on the nature of the Commissioner’s task on the re-hearing). But however the re-hearing was to proceed, it is simply not correct to conclude that on such a re-hearing the parties require leave to call further admissible evidence.

27. That this is so, is demonstrated by the decision of the Court of Appeal in Minister Administering the Heritage Act 1977 v Haddad (unreported 4 February 1991) where the Court unanimously reversed the decision of Stein J (as he then was) in deciding that in Class 3 proceedings remitted by the Court of Appeal to this Court for “re-hearing”, the parties were not entitled to adduce further evidence “as a right”.

28. The Chief Justice, in giving the leading judgment of the Court held at p 4

…..subject to whatever might be said to follow from the provisions of s 38 of the Land and Environment Court Act, provided the evidence in question is otherwise admissible then either party to the proceedings before Stein J is entitled to lead it.

29. Priestley JA at p 5 added the following observations

I will simply say that Stein J’s views seem to me to be based on the idea that the re-hearing was going to be a continuation of the first hearing. In my opinion that is not so. There can be little doubt on reading the reasons of this Court in the first appeal in this case that the Court intended by its order to order a re-hearing not different in any formal way from a re-trial, but having in mind a re-trial at which the various aids to avoidance of unnecessary repetition of what had happened at the first trial would be available.

The fact that the re-hearing is in my view a new proceeding in which the parties are to be at liberty to put whatever material they wish before the Court does not mean that there are not various resources available to the Court by which the real issues between the parties can be brought to view and means adopted by which the unnecessary calling of evidence or proof in formal or quasi-formal ways need not be gone through.

30. Arguably, it would have been open to Cowdroy J in propounding his orders allowing the first s 56A appeal to have expressly limited any re-hearing to a determination of the outstanding issue of the social impact of the proposed brothel development: see the LEC Act, s 56A(2). Such an outcome would have been comparable to that resulting in a hypothetically comparable case, from the exercise of the powers specifically conferred upon the Court of Appeal by Supreme Court Rules Pt 51 r 23. Subrule (2) enables the Court “to order a new trial on any question without interfering with the decision on any other question” and subrule (3) enables the Court to order a new trial on “the affected part only of the matter in controversy”. Subrule (5) enables the Court to give consequential orders including orders in respect of the use on the re-trial of the testimony given at the former trial.

31. Although the Rules of this Court in relation to s 56A appeals do not expressly adopt the cited Rules of the Supreme Court, I think that the equivalent power is nevertheless conferred by the LEC Act, s 56A(2), either by force of itself, or in combination with the LEC Act, s 38(4) which provides:

In proceedings in class 1, 2 or 3 of the Court’s jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing

32. How then, did the hearing of the remitted case proceed?

33. At the commencement of the hearing, the Solicitor for the Council advised the Commissioner of the following matter that is not, in terms, disclosed in Cowdroy J’s judgment:

Well the order was the proceedings be referred to Commissioner Bly. There was an application made at the time that the decision was delivered by His Honour that the matter be simply referred back to you Commissioner to determine the application by way of approval and the determination of the relevant conditions. His Honour indicated to the parties that there may be reasons which were not disclosed in your earlier decision which would go to the Court again determining the application by way of refusal. In other words there -

34. A little later, the Commissioner’s attention is drawn to the formal orders made by Cowdroy J (which are in different terms from the Orders recorded at p 351 of the reported reasons for judgment) in response to the Commissioner’s question concerning the effect of those formal orders. This led to the following exchange between the parties’ legal representatives and the Commissioner as recorded at Transcript p 4:

Austin (or Rigg):The determination of the Court comprises the judgment of the Court and the orders of the Court. In other words it will be as if the council was determining the matter afresh. It’s a determination of the Court in respect of the application that’s now before you Commissioner.

Commissioner: Well then when you read order No 3 the proceedings are remitted to me for determination in accordance with this judgment. Now that judgment in turn reflects upon my original judgment.

Austin: That’s right. And your determination will be in accordance with the judgment of His Honour and will be in place of your determination of 7 April, that’s how the system simply works, Commissioner. It is simply too late for my friend to have second thoughts about the evidence and seek to reconstruct the case or bring a different case or a supplementary case. There was every opportunity at the first hearing to call all the evidence that he wished to call. The Court remembers that there was comprehensive evidence from all sorts of people and the matters of fact were determined and there was a question of law ventilated simply and the simple requirement is for the matter to be determined according to those findings of law. That’s the simple purpose we’re here for this morning Commissioner.

35. Thereafter, the Transcript records the Council’s unsuccessful attempt to adduce further evidence. In rejecting the evidence sought to be led from a person who resided nearby another brothel, Commissioner Bly is recorded as saying:

I don’t think it would be appropriate to seek to call another witness to try and adduce evidence to counter a conclusion which I have already clearly made. (Transcript p 7)

36. This ruling obviously created some doubt as to what the Council might legitimately essay at the hearing, leading the Council’s Solicitor to enquire whether he might refer in his submissions to the evidence given at the original hearing (Transcript p 9).

37. This enquiry prompted the following submission from Senior Counsel for the Applicant:

Commissioner what we understand the proceedings to be is that Mr Rigg can make submissions on findings you should make based upon the law as Mr Justice Cowdroy has determined it to be. He can refer to evidence that has been given before the Court for the purpose of reference to the decision of Mr Justice Cowdroy. We think those submissions will be very limited because it’s a very limited error. It’s within a narrow compass but that’s all that can be done in proceedings of this nature. That’s the very nature of them. But there’s no prohibition if he wants to upon Mr Rigg making submissions on the evidence based upon the matter the Judge determined. That’s the ambit of the proceedings today, in our submission. (Transcript p 9)

38. This submission led to the following exchange between the parties and the Commissioner (Transcript pp 9 - 11):

Commissioner: Well that’s what I thought. Well Mr Rigg you seem to have a different view.

Rigg: Well I do Commissioner because there are circumstances in which a Commissioner can draft a judgment in Class 1 proceedings where an error is disclosed in the way that the decision has been constructed. It’s open to a party on a remission of those proceedings for determination before a Commissioner to make further submissions in relation to the manner in which the Court on the evidence that was before the Court prior to the original determination can make a decision consistent with the law and consistent with any determination made through the section 56A appeal process.

Austin: I’ve conceded that Commissioner but that’s the limit of it.

Commissioner: I have re-read my judgment and I have read the decision of Justice Cowdroy and my recollection of my judgment when I wrote it was that I dealt with a number of matters that I thought were of particular importance and I made a number of conclusions which were favourable to the applicant based upon the evidence. I then looked at the proposal in a somewhat different context and on that basis I was of the opinion that despite those conclusions which supported the applicant I felt that the proposal - that the application should be rejected. My understanding of what Justice Cowdroy has done is that he has taken away the latter half of my judgment. In other words the basis upon which - the very basis upon which I decided the appeal should be dismissed has no foundation in evidence and therefore it should be taken away. Now I thought the matter was as simple as that and that I then am required to make a further decision in relation to the remainder of my judgment if you like and that the outcome of that is every clear or it seems to me to be very clear. Now I don’t understand what else I can do. I’ve made a decision about further evidence and it seems to me that basically my task is to apply the decision of Justice Cowdroy to my judgment and to then make orders based upon what remains of that judgment.

Austin: Precisely Commissioner.

Rigg: In the respondent’s submission you are able with respect to expand upon your reasons. It will be the -

Commissioner: I’m able to expand upon my reasons. I’d take a lot of persuading to want to add to any reasoning I gave in my judgment.

Rigg: That’s the matter which is the task before the respondent today.

Austin: We very much doubt -

Commissioner: Persuade me that I should add to those reasons. Why should I do that because those reasons that I gave were not the subject of an appeal.

Austin: Correct.

Commissioner: And have not been disturbed.

Rigg: Those findings in relation to the matter of physical amenity are not matters to which my submissions are to be addressing. But the way in which the Court languaged the public interest, the social impact, the social effect is the matter to which my submissions would be addressing because it seems to the respondent that His Honour has set aside your earlier decision because of the way in which a finding in relation to the lack of anti-social behaviour was inconsistent with your conclusion. In the respondent’s submission there are many reasons why your conclusion is correct for other matters which are not inconsistent with that first finding that you made.

Commissioner: Well if you want to make submissions in relation to my judgment itself and how that judgment should be interpreted in the light of Justice Cowdroy’s conclusions, I can’t object to that. Can I Mr Austin.

Austin: No Commissioner, you can’t stop the Council making those submissions but Commissioner we will be saying that it comes to exactly the same point that you have enunciated. That findings of fact have been made. It’s a simple question of applying the correct law to those findings of fact and the judgment has told us how it should be done.

Commissioner: Are you able to do that Mr Rigg or you want to go beyond that?

Rigg: My submissions will be going to what your original decision and the way that that was constructed. Putting before the Court the evidence that you could rely upon in relation to

Commissioner: Putting before the court the evidence I could rely upon?

Rigg: In drafting or languaging the conclusion that you made in a different fashion which would have given rise to the same result but which would not offend the finding of fact that you had made in your original decision about the lack of anti-social behaviour on the part of workers or clients to the proposed premises.

Commissioner: It seems to me that the best way for me to deal with this is to hear submissions beginning with you Mr Rigg. Would you have a problem with that Mr Austin? And if there’s something that arises in those submissions that is objectionable, then deal with it.

Austin: Well Commissioner I, obviously my friend can make submissions, but making submissions on the original decision and the original evidence, he’s already done that and you’ve made findings on that.

Commissioner: He’s made submissions on the original evidence.

Austin: Yes

Commissioner: Not upon my judgment upon that evidence.

Austin: No

Commissioner: And I think that’s what he wants to do.

Austin: On the judgment?

Commissioner: I’m not quite sure what’s going to come out of that.

39. Thereafter, the parties made their respective submissions.

40. Firstly, Senior Counsel for the Applicant advanced the following submission (Transcript p 11 and 12):

My submission is that the matters of fact have been determined, the question of the way the Court is to look at it in law has been determined, a simple application of those findings to these facts can result in only one conclusion, that is that the appeal be allowed, the development consent granted thirdly on conditions in exhibit O. They’re our submissions.

41. Next, the Council’s Solicitor advanced a number of submissions directing attention to a number of specific items of evidence given at the original hearing which attested to an adverse social impact (including local community offence at the proposal) perceived by a number of persons living, working or moving in the vicinity of the site of the proposed brothel development, being an impact that was unrelated to “fear about potential inappropriate behaviour of patrons and workers of the proposed brothel”.

42. There is no need for me to refer to the detailed items of evidence cited in the submissions made by the Council’s Solicitor other than to note that they are quite numerous.

43. In the course of the Council’s submissions, Senior Counsel for the Applicant objected (as he had been invited to) on the grounds that the submissions (i) were in effect an (impermissible) appeal against Cowdroy J’s decision; and (ii) “went nowhere” because it was not open to the Council to attack either the Commissioner’s findings made in the original determination (save for that single finding that had been held by Cowdroy J to be unsustainable at law) or the determination of the law made by Cowdroy J: Transcript pp 15 and 16

44. Although these objections were not immediately ruled upon and the Council was allowed to continue with its submissions (which had given rise to the objections), I refer to the objection because it reveals what I shall hereafter demonstrate to be a fundamental fallacy which permeated the re-hearing and ultimately legally flawed the Commissioner’s further determination on the remitted proceedings. That fallacy is that all the findings contained in the Commissioner’s original determination, other than the single finding which Cowdroy J on appeal found to be legally insupportable, not only survived the outcome of the s 56A appeal (setting aside the Commissioner’s original determination) but were to be automatically and intractably factored into the Commissioner’s re-determination of the appeal in a manner that effectively foreclosed consideration by the Commissioner of the social impact of the proposed brothel development.

45. Throughout the course of the Council’s Solicitor’s address (at p 12 to 21 of the Transcript), the Transcript records the Commissioner on many occasions inviting the Council’s Solicitor to point to the evidence that supported the Council’s submission that development consent should be refused on account of the adverse social impact of the proposed development. This process continued to yield the same inconclusive dialogue with the Council’s Solicitor referring to specific items of evidence and the Commissioner responding by referring to his findings in his original determination which had not been the subject of Cowdroy J’s appeal judgment.

46. The dialogue between the Council’s Solicitor and the Commissioner culminated with the Council’s Solicitor’s reference to the decision of the Full Court of the Supreme Court of Queensland in Broad v Brisbane City Council (1986) 59 LGRA 296 and to the decision of Commissioner Dr Roseth in this Court in Graham Richter and Associates Pty Ltd v Campbelltown City Council (unreported 10 July 2000) in support of his submission concerning the “social amenity or social effect” of the proposed brothel development.

47. In reply, Senior Counsel for the Applicant submitted, inter alia, that the Council’s submissions “seemed to ignore the reasons in the decision and be a submission in the face of your findings in respect of which there was no appeal”. It was further submitted that all of the evidence that had been referred to in the Council’s Solicitor’s submission had been referred to at the original hearing and that the only change was the Council’s reliance upon the broader concept of “amenity” exemplified in the decision of the Queensland Supreme Court in Broad. As to the relevance of that decision, Senior Counsel for the Applicant submitted that whatever the words “perceptions of behaviour, the fear, the widespread adverse community reaction” might mean, they had been dealt with by the decision of Cowdroy J in the s 56A appeal in accordance with earlier decisions of this Court, including that in Liu.

48. At the conclusion of the hearing and following a brief adjournment, the Commissioner delivered his judgment on the remitted case, upholding the appeal and granting development consent subject to specified conditions.

49. After reciting the effect of his original determination and of the appeal judgment of Cowdroy J, the Commissioner’s judgment proceeds as follows:
5. Today I heard submissions from Mr Austin, to which I will return shortly but which essentially ask that given that the substantial reason for refusal has now been put aside, that I should grant the consent as sought, subject to the conditions in Exhibit O.
6. Mr Rigg for the respondent council submitted that, despite my findings and taking into account the decision of Cowdroy J, I am still able to decide that the proposed brothel is indeed in an inappropriate location. This submission was based upon reasons other than the question of inappropriate behaviour, which was the aspect of my judgment which, as it turns out, was fatal to my final conclusion. As Mr Rigg explained, when the matter of inappropriate behaviour is put aside, the Court can still, based upon the evidence available to it, consider social effect and community concerns and still reach the conclusion that the application should be rejected.
7. Central to this concern was the matter of whether the brothel was in an appropriate location. He referred to the earlier evidence of Mr De Fina and Mr Mitchell, both consultant town planners who gave evidence at the hearing before me, as well as the extensive evidence of the objectors. From this, he submitted that I could rely on rational concerns expressed by residents, based upon their perceptions and concerns about how the amenity of their locality would change as a result of the proposed brothel.
8. Mr Rigg referred me to two cases which he believed would assist me in determining this matter, the first being Graham Richter & Associates Pty Limited v Campbelltown City Council, (10045 of 2000), a matter which was heard by Commissioner Dr John Roseth. He also referred me to the Supreme Court of Queensland case of Broad v Brisbane City Council & Anor. (1986) 59 LGRA 296 It was not necessary for me to read those cases because I had, for different reasons, read them fairly recently. However, I found no assistance in those cases in relation to this matter.
9. Mr Austin submitted in effect that the matters raised by Mr Rigg had been dealt with in my earlier judgment, which accepted that the location of the brothel was the main issue in the context of public interest. I have re-read my judgment and, while it may not have specifically dealt with all of the evidence in detail and may not have specifically dealt with the particular aspects of the evidence raised by Mr Rigg today, I have simply not been persuaded that Mr Austin’s submission is wrong. I believe that the component of my judgment which resulted in the application being refused and was not, according to Cowdroy J, supported by the evidence, is severable from the remaining conclusions which support the proposal.

10. I have thus decided that the appeal should be upheld and development consent granted in accordance with the conditions in Exhibit O. Detailed orders will be prepared and made available in due course. The exhibits, except for Exhibit O, are returned.

C. THE COMPETING ARGUMENTS ON THE SECOND S 56A APPEAL

50. The Council’s argument (which considered together the three stated grounds for appeal) was that the Commissioner had misdirected himself as to the task properly required of him on the remitted case and that in consequence he had come to a decision that was legally flawed inasmuch as it merely severed from the original determination the finding which Cowdroy J had held to be legally unsustainable and given effect to the original determination’s findings that were not the subject of Cowdroy J’s appeal decision, and that in so doing, the Commissioner had failed to give proper consideration to the Council’s case based upon the adverse social impact of the proposed brothel development.

51. The Applicant’s contrary argument was to the effect that the Commissioner had properly reconsidered the development proposal and in so doing, had specifically considered the Council’s case based upon the alleged “adverse social impact” of the proposed development, but that his decision simply had gone against the Council on this point and was legally unimpeachable.

D. CONCLUSIONS AND ORDERS

52. In my judgment, the Commissioner’s further determination of the remitted proceedings was legally flawed. The source of the flaw is almost certainly to be found in the Commissioner’s misunderstanding of the task that was properly before him on the remitted proceedings. I have already made extensive references to this error which is clearly revealed in the Transcript of the hearing of the remitted proceedings. In so misdirecting himself, the Commissioner obviously relied upon and accepted the Applicant’s submissions as to the proper nature of his task on the remitted case (which I have also illustrated by reference to the transcript) which were also legally erroneous.

53. The direct consequence of this material misdirection was the flawed manner in which the remitted proceedings were determined, namely to simply adopt the Commissioner’s own words “…the component of my judgment which resulted in the application being refused and was not, according to Cowdroy J, supported by the evidence, is severable from the remaining conclusions which support the proposal” (par 9).

54. In so concluding, the Commissioner had also accepted the Applicant’s argument that the Council’s submission (concisely summarised in par 7 of the Commissioner’s judgment) “had been dealt with in my earlier judgment, which accepted that the location of the brothel was the main issue in the context of public interest”. (par 9 of the Commissioner’s judgment).

55. In my judgment, the Commissioner’s acceptance of the Applicant’s argument exposes error in respect of each of the two possible interpretations to be given to the Commissioner’s finding—
(i.) error that the original findings necessarily excluded even the possibility of different findings being made based upon an acceptance of the Council’s case; or
(ii.) error that the original findings on physical aspects of “amenity” excluded consideration of “non physical” aspects of the concept of “amenity” (as were held in Broad to exist) in the context of a consideration of the “social impact” of the proposed brothel development.

56. In elaboration of these conclusions, I would add the following observations. As to the first mentioned error, it is apparent from the reasons for the Commissioner’s original determination that his evaluation of the proposed development in terms of the EP&A Act, s 79C proceeded in two discrete stages—
(i.) firstly (at par 16 to par 43 (incl), he considered the physical impacts of the proposed development concluding at par 43 that upon his analysis, development consent “could be granted”; and
(ii.) secondly (and separately) at par 44 to par 57, he considered the social impacts of the proposal, concluding at par 57 that “there are likely to be adverse social impacts of sufficient magnitude to warrant, in the public interest, refusal of this application, despite my earlier findings in relation to amenity”.

57. The EP& A Act, s 79C required the Commissioner, in determining the development application, to take into consideration such of the following matters as are of relevance to the development—
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments and social and economic impacts in the locality;
(c) the suitability of the site for the development;
(d) any submissions made in accordance with this Act or the regulations; and
(e) the public interest.

58. It is apparent from the reasons for the Commissioner’s original determination, that he considered each of the aforesaid matters to be of relevance to the proposed development.

59. Although his original determination proceeded along the two separate stages that I have identified, his ultimate determination reflected his overall evaluation of the proposal, having regard to his findings on matters of relevance. It is apparent that in his discretionary planning judgment, he concluded that the adverse social impacts of the proposal outweighed his findings in respect of amenity in favour of the proposal. It is also apparent from this outcome that the Commissioner’s findings in relation to amenity did not include findings in relation to the social impact of the proposed development. It necessarily follows, in my judgment, that the mere resurrection of his original findings in respect of “amenity” did not, and could not, embrace any relevant findings on the social impact of the proposed development. Accordingly, it was simply not possible for the mere resurrection of the original findings in respect of amenity to subsume any findings that might be available or justified by an evaluation of the evidence relevant to the social impact of the proposal.

60. As to the second mentioned error, it is clearly established in the decided cases that the concept of “amenity” in a town planning context (including one that does not include, as a potentially relevant consideration “social impact of the proposal in the locality”), is a concept that transcends merely physical content. Broad’s case very amply demonstrates the width of the concept “amenity” in a town planning context, Thomas J in his judgment at p 298 to 299 providing a detailed analysis of the concept, as originally expounded in the decided cases in the NSW Land and Valuation Court in the 1950s and 1960s. His Honour’s analysis concludes with the following passage at 299:

The real criticism of his Honour’s use of these perceptions is not so much that they were subjective as that they were vague, irrational, or incapable of adequate explanation. Common lawyers and men of equity alike have a healthy and longstanding distrust of the mystical explanation, and of the alleged factor which cannot be rationally justified. The question arises whether the use of the present criteria was impermissible or unsafe in principle. I do not think that they were. The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic, and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of atmosphere . Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident.

These remarks are not intended to encourage resort to vague statements as justification for an irrational conclusion. But it is necessary to recognise that some matters in this area, although intangible and difficult to articulate, may be real and may properly be taken into account. Aesthetics may of course be a relevant consideration in a town planning decision although the basis of the opinion may be difficult to explain. It follows that, although some of the particular factors upon which his Honour relied were admittedly vague, they were not necessarily invalid or improper considerations. No error of law is disclosed on this point.

61. To similar effect, is the analysis of the concept of “amenity” found in the judgment of de Jersey J (as he then was) at 302 to 305 which concluded with the following passage:

There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is, or may be, put may affect one’s perception of amenity.

62. These passages from the judgment in Broad were adopted and applied by the Full Court of the South Australian Supreme Court in Novak v Woodville City Council (1990) 70 LGERA 233 at 236 where Jacobs J, in giving the judgment agreed in by other members of the Court said, in rejecting an argument that resident objectors’ disapproving of the activities of an escort agency was “purely a subjective response”:

The short answer to that submission, as it seems to me, is that many planning judgments, not least those which have to assess a planning proposal in terms of its impact upon the amenity of a particular locality, necessarily involve a subjective element, leaving room for opinions to differ in weighing the same objective criteria.

63. After quoting the relevant passages from Broad, Jacobs J continued at 236/237:

It is no doubt correct to say, as Cripps J said in Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67, that the Court ought never to allow its own personal view of matters of taste or sexual morality to be a substitution for the evidence, or to fill a vacuum left by the evidence but heeding that warning, it does not mean that matters of taste and morality must necessarily be put to one side when determining whether or not a development is appropriate . Cripps J went on to say:


It must always be a question of fact whether the amenity of a neighbourhood will be or is likely to be adversely affected by a development. It is not difficult to envisage a development which may cause such great offence to a significantly large part of a community that for that reason it ought not to be permitted on town planning grounds.

64. In my judgment, the very wide concept of “amenity” expounded in cases like Broad applies with even greater force in a statutory scheme like the EP&A Act, s 79C which in par (b) gives effect to the widest conceivable scope of “likely impacts” of a proposed development, including environmental, economic and social impacts, without employing the term “amenity”..

65. The Commissioner’s explicit rejection of the Council’s reliance upon Broad’s case (“…I found no assistance in those cases in relation to this matter”: par 8) in my respectful opinion, is a cogent indication that the Commissioner either did not properly consider the social impact of the proposed development or constructively failed to consider the social impact of the proposed development.

66. As I have already indicated, the reason for such a result is probably the combined effect of (i) his failure to appreciate his task in respect of the remitted case (to determine afresh the development appeal); (ii) his failure to appreciate that the “social impact” of the proposal was not subsumed by this original finding in relation to “amenity”; and (iii) his failure to appreciate that the evidence relevant to his findings in relation to “amenity” could additionally (and separately) function as evidence of the relevant “social impact” of the proposal.

67. In so concluding that the Commissioner’s rejection of the Council’s reliance upon the decision in Broad demonstrates relevant legal error (probably latent rather than patent), I would also reject the Applicant’s submission (advanced to the Commissioner, but not to me) that the decision in Broad has been somehow displaced by the decision of this Court in Liu or by Cowdroy J’s decision in the present proceedings in upholding the first s 56A appeal.

68. The Commissioner’s reasons for judgment do not positively indicate whether he accepted the Applicant’s submission, but however he regarded it, it should, in my judgment, be rejected.

69. For all the foregoing reasons, I am of the opinion that the Commissioner’s further determination is flawed by the legal error that I have identified. Does this finding vitiate the Commissioner’s decision? I pose this question, having regard to the litigation history and the unwelcome prospect of requiring yet a further determination of the case by the Commissioner.

70. If I were satisfied that the Commissioner’s second determination represented his evaluation of the proposal conformably to the EP&A Act, s 79C, in the sense that he had truly considered the Council’s submissions that he could and should refuse development consent on account of the adverse social impact of the proposal, but that in the exercise of his discretionary judgment, he had concluded that there was no adverse social impact or that though there was such an impact, in his overall evaluation of the proposal that fact was outweighed by other facts suggesting that development consent should be granted, then I would not be disposed to uphold the Council’s appeal and require a further determination by the Commissioner. Similarly, if I were satisfied that any further determination by the Commissioner would almost certainly produce the same result as in his second determination, I would hesitate before upholding the appeal.

71. However, for the reasons that I have given, I am not so satisfied of either matter. Indeed the case, in my respectful opinion, is overwhelming that for whatever reason, (and probably the reason is that which has given rise to a constructive failure on his part to consider the social impact of the proposed development in the locality), the Commissioner’s further determination has not embraced any finding in relation to the social impact of the proposed development, save for the legally erroneous finding or premise (explicit or underlying) that it is subsumed in, or excluded by, his findings in relation to amenity contained in his original determination.

72. Accordingly, the appeal must be allowed and the proceedings must be remitted to the Commissioner for further determination of the development appeal.

73. Hopefully the parties can agree on this occasion upon the manner in which the remitted case is to proceed. For example, they may agree that the re-determination is to be based upon the evidence adduced at the original hearing. They may even agree that the re-determination may proceed without the need for a further hearing. On the other hand, they may agree that further submissions should be made or that further evidence should be adduced.

74. If the parties are unable to agree upon the manner in which the required re-determination is to proceed, the Commissioner should exercise the power conferred by the LEC Act, s 38(4) to direct the appropriate procedure to be adopted in the interests of fairness and efficiency.

75. To assist in this process, I shall direct the parties to confer with a view to agreeing upon the manner in which the case is to proceed to the required re-determination and to notify the Registrar within 21 days as to their agreement or failure to agree, in which latter event, the matter is to be listed for procedural directions so that the Commissioner’s task for a re-determination is facilitated.

76. For all the foregoing reasons, I make the following orders:

1. Appeal allowed.

2. Decision of Commissioner Bly dated 3 November 2000 set aside.

3. The proceedings are remitted to the Commissioner for re-determination of the development appeal in accordance with my reasons for judgment.

4. The parties are directed to confer upon an agreed manner in which the re-determination is to proceed and to inform the Court within 21 days of their agreement as to the procedure to be adopted , or of their failure to agree, in which latter event, the proceedings are to be listed for directions as to the procedure to be adopted for the re-determination of the development appeal.