Thornpast Pty Limited v Parramatta City Council

[2004] NSWLEC 520

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Thornpast Pty Limited v Parramatta City Council [2004]  NSWLEC 520

PARTIES:
APPLICANT:
Thornpast Pty Limited

RESPONDENT:
Parramatta City Council

CASE NUMBER:     10550 of        2004

CATCH WORDS:     Question of Law

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, s 4
Sydney Regional Environmental Plan No 28 - Parramatta, cl 17(2)(c)

CORAM:        Pain J

DATES OF HEARING:        15/09/2004

DECISION DATE:    16/09/2004

LEGAL REPRESENTATIVES

APPLICANT:
Mr S. Berveling (barrister) instructed by Pike Pike & Fenwick

RESPONDENT:
Mr J. Johnson (barrister) instructed by Storey and Gough Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PAIN J

16 SEPTEMBER 2004

10550 of 2004                   THORNPAST PTY LIMITED v PARRAMATTA CITY COUNCIL

JUDGMENT

1. Her Honour:  Thornpast Pty Limited (“the Applicant”) has commenced Class 1 proceedings appealing against the decision of the Council to refuse its development application for consent to use the ground floor of an existing building at 105 George Street, Parramatta (“the building”) as a brothel. The land is zoned “City Core” under the Sydney Regional Environmental Plan No 28 - Parramatta (“the SREP”). The parties have asked the Court to determine the following preliminary question of law before the Applicant’s appeal is heard:
   (a)          Whether the proposal is prohibited by virtue of cl 17(2) of the SREP.

A further question (b) identified by the parties was not pressed.

The Sydney Regional Environmental Plan No 28 - Parramatta

1. Clause 17(1) of the SREP provides that:

   The objectives of the City Core zone are as follows:

   (a) to encourage Parramatta’s role and growth as a focus within the Greater Metropolitan Region for finance, commerce, tourism, cultural activities, entertainment and government services,

   (b) to provide a consolidated commercial core to the Parramatta City Centre and concentrate commercial development around the Parramatta Railway Station,

   (c) to encourage and protect accessible city blocks by providing active frontages to streets and a network of pedestrian-friendly streets, lanes and arcades.

2. Clause 17(2) of the SREP relevantly provides as follows:

   Development controls for the City Core zone are as follows:

   (a)Within the City Core zone, exempt development may be carried out without development consent.

   (b) Any other development may be carried out only with development consent.

   (c)Development at the ground floor street frontage of buildings may be carried out only for the purpose of amusement centres, child care centres, clubs, commercial premises that are frequented by customers, community facilities, entertainment facilities, hotels, medical consulting rooms, motels, places of public worship, refreshment rooms, shops and access to uses on other levels.

   (d)Despite paragraphs (a) and (b), residential buildings, other than hotels and serviced apartments, are not allowed in the hatched area identified on the City Centre Zoning Map.

3. The parties agreed that the effect of cl 17(2)(b) is that the development the subject of the Applicant’s development application is permissible with consent subject to the operation of cl 17(2)(c).

Does cl 17(2)(c) of the SREP prohibit the proposal?
The Applicant’s Submissions

1. The Applicant relied on Strathfield Council v Poynting (2001) 116 LGERA 319 to argue that cl 17(2)(c) of the SREP is a development standard which seeks to impose a locational requirement on uses other than those stipulated in the clause and does not operate to prohibit the brothel the subject of the Applicant’s development application. Rather, the Applicant argued, the clause is concerned with the location of the use as a brothel within a building on the land.

1. Particular reliance was placed by the Applicant on the following statements made by Giles J at [96] to [98] of Strathfield Council v Poynting:

   The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of “development” in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step.

   Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour’s reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of `development standards’, there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.

   If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard.

2. The Applicant argued that these statements supported its case that cl 17(2)(c) is on its proper construction a development standard as, according to the Applicant, the SREP:

   (a)does not prohibit under any circumstances the use of land in the zone for the purpose of a brothel;

   (b)does not prohibit by reason of any of the characteristics of the subject site the use of the building for the purpose of a brothel; and

   (c) permits the use of land within the zone for the purpose of a brothel; and

   (d)contains cl 17(2)(c) which, in substance, fixes a standard for the use of land within the zone so that land at the ground floor street frontage of a building may not be used for uses other than those specified in the clause.

3. Other cases relied on by the Applicant as supporting its case were Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114 and North Sydney Municipal Council v P D Mayoh Pty Ltd(No 2) (1990) 71 LGRA 222. In Quinn Cripps J held that a provision in an Local Environmental Plan which stated that “a building shall not be erected between a foreshore building line and foreshore to which that line relates” was a development standard. This was said by the Applicant to be analogous to the circumstances of this case.

4. In P D Mayoh the Court of Appeal considered whether a clause in an LEP which stated that a residential flat building “shall not be erected on land” in a certain zone if any principle building on adjoining land is less than three storeys high was a prohibition or a development standard. Mahoney JA, who with Clarke JA was of the opinion that the provision was not a development standard, made the following comments at p 234:

   I do not think that cl 14A(1)(a) is a provision ‘in relation to the carrying out of development ...’. There is, in my opinion, a distinction in the provisions between a provision which in form provides: `On land of characteristic X no development may be carried out' and a provision which in form provides: `On such land development may be carried out in a particular way or to a particular extent.' The provision in cl 14A(2) is, I think of the latter kind. If cl 14A(1)(a) provided merely that `no building shall be erected on land in Zone No 2(c) if ... ` the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of `a residential flat building'. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to `the carrying out of' development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings at the particular place. This is not a matter relating to `development standards' but to the carrying out of development at all.

The Applicant argued the second limb applied to cl 17(2)(c) suggesting it was a development standard.

1. Reliance was also placed by the Applicant on Georgakis v North Sydney Council (2004) NSWLEC 123, which case considered whether cl 12 of State Environmental Planning Policy No 5 (“SEPP 5”) which imposed a requirement that development for older people or people with a disability be located within 400m of certain amenities or transport to certain amenities. McClellan J held that the cl 12 contained a development standard. The Applicant argued cl 17(2)(c) also fixes an aspect of development such as in Georgakis.

1. The Applicant also relied on the fact that the requirement imposed by cl 17(2)(c) came within the definition of ‘development standard’ as defined in s 4 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

1. In the alternative, the Applicant submitted that, what it called an “interpretational approach” could be taken whereby the word “frontage” in cl 17(2)(c) should be construed as being confined to buildings which directly abut the road. Consequently, the Applicant argued that cl 17(2)(c) has no application to the Applicant’s proposal as the building is set back six metres from the road. I do not accept this definition of frontage as it is constrained beyond the normal meaning of the word. The Applicant also submitted that the phrase “ground floor street frontage” in cl 17(2)(c) should be construed as being confined to that part of the ground floor closest to the street, so that the Applicant’s proposal is permissible in relation to the rear of the building. I agree with the Applicant that cl 17(2)(c) does not operate to constrain development to the rear of the building and I note that the Council also accepted this to be the case.

1. The Applicant also argued that the whole of the SREP should be considered in interpreting cl 17(2)(c). In this regard the Applicant argued that the objectives contained in cl 17(1) of the SREP supported its interpretation of cl 17(2)(c) because the use of the frontage of the building as a brothel did not offend these objectives. I did not find this submission had much weight given the necessarily general nature of the objectives contained in cl 17(1). I am of the view that consideration of the objectives in these circumstances does not advance either the Applicant’s or the Council’s case.

The Council’s Submissions

1. The Council argued that cl 17(2)(c) of the SREP operates as a prohibition on the carrying out of development not identified in the clause at the ground floor street frontage of buildings within the City Core zone. Accordingly, the Council argued that cl 17(2)(c) has the effect of prohibiting the brothel for which the Applicant seeks consent.

1. The Council argued that consideration of other cases which decide the meaning of other clauses in different planning instruments is of limited assistance. The Court has before it a task of statutory construction to determine whether or not a development standard or prohibition is intended in the context of this particular Regional Environmental Plan.

1. The Council argued that the key issue to resolve in determining this matter is what is the “land” to which cl 17(2)(c) applies. While the Applicant submitted the land is all that zoned City Core, the Council submitted that as:

   (a)“land” is defined under s 4 of the EP&A Act so as to include a building; and as

   (b)“building” is defined under s 4 of the EP&A Act to include part of a building;

the “land” to which the clause relates is “the ground floor street frontage” of every building within the City Core zone. Applying the governing characteristic as identified in the first limb referred to by Mahoney JA in P D Mayoh (see par 9 above), the Council argued that cl 17(2)(c) refers to “land of characteristic X on which no development of a certain type may be carried out”.

1. Further in terms of the construction of cl 17(2)(c) the Council argues that the concession made by the Applicant to the effect that cl 17(2)(d) contains a prohibition is fatal to its argument as cl 17(2)(c) has the same effect. While cl 17(2)(d) is expressed differently to cl 17(2)(c), in that it refers to an area marked on a plan and cl 17(2)(c) does not, the intent of the subclauses is the same, namely a prohibition on the carrying out of particular development on defined land.

1. The Council, like the Applicant, argued that the whole of the SREP must be considered in determining what cl 17(2)(c) means. The Council argued that the fact that cl 17 is located in Pt 3 Div 2 of the SREP which relates to zoning provisions as opposed to Pt 3 Div 3 which relates to building design controls, which are matters more generally associated with development standards, indicates that cl 17 is intended to operate as a prohibition rather than a development standard.

1. The Council argued that the Applicant cannot derive any support for its argument on the interpretation of cl 17(2)(c) from the fact that it is preceded by subclause (b). The Council submitted that the meaning of the clauses in cl 17(2) of the SREP is not affected by the order in which they appear in terms of divulging their intent. Further, the Council argued that the fact that cl 17(2)(b) has the effect that brothels would be permissible with consent but for cl 17(2)(c), does not mean that cl 17(2)(c) is a development standard.

Finding

1. I agree with the Council that cl 17(2)(c) of the SREP is a prohibition and accordingly that the Applicant’s development application for a brothel in the ground floor street frontage of 105 George Street is prohibited. In my view the cases relied on by the Applicant do not support the contention for which it argued. Accordingly, for the reasons contained in the Council’s submissions as set out at par 14 to 19 above I am of the view that cl 17(2)(c) of the SREP operates as an absolute prohibition on the development the subject of the Applicant’s development application per Giles J at [96] in Poynting, Pain J at [52] in Penny & Anor v Cooma-Monaro Shire Council (2003) 125 LGERA 353 and McClellan J at [40] in Georgakis.

2. My answer to the question “whether the proposal is prohibited by virtue of cl 17(2)(c) of the SREP” is that the Applicant’s proposal is prohibited by virtue of this clause.