Wang v Blacktown City Council - [2009] NSWLEC 114

Land and Environment Court

of New South Wales

CITATION: Wang v Blacktown City Council [2009] NSWLEC 114

PARTIES:
APPLICANT:
Shao Ling Wang
RESPONDENT:
Blacktown City Council

FILE NUMBER(S): 11060 of 2008

CORAM: Biscoe J

KEY ISSUES: APPEAL :- limited to question of law - appeal from decision of commissioner dismissing merits appeal against council refusal of development consent for brothel - development standard in local environmental plan prohibited brothel near or within view from a church - SEPP 1 objection that strict compliance with development standard would be unreasonable or unnecessary - commissioner decides that SEPP 1 objection does not address objective of development standard and merits appeal therefore fails - whether commissioner erred in law in referring to evidence of objective of development standard which included reference to ideologically opposed land uses - whether determination of objective of a development standard involves a question of law

LEGISLATION CITED: Blacktown Local Environmental Plan 1988, cl 42A(1)(c)
Environmental Planning and Assessment Act 1979, s 79C
Interpretation Act 1987, ss 3, 33
Land and Environment Court Act 1979, s 56A
State Environmental Planning Policy No 1 – Development Standards, ss 3, 6, 7

CASES CITED: Billgate Pty Ltd v Woollahra Municipal Council [2007] NSWLEC 655, (2007) 156 LGERA 380
Collector of Customs v Agfa – Gevaert Ltd [1996] HCA 36, (1995-1996) 186 CLR 389
Dixon v Burwood Council [2002] NSWLEC 190, (2002) 123 LGERA 253
Fairfield City Council v Liu Lonza & Beauty Holdings [1997] NSWSC 37
Hooker Corporation Pty Ltd v Hornsby Shire Council (unreported, Land and Environment Court of NSW, Cripps J, 2 June 1986)
Liu v Fairfield City Council (1996) 130 LGERA 230
Marpet Enterprises v Eurobodella Shire Council [2000] NSWLEC 159, (2000) 108 LGERA 432
Martyn v Hornsby Shire Council [2004] NSWLEC 614
Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28, (1998) 194 CLR 355
Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGERA 67
Wang v Blacktown City Council [2009] NSWLEC 1044
Weynton v Rockdale City Council [1999] NSWLEC 273, (1999) 106 LGERA 213
Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46, (2001) 130 LGERA 79

TEXTS CITED: The Macquarie Dictionary, 3rd ed (1998)

DATES OF HEARING: 2 July 2009

DATE OF JUDGMENT:
8 July 2009

LEGAL REPRESENTATIVES: APPLICANT:
Mr M Baird
SOLICITORS
Storey & Gough

RESPONDENT:
Mr I Hemmings
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

8 July 2009

11060 of 2008

WANG v BLACKTOWN CITY COUNCIL

JUDGMENT

1 HIS HONOUR: This is an appeal against a decision of a commissioner of this Court under s 56A of the Land and Environment Court Act 1979. Such an appeal is limited to a question of law.

2 The commissioner’s decision was to dismiss a merits appeal against a council refusal of development consent for a brothel.

BACKGROUND

3 The appellant Shao Ling Wang appealed to the Court against the refusal by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 114
Decision Date: 8 July 2009

CaseChat Overview and Summary

Shao Ling Wang appealed to the Land and Environment Court of New South Wales against a decision by the Blacktown City Council to refuse development consent for a proposed brothel at 15 Bearing Road, Seven Hills. The central issue was whether the proposed brothel would be unacceptably near and visible to a nearby church, which would contravene the planning control in clause 42A(1)(c) of the Blacktown Local Environmental Plan 1988. Wang argued that strict compliance with the development standard would be unreasonable or unnecessary, pursuant to the State Environmental Planning Policy No 1 – Development Standards. The commissioner dismissed the merits appeal, finding that the objection did not address the objective of the development standard, which was to separate disparate land uses and prevent potential offence or conflict.

The appeal to the Court was limited to a question of law, specifically whether the commissioner erred in determining the objective of the development standard and in considering ideological objections as a relevant planning consideration. Wang argued that the commissioner's inclusion of the term "ideologically" in defining the objective was erroneous, as ideology or morality should not be relevant planning issues. The council, however, contended that the commissioner did not make such a finding and that ideological objections could be a permissible objective of a development standard.

The Court held that determining the objective of a development standard involves a question of law, as it requires statutory interpretation. The Court found that the commissioner did not err in determining the objective, which was to separate a brothel from a church to prevent potential offence or conflict, not ideology per se. The use of the term "ideologically" was considered loose but did not change the core objective of physical separation and visibility. Therefore, the appeal was dismissed, and Wang was ordered to pay the council's costs.

Orders