Zhang v Canterbury City Council

[2004] NSWLEC 500

Land and Environment Court

of New South Wales

CITATION:

Zhang v Canterbury City Council [2004] NSWLEC 500

PARTIES:

APPLICANT
Julie Zhang

RESPONDENT
Canterbury City Council

FILE NUMBER(S):

10449 of 2004

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Social impact of existing brothel
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Disorderly Houses Amendment Act, 1995
Canterbury City Council Development Control Plan 23
Canterbury City Council Development Control Plan 29
.

CASES CITED:

Zhang v Canterbury City Council (2001) 115 LGERA 373;
Terrace Tower Holdings P/L v Sutherland Shire Council (2003) NSWCA 289;
Kentucky Fried Chicken P/L v Gantidis 140 CLR 675;
Soueid v Leichhardt Municipal Council [2004] NSWLEC 343;
.

DATES OF HEARING:

9 and 10 August 2004

EX TEMPORE
JUDGMENT DATE :

08/10/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Klinger, solicitor

RESPONDENT
Mr A. Simpson, solicitor
PIKE PIKE & FENWICK

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

10 August 2004

10449 of 2004 Zhang J –v- Canterbury City Council

JUDGMENT

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act against the refusal by Canterbury City Council (the council) of Development Application 505 of 2003 by Ms Julie Zhang for consent to operate a brothel at ground floor premises at the rear of 303 Beamish Street at Campsie, prior use of the premises for a brothel and permission there for being subject to a number of proceedings in this Court and in the Court of Appeal.

2 On the remitter hearing before Commissioner Brown, which hearing took place on 31 August 2001, the Commissioner reached the conclusion (in a decision given on 31 August 2001) that the use should be permitted for a 12 month period. That period expired and a further development application was lodged to Canterbury City Council for the purposes of re-establishing, in a legal sense, the use of the brothel.

3 The council notified the proposal in a letter, which was circulated to, by inference, a significant number of people in the Campsie community, that letter being dated 31 July 2003. The letter referred to the operation of a business pursuant to the Disorderly Houses Amendment Act, 1995 being a brothel at the rear of 303 Beamish Street Campsie. I invited Mr A Simpson, solicitor for the council, to address me on the appropriateness of the notification as there was a continuing operation of the business at the premises and on the evidence before me the premises had been operating as a brothel since some date in 1996.

4 Mr Simpson has addressed the issue of the appropriateness of the notification and I am certainly satisfied both as to the appropriateness of the notification and that the concerns expressed by residents in response thereto should be treated as being proper and informed comments and in no way influenced by or inappropriately informed about the existing operation of the brothel on the premises.

5 There were a significant number of objections received and those are matters, which have to some extent been expanded upon in oral evidence before me in these proceedings.

6 Mr Simpson has not invited me to find and has specifically disavowed any invitation to me to find that on the material available to Commissioner Brown in August 2001 that the Commissioner’s decision was not open to him to make on the evidence then available to him.

7 However, Mr Simpson does put to me that there are a number of changes in circumstances that have arisen since that date that make me better informed than was Commissioner Brown at that date both as to the circumstances of the brothel as it operated and with respect to a number of matters that have occurred since Commissioner Brown’s decision.

8 They might be described in short as being;

• Evidence concerning the nature of a residential tenancy of the residential flat above the shop front at 303 Beamish Street, which residential flat is accessed by the common laneway from Hill Lane which also serves as access to the brothel.
• The extensive social planning evidence provided by Ms Bronwyn Caster who was a court appointed social planning expert and who conducted a one hundred person sample telephone survey of residents in the Campsie area in the vicinity of the brothel.
• Thirdly, the intensification of the use of the facilities at the Uniting Church, particularly the Uniting Church hall which is directly over the road from the premises that are used for the brothel: and
• Finally, the material obtained from the New South Wales Police Service that relates to matters, a number of which the respondent council submits I should have regard to as being of relevance to the brothel. With respect to that latter material it is submitted that I should have regard to the evidence of the expert town planning witness, Mr Moody, who was a court appointed witness instructed for the purposes of investigation of town planning issues.

9 Of particular importance in this case are the provisions of the Canterbury City Council Development Control Plan for the control of development legalised by State Parliament under the Disorderly Houses Amendment Act 1995 known as Development Control Plan 23 (DCP 23). DCP 23 was a matter that was involved in the earlier proceedings and in the proceedings in the Court of Appeal.

10 As to the emphasis that I should give to this Development Control Plan and, to a lesser extent, Development Control Plan 29 for crime prevention (DCP 29), the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a Development Control Plan in determining whether to grant development consent.

11 From what was said in that decision by Spigelman CJ at para 75 on pp 386 and 387, in my view three, propositions emerge:

• Although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered.
• Secondly, the provisions of a Development Control Plan are to be considered as a fundamental element in or a focal point to my decision making process, particularly, as is the instance in this case, where there are no issues relating to the compliance or otherwise with the Local Environmental Plan and,
• A provision of the Development Control Plan directly pertinent to the application is entitled to significant weight in the decision making process but is not in itself determinative.

12 Indeed, if a proposal does not meet the Development Control Plan’s requirements, the Court may still grant consent in an appropriate case given a proper and genuine consideration of the provisions of the Development Control Plan and having considered all other matters that are relevant under s 79C of the Act.

13 One of the matters that is dealt with in s 79C of the Act is the question of the public interest. It is clear from a further decision of the Court of Appeal in the case of Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289 where the decision of Mason P, with which Spigelman CJ and Ipp JA concurred, makes it clear, at para 81, that planning instruments and the like, including Government policies, are not the sole repositories of information as to the public interest and that it is possible and, in appropriate cases, acceptable for the Court to range more widely, indeed, range very widely in search for material as to the public interest.

14 It is clear as to the scope of what might be encompassed by the public interest concerning social impacts. In the decision of Stephen J in Kentucky Fried Chicken Pty Limited v Gantidis 140 CLR 675 at p 687 he clearly enunciates that the public interest is also something that can be taken into account appropriately and independently from any statutory provision as being a matter of proper planning concern.

15 As a consequence, I turn to the matters that have arisen and are in evidence before me concerning the present application that differ from those matters that arose for consideration by Commissioner Brown.

16 The first matter concerns the use of the residential flat above the premises at 303 Beamish Street. The evidence that was given in this regard came primarily from Ms Havea but was supplemented by the evidence of Mr Thomas, the deacon of the church, and Mr Isaac, the youth worker or community worker at the church. There is also some supplementary information contained in Ms Caster’s social impact report on this matter.

17 I am satisfied that the particular circumstances of the tenancy of the family comprising a mother and six children was inappropriate. It is clear from the material contained in Ms Caster’s statement of evidence and in the oral evidence given by Mr Moody that both of them regarded it as inappropriate. The access to the residential premises is down the common laneway shared by the property. However, Commissioner Brown found that that in itself would not be determinative as a reason for rejection.

18 I put the proposition in light of his evidence and his understanding of that tenancy to Mr Moody as to whether he regarded that conflict of access as being a matter which I should regard as determinative, Mr Moody having been appointed as the independent court expert on town planning issues.

19 Mr Moody made it expressly clear in response to the question from me that whilst he felt that the access was inappropriate, it was not, as a single matter, determinative and ought not on itself provide a basis for refusal of the application.

20 I accept his evidence and I accept his evidence as supporting two propositions:

• The access is inappropriate and,
• This is not determinative but that if there were other unsatisfactory aspects of the present application such conflict of access could contribute to providing reasons for rejection of the appeal.

21 The second matter to which I turn is the material provided by the New South Wales Police Service. In this regard I am indebted to Mr Simpson for his provision of a tabular summary of the material.

22 Although that table refers to some fourteen matters or dates, Mr Moody relied on four of them as providing some support for his proposition that the nature of the police inter action with the premises was such that it demonstrated that it was inappropriate to be permitted to continue.

23 The first of those four matters comprised an incident in January 2000 when the proprietor of the premises made contact with the police. In this regard, Mr R Fleming, town planner on behalf of the applicant, gave evidence. I accept, on this point, his evidence that he had been informed by the proprietor of the premises that he had made contact with the police (that being a matter upon which the police material is silent but does not in any way impliedly contradict Mr Fleming’s evidence). The police report notes that he, Mr Wang or Wong (there being some confusion as to the pronunciation of his name) had been approached seeking the payment of what might be regarded as protection money for these and other premises of a similar nature operated by him. There is some statement that he had retained the services of a Mr Bristow to assist him in resisting the making of such payments. However, all that that incident discloses, as far as I am concerned in these proceedings, is that an inappropriate approach was made to the proprietor concerning these and other premises and as a consequence of that approach he informed the police of it. I do not consider that there is anything arising out of that that should cause me to draw an adverse inference with respect to the actual operation of the premises at the rear of 303 Beamish Street at Campsie.

24 The second matter that Mr Moody relied upon was a police report concerning 3 July 2002 when an anonymous male person telephoned the Campsie police station informing that he had been seeking to be a patron of the premises and that he had been taken into a side room and shown a number of firearms. The informant declined to give his name. The police, as far as their material goes, did not take the complaint sufficiently seriously to attend the premises and I am satisfied that in light of the anonymity of the complainant and the inaction of the police that I should draw no adverse inference concerning the operation of the premises from that report.

25 The third matter upon which Mr Moody relied is a police incident report concerning 6 August 2002 in which there was a further anonymous complaint that there were armed men present at the premises. The police attended the premises in response to the complaint and the police report notes “nil armed males sighted”. Given the anonymity and the positive lack of finding of anything adverse to the premises by the police in their attendance, I am satisfied that I should not draw any adverse conclusion with respect to the operation of the premises from that incident.

26 The fourth matter that was relied upon by Mr Moody is an extensive report concerning an attempted robbery at the premises that took place on 4 February 2003 in the evening when a number of offenders appear to have attended the premises and attempted to extract money from two persons on the premises who were connected with the management of the premises. It was not an armed robbery as can be seen from the notation of the police report material provided in evidence. It is a matter about which it might be appropriate to draw an adverse inference as to the attraction of a brothel to the persons who carried out the robbery.

27 Mr Fleming gave evidence that he considered that it was not a matter which might have arisen concerning the premises because of the particular location and he also sought to persuade me that I ought not draw an adverse inference with respect to this operation because robberies take place of commercial premises on a regular basis in our society.

28 I am not persuaded that those generalities are appropriate but what is of concern to me is whether or not I should draw an adverse inference as to the social impact on the community generally rather than on those who might be in attendance at the premises at the time such incident took place. There is no evidence before me in the police material or otherwise that anybody else was aware of this apart from the police report.

29 The evidence that was given by the various witnesses associated with the church made no particular comment about being aware of the nature of the specific incident or being concerned about it despite the general awareness of police interest in the premises evidenced by the police hiring a room in the church hall for the purposes of undertaking surveillance of the premises for a week long period (which may have been earlier this year or earlier last year – the evidence being imprecise on that point).

30 I am, however, prepared to draw the inference that there should be some modest degree of concern arising as to the possible recurrence of such an incident. The question that will be appropriate for me to address, as I will later in these reasons, is as to whether or not that coupled with any other matter should warrant refusal of the application.

31 I note that there is, in the material in evidence, no formal police objection to this application.

32 The next matters that arise for consideration are those matters that relate to the conclusions of Ms Casters’ social impact survey.

33 In this regard Mr Simpson referred to an earlier decision I gave concerning a brothel that was operating contrary to planning controls on Parramatta Road at Annandale (see Soueid v Leichhardt Municipal Council [2004] NSWLEC 343). In those proceedings I postulated that the appropriate test to be applied was not whether there were apprehensions held genuinely by local residents and others but what the realistic likelihood was of those apprehensions being realised and if those apprehensions were realised whether the impact of that realisation was unacceptable. I remain of the view that that is the appropriate test to apply for premises such as these.

34 It is quite clear from the evidence contained in Ms Casters’ report that there is a significant degree of local community apprehension concerning the use of the premises at a brothel. However, there are a number of matters from her telephone survey that should be recorded specifically in this decision.

35 The first is the fact that despite the fact that the premises have been operating as a brothel for some seven years or so, some 81% of the respondents to the telephone survey, were unaware of the operation of the brothel.

36 Second, there were a number of questions, which were asked of respondents as to whether the brothel would have an impact on them personally. It is recorded on pg 28 of the detailed analysis of the telephone survey that 68% of the respondents responded that the approval of a brothel at the present location would have absolutely no or an insignificant impact on them personally. Approximately one-third of respondents came to the view that there would be some impact of whom 13% of the total questioned said it would be a significant impact whilst 19% said it should have some lesser impact.

37 There is no need for me to turn to deal with the issues in this decision as to those who feel that it would have no impact but I turn to address the responses to question 9 as to why the respondent thought that the approval of the brothel at the rear of 303 Beamish Street would have an impact on them personally. There was information disclosed in the terms of asking this question as to the specific nature of the operations of the brothel.

38 The table provided at 5.9.1 of Ms Caster’s report shows that there were a range of genuine and general concerns, particularly relating to the exposure of young people to the brothel as the primary and fourth reasons together with a number of other apprehensions about social impact that are set out in some detail at that table. The question was also asked as to the impact on Campsie generally and whilst there is a general coincidence between the reasons given as to the personal impact and the reasons that are given for the impact on Campsie there are two other relevant matters that I need to address as to the impact on Campsie as opposed to the impact on the respondents personally.

39 The first is the suggestion that the respondents were concerned, or those of them who expressed these concerns, were concerned as to the impact on Campsie public school. At 6.2.4 of Ms Caster’s report she reports a telephone discussion with the principal of the school. I quote her response:

The principal stated she had no requests either from the parents at the school nor the peak body, Parents and Citizens, to do so. Whilst the principal herself had no objection to the proposal she suggested that there might be another reason for no objections from the parent body, that is, they were preoccupied with their roles as breadwinners and they did not have the language or educational skills to comment or express their views.

40 There is, however, no suggestion that the principal or the parents’ body or any individual parents have ever raised with the council or the police any specific incidents or concern relating to the operation of the premises. It is clear that the concerns that are raised or anticipated concerning possible impacts on the school are not borne out by any historical evidence of actual impact and I am not satisfied on the material before me that there is any reasonable likelihood of those impacts eventuating in the future. I am therefore satisfied that there is nothing on the basis of the impact as feared on Campsie public school that would warrant refusal of the application.

41 I turn to the question of the church. The question of the church is the most difficult of the issues it would seem to me to be dealing with in these proceedings. There have been three significant changes in the activities of the church over the period since the decision given by Commissioner Brown.

42 The first constitutes the operation on Tuesdays during the morning of a drop-in programme for boarding house residents and community residents. The evidence of Mr Isaac in this regard was that the participants were predominantly middle aged or older males from boarding houses and the like who were suffering in many respects from social disadvantage and in many cases from mental illness. It was also his evidence that there was a participation of younger people in this programme. He was specifically asked by me whether any of the people involved in the programme had raised with him any concerns as to the operation of the premises the subject of the appeal and he indicated that they had not. He was not also aware of there being any complaint to him or to anybody else on anybody participating in this element of the church’s programme concerning the operation of the premises.

43 The second and third comprise after school programmes which can be considered together.

44 On Wednesday afternoon, when that programme was established in approximately 2000, it was at or about the time of Commissioner Brown’s decision. I have treated it as being an entirely new event as it was not dealt with, on my understanding of the material before Commissioner Brown at all, as it was not put in evidence before him. A high school programme is conducted on Wednesday afternoons and a primary school student programme conducted on Thursday afternoons. Evidence was given by Mr Isaac as to the number of participants including not only the participation of young people in those programmes but the participation of a number of accompanying parents in them. Mr Issac gave evidence that there had been no complaint of any incident involving any of the participants or parents in those programmes caused by or arising out of the activities of patrons of the premises at the rear of 303 Beamish Street Campsie.

45 I am satisfied on the evidence before me that there has been no actual impact, apart from what I would describe as the moral apprehension impacts, on any of the programmes of the Uniting Church that have been conducted since the decision of Commissioner Brown. It was the evidence of Mr Thomas, the deacon of the church who has been the deacon in charge of the church since 1999, that he was not aware of any incidents involving the premises that impacted on his parishioners since the time he had been in charge of the parish and he gave evidence that he could not say that the brothel would impact on his getting on with the work of the parish. I am paraphrasing him in that latter regard.

46 The final concern that is raised is specifically that of Reverend Kisoo Jang, the minister of the Korean Congregation at St Philips. It was his uncontradicted evidence that the presence of the brothel, as summarised by Ms Caster on p 36 of her report, was a matter of shame to him and those of his congregation who were aware of it that the brothel was located so closely to the church.

47 Mr Jang gave evidence that one or perhaps two families had left his congregation and sought to worship elsewhere as a consequence of their awareness of the brothel and their fear for themselves or for their families as to its presence.

48 It is a well accepted position that this Court is not a court of morality. It is also entirely clear to me from the nature of the discussion contained in Ms Caster’s report and as a necessary inference to be drawn from the evidence given by Mr Jang this morning that the concerns about the brothel – to the extent that they might give rise to a sense of shame – are concerns arising as to the morality of the locating of the brothel next to a church (if not necessarily as to the morality of brothels simplicite). That is not a valid matter for consideration by me in these proceedings.

49 However, as I am required to have regard to what might be broader impacts of the brothel on that congregation, it was the evidence of the Reverend Jang that he was unaware of any incidents involving any members of his parish that were of concern arising out of the existence or operation or activities of the brothel. I am therefore satisfied that the concerns that the Reverend Jang expressed (to the extent that they went beyond the question of morality – and I accept that his concerns did, in fact, go beyond the question of morality) are not such as to provide any basis for me to refuse the application.

50 Having dealt with all of those new matters, I return to consider the questions that arise pursuant to cl. 4 of DCP 23. A number of those matters were dealt with by Commissioner Brown in his earlier decision and I do not propose to canvass them extensively at this time.

51 The first of the standards requires that a brothel must not be located within a hundred walking distance metres of a residentially zoned site and it is not suggested that that is the position in these circumstances. However, it is also suggested, in the second point, that a brothel should not (as opposed to must not) be located within two hundred metres or adjoining a variety of other places and it is not contested in these proceedings that that provision is breached.

52 There is a provision, however, in a note to the DCP, that permits a statement to be provided by the applicant as to why that should not be enforced.

53 I am satisfied for the purposes of these proceedings that the statement of environmental effects prepared by Mr Fleming deals extensively and point by point with those matters that are appropriate to be dealt with in such a statement. I consider that the material set out in that provides an adequate basis for me to be satisfied that, although the premises do not comply with those requirements, in the circumstances of the present case – particularly in the absence of any specific incident that might cause me to draw an adverse conclusion as to public interaction in public places with the brothel – I should not be persuaded by that provision to found a reason for refusal.

54 As to the question of access to the brothel being discrete, the table set out in the relevant council officer’s report notes that “Access to the brothel is discrete, however, the passageway to the brothel is common access for the dwelling located on the first floor of the premises”.

55 From this and Mr Moody’s evidence, I am satisfied that the brothel access is discrete and, secondly, the access sharing with the residential premises does not provide a basis in itself for refusal though it might contribute to it.

56 There is the question of patron access from a laneway that was dealt with by Commissioner Brown.

57 If I approve the application, there is to be an additional condition imposed as part of these proceedings that the closed circuit television is to provide for recording and not merely supervision and that those tapes are to be retained for a one month period and available for inspection by the police or by the council. I am satisfied that that will respond to any additional concerns that might arise concerning the laneway access and will, indeed, provide a further ameliorative measure with respect to the residents of the residential premises above.

58 The DCP requires that operation of the brothel must not cause a disturbance in the neighbourhood taking into account the adjacent land uses.

59 There is clear evidence that there have been no incidents that would cause that to be a matter of concern as there have been no disturbances apart from the apprehensions discussed earlier.

60 The question of the licensed premises was dealt with by Commissioner Brown and nothing I have seen persuades me nor has anything been put to me seriously seeking to persuade me that I should depart from his conclusions in that regard.

61 I have considered all of the relevant matters that are contained within DCP 23. None of them provide or combine to provide a basis for refusal.

62 Mr Simpson, founded on DCP 29, put a number of matters to me as to security and surveillance and the like. It was Mr Moody’s evidence that none of those matters, in evidence given both in writing and orally, would warrant refusal. I accept that evidence which was not challenged. I am also satisfied that the additional condition I propose relating to surveillance would go further towards meeting the aspirations that are set by the council in DCP 29.

63 I have therefore concluded overall that there is not sufficient basis to warrant refusal of the appeal.

64 Whilst the proximity of the residential premises goes some way towards founding a refusal but, whilst the isolated incident on 4 February 2003 of an attempted robbery at the premises might also contribute, between them they do not constitute a sufficient basis to warrant refusal of the application.

65 I have carefully noted Mr Moody’s conclusions in his report that it would be appropriate to allow a further time limit to the approval. The matter was not canvassed beyond that which is contained in his statement of evidence. It is not a matter that was pressed to me by the council as being an appropriate matter to be included in the conditions.

66 I have, however, carefully considered Mr Moody’s comments in this regard and I note his comments on p 24 of his report that he would propose that a further two year trial period be imposed to allow the community and the council to further assess the use. Nothing was put to me that would support such a proposition.

67 There have been no incidents involving the activities or operations of the brothel that have impacted directly, in any way whatsoever, on members of the public. I am not satisfied that I should impose a further time limit. If there are breaches of the consent that is an appropriate matter for enforcement in another class of the Court’s jurisdiction.

68 I am therefore satisfied that the appeal should be upheld and the consent to use the premises should be granted subject to conditions. Those conditions would comprise those matters which have been tendered in the council’s without prejudice conditions of consent subject to the following:

• An amendment to condition 1.6 as discussed with the parties to delete some words that are redundant in a drafting sense;
• Second, imposing an additional condition that would require that the closed circuit television facilities be capable of digital recording of the persons entering and exiting from the premises, that that digital equipment be installed within two months of the date of my issuing orders in these proceedings and that the digital images, however recorded, be kept for a period of at least one month from the date of recording and that they be available to the council and the police for inspection.
• Third, that the bars on the window in the passageway should be reinstated to provide security of the premises; and
• Finally, that the window that was there should be fixed closed by a locking device so that the incident about which Ms Havea gave evidence (of being offended by seeing a partially unclad person who she assumed to be a female sitting facing away from her) would be avoided in the future and that the opportunity for viewing into the premises from those persons attending at the residence above would be avoided.

69 Subject to the provision of settled conditions of consent that is my decision in the matter.

70 It is my intention to set the matter down for call over before the Registrar in approximately four weeks time in order to enable the settling of those conditions and if the agreed conditions are finalised and filed in the meantime then the call over date will be vacated and I will issue orders in Chambers.

71 I set the matter down for mention at call over before the Registrar on 24 August.

Commissioner of the Court