MM & SW Enterprises Pty Limited v Strathfield Municipal Council [2011] NSWCA 14 (14 February 2011)

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MM & SW Enterprises Pty Limited v Strathfield Municipal Council [2011] NSWCA 14 (14 February 2011)

Last Updated: 25 February 2011

Court of Appeal New South Wales

Case Title:	MM & SW Enterprises Pty Limited v Strathfield Municipal Council
Medium Neutral Citation:	[2011] NSWCA 14
Hearing Date(s):	14 February 2011
Decision Date:	14 February 2011
Jurisdiction:
Before:	Macfarlan JA at [1]; Handley AJA at [12]; Sackville AJA at [13]
Decision:	The appeal is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ENVIRONMENT AND PLANNING - existing use - whether development consent for "commercial offices" permitted use of premises as a brothel - Strathfield Planning Scheme Ordinance 1969 (NSW)
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Bird v Hawkesbury City Council [2000] NSWLEC 4; (2000) 106 LGERA 224 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125
Texts Cited:
Category:	Principal judgment
Parties:	MM & SW Enterprises Pty Limited (Appellant) Strathfield Municipal Council (Respondent)
Representation
- Counsel:	M Baird (Appellant) T Hale SC/L Shipway (Respondent)
- Solicitors:	Storey & Gough (Appellant) Houston Dearn O'Connor (Respondent)
File number(s):	CA 2010/50138
Decision Under Appeal
- Court / Tribunal:	Land and Environment Court
- Before:	Pepper J
- Date of Decision:	02 February 2010
- Citation:	MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8
- Court File Number(s)	09/40044
Publication Restriction:

Judgment

1	MACFARLAN JA: This is an appeal pursuant to s 58 Land and Environment Court Act 1979 against a decision of Pepper J of the Land and Environment Court.

2

The only question that her Honour determined and that is in issue on the appeal is whether a development consent granted in 1980 permitting use of premises as "commercial offices" permitted use of the premises as a brothel. For reasons that her Honour described, the answer to that question was determinative of the further question of whether MM & SW Enterprises Pty Limited, the appellant in this Court, had "existing use" rights within the meaning of ss 106 and 107 Environmental Planning and Assessment Act 1979.

3	The statutory and planning contexts in which these questions arose and the evidence that was before the court are described in her Honour's careful judgment ( MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125). It is unnecessary to repeat what her Honour said.

4	The 1980 development consent was granted under the Strathfield Planning Scheme Ordinance 1969. This did not define the expression "commercial offices", which was the use in respect of which development consent was granted, but it did define "commercial premises" as follows:

"a building or place used or intended for use as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used or intended for use for a purpose elsewhere specifically defined in this clause or for a roadside stall."

5	The primary judge, in my view correctly, described the issue before her for determination as follows:

"Accordingly, the applicant must demonstrate that the ordinary meaning of "commercial offices" can be characterised to include a brothel (s 106(b)(i) of the EPAA). Without this construction the usage cannot be considered to be a lawful purpose in accordance with the consent and the usage as a brothel cannot take the benefit of existing use rights" (Judgment [91]).

6	Her Honour went on to apply the following passages from the judgment of Talbot J in Bird v Hawkesbury City Council [2000] NSWLEC 4; (2000) 106 LGERA 224:

"[20] The ordinary English ... definition of "office" appearing in the recently published Australian Oxford Dictionary [is] as follows:

office 1 a room or building used as a place of business, esp for clerical or administrative work. 2 a room or department or building for a particular kind of business (ticket office; post office). 3 the local centre of a large business (our Adelaide office). 4 US the consulting room of a professional person.

[21] The approach taken by the Council is, in my view, too artificial in the light of the commonly understood association of an office with clerical or administrative work, rather than business in the wider sense of any commercial transaction. This conclusion finds strong support from the dictionary definitions already referred to.

...

[23] The Court is satisfied that, upon a proper construction of the definition of commercial premises as a place used as an office, it does not include a brothel" (Judgment [101] - [102]).

7	Her Honour then said:

" Even affording for a liberal interpretation, to construe rooms for provision of sexual services for reward as 'commercial offices' would be to strain the ordinary meaning given to the term far in excess of what is 'a fair but liberal reading of the rights it confers' ( House of Peace at [41] and Romeo v Pittwater Council [2006] NSWLEC 645; (2006) 149 LGERA 107 at [24]) and far in excess of that which is 'common sense' ( Berry at [34] and Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 at [12]). While a brothel may be characterised as a sex worker's place of business and that business may be for reward, and therefore commercial, it would be somewhat surprising (at least to some) if the rooms in a brothel were used predominantly for clerical and/or administrative services. I come to this conclusion absent any recourse to extrinsic interpretative aids and comforted by the dictionary definitions put before the Court by the respondent" (Judgment [103]).

8

I agree with the primary judge's conclusion. At least in the present context, the concept of "commercial premises" is a broader one than "commercial offices". This is made clear by the definition of "commercial premises" contained in the relevant Ordinance (see [4] above). So far as use of the premises is concerned, that definition contains two limbs: use as "an office" and use "for other business or commercial purposes". Use as a brothel may well fall within the latter expression, but would not fall within the former. It was only in respect of the former that development consent was granted. I agree with the view of Talbot J, adopted by the primary judge, that in common parlance the term "office" is associated "with clerical or administrative work, rather than business in the wider sense of any commercial transaction" (see [6] above). The provision of sexual services for reward cannot be described as "clerical or administrative work".

9	It is unnecessary in these circumstances to comment on the primary judge's recourse to extrinsic evidence to corroborate her conclusion (Judgment [104] - [106]) or on her Honour's reliance on the terms of individual conditions of the development consent (Judgment [92] - [94]).

10

The appellant's challenge to the primary judge's decision appears to have been founded upon the proposition that upon the proper construction of the definition of "commercial premises" in the relevant Ordinance, the term "office" contained in the definition was intended to have a breadth equal to that of "commercial premises". The structure of the definition indicates that this was plainly not so.

11	In my view the appeal should be dismissed with costs.

12	HANDLEY AJA : I agree.

13	SACKVILLE AJA : I agree.

14	MACFARLAN JA : The order of the Court is that the appeal is dismissed with costs.

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