29 Enterprise Pty Limited v Ryde City Council

CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614 New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154

APPLICANT Mr M Campbell, barrister instructed by Monardo Solicitors LEGAL REPRESENTATIVES:

RESPONDENT Mr J Strati, solicitor of Ryde City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10231 of 2008 29 Enterprise Pty Limited v Ryde City Council

JUDGMENT 1 This is an appeal against the refusal by Ryde City Council (council) of a development application (949/2007) for internal changes to Unit 2, 36-42 Buffalo Road, Gladesville (the site) for use as a brothel.

2 The key issues between the parties are whether: 1. the location is appropriate for a brothel due to its proximity to a residential area, a school and a school bus stop and the use of the area by children; 2. the ramp access and parking arrangements are acceptable; and 3. adequate pedestrian access for people with a disability is provided. The site and its context 3 36-42 Buffalo Road contains a two storey building which is strata subdivided into three lots under Strata Plan 65615, which was approved by council in 1999. Lot 2 has an area of 748 sqm. The brothel is proposed to occupy only part of Lot 2 (463.8 sqm), comprising the ground floor lobby and stairs (12.7 sqm) and the first floor (451.1) sqm.

4 The remainder of Lot 2, on the ground floor, is leased for warehouse storage until February 2010 with a three year option to February 2013. An automotive smash repairs business is in Lot 1 and an automotive mechanical repairs business is in Lot 3. 5 Parking for all lots is provided on a rooftop carpark with vehicular access via a single lane ramp. A car space for each lot and a shared disabled space are also provided at the front of the building.

6 The site is within an existing industrial area and is adjoined by industrial uses. Residential uses are 87 metres to the east of the site. Holy Cross College is located 124 metres measured in a straight line and 187 metres walking distance to the west along Buffalo Road. The nearest bus stop on Buffalo Road is 34 metres from the site towards Nelson Street. Background and the proposal 7 The development application was lodged on 5 December 2007. The application was notified and one submission in support and 246 objections were received including three petitions with 952 signatures. Council refused the application on 14 April 2008. An amended application was lodged and renotified and council received 300 objections.

8 The amended application involves the conversion of the first floor of Lot 2 into a brothel with 13 rooms including one disabled room. The proposal provides nine onsite spaces including one disabled space on the roof and one car space at the front of the building. Access is to be via an entry foyer off the rooftop carpark or from the ground floor foyer.

9 The brothel is to be open 24 hours per day, seven days per week. It will employ 10 sex workers and two managers at any time. The total number of staff will not exceed 22 persons per 24 hours comprising 18 sex workers and four managers. No signage is proposed other than identification of Lot 2 on the entry door.

Planning framework 10 The site is zoned 4(c1) Industrial Special under Ryde Planning Scheme Ordnance (RPSO). Under cl 70A a brothel is permissible with consent in zone 4(c1). 11 Ryde Development Control Plan 2006 (DCP 2006) is relevant. Part 3.1 provides planning requirements for brothels including Location (cl 2.1), Amenity of the Neighbourhood (cl 2.2), Parking and Access (cl 2.3) and Signage (cl 2.4).

A consent may include conditions which limit the approval to a period of 12 months so that council may assess the impact of the development on the local community and monitor compliance with conditions of consent. 13 Part 9.2 of DCP 2006 provides access requirements for people with a disability. The evidence 14 The Court visited the site and heard evidence on site from Mr A Roberts, the State Member for Lane Cove; Mr and Mrs Krause of Krause Automotive at Unit 3; and Mr G Wilson, the principal of Holy Cross College. The main concern of the objectors was the location of the brothel in relation to residential uses and the school.

15 Mr Wilson noted that the playing fields for Holy Cross College are accessed off Buffalo Road and are used in the evenings and on weekends, although the gate is locked during school hours and children access the school by other entrances. Mr Wilson considered that the brothel use was incompatible with that of the school and it was inappropriate to have students near such a facility.

16 Mr Roberts, speaking on behalf of his constituents, also raised concerns that parents and children use Buffalo Road and their exposure to the brothel was inappropriate. 17 Mr and Mrs Krause were concerned about the impact that the brothel would have on the operation of their business. Their principle concern related to security and the resultant increase in insurance premiums. They said that cars that are being repaired are parked on the rooftop carpark that is now generally accessed only by staff and tenants of the building. Equipment is also stored outside by their business and the smash repair business. A security gate is locked at night to prevent access to the ramp and external areas, although they noted that this is an informal arrangement that impacts on common property. The Krauses were concerned that 24 hour access to the roof carpark by clients of the brothel would pose a threat to security and the presence of the brothel would increase their insurance premiums. Mrs Krause was also concerned about her own security when she works late and the ability to employ apprentices under eighteen years of age.

18 The Court heard expert evidence for the council from: o Ms S Slattery, access consultant, o Mr E Zoghbi, traffic engineer, and o Mr P Mills, planner 19 The Court heard expert evidence for the applicant from: o Mr P North, architect and planner, and o Mr G Zylber, planner.

Location 20 The key disagreement between Mr Mills and Mr Zylber related to whether the location of the proposed brothel was appropriate. In Mr Mills' opinion the proximity of the brothel to a residential area, Holy Cross College and other schools and the bus stop resulted in it being a location that is likely to be used by children on a regular basis. Mr Mills based his opinion on the submissions received in response to the application, the advice of Sydney Buses, the physical location of the brothel and his own observation on one occasion on his way to work. In Mr Mills' opinion the proposal was unacceptable given the location considerations in DCP 2006 and the criteria in Martyn v Hornsby Shire Council [2004] NSWLEC 614.

21 Mr Zylber undertook a video survey of the footpath and bus stop near the brothel for two weekends and a school week. In Mr Zylber's opinion this provided data to demonstrate the limited use of the area by children, although Mr Zylber recognised that the period of the survey was a statistically small sample. He stated, that even if the information from Sydney Buses, that two to three female students disembark at the bus stop each afternoon, was correct, this did not constitute frequent use or gathering of children. He noted that as the gate to Holy Cross College on Buffalo Road is locked during school hours, students would use other entrances and not walk to the school via Buffalo Road as this was not the most direct route and the College Street entrance is more likely to be used. In Mr Zylber's opinion the brothel is located in the middle of an industrial area away from sensitive land uses and places frequented by children. It therefore meets the location requirements of DCP 2006 and the criteria in Martyn.

Findings 22 Clause 2.1 of part 3.1 in DCP 2006 requires a consideration of the following location criteria:

The location of the brothel and its proximity to any childcare centre, community facility, education establishment, hospitals, places of public worship, recreational area, residential development or any place regularly frequented by children;

The location of the brothel and its proximity to any access point to public transport including bus stops, railway stations, ferry wharves and the alike;

The number or brothels operating in the vicinity of the premises the subject of the application. Council will not permit the "congregation" of brothels so as to form, or potentially form, "red light districts". 23 No issue was raised in relation to the proximity to other brothel establishments.

24 In Martyn, Senior Commissioner Roseth establishes the following criteria for locating brothels: o Brothels are a legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality. o Brothels should be located to minimise adverse physical impact, such as noise disturbance and overlooking. In this aspect they are no different from other land uses. o There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application, this should be supported by evidence. o Brothels should not adjoin areas that are zoned residential, or be clearly visible from them. Visibility is sometimes a function of distance, but not always. o Brothels should not adjoin, or be clearly visible from schools, educational institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk. o The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels) is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather. o There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses. o Where a brothel is proposed in proximity to several others, it should be considered in the context that a concentration is likely to change the character of the street or area. In some cases this may be consistent with the desired future character, in others not. o The access to brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shop and strip clubs predominate, signage should be restricted to the address and telephone number. 25 In applying the relevant criteria in the DCP 2006 and in Martyn to the proposal, I accept Mr Zylber's evidence.

26 There is clearly strong community concern about the location of the brothel evidenced by the number of submissions. However the knowledge that the site is to be used as a brothel is not sufficient reason to refuse the application. While I recognise the concern of the objectors the test to be applied is that stated by Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154, where his Honour stated:

That the subjective fears and concerns must have a rational basis and be amenable to objective assessment in order for any significant weight to be attached to them. 27 The brothel is located within an industrial area and is a permissible use within this zone. I accept that children and adolescents may walk past the brothel to school or to sporting events and training or to disembark from the bus. There is however, no evidence before me that empirically demonstrates that it is an area where children regularly gather or is frequented by children. Consistent with the principles in Martyn, it is not reasonable to exclude a brothel from every street where children may walk. Similarly while there is a school bus stop in close proximity to the brothel, based on a letter from Sydney Buses, this is used by two to three female students disembarking each day. I accept Mr Zylber's evidence that this does not constitute children gathering or frequent use by children. The bus stop is not located in close proximity to the residential area and there are other stops, which are more likely to be utilised. 28 The brothel is on the second floor of an industrial building and externally there is no indication of its activities. Unless aware of its existence, passers by will not ascertain its use. There is no evidence to suggest that clients of the brothel will behave in a manner unlike any other passer by. Further, the main access to the brothel is via the rooftop carpark, which is out of view from passers by and the street. The brothel is not visible from the school and residential area and is sufficient distance to ensure that, if managed properly, its activities will not impact on the amenity of the neighbourhood.

29 Council did not raise any issues with the proposed operation of the brothel or that it would not comply with cl 2.2 of part 3.1 of DCP 2006 which addresses residential amenity. However, this was raised as an issue in a number of the objections, particularly the size of the brothel and its 24 hour operation.

30 Although not required by council, I consider it prudent to impose a trial period on the operation of the brothel consistent with cl 4.1 of part 3.1 of DCP 2006. Such a trial period will enable an assessment of the operation of the brothel in accordance with the Management Plan and monitor compliance with conditions. It will facilitate adjustment to the hours of operation, staff numbers or other matters in the Management Plan after the trial period.

31 The applicant and council agreed during the hearing to the imposition of such a condition. Although, they did not agree on the final wording. I have accepted council's version, as this limits the approval to a 12 month trial period which is consistent with the requirements of cl 4.1 of pt 3.1 of DCP 2006. At the conclusion of the trial period a further development application or s96 application will be required to continue the use. The assessment of such an application would involve information on the operation of the brothel, including any complaints received by council or the police. The applicant's version of the condition would permit the brothel use to continue regardless of the manner in which it operated during the trial period, which is clearly not the intent of the DCP.

Parking and traffic safety 32 Mr Zylber and Mr Zoghbi agreed that the carpark ramp did not comply with AS/NZS 2890.1-2004 (the standard). The width of the ramp is 2.43 metres and the standard requires a width of 3.6 metres. The experts disagreed as to whether the carpark layout met the requirements of this standard.

33 Mr Zylber considered that the ramp and carpark layout were approved under the strata plan in 1999 for both tenant and visitor parking. No change to this existing arrangement was proposed. The number of parking spaces exceeded the requirements of DCP 2006 for six spaces (1 space per 2 employees).

34 During the hearing, the applicant accepted a condition to relocate the disabled carpark space to ensure compliance with the width requirements of the standard. This resulted in a reduction of one space to a total of nine car spaces, but still provided parking in excess of the six spaces required by DCP 2006. The applicant also accepted a condition that parking spaces 1 and 2 be allocated for use by employees only, due to their narrow width. The other spaces are to be shared by clients and staff. 35 A further condition was agreed to during the hearing, which requires convex mirrors to be installed at the top of the ramp to improve sightlines. Although the applicant subsequently did not agree to the wording of the condition. I have not accepted the applicant's alternate wording to replace that agreed to at the hearing. Particularly as these conditions addressed Mr Zoghbi's concerns to some extent and council did not press that the application should be refused on the basis of non-compliance of the ramp or carpark layout on the basis of the conditions.

Findings 36 With the proposed conditions agreed to during the hearing, I accept that the carpark and ramp, despite non-compliance with the standard will achieve an acceptable level of safety. The ramp and carpark are already approved to provide car parking for tenants and visitors to the building. The proposal does not change this existing approval in any material way. The issues raised by Mr Zoghbi would be the same for any future use of Lot 2 or other lots in the strata plan, which propose to utilise the approved carpark. It would be unreasonable to refuse the brothel proposal on this basis.

37 Residents raised concerns about the adequacy of parking to be provided, particularly as on-street parking during business hours is limited. The proposal exceeds the DCP requirements. Mr Zylber prepared an estimate of traffic generation (Exhibit 5, Appendix A) which demonstrates that adequate off-street parking is provided to meet the likely demand generated by both staff and clients of the brothel.

38 Further the peak usage of the brothel is at night and outside the times when off-street parking is in short supply. Council did not raise parking provision as an issue and based on the evidence before me I accept that the number of spaces provided is adequate.

Access for people with a disability 39 The original proposal included entry only off the carpark. This meant pedestrians would be required to walk up the ramp or use the stairs at the rear of the property. This arrangement was unsatisfactory and the amended proposal includes a ground level entry at the front of the building.

40 Ms Slattery and Mr North agreed that the proposal provided acceptable access for people with a disability arriving by car or taxi. The principle concern of Ms Slattery related to pedestrians with a disability or older patrons and their ability to use the stairs from the front foyer to gain access to the brothel on the first floor. Both Ms Slattery and Mr North agreed that this could be resolved by the provision of a lift. However, the provision of a lift would encroach into approximately 5 sqm of part of Lot 2, which is leased to another tenant until February 2010 with an option until 2013. Both Ms Slattery and Mr North agreed:

that provision of compliant disabled access from the front of the site may be difficult or impossible to provide. The question thus arises of the applicability of the unjustifiable hardship provisions in both the DCP and DDA (Disability Discrimination Act). 41 In applying the criteria, Ms Slattery and Mr North concluded that:

An argument on the grounds of unjustifiable hardship may be valid on the basis of (a) technical limitations and (d) safety design and construction issues. If these issues were resolved, however, it is unlikely that the costs associated with the provision of the lift could provide unjustifiable hardship given the scale of the proposal. 42 Although Ms Slattery stated that:

Another property may be more desirable due to the limited access for persons with a disability. A brothel provides an important service for people with a disability. Findings 43 The brothel provides access for people with a disability from the carpark through the main entry. It also provides one disabled suite that is accessed by an accessible path of travel from the carpark. The principle issue is the access from the front foyer for pedestrians with a disability or older people. This can be resolved by the provision of a lift and the applicant has no objection to providing such a facility, however, this cannot be achieved without encroaching into another tenancy area. I accept that this constraint would constitute "unjustifiable hardship". If a deferred commencement condition were imposed the application would fail if agreement from the tenant to permit the lift were not forthcoming. This is therefore a circumstance beyond the control of the applicant and is unreasonable. In reaching this decision I am mindful that disabled access from the carpark to the main entry foyer, which is most likely to be used, will be provided. Amendments to the front stairs are also agreed to by the applicant which will facilitate access for people other than those with a severe mobility impairment. The experts agreed that:

the current stairs can be modified so that a person with a vision impairment or an older person is able to safely use the stairs. 44 I also note that cl 8 of the Management Plan states that:

The management will also provide a wheelchair accessible taxi for disabled clients. 45 Given the constraints of the existing building and the lease arrangements, the limited alterations to facilitate the brothel use and the extent of disabled access to be provided for people with a disability, I accept that the proposal satisfies the requirements of DCP 2006 and the DDA.

Other issues 46 In relation to the issues raised by the Krauses about the impact of the brothel on the operation of their business, I accept that their current practices, particularly the locking of the security gate at night, will cease. However, this is an informal arrangement, not recognised by the lease or the strata plan which affects common property. It is therefore not reasonable to refuse the application, or any other application that includes use of the carpark out of hours, on the basis of the change to security arrangements. I accept that this may impact on insurance premiums, but again this is not a reason to refuse the application. 47 The trial period will enable any specific complaints or issues with the Management Plan or conflicts with the different tenants of the building to be addressed. The planning controls by permitting brothels within the industrial zone anticipate a degree of compatibility between uses, if managed appropriately.

Orders 48 The orders of the Court are therefore: 1. The appeal is upheld.

2. The development application (949/2007) for internal changes to 2/36-42 Buffalo Road, Gladesville for use as a 13 room brothel is approved, for a one year trial, subject to the conditions in Annexure A.

3. The exhibits, except Exhibits 1, 8, B and C may be returned.

      Annelise Tuor
      Commissioner of the Court
      ljr

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