MODIFICATION APPLICATION: intensification of approved and existing brothel
Plan of Management
Source
Original judgment source is linked above.
Catchwords
MODIFICATION APPLICATION: intensification of approved and existing brothelPlan of Management
Judgment (7 paragraphs)
[1]
Solicitors:
Applicant: D G Briggs and Associates
Respondent: Matthews Folbigg Pty Ltd
File Number(s): 10939 of 2015
[2]
Judgment
COMMISSIONER: In July 1999, the Land and Environment Court approved Development Application No. DA/190/1998 for the use of premises at 9 Seville Street, North Parramatta (the site) as a brothel with prescribed operating hours and a maximum of two sex workers, inclusive of the operator, on site at any one time.
Council's Statement of Facts and Contentions includes details of a modification application lodged with the council in 2006. Council refused this application. The applicant commenced Class 1 proceedings appealing council's decision but subsequently discontinued the action.
In March 2015, the applicant lodged with the council, a Section 96AA Modification Application seeking an intensification of the existing use from a maximum of two sex workers, inclusive of the operator, to three sex workers and a receptionist.
The application was advertised and one submission was received. The submission raised a number of very generic issues relating to s 96 applications and planning in general and nothing about the actual proposal.
The application was referred to internal departments and officers and to the Crime Prevention Officer at the Parramatta Local Area Command.
A report recommending approval of the Section 96AA Modification Application, subject to additional conditions, was prepared by the council's Development Assessment Officer. The fully body of the Council subsequently refused the application.
The applicant appeals council's refusal under s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act).
[3]
Issues and planning controls
Council's Statement of Facts and Contentions lists the following contentions and reasons for refusal [summarised]:
Prohibited development - the site is zoned B6 Enterprise Corridor under Parramatta Local Environmental Plan 2011(PLEP); Sex Service premises are prohibited development within the zone.
Intensification of the use fails to satisfy cl. 6.9 PLEP - Location of sex services premises as the site is within the prescribed distance from residential premises, recreational facilities and places of worship.
Undesirable precedent
Public interest
Apart from PLEP, parts of Parramatta Development Control Plan 2011 (PDCP) also apply; in particular Part 5.6 - Sex Services and Restricted Premises.
[4]
Expert evidence
The parties engaged consultant planners to prepare a joint expert report. The planners are Mr Kim Burrell for the applicant and Mr Jeffrey Mead for the council. The experts were not required for cross-examination.
In their joint report (Exhibit B), the planners agree that while the use of the premises is prohibited in the B6 zone under PLEP 2011, it enjoys existing use rights in accordance with Division 10 - Existing uses - EPA Act. They agree that DA/140/1998 can be modified in accordance with that Division and Part 5 - Existing uses - of the Environmental Planning and Assessment Regulation 2000 (EP&AR).
The planners consider that the remaining contentions effectively relate to whether or not the intensification of the use will have any detrimental impact on the amenity of the neighbourhood and on the other uses of land nearby such as residential dwellings and place of worship.
The planners agree that any potential impacts could be managed if a Plan of Management (POM) were to be implemented. They note that the Development Consent for the current use does not incorporate a POM and therefore the current application may provide such an opportunity. Any POM should be prepared in accordance with Part 5.6.3 PDCP.
In addition they agree:
The proposal is for only a minor increase in intensity to a relatively low scale sex services premises;
Whilst close to residential uses, a place of worship and a recreational facility, the site does not immediately adjoin residential uses and sits within a group of properties dominated by industrial/ commercial uses;
It complies with the DCP parking requirements and hours of operation (which are unchanged);
The premises appears to have operated without conflict with surrounding development for several years and the police have not raised any objections; and
The inclusion of one staff person at reception will assist with ongoing management and security.
The Joint report includes Annexure C - a proposed Plan of Management prepared by Mr Burrell (separately tendered as Exhibit D).
[5]
Proposed conditions
The parties have filed alternative versions of draft conditions of consent. The primary difference between the parties is whether the consent should be limited to a trial period of two years. The council presses the time limited consent; the applicant opposes it.
The condition in contention is conditions 16; it states:
16. This development consent is valid for a period of two (2) years from the date that the Plan of management is approved by Council. A separate letter will be given to confirm the exact date.
A further Section 96 modification may be lodged to continue the operation outlined above not less than 90 days before the end of the trial period. Council's consideration of a proposed continuation of the staffing permitted by the trial will be based on, amongst other things, the performance of the operator in relation to the compliance with the development consent conditions including the adherence to the management plan, any substantiated complaints received and any views expressed by the Police.
At the expiry of the trial period, the applicant shall revert to two (2) workers unless an application for continuation of the trial period has been submitted and is under assessment, or has otherwise been approved.
Reason: To minimise the impact on the amenity of the area.
As this was not an issue raised in the contentions, it was not addressed by the planners.
[6]
Should a time-limited consent be imposed?
Ms Law for the council contends that s 96AA(1A) of the EPA Act requires the consent authority to consider relevant matters in s 79C(1) of the Act. Part 5.6.1 PDCP, amongst other things, states that consent for sex services and similar premises will be limited to two years, at which time a new development application will have to be lodged.
Ms Law cites Zhang v Canterbury Council [2001] NSWCA 167. She maintains that a condition requiring a trial period is within the Court's power to impose (at [82]) and it allows an opportunity for a more detailed assessment of the operation, including the implementation of the Plan of Management, and any impacts that may arise from it (at [95]).
In regards to the past operation of the premises, Ms Law drew the Court's attention to Exhibit 3 which summarises notes of audit inspections of the site from August 2008 to November 2015 and Exhibit E, an anonymous complaint made in April 2014 about the number of workers on the premises and another anonymous report that the fire safety measures were inadequate. She cites a number of instances where more than two sex workers were present on the site, in breach of the consent.
Council presses the condition; Ms Law notes that it includes a mechanism for review but will require the applicant to lodge a new s 96 modification application.
Mr Briggs for the applicant contends that the premises have been operating since 1999 with no recorded impacts on any activity or use external to the site. He notes that the majority of the contemporaneous notes made during the audit inspections indicated compliance with conditions. Mr Briggs presses the opinions of the planners that the POM and the additional receptionist are improvements on the original consent and will enable more supervision as well as mitigation of potential impacts on the amenity of the area.
Mr Briggs asserts that the modification application is not a new consent and therefore the requirement in PDCP for a two year trial period does not strictly apply, although he accepts it is a condition that the Court could impose. In objecting to the imposition of such a condition Mr Briggs cites several decisions of the Land and Environment Court involving brothels in the Parramatta local government area.
In Wei v Parramatta City Council [2010] NSWLEC 1046, a modification application involving a similar increase in workers from two to three sex workers plus a receptionist, the Commissioner found that subject to amendments being made to a Plan of Management, and the absence of any particular complaints about past operation, the application could be approved. It does appear that a time-limited consent was an issue in this matter.
In contrast, in Boers v Parramatta City Council [2010] NSWLEC 1097 a time-limited consent was considered appropriate as this matter involved (at [36]) "…a new brothel in a relatively confined area, rather than an extension or intensification of an existing brothel where impacts on neighbouring land uses are known." Mr Briggs notes that the appeal in Zhang also involved an application for a new brothel.
On the evidence, such as it is, I am not satisfied that a time-limited consent is warranted. The "complaints" relate to internal staffing issues or compliance with fire regulations; I agree with Mr Briggs that the audit notes are somewhat contradictory and on balance suggest compliance on most occasions. Although the use of the premises would be unlikely to be approved under the current planning regime and in the zone, I accept the planners' agreed position, summarised in [14] that the intensification is minor, does not involve any increase in the hours of operation, and the implementation of a Plan of Management and the engagement of a receptionist will help mitigate any impacts arising from the minor intensification. I also note that the changes to the internal layout of the building are minor. The Plan of Management will provide clear guidelines for the operator and workers as well as a basis for any council audits.
Therefore, having regard to the matters under s 79C(1), the submissions and the evidence, the appeal is upheld and council's draft condition 16 will not be imposed.
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. DA/140/1998/B for the use of premises as a sex services premises to increase the number of workers to 3 plus 1 receptionist and the number of working rooms from 2 to 3 on land at 9 Seville Street, North Parramatta is approved subject to the conditions in Annexure A.
3. The exhibits except A and D are returned.
Judy Fakes
Commissioner of the Court
10939 of 2015 Annexure A (205 KB, pdf)
[7]
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Decision last updated: 17 February 2016