AJA Trading Pty Ltd v Waverley Council

Land and Environment Court (NSW)|2005-05-19

The applicant's evidence 64 Mr Gosling states that the LEP allows brothels to operate as home occupations without development consent within the 3(a2) General Business zone. The brothel, in its various forms, has operated for a number of years without significant problems. The proposed appointments only system together with the Operations Manual will result in a use that has minimal reliance on the common areas and will be conducted in such a way as to minimise potential impacts on adjoining and surrounding land uses. 65 Mr Gosling concludes that properly managed brothels that comply with the appropriate consent conditions will not result in unsatisfactory cumulative impacts. He stated that as the brothel would operate differently to the other brothels it could not be seen as a precedent for their approval.

Findings 66 A number of residents stated that the earlier operation of the brothel on a much smaller scale had caused limited problems, as it was discrete, with a small number of clients and did not interfere with the amenity of the then predominantly residential floor. However, the increase in size of this brothel, the establishment of other brothels and the resultant increase in patronage and reduction in residential use had changed the nature of the building and resulted in unacceptable amenity impacts. 67 In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, it was held that if the Court was considering an application for development which was both objectionable in itself and where there was sufficient probability that there would be further applications of a like kind, the fact that consent would operate as a precedent might be taken into consideration. 68 This matter was also addressed in Suzelle Antic where it states that:

There is little to distinguish the subject application from further applications that may be made in the future. While further applications may vary into the manner in which they operate to some degree, the layout of the building is fundamentally inconsistent with the operation of massage parlours or brothels and residential uses. It is not physically possible to segregate the uses because of the common entry and foyer, the single lift and the need to use common corridors. Even if complete floors are used for massage parlour or brothel purposes, the impacts on residential uses will still be unacceptable because of the need for joint use of the entry, foyer and lift.

There is also some merit in the argument of Mr Layman that residential users will be forced from the building because of the incompatibility with the operation of the massage parlours and the unacceptable amenity impacts thereby providing the opportunity for further massage or brothel uses. It is a logical consequence that if residential uses are forced from the building because of the unacceptable amenity impacts, it is unlikely that they will be replaced with a similar residential use. In my view, there is a high probability that further applications of a like kind will be made.

In the likely event that this does occur, I accept Mr Layman's evidence that it has a potential to impact on the character of the Bondi Junction commercial area. The concentration of massage parlours, brothels and the like is not a matter that should occur in a haphazard fashion. If proposed it should occur in a planned and coordinated manner that addresses the characteristics of an area with controls to minimise impacts on nearby and surrounding areas. 69 Despite the different operation of Suzelle Antic, these comments are still valid. I do not accept that the proposed operation of the brothel distinguishes it from the other proposed brothels. I adopt the reasoning in the proceeding paragraphs and find that the proposed development is likely to create an acceptable precedent and concentration of similar activities to the detriment of the Bondi Junction commercial centre and nearby residential development. Impact on premises surrounding the site 70 The relevant planning principles are; · 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. · 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

The council's evidence 71 Mr Layman identifies that the site is within close proximity to a range of uses that are likely to have a high sensitivity to brothel operations and other developments. In the absence of any specific distance standards, Mr Layman draws on the principles in Martyn to conclude that the ability to sight a brothel at one of the sensitive uses, or any residential area, was sufficient to determine that it was inappropriately located even if screened or without signage. 72 In this case there is clear overlooking from the windows of the brothel southwards to Clemenson Park and its childcare centres. It is proposed that the curtains to these rooms will be drawn to prevent overlooking. The building is also in an area with other community facilities. 73 Mr Layman concludes that the concentration of brothel activities, when considering the current application and the additional proposals before the Court, raises the prospect of patrons and sex workers from the establishment being in very close proximity to people using the library, seniors services and other community facilities, including the Church in the Market Place. He also raised concerns about the appearance of the building with almost the entire floor on the southern elevation having curtains permanently drawn and the exhaust from the dryer projecting from the reception window.

The applicant's evidence 74 Mr Gosling states that due to the high pedestrian levels and the variety of land uses, it will not be possible to distinguish which pedestrians are associated with the site, users of the sensitive land uses are therefore not likely to be offended by the operation of the brothel. There will be no outward features of the operation that will lead users of the sensitive land uses to the conclusion that a brothel is operating from the site. Additionally, there are no windows relating to the site that address Newland Street and the appearance of the windows that face the park are no different to other residential buildings.

Findings 75 I accept Mr Gosling's evidence. The sensitive land uses are located some distance from the site, with the closest being Clemenson Park Playground, about 55m from the building. The brothel is part of a larger mixed use building with no signage or outward identification and would therefore not be "clearly visible" or at least identifiable form these uses. The building is used by a number of people and therefore the patrons of the brothel would not be distinguishable from the other users, especially during working hours. Late at night their presence may be more obvious, especially if associated with unruly behaviour. The sensitive land uses are unlikely to operate at these time and therefore the potential for conflict is reduced. The existence of the brothel would therefore not be apparent to users of sensitive land uses and is therefore not likely to have an unacceptable impact on the area. 76 There is no evidence that the current operation of the brothel is having a detrimental impact on the area. However, I accept that the cumulative effect of similar applications within the building could cause problems, particularly if massage parlours and brothels displace residential and other uses. This would be exacerbated if the outward appearance of the building were to change through signage. The cumulative impact of additional workers and patrons could also impact on the general area. These factors emphasise the need for proper planning for the provision of uses such as brothels. Car parking 77 DCP 14 does not specifically address a brothel use. In this absence Mr Hallam adopts the non residential parking rate for offices, commercial premises and professional consulting rooms. This requires the provision of car parking at the rate of 1 space per 100 square metres of gross floor area. Based on his calculations, 3 car parking spaces are required. The proposal licences two spaces and there is therefore a shortfall of one space. 78 Mr Layman states that as the applications are separate and, if assessed individually, 9 spaces are required. He also considers that the licence arrangement should not be included due to its temporary nature. 79 Mr Hallam's opinion is that even on the basis of 2 or 9 spaces, the proposal would not result in unacceptable traffic or parking impacts. He states that the building as constructed is deficient in parking and that a residential use would cause more problems than commercial. Commercial demand could adequately be met by the Eastgate Shopping Centre car park, but as this is closed over night it would not satisfy the demand for parking generated by a residential use. The area is also adequately serviced by public transport. 80 I accept Mr Hallam's evidence that the deficiency of spaces, whether 1 or 9, will not have an adverse impact on traffic or parking in the area and I find this is not a sufficient reason to warrant the refusal of the development application. Owners Consent 81 The parties disagreed on whether the use of the common area was part of the brothel use and required owners consent from the Body Corporate. As the applications fail on their merits it is not necessary for me to adjudicate this issue.

Orders 82 For the foregoing reasons, the Orders of the Court are: 1) The appeals are dismissed. 2) The development applications for the use of 9 units as a brothel at 29 Newland Street, Bondi Junction, are refused. 3) The exhibits may be returned. 4) No order as to costs.

          Annelise Tuor
          Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : AJA Trading Pty Ltd v Waverley Council [2005] NSWLEC 253

Segal & Anor v Waverley Council [2004] NSWLEC 363; Suzelle Antic v Waverley Council [2005] NSWLEC 125; CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614 ; New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

Planning principles 37 In Martyn v Hornsby Shire Council [2004] NSWLEC 614, the Senior Commissioner established planning principles for assessing the appropriateness of the location of a brothel. 38 On this issue, the relevant principles are: · 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.

57 In New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154, Lloyd J examined the relevant authorities on amenity and social impact. He concluded at para 63 that:

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