Alphatex Australia v The Hills Shire Council

Alphatex Australia v The Hills Shire Council - [2009] NSWLEC 1126 - NSWLEC 2009 case summary — Zoe

[42]

34 If the council wishes to prohibited brothels in any of its commercial zones, or, indeed, in the Residential 2 (c) (Tourist Village) Zone, that can only be achieved by a specific prohibition being incorporated in the landuse table of the Local Environmental Plan. It would be entirely inappropriate for me to adopt a position in these proceedings of such sweeping generality. However, a position of such sweeping generality, for this commercial zone, would be the consequence of upholding the broad submission made on behalf of the council about this element of the planning principle set out in Martyn. The proper role of planning principles adopted by the Court 35 As earlier noted, in Martyn, Roseth SC published a planning principle setting out the relevant criteria for locating brothels. The criteria in that planning principle are as follows: - 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. - 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. - 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. - 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. - 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. - 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. - 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. - 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.

[96]

91 The first of this evidence is contained in the council's assessment report on the application. Mr McKenzie, the council's Manager of Development Control, wrote this report. When dealing with the topic of use of the bus stops on the western side of Old Northern Road, he wrote: It is in close proximity to school bus stops and businesses frequented by children and adolescents and as such is highly likely to offend. 92 He also wrote, with respect to the element of the planning principle in Martyn, in the following terms: There are two bus stops on Old Northern Road within 50 m of the brothel entry. The bus stops are used in the mornings and afternoons by children attending schools including Oakhill College, Model Farms High School, Jasper Road Public School, and Matthew Pearce Primary School and the Kings School 93 Mr Moore, the council's consultant planner in these proceedings, said, in his Statement of Evidence: There is a public bus stop approximately 50 m south of the main street entry to the proposed brothel. There is a clear line of sight from the bus stop to the front entry of the proposed brothel. (Diagram omitted) Buses service routes 600, 610, 612 and 630 which travel from Rogans Hill to Parramatta and from Sydney City to Rouse Hill. As outlined in the Council officer's report, and numerous public submissions opposed to the proposed brothel, schoolchildren use these buses daily throughout the week. During my site visit, in school holidays, I saw adolescents and young families using the bus stop. Based on the proximity and clear visibility between the bus stop and the subject premises, the proposed brothel is in a location likely to offend. 94 The applicant's Statement of Environmental Effects identifies the four bus routes noted above in Mr Moore's statement of evidence and adds the 619 to that list. It then sets out the route details of each of these five bus routes. It comments: It is acknowledged that the above-mentioned bus routes stop at some education institutions, however, the bus stop is not regularly used by school buses.

[133]

106 The proprietors of the businesses in the immediate vicinity discussed the family nature of the clientele of a number of these businesses during the course of the evidence given on site. The noted summary of this evidence was in the following terms (concerning the impacts which were already being experienced on two such businesses): Mr Wartman: Co-owner of property next door, R&W. Own premises on either side. If approved, we derive income on either side of shop. Lease for Hills Conveyancing up, they want to renegotiate rent terms lower because they may lose business because deal with Mums and Dads, families. Not singles, couple / young families - may not want to expose children to this. …………. and Mr Serrah [ sic] : Co-owner of Hills Conveyancing. …………………… We have pressure to provide clients' needs. Clients will move to different providers. Already, clients said they won't bring kids with them. 107 In addition, further material was contained in a written objection to the proposal dealing with this topic. Ms V Turner of the Professionals Real Estate, a business located at 24A Old Northern Road, wrote that: "As the area/suburb is very family-oriented we often have children and young people company their families to visit us at our campuses/business and therefore feel that the proposed brothel would be most inappropriate to be placed in the same group of businesses in the street." 108 As discussed by Stephen J in the High Court's decision in Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, in some circumstances, social and economic impacts of a proposal can constitute proper planning considerations in the assessment of the proposal. His honour's comments were in the following terms: 17. There is one further observation to be made. The learned primary judge described one submission urged before the Tribunal, namely that the establishment of the appellant's proposed fried chicken shop would "adversely affect existing food shopping facilities" in the neighbourhood as being just such a consideration as I had earlier held, in Spurling v. Development Underwriting (Vic.) Pty. Ltd. (1973) VR, at pp 12-13, to be a proper planning consideration. I would with respect, agree with his Honour; the significant word, quite vital to the nature of the submission to which his Honour referred, is "facilities". If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration. 109 It is therefore appropriate to consider the extent to which I should regard the impacts that have already occurred and the extent to which I consider that further impacts are probable in my assessment of this proposed brothel.

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Judgment (156 paragraphs)

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Cases Cited (14)

Cited By (13)