Ambercone Pty Limited v Rockdale City Council

46B. (1) Despite any other provision of this Ordinance, a building may be erected or used for the purposes of a brothel only if: (a) it is located within the land shown edged heavy black on the map marked "Rockdale Local Environmental Plan No. 138"; and (b) … (not relevant for this determination) Pursuant to the Ordinance the land is zoned General Business 3(a) and the proposed brothel would be located within the area designated for such purpose nominated by cl 46B(1)(a) of the Ordinance.

The DCP was approved by the council on 22 April 1998 and came into effect on 1 October 1998. It adopts the same definitions of 'brothel' and 'prostitution' as set out in cl 5 of the LEP. Clause 6.2 of the DCP provides:- 6.2 Size of Premises

Objective · To limit the social and environmental impact of brothel uses in any locality.

Standard (a) Brothel premises must not contain more than six (6) separate rooms (including any room used as an office) for the purposes of prostitution. Rooms having an area exceeding 18 m2 will be considered as 2 rooms for the purposes of this Plan.

The applicant submits that the provisions of cl 6.2 of the DCP operate to substantially prohibit brothels in the City of Rockdale or alternatively does not conform to the provisions of the Ordinance. Further, it submits that the Ordinance imposes additional obligations upon council when assessing a development application for a brothel, in excess of those matters to be considered in s 79C of the Environmental Planning & Assessment Act 1979 ("the Act"). The applicant submits therefore that the effect of the DCP, and in particular of cl 6.2 thereof is to fetter the council's ability to consider a development application for a brothel because of the limitation upon the number of rooms that may be used for the purpose of prostitution.

Alternatively, the applicant contends that the effect of cl 6.2 of the DCP is to prohibit a brothel if the premises contains more than six rooms in total. It submits that not even a modest sized brothel could meet the requirements of cl 6.2 of the DCP since the word 'rooms' as used in cl 6.2 should be interpreted as including any room such as a private waiting room, shower room, staff amenities room in addition to the specific room used for an office. It says that the words 'including any room used as an office' have been inserted to avoid an interpretation of the clause which would exclude such room from assessment.

The aims of the LEP, which are set out in cl 2 thereof include the following:- (e) to ensure that the operation of a brothel does not adversely affect the amenity of the locality in which it is situated. 8. Clause 46B(1) of the Ordinance confines the location of brothels to the map therein incorporated. Clause 46B(2) provides detailed criteria to be considered by council when determining an application for development consent for the purpose of a brothel. By cl 46B(2)(b) of the Ordinance a council must consider:- (b) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it;

The submission is made that cl 6.2 of the DCP is inconsistent with council's specific obligation and fetters council's ability to consider the issues set out in cl 46B(2)(b) of the Ordinance.

The council submits that cl 6.2 of the DCP does no more than specify detail and that its provisions do not prohibit development. It argues that the restriction upon the number of rooms merely provides a limitation on the size of such development, in the same way as council has the power to limit the size of any development by introducing restrictions on floor space ratio, height and minimum areas of land upon which buildings may be erected.

Section 72 of the Act authorises council to adopt development control plans. Section 72(1) provides that if a council considers it necessary or desirable it may prepare or cause to prepare a development control plan for the purpose, inter alia:-

(a) to provide more detailed provisions than are contained in a local environmental plan or a draft local environmental plan in respect of a part or parts of the land to which that plan or draft plan applies, or Any development control plan must conform to the relevant local environmental plan, since s 72(3) of the Act provides:- (3) Such a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies.

The aims and objectives of the DCP are set-out in cl 4 and are stated as follows:- This plan aims:- (i) to provide standards and criteria for the development of brothels in addition to those contained in the Local Environmental Plan; (ii) to ensure that brothel development is located and operated in a manner that will ensure the amenity of the locality is not adversely affected; (iii) to ensure that the design and location of brothel developments provides safe access for clients and staff.

In North Sydney Council v Ligon 302 Pty Limited [No 2] (1996) 93 LGERA 23 the New South Wales Court of Appeal considered the impact of a development control plan. Cole JA said at 30:- The content of development control plan is addressed by s 72. It is to contain " the more detailed provisions " that are contained in the North Sydney Local Environmental Plan, which council regards as necessary or desirable (S 72(1)). Generally the development control plan must conform to the North Sydney Local Environmental Plan (S 72(3)) however that does not mean that where a use is permissible with consent under the North Sydney Local Environmental Plan " more detailed provisions " regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in which a use is permissible with consent. There is no reason in principle why those " provisions " would not have the character either of a prohibition unless certain criteria are satisfied or of a " development standard ", which permits a development only satisfaction of certain criteria.

The Court adopts the reasoning of Cole JA. Clause 6.2 of the DCP does no more than create " more detailed provisions " than are contained in the Ordinance.

The DCP does not prohibit brothels. Rather a restriction upon the size of the brothel is created by a limitation of the number of rooms that are to be used for the purpose of prostitution. In this way, the DCP supplements the controls imposed by the Ordinance by providing controls which council has considered ' desirable or necessary' per Cole JA at 30. Considered in this context the requirements of the DCP do not impose any fetter on council's consideration of a development application pursuant to s 79C of the Act.

There is no substance to the submission that the provisions of cl 6.2 of the DCP do not conform to the requirements of cl 46B(2)(b) of the Ordinance. Clause 46B(1) and cl 46B(2) specify certain matters to be considered by council when assessing a development application for a brothel: Weynton v Rockdale City Council [1999] NSWLEC 273, unreported. The provisions of cl 6.2 do not detract from council's ability to assess the matters set out in cl 46B(1) and cl 46B(2). The only limitation created by cl 6.2 of the DCP is upon the number of rooms used for the purposes of prostitution in a proposed development.

The applicant's submission that cl 6.2 of the DCP is wide enough to restrict the total number of rooms in a brothel to six including any room used as an office fails to give effect to the words ' for the purposes of prostitution' which follow after the restriction. The restriction is not in its terms directed to all rooms within a proposed brothel but rather only to those rooms to be utilised for the purpose of prostitution and for the purpose of an office.

Different terminology is contained in cl 6.3(a) of the DCP which provides:- (a) On-site carparking shall be provided for brothels at the rate of one (1) space per two (2) employees working at any one time on the premises and one (1) space per room where sex services are provided; The Court does not regard the words ' per room where sex services are provided' in the context of a carparking provision as sufficient to alter the clear intent of cl 6.2 of the DCP.

1. Each of the questions asked in the class one proceedings are answered in the negative and the Court directs that the parties be at liberty to approach the Registrar within 7 calendar days in respect of any further re-listing of the class one proceedings.

20. In relation to the class four proceedings the Court orders:-
21. The application be dismissed.
22. The applicant pay the costs of the respondent.

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The content of development control plan is addressed by s 72. It is to contain "the more detailed provisions" that are contained in the North Sydney Local Environmental Plan, which council regards as necessary or desirable (S 72(1)). Generally the development control plan must conform to the North Sydney Local Environmental Plan (S 72(3)) however that does not mean that where a use is permissible with consent under the North Sydney Local Environmental Plan "more detailed provisions" regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in which a use is permissible with consent. There is no reason in principle why those "provisions" would not have the character either of a prohibition unless certain criteria are satisfied or of a "development standard", which permits a development only satisfaction of certain criteria.

14. The Court adopts the reasoning of Cole JA. Clause 6.2 of the DCP does no more than create "more detailed provisions" than are contained in the Ordinance.

15. The DCP does not prohibit brothels. Rather a restriction upon the size of the brothel is created by a limitation of the number of rooms that are to be used for the purpose of prostitution. In this way, the DCP supplements the controls imposed by the Ordinance by providing controls which council has considered `desirable or necessary' per Cole JA at 30. Considered in this context the requirements of the DCP do not impose any fetter on council's consideration of a development application pursuant to s 79C of the Act.

16. There is no substance to the submission that the provisions of cl 6.2 of the DCP do not conform to the requirements of cl 46B(2)(b) of the Ordinance. Clause 46B(1) and cl 46B(2) specify certain matters to be considered by council when assessing a development application for a brothel: Weynton v Rockdale City Council [1999] NSWLEC 273, unreported. The provisions of cl 6.2 do not detract from council's ability to assess the matters set out in cl 46B(1) and cl 46B(2). The only limitation created by cl 6.2 of the DCP is upon the number of rooms used for the purposes of prostitution in a proposed development.

17. The applicant's submission that cl 6.2 of the DCP is wide enough to restrict the total number of rooms in a brothel to six including any room used as an office fails to give effect to the words `for the purposes of prostitution' which follow after the restriction. The restriction is not in its terms directed to all rooms within a proposed brothel but rather only to those rooms to be utilised for the purpose of prostitution and for the purpose of an office.

18. Different terminology is contained in cl 6.3(a) of the DCP which provides:-

(a) On-site carparking shall be provided for brothels at the rate of one (1) space per two (2) employees working at any one time on the premises and one (1) space per room where sex services are provided;

The Court does not regard the words `per room where sex services are provided' in the context of a carparking provision as sufficient to alter the clear intent of cl 6.2 of the DCP.

1. Each of the questions asked in the class one proceedings are answered in the negative and the Court directs that the parties be at liberty to approach the Registrar within 7 calendar days in respect of any further re-listing of the class one proceedings.

20. In relation to the class four proceedings the Court orders:-