Assad v Campbelltown City Council [2013] NSWLEC 1114 | Case summary

Evidence 11The Court heard planning evidence from Mr P Hume, for the applicant, and Mr M Brown, for the council. Mr R O'Brien, for the applicant, and Mr S Barnes, for the council, provided a joint report on the Building Code of Australia (Contention 6). They reached agreement on the imposition of conditions, which resolved this contention and they were not required for cross examination. 12The planners agree that the proposed development is an intensification of the current approval and that the locality has changed from industrial to bulky goods retailing since the brothel was approved In 1998. A number of retail outlets have been established, including Harvey Norman, Toys R Us and Babys R Us, which are located opposite the site. They disagreed on the compatibility of the brothel proposal with this emerging character. 13Mr Brown considered the bulky goods retailing to be "family orientated" and that the area is one which would be frequented by children, albeit in the company of adults. In his opinion, people using the brothel may park on other properties rather than the site to preserve their anonymity and as on street parking is not permitted on Blaxland Road. He was concerned that people were unlikely to share the waiting room and suggested that separate waiting areas be provided. There is also the potential for patrons to congregate outside the brothel and for anti social behaviour to occur, particularly if security guards were not present. In his opinion, the increase in the number of rooms and the hours of operation is likely to result in land use conflicts and adverse impacts. 14Mr Hume considered that the brothel approval predates the retail outlets and there is no evidence that its operation has resulted in adverse impacts. Mr Hume conducted a survey of the retail premises, which indicated that they are patronised predominantly by adults and that children were accompanied by an adult. In his opinion, with the increase in the number of rooms and operating hours the brothel remains a small scale and discrete activity which is unlikely to result in land use conflicts or adverse impacts. The brothel is a significant distance from the retail outlets on the opposite side of a busy road with no clear line of sight and, in his opinion, it is unlikely that people would use the retail car park and cross Blaxland Road. He agreed to changes to address Mr Brown's concerns including the provision of separate waiting areas and the requirement for a security guard when there are more than four sex workers on site, as well as on Thursday to Sunday nights. Mr Hume considered that the relocation of the entry from the front of the property to the side and the adoption of a Plan of Management (PoM) is an improvement on the original consent, which would mitigate adverse impacts. Findings 15The DCP includes the objectives: (b) To acknowledge that sex industry premises are permitted in appropriate locations within Campbelltown; (c) To locate sex industry premises so that they do not create adverse social or economic impacts, do not result in any adverse effects on the amenity of an area and do not become a prominent feature in the streetscape; (d) To control the location of sex industry premises to avoid a concentration of these uses in a particular location and to minimise any cumulative impact of the industry. 16Section 4.1 of the DCP includes location requirement for brothels to minimise their impact on sensitive land uses. The requirements include: a brothel must not be located within a 150 metre radius ....of child care centres, churches, community facilities, residences, hospitals, medical centres, schools, places regularly frequented by children for recreational or cultural activities, licensed premises and major transport nodes. ...... Brothels must not be located within a 150 metre radius .....of another sex industry premises. 17The DCP also includes Design Requirements for Brothels (s 4.2); Car parking (s 4.3): Protection of neighbourhood amenity (s 4.4) and Waste disposal and collection (s 4.5). 18Council and its experts did not contend that the proposal did not satisfy the objectives and meet the requirements of the DCP. Mr Mantei, for the applicant, submits that the DCP does not identify shops, even if frequented by children, as a sensitive land use near which a brothel should not be located. The council is seeking to impose a more onerous test than cl 4.1 of the DCP. 19Mr Mantei and Mr Seton, for the council, referred to the decision of Roseth SC in Martyn v Hornsby Council [2004] NSWLEC 614, which although not directly applicable to these proceedings, provides principles on the location of brothels. At [1], Roseth SC states: 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. 20The principles in Martyn include that brothels should not adjoin or be visible from: areas that are zoned residential; schools, educational institutions for young people or places where children and adolescents regularly gather; places of worship; a bus stop regularly used by school buses; other brothels. 21The location of the existing brothel does not offend these locational principles, or those in the DCP. The emerging character includes shops which may be visited by children. However, the potential for conflict is minimal, due to the separation distances between the retail premises and the brothel, the lack of a clear line of sight and as the additional hours occur at times when other uses are not operating. 22In approving the original brothel council determined that the location was suitable. There is no evidence before the Court that the operation of the existing brothel has resulted in adverse social or economic impacts on the locality or the amenity of other uses. While it is agreed that the character of the area has changed from industrial to more bulky goods retail, I accept the evidence of Mr Hume, that the increase in the number of rooms and the operating hours of the brothel would not render a use which has operated acceptably into one which would not. The NSW Police raised no objection to the proposal, subject to measures that have been incorporated into the PoM and conditions. 23I acknowledge that the compatibility of the brothel with the character of the area is a function of scale and that as the size and number of rooms increase the potential for impacts may also increase. However, in this case, the proposal remains a relatively small scale and discrete operation and includes measures that mitigate potential impacts to a greater extent than the current approval. These measures include locating the main entry to the side away from the street view, providing adequate on site car parking, security cameras and a PoM. The applicant has agreed to further measures which include separate waiting areas, security guards when more than four workers are present and on Thursday to Sunday nights as well as a limit on the maximum number of clients at any one time on the premises. With these measures, I am satisfied that the proposal will not have an unacceptable social or economic impact on the locality or the amenity of other uses and would not be inconsistent with the character of the locality. The other matters raised by council would not warrant refusal of the application.

Assad v Campbelltown City Council

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (1)