16 The eastern element of the precinct contains a series of three streets that are generally in the shape of an inverted Y. Brodie Street runs, in general terms, north-south for the full length of this element of the precinct. At approximately sixty per cent of its length to the south, Muriel Street branches to the east and then turns south. It is in Muriel Street that the premises that are the subject of these proceedings are located. Further down Brodie Street, past Muriel Street, a small street named Allan Street branches again generally to the south.
17 These proceedings are proceedings pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the Act") against the deemed refusal by Parramatta City Council ('the council'), it being the consent authority identified as the relevant consent authority by virtue of the provisions of cl 7(1) of the SREP. Development application DA 483 of 2009 was lodged with the council on 29 July 2009.
18 At the commencement of the proceedings I drew to Mr Doyle's attention the fact that s 97 of the Act permits the applicant to the council to appeal against a refusal or deemed refusal. The applicant to the council was a Mr John Boers of John Boers Consulting. The applicant nominated in the Class 1 application form was Ms Huang, who is to be the proprietor of the proposed brothel.
19 Having drawn this matter to Mr Doyle's attention at the commencement of the court hearing, I granted leave pursuant to s 64 of the Civil Procedure Act 2005 to amend the application to change the name of the applicant so that these proceedings will be carried out in the name of Boers v Parramatta City Council. That in my view, is an appropriate and permissible course to follow and is consistent with the decision of the Court of Appeal in McInnes v Wingecarribee Shire Council [1997] 10 NSWLR 660.
20 Mr Doyle also raised the question of revised plans and an amended development application, leave to amend not being opposed by the council. Rather than having to embark upon the exercise of determining whether or not the proposed amendments were minor for the purposes of s 97B of the Act, the parties agreed that it would be appropriate for me to make an order by consent, pursuant to s 97B(2) of the Act, that the applicant pay the respondent the agreed sum of $1 within twenty-eight days as the appropriate costs order. I will reflect both the leave to amend and the s 97B(2) order in the formal orders of the Court when made at the conclusion of this decision.
21 The proposal that is the subject of these proceedings is to change the use of a two-storey industrial warehouse building into a brothel. The proposed hours of operation are to be twenty-four hours a day, seven days a week, with a maximum of ten sex workers on the premises at any one time, operating across nine client rooms. Parking and appropriate facilities for the employees of the premises are to be provided. The street address of the site is 16 Muriel Avenue Rydalmere.
22 In the council's amended Statement of Facts and Contentions, contention (8) was in the following terms:
The proposed development will consolidate Rydalmere as a "red light" district. There is a proliferation of brothels in the area. Clustering of brothels in the area is an issue.
23 Prior to the commencement of the court hearing, the council, through its solicitor, Mr Drury, had notified the applicant that that contention was not pressed and that a number of comparatively minor matters remained in contention relating to conditions of consent, parking and the like.
24 However, as part of the notification process for this development application, there were three objections received from members of the public. Section 79C(1)(d) of the Act requires me to have regard to submissions that are to be considered as part of the assessment process of the merits undertaken pursuant to that section. In addition, I am to have regard to the suitability of the site for the development (s 79C(1)(e) of the Act).
25 I note, at this stage, that I have been assisted in my consideration of the issues that I need to determine by the evidence given by two expert planners in the proceedings, Mr Fryar for the council and Mr Winnacott for the applicant. I have considered the three objections that had been made. I need to comment briefly concerning each of them.
26 The first of them concerns premises adjoining 16 Muriel Avenue where an objection was lodged (and tendered in the council's bundle) to the proposed brothel on the basis that those premises were being used (at least in part) as a residence. Mr Fryar, during the course of his oral evidence in court, indicated in response to a question from Mr Doyle that he had examined the council's records and had established that the most recent approved use for this building (now being used as a dwelling) was as an office in support of commercial or industrial premises located to the rear. I am satisfied, as a consequence of Mr Fryar's evidence on this point, that it is not appropriate for me to have regard to that objection.
27 The next objection to which I turn is one lodged by the financial manager of two businesses located on the opposite side of Muriel Avenue and some thirty or forty metres to the northwest of the site. That letter of objection contains, on my reading of it, four matters of substance.
28 The first is contained in the second paragraph of the letter and is that the businesses in the area do not want another brothel and that there are already five brothels located in the area to the knowledge of the author. The fact that somebody might not want a brothel is not a matter appropriate for me to consider, nor are questions of personal morality and taste associated with such premises. I am obliged to consider this application on a proper planning basis. As a consequence, the first basis of objection contained in that letter is not a matter requiring further consideration.
29 The second objection concerns "the bringing of the wrong crowd to the area" and that it will no longer be safe for women who work in the area. That is based, on my understanding of it, on a fear of the consequences of permitting the brothel to be established. Mere fear, no matter how honestly and genuinely held, is not an appropriate basis for planning consideration unless there is some rational evidentiary basis upon which I could conclude that the fears were likely to be realised and I have no such evidence in these proceedings. I pay no further regard to that objection.
30 The third objection is based is based on traffic and parking. I have expert evidence from an officer of the council and a traffic consultant on behalf of the applicant that provides me with an appropriate expert evidentiary basis to be satisfied that that objection is without foundation.
31 The fourth objection is a concern that there will be drugs, alcohol and other violence towards sex workers. Again, although that may be an apprehension honestly and genuinely held by the writer of the letter, there is no evidentiary basis upon which I could conclude that that would occur and I therefore do not consider that objection further.
32 The final objection raises three concerns (on my reading of it) - two of them being parking and traffic and drugs and vandalism and the like. Neither of those warrant further consideration as earlier discussed.
33 However the final objection is in the following terms:
As there are already numerous brothels in the adjoining streets, why do we need yet another one? The area is going to become another Kings Cross.
34 That, to a considerable extent, mirrors the more generalised expression in the contention put by the council but no longer pressed. It is however in my view couched in somewhat emotive language (as was the council's original contention). They do, in my view, however, raise the underlying question which, in any event, I am obliged to address as a concept arising out of the SREP and that is, is the proposal consistent with the present or desired future character of the locality or neighbourhood within which it is proposed to be located? I will return to that topic shortly and do so in less emotive language than that which I have recently quoted.
35 A number of other matters were also raised during the course of the proceedings relating to the applicability of the council's proposed Development Control Plan for such premises or the relevance of the present Development Control Plan for such premises (that has been adopted by the council as a policy applying to such premises). There were also a number of conditions of consent that were contested but consideration of these was deferred pending my determination of the primary issue of the appropriateness of the development.
36 As I earlier indicated, I have been assisted by concurrent evidence of Mr Fryar and Mr Winnacott in these proceedings. I will refer further to their evidence.
37 I turn first to deal with the first or primary step, that is my satisfaction or otherwise with the relevant provisions of the SREP.
38 During the course of the oral evidence given concurrently by Mr Fryar and Mr Winnacott, they agreed that the appropriate steps for the consideration of this question would be to commence with cl 40D(1)(e) of the SREP; to step from there to cl 40Q of the SREP; and then get to cl 40U(1).
39 I agree that this is the appropriate basis upon which I should step through those provisions of the SREP, although I observe that in addition to that provision, I must also address the terms of cl 79 - Brothels of the SREP. I will now step through these provisions.
40 Again the relevant provision in cl 40D(1)(e) requires compliance with the controls for special areas set out in the relevant part of the SREP. The objectives contained in cl 42 that are relevant are those that I have already cited being "(a) to ensure development is compatible with the particular character and significance of each special area" and "(b) to reinforce the specific attributes and qualities of each of the special areas".
41 As I earlier note, the character statement for the Rydalmere Station and Environs Special Area is in the following terms:
The Parramatta rail link and the upgraded Rydalmere railway station will be the catalyst for redevelopment. The area centred on the station will be attractively developed for a mix of commercial and transport related activities. Brodie Street on the edge of the station precinct will comprise upgraded retail activities, shop top offices and housing. The station will be redeveloped to achieve integration with the surrounding land use. The area extending to Subiaco Creek will support a wide range of business services and enterprises, parking and traffic problems in the area will be reduced. The natural amenity of the Vineyard and Subiaco Creek foreshores will be enhanced with vegetation locally native to the area through bush regeneration, improved pedestrian and cycle links will be part of the revitalisation of the area.
42 The provisions of cl 79 of the SREP relating to brothels require that as part of the consideration of such an application there are four matters that need to be considered.
43 The first of them concerns disturbances in the neighbourhood. I am satisfied this is not relevant for my consideration in these proceedings.
44 The second of them is whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood. This, in my view, ties back to consistency with the present or desired future character of the area.
45 The question of disturbance from other brothels operating in the neighbourhood is a matter upon which I have no evidence concerning the operations of the other brothels in the neighbourhood and I am satisfied that I do not need to have regard to it. Further, there are no other relevant environmental planning instruments that I should consider as being relevant in these proceedings.
46 It is in this context that I need in considering the character of the area to consider that other brothels and restricted premises are located within the area that is identified in the SREP. There are, in the area, I earlier described two geographically distinct sub-precincts, the Mary Parade/Bridge Street sub-precinct and the Brodie, Muriel and Alan Streets sub-precinct. Each of them has, as its gateway, the slip road from Victoria Road. Prominent to the eyeline as one exits from Victoria Road travelling west is a restricted premises located on the slip road.
47 In Brodie Street there are presently two brothels that have been the subject of recent proceedings in the Court. There is an existing brothel at 19A Brodie Street that was approved by Commissioner Hoffman some time ago but was the subject of proceedings to expand and intensify its operation and the decision in that case Wei v Parramatta City Council [2010] NSWLEC 1046 was given by Pearson C on 17 March 2010. Commissioner Pearson approved the intensification of that brothel use so that it will now have three service rooms and three sex workers.
48 On 30 November 2009, Dixon C in Huang v Parramatta City Council [2009] NSWLEC 1401 granted approval to the establishment of a new brothel at 22 Brodie Street, and that will have ten sex workers at night, and eight sex workers during the day.
49 During the course of the proceedings, I had tendered by Mr Doyle a document prepared by the council that purported to show brothels in the general area going well beyond the Rydalmere Station and Environs Special Area I have already identified. There are two things that I observe with respect to that as being relevant to these proceedings, but only relevant in the sense of me recording that I propose to ignore them. First, that document identifies 8 Brodie Street as a proposed brothel that is subject to an undetermined development application. It is not, as I indicated during the course of the proceedings, appropriate for me to have any regard whatsoever to that application. Second, there is an as yet undetermined application for a further intensification of the brothel at 19A Brodie Street. That is the subject of a reserved decision before Fakes C. It would be entirely inappropriate for me to speculate on, or have any regard to that application, and I do not do so in these proceedings.
50 It was also the agreed position of the experts that premises that had been identified at 17 Bridge Street as being a brothel were not in fact an approved brothel. Finally, there is an approved brothel at the southern extremity of Bridge Street at 55 Bridge Street. The following tagged air photo (at 90 degrees to the earlier map) shows the positions of the brothels and of the restricted premises:
51 Although there are a number of matters contained in cl 79 of the SREP, it is also appropriate in my view to have regard to the Court's planning principle concerning the establishment of brothels. Planning principles, however, as I observed in Alphatex Australia v The Hills Shire Council (No. 2) [2009] NSWLEC 1126, are not binding and are merely processes or statements designed to assist a decision-maker in reaching a conclusion - in this instance, about a particular application for the establishment of a brothel.
52 The planning principles dealing with brothels were set out by Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 where at para 18, the then Senior Commissioner set out a number of criteria to be considered when dealing with the location of brothels. Only one of them is relevant in these proceedings, it is the second last of the dot points and is in the following terms.
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.