Boutros v Strathfield Municipal Council

Strathfield Planning Scheme Ordinance LEGISLATION CITED: Strathfield Development Control Plan No. 27 - Industrial Development Development Control Plan No. 15 - Provisions for the Establishment of Brothels

Butros v Strathfield Municipal Council [2005] NSWLEC 76; CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614

APPLICANT Mr P Clay, barrister SOLICITORS Pike Pike and Fenwick

LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10677 of 2004 Chalita Boutros v Strathfield Municipal Council

The appeal 1 This appeal relates to Development Application No. 9899/329 which is for the demolition of a number of existing industrial buildings and the construction of a two-storey reception centre above three basement levels of car parking ("the reception centre") at 78 - 80 Cosgrove Road, Strathfield South. 2 The site is situated at the corner of Pilcher Street. It is identified as Lots 30 - 37 in DP 11432 and Lot 129 in DP 456942 and has an area of 3,584 sq m. 3 More particularly the proposal comprises: + Three reception areas (totalling approximately 3000 sq m) with associated foyers, kitchens etc. + Drop off areas and port cochere. + Basement car parking for 254 parking spaces including six disabled spaces. + Disabled access generally including a lift.

4 The locality comprises an older style general industrial area interspersed with a number of newer buildings. It is developed with a range of industrial uses including manufacturing, repair, warehousing and ancillary offices. Consent has been granted for the use of part of a building opposite the site in Cosgrove Road as a brothel. Statutory provisions 5 The site is included in the Industrial 4 Zone ("Zone No. 4") under the Strathfield Planning Scheme Ordinance ("the PSO"). The PSO does not have any general aims or objectives, nor are there any aims or objectives for the various land use zones. 6 A reception centre is not defined under the PSO. However, place of assembly is defined and is prohibited in the industrial zone. The question of prohibition was considered by Nott C when he decided that the proposal does not comprise a place of assembly but could be commercial premises, a land use with limited permissibility and subject to the particular requirements of the PSO. (See Boutros v Strathfield Municipal Council [2005] NSWLEC 76). It is now agreed that the proposal should be considered in accordance with the definition of commercial premises. 7 The land use table for Zone No. 4, relevant to the subject development application provides that commercial premises are prohibited, (being purposes for which buildings or works may not be erected or carried out or used), other than those … which by virtue of their nature, … are, in the opinion of the council, appropriately located in this zone. 8 Clause 61GB(3) applies to development applications relating to land within Zone No. 4 and relevant to the subject development application provides that:

(3) The Council shall not grant consent to development for the purpose of … commercial premises on land to which this clause applies, unless it is satisfied that: (b) Where the development may otherwise have occurred within a business centre in the locality, suitable land for the development is not available in that business centre. (c) The development is of a type appropriate to an industrial zone or to the general character of existing development within the industrial zone 9 The PSO does not provide any explanation as to what is the objective of these particular requirements. 10 Whilst not containing any particular requirements for commercial premises, Strathfield Development Control Plan No. 27 - Industrial Development ("DCP 27") is of assistance in understanding the likely future nature and character of Zone No. 4. The aims and objectives of the DCP generally speaking seek to improve the quality of industrial development in terms of: environmental impact; building design, landscapes and streetscapes; employee amenity; and on-site parking and vehicle maneuvering generally. Also referred to is Development Control Plan No. 15 - Provisions for the Establishment of Brothels ("DCP 15") Advertising and council's decision 11 The development application was advertised and objections were received from and on behalf of Ms M Thuillier of A & C Thuillier the owners of the adjoining 64 - 76 Cosgrove Road. Apart from raising matters involving the interpretation of the PSO the following matters were of concern: + The proposal will cause a fundamental change to the character of the area. + The proposal will result in a loss of valuable industrial land in this industrial precinct. + The proposal will have an adverse impact on the future development of adjoining and nearby industrial land. + The proposal will constrain possible future development of adjoining land. + If approved the owners of the reception centre might complain about the legitimate activities occurring on adjoining land.

12 The development application was considered at length in a council officer's report. That report accepted that the proposed use is one that could be approved by council and concluded that conditional consent should be granted. It recognised the changing form and purpose of industrial areas from that of traditional manufacturing and industrial based bulky goods retailing especially in high exposure areas resulting in industrial areas being developed for commercial/retail land uses. Changing architectural styles was also recognised. In relation to cl 61GB(3)(b) of the PSO it was accepted that the cost of assembling a site for this purpose in a business zone would be prohibitive. 13 Despite this report the council decided that the development application should be refused for the following reasons:

1. Incompatibility with the zoning. 2. Not in the public interest. 3. Impacts on car parking in the area are not adequately addressed. 4. The stormwater disposal is not identified appropriately. 5. Landscaping provisions are inadequate. 6. Waste management is not adequately addressed. The issues 14 As a result of a careful consideration of the application and information provided by the applicant, as well as the proposed conditions of consent, I am satisfied that concerns involving: car parking and traffic; infrastructure (water, sewer and drainage) and services; access for disabled persons; waste management; remediation of contaminated land; energy efficiency; and fire safety have now been resolved. 15 The first issue involves question of whether the proposed development is, in the context of the definition of commercial premises, by virtue of its nature, appropriately located in Zone No. 4. If this question were answered in the negative the reception centre would be prohibited by the PSO. This issue essentially coincides with the requirement contained in cl 61GB(3)(c) of the PSO, which is also a threshold issue. It raises the question of whether the reception centre would be appropriate to the industrial zone or to the general character of existing development within the zone. It also largely coincides with the other issue pressed by the council as to whether the reception centre would be compatible with the likely future character of this industrial area. 16 The second issue is also a threshold issue and arises out of the requirement contained in cl 61GB(3)(b) of the PSO. It raises the question of whether the reception centre could be developed within a business centre in the locality, and where suitable land is not available in that business centre. The Evidence 17 In addition to the expert traffic reports expert town planning evidence was given by Mr A Betros on behalf of the applicant and by Mr N White on behalf of the respondent council. The town planners prepared a joint statement which was of little assistance in relation to the principal issues in dispute having failed to comply with the applicable Expert Witness Practice Direction that requires where matters are not agreed upon reasons for such disagreement are to be provided. 18 Ms Thuillier also elaborated on her concerns when the hearing began on-site. Land use suitability and compatibility 19 The first of the issues as described above involves three aspects: + The definition of commercial premises; + The requirement of cl 61GB(3)(c); and + Likely future character of the area.

20 In essence these aspects require a consideration of whether, by virtue of its inherent characteristics and its general character, the reception centre would be appropriate and thus compatible with Zone No. 4, taking into account the character of existing development and the likely future character of the zone. 21 In dealing with these issues Mr White was able to conclude that the reception centre was not compatible with the general character of existing and future industrial development in the zone. This is because all surrounding buildings and land uses are industrial in nature whereas the proposed building and land use is unlike anything that exists in the locality. Also, it is likely to be in conflict with existing surrounding land uses some of which operate up to 24 hours per day with associated heavy vehicle movement and noise generation; noting also that the zone permits general industrial uses of a kind that are unlikely to be compatible with the proposal. Such incompatibility might arise from the generation of noise, vibration and other from existing or future industrial land uses. Also, additional industrial land uses could convert to 24-hour operation. In the circumstances the reception centre cannot expect surrounding industrial development to provide a high level of visual and acoustic amenity. 22 Mr White also expressed concern that should the reception centre fail, the specific nature of the design means that the building would not be readily capable of conversion for technical and industrial uses given its limited floor to ceiling heights, varied floor levels and limited vehicular access. 23 In examining the question of whether the reception centre would be compatible with existing industrial uses Mr Betros considered the operational characteristics of surrounding premises including their operating hours, traffic generation and parking requirements. He conducted a number of surveys during normal weekday business hours as well as at night during the times when the reception centre was likely to operate. He concluded that during the predominant operating times for the centre there would not be any conflict with surrounding industrial premises. 24 Mr Betros also examined the land use table applicable to the zone and concluded that the list of non-permissible uses would virtually eliminate the kind of industrial uses he believed could be potentially incompatible with the proposal. Such uses include hazardous industries, hazardous storage, junkyards offensive industries and offensive storage establishments. Also, noise criteria relevantly applicable to the existing industrial development and enforced by the Environmental Protection Authority and the council would ensure that noise levels would be compatible with the reception centre. 25 Clearly the proposed building will have the appearance of a reception centre and will be very different to many of the existing older style industrial buildings in the locality. It will also appear different to the more modern industrial buildings opposite in Cosgrove Road. However these differences in appearance cannot be considered to be critical to this application. In my view the existing mixed architectural character of this industrial zone can readily accommodate another different building form. 26 As for potential land use conflicts, Mr Betros is correct in identifying those industrial uses, which cannot be approved in the zone, and excluding them from consideration in this context. Despite this, a reception centre as land use will be very different to the surrounding existing and likely future industrial land uses. These industrial land uses are many and varied and despite their differences they are largely compatible one with the other. 27 The fundamental difference between the reception centre and the surrounding industrial land uses is that the reception centre will, unlike the industrial uses, attract many more people to it for social or recreational purposes. Despite this I do not find that this is indicative of an unacceptable incompatibility and agree with the conclusion reached by Mr Betros. Of particular relevance is the fact that the reception centre will predominantly operate when the surrounding industrial land uses are not operating. It is possible that this might change but I do not expect that it would change to the extent that this would result in a serious incompatibility. 28 It is also relevant to note that the activities of the reception centre are to be internalised within the building, the only significant external activity being vehicular traffic coming to and leaving the site. This would tend to protect activities within the reception centre from possible external impacts and thus limit the likelihood of complaint. Indeed both the reception centre and surrounding industrial uses must both meet the same amenity and safety requirements and thus will not create a sensitivity or constraint between them. Similarly, should surrounding land uses change and generate lawful (in an industrial context) impacts the reception centre would have no cause for complaint. 29 I also note that issues relating to traffic have been resolved and I can see no reason why, if there were to be an increase in industrial activity in the locality during typical reception centre operating hours, that any likely traffic conflict would be such as to warrant refusal of this application. 30 Mr White also expressed concern in relation to the approved brothel in premises opposite the site. It was his understanding that the brothel would have been approved on the basis that the precinct is and would continue to be utilised for industrial purposes, inferring that it may not have been approved if the subject proposal were in existence. It was his opinion that a commercial use as is proposed that caters for family groups would be incompatible with the brothel use. In this regard he pointed out that DCP 15 seeks to prohibit brothels within 250 m of premises that would be regularly frequented by children. The proposal would in effect be contrary to this provision. 31 Mr Betros was of the opinion that the brothel was likely to operate mainly during business hours and when it does, it can be expected to do so in a discreet manner. There is no signage that reveals its existence as such nor does it have windows that would overlook the subject site. It has access to an abundance of car parking. He considered that the brothel would be unobtrusive in nature taking into account it being within an industrial building and was of the opinion that there would be no resulting incompatibility with the reception centre which he did not consider to be a sensitive land use. 32 In Martyn v Hornsby Shire Council [2004] NSWLEC 614 Roseth SC said that:

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. 33 Clearly the proposal does not involve a school or educational institution however it could be said that the reception centre is a place where children and adolescents will regularly gather, although this is unlikely to involve the same young people on a regular basis. The building in which the brothel is located will be visible from the centre. In my view the planning principle aims to deal with concerns that children might observe activities associated with a brothel or come into contact with brothel workers or brothel patrons. 34 In this case I accept that when children come to the reception centre they will mostly be in the company of adults and will mostly come by car, such cars utilising the basement car park. Although there may be instances when parking on the street will occur children will seldom utilise the footpath and if they do they are likely to be in the company of an adult. In the circumstances I believe that inappropriate contact between persons associated with the brothel and children is unlikely. I also expect that activities associated with the brothel itself including persons coming and going will be generally inconspicuous to persons attending the reception centre. On the whole I do not expect that these persons will behave in an inappropriate manner. I therefore accept the evidence of Mr Boutros and conclude that the existence of the brothel is not a matter of determinative concern. 35 In all of these circumstances I am satisfied that the reception centre would be appropriate in Zone No. 4 and thus comprises commercial premises of the kind that are permissible. Similarly I am satisfied that the requirement of cl 61GB(3)(c) is met. Suitable land elsewhere 36 Clause 61GB(3)(b) of the PSO applies to Zone No. 4 and in effect requires that commercial premises should not be approved where land for that purpose is available within a business centre. Importantly the business centre is to be within the locality of the site. It was not in dispute that the reception centre would be permissible in business zones/centres under the PSO. 37 The question that arises is whether the Court as the consent authority can be satisfied by appropriate evidence as to whether suitable land for the development in a business centre in the locality is available. If such land is available development consent cannot be granted. If it is available the matter can be dealt with on its merits. 38 According to Mr White the applicant has not established that suitable land is not available within a business centre. Conversely, it was his opinion, that suitable land would be available within a business centre, for example within the Mixed Use 10 zone at Homebush/Flemington where a number of large car yard sites exist. 39 In response Mr Betros examined the relevant zoning maps and consulted with several real estate agents in the area. He reached the conclusion that there are no commercially zoned areas that could accommodate even a modestly sized reception centre, let alone a reception centre of the scale proposed here. He sought advice and considered lot sizes and ownership and site consolidation possibilities. He also made reference to the council planning officer's report wherein it was accepted that the cost of assembling a site for this purpose in a business zone would be prohibitive. 40 Mr Betros agreed that his research was not comprehensive and was asked questions about a large bowling alley site in Liverpool Road. He did not accept that this site would be suitable for the proposal and was not aware that it might be available for purchase.

41 Whilst he recognised that there are business zones in Strathfield and other locations, Mr Betros commented that there are no business centres in the relevant locality. In his opinion the relevant locality is the surrounding neighbourhood and this would not include business centres such as Strathfield. Moreover, there are probably no business centres in the relevant locality.

42 It was submitted on behalf of the respondent that in relation to requirement in cl 61GB(3)(b) the evidence of both experts was unsatisfactory and that a comprehensive study would be required to properly answer this question. The applicant rejects this submission suggesting that the analysis of Mr Betros was sufficient to answer the question in favour of the applicant.

43 Unfortunately there is no definition or explanation of the term locality in the PSO to inform the application of cl 61GB(3)(b). I am nevertheless inclined to accept the approach of Mr Betros that the relevant locality is likely to be the surrounding neighbourhood and certainly should not comprise the entire local government area. This being an urban area (by comparison with a rural area) it is likely to be a smaller rather than a larger area. There is nothing to suggest that if a business centre cannot be found in the neighbourhood, that for the purposes of the clause, the locality, needs to be progressively expanded until a business centre is discovered.

44 In these circumstances I accept that the commercially zoned land in Liverpool Road between Homebush Road and Bede Street is likely to be the only business centre in the locality for the purposes of cl 61GB(3)(b). I have not been persuaded that a suitable site for the proposal is available in this centre.

45 The burden imposed by cl 61GB(3)(b) of the PSO involves the consent authority's satisfaction and in my view the test of whether suitable land for the development is available in a business centre in the locality should not necessarily be answered solely by the applicant or solely by the respondent. Whilst the applicant's evidence in this regard is imperfect the respondent brought no evidence that to my mind was sufficient to refute Mr Betros' conclusions.

46 I thus find that for the purposes of cl 61GB(3)(b) of the PSO that suitable land for the reception centre is not available within a business centre in the locality. Orders 47 In all of the circumstances I find the application worthy of approval. The orders of the Court are therefore:

1. The appeal is upheld. 2. Development application No. 9899/329 for the demolition of existing industrial buildings and the construction of a two-storey reception centre above three basement levels of car parking at 78 - 80 Cosgrove Road, Strathfield South, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibits 12 and D are retained. 4. There is no order as to costs. ____________ T A Bly Commissioner of the Court rjs

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