Cheung v Ku-ring-gai Council

Jonah v Pittwater Council (2006) 144 LGERA 408 CASES CITED: Dayho v Rockdale City Council [2004] NSWLEC 184 Bales Investments Pty Ltd v Cessnock City Council [2009] NSWLEC 1102

APPLICANT Mr M Baird, barrister Instructed by LEGAL REPRESENTATIVES: Storey & Gough Lawyers RESPONDENT Mr T Howard, barrister Instructed by Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Ku-ring-gai Council (the Council) of an application pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent granted on 26 March 2008 by the Ku-ring-gai Planning Panel to development application No. 0353/07 for the change of use of commercial premises at 1/105 Grandview Street Pymble (the premises) to a brothel. The consent was subject to a condition limiting the use to a trial period of 12 months and the applicant sought to modify the consent by the deletion of that condition. 2 The issues between the parties are whether it is appropriate to permit continued operation, or impose a further trial period. The Council contends that the applicant had not complied with the conditions of the consent and all of the procedures as approved in the Plan of Management during the trial period, that the kitchen waiting room and reception areas have not been constructed and set up in accordance with the approved plan result in an unsatisfactory reception area/waiting room configuration, that the continued use of the premises would be contrary to the public interest, and that the applicant has not provided sufficient information to demonstrate that disabled access should not be provided to the premises. Background 3 The premises are located on the first floor of a two-storey commercial building fronting Grandview Street with access from a rear lane via timber stairs. There are two working rooms, each with a separate shower cubicle and handbasin, one staff resting room, two waiting rooms, one staff bathroom and one toilet. There are two car parking spaces at the rear of the site, one of which is used by the business on the ground floor and the other provided for the subject premises. 4 The Ku-ring-gai Planning Panel granted consent to development application No 0353/07 for a brothel on 26 March 2008, to operate from 10 April 2008. Condition 1 imposed a trial period of 12 months, stated to be "To allow Council to monitor the use and to ensure any possible adverse impacts are avoided". The hours of operation were restricted to 10am to 10pm seven days week. Condition 13 required that the premises be operated in accordance with the submitted plan of management, stated to be "To ensure the premises are well run, encourage a satisfactory and safe environment for sex workers and their clients, and that the operation of the premises does not cause a disturbance in the local area". 5 On 18 June 2008 a s96 application was approved to clarify condition No 4 in relation to the provision of ensuites in each working room. A further s96 application was approved on 27 November 2008 in relation to the erection of firewalls. 6 The Council referred to the application to New South Wales Police, and notified the application to adjoining parties. Seven written submissions were received, two in support and five opposed. A site inspection was conducted on 17 March 2009 in relation to the application the subject of these proceedings by the Council's Development Compliance Officer, Environmental Health and Building Surveyor (Mr David Mitchell), and Building Surveyor (Mr Greg Evans). Mr Mitchell undertook a further inspection of the premises on 2 April 2009. Mr Mitchell, Mr Evans and the Council Development Compliance Officer undertook a further site inspection on 7 July 2009. Mr Mitchell and Mr Evans conducted a further site inspection on 30 October 2009. Planning controls 7 The subject site is zoned Business 3(a)-(A2) Retail Services under the Ku-ring-gai Planning Scheme Ordinance. Brothels are permissible with consent. 8 The site is zoned B2 - Local Centre under the Draft Ku-ring-gai Local Environmental Plan (Town Centres) 2008. A "sex services premises" is defined as "a brothel, but does not include home occupation (sex services)". Sex services premises are permissible with consent of Council. 9 Relevant development control plans are Development Control Plan No 31 - Access (DCP 31) and Development Control Plan No 42 - Regulation of Brothels (DCP 42). The aims of DCP 42 are to provide planning controls for the determination of development applications to ensure the appropriate location of brothels, and to provide health guidelines for the operation of brothels. Part 3.1 of DCP 42 provides: 3.1 Initial Limits on Development Consent Development Consents granted to brothel applications may be initially limited to a period of twelve (12) months. At the completion of this period, Council will re-evaluate the proposal in terms of any complaints received regarding the approved operations and compliance with any conditions of development consent. Council may also impose conditions of consent relating to the hours of operation. This will also be the subject of review after 12 months. If after the 12 month trial, the approved hours of operation are causing a disturbance in the neighbourhood, the Council may further restrict operating hours. Where consent is granted, a specified operator will be nominated on the consent. Should the operator change the consent will would lapse and a new Development Application would be required. If the number of sex workers, hours of operation or signage are proposed to be changed, a new Development Application may also be required. Evidence 10 The hearing commenced with a site view. The Court heard evidence from residents who objected to the brothel and from others in support. The objectors stated that their concerns relate to the proximity of the premises to Pymble Park, and to a gymnasium where young women exercise, which could encourage inappropriate behaviour. The lighting in the Park at night is poor. In support of the application, another resident stated that he lives close to the premises, and walks around the area five times a week, and has never seen any trouble or disturbances. Another resident who runs a real estate business on Grandview Street stated that there is more trouble in the Park from kids than from this business, and that the premises generates business for the local shops. Two clients of the premises spoke in support of the application, stating that the business was well-managed. Ms Maggie Moylan, Counsellor at the Sex Workers Outreach Project (SWOP) spoke in support of the application stating that she has been in regular contact with the owner since May 2009, and that brothels usually operate in a quiet and discreet manner. 11 Expert planning evidence was provided by Mr Richard Smyth on behalf of the applicant and by Mr Harvey Sanders on behalf of the Council. Mr Mitchell and Mr Evans provided written statements which outlined their observations on the site visits and included copies of the reports which they had provided to Council.

Compliance with conditions and Plan of Management 12 The Council's Statement of Facts and Contentions identifies nine noncompliances with procedures as approved in the Plan of Management, and eight areas in which it is alleged there is a detrimental impact on health and safety of clients and/or sex workers. Mr Howard for the Council identified four matters observed during the inspections by Council officers as being of particular significance: -a panic button was not provided in each working room; -there was no provision of approved contaminated waste containers on the premises; -laundering of towels, sheets and linen was being carried out on the premises without a properly constructed laundry room and was not by private contractor as per the conditions of consent; -there was no provision in the premises of storing and handling of sharps. 13 In his written statement Mr Mitchell outlined his observations from his site inspection on 17 March 2009. On that occasion he observed non-compliance with the conditions of the development consent and the plan of management relating to signage, provision of a panic button in each working room, availability of safe sex aids, availability of health and other publications for staff. Mr Mitchell stated: The operator had been undertaking laundering of towels, sheets and linen on the premises rather than outsourcing to a private contractor. During the inspection, little was found in the washing basket and there were items being dried or washed on the external balcony area, which had been set up for the purpose of a laundry. 14 Mr Mitchell noted further concerns from his inspection of the premises on 2 April 2009 relating to provision of staff noticeboard, containers for disposal of sharps and contaminated waste, and laundry arrangements. In his statement Mr Mitchell concluded: The purpose of the trial period was to allow the applicant to demonstrate that the use would not have any amenity impacts. Whilst an inspection might provide a snapshot of the use of the premises the nature of the use makes it difficult to monitor every day operations things like training/education, examination of clients, health workers understanding and implementation of standards developed for the well-being of clients and workers alike. This is further complicated in circumstances where the operator speaks limited English making it difficult to communicate/discuss such matters. The serious non-compliance with a number of the conditions of consent, parallel to the non-compliance with the businesses own Plan of Management developed by the business to identify acceptable standards, poses a serious risk to the health and safety of employees and those who utilise the services of the premises. 15 In his written statement Mr Evans outlined his observations from the site inspection of 17 March 2009 and stated that he had observed a number of matters of non-compliance with the Building Code of Australia (BCA), including that fire extinguishers were not located or installed in accordance with AS2444. There were no non-compliances observed on inspection on 7 July 2009. On the site inspection of 30 October 2009 Mr Evans stated that he observed a chain installed at the bottom of the stairs, which did not comply with the BCA, that the portable fire extinguishers were not located are shown on the revised floorplan. Mr Evans stated that a fire blanket should be provided in the kitchen area, and an exit sign as required by the BCA needed to be installed in working room 2 which has two other doors. In his oral evidence Mr Evans stated that on the site view he was satisfied that the chain at the bottom stairs had been removed, that there were two fire extinguishers are located in positions which comply with the relevant Australian Standard and that there was a fire blanket in the kitchen. Mr Evans maintained that there needed to be an illuminated sign above the door leading into the hall from working room to rather than the current plastic sign.

16 Mr Howard for the Council acknowledged that by the time of the site view and hearing the matters identified in the Statement of Facts and Contentions had been addressed. Mr Evans' oral evidence was that by the time of his inspection on 7 July 2009 there were no noncompliances with the BCA. With the exception of the type of exit sign installed in working room 2, Mr Evans was satisfied that the matters observed on his inspection on 30 October 2009 had been addressed. Mr Mitchell's evidence was that on his inspection on 7 July 2009 the noncompliances that he had identified during the earlier inspections on 17 March 2009 and 2 April 2009 had been rectified, apart from the layout of the waiting rooms and reception area (considered below). 17 The issue of laundry was the subject of oral evidence and submissions. Photographs taken on 17 March 2009 and 2 April 2009 show a washing machine and dryer on a small balcony off working room 2, and a rack on which there appears to be coloured linen drying. On the site view, there was no washing machine or dryer on the balcony. 18 In the joint report, Mr Smyth was of the opinion that all of the particulars of non-compliance with procedures approved in the plan of management and concerns for impact on the health and safety of clients and or sex workers as identified by the Council in its Statement of Facts and Contentions had been addressed or satisfactorily answered. Mr Sanders acknowledged that the non-compliances were eventually rectified, however he was of the opinion that this suggested that the applicant is not able to operate the premises in a manner consistent with normally applicable requirements. 19 Mr Smyth relied on a written statement provided on behalf of the Golden Commercial Laundry dated 28 September 2009 which states: Since May of 2008, we have provided regular service to this customer, including picking up, planning and delivery of towels and bedsheets, three times per week, retaining on the Tuesday, Friday and Sunday each week. 20 In his oral evidence Mr Smyth referred to receipts which he had seen from the laundry service. A bundle of receipts was tendered (Exhibit 8), purporting to show monthly transactions. Mr Smyth agreed that it would be of some concern if the laundry was being done at the brothel. Findings 21 I accept the evidence of Mr Mitchell and Mr Evans as to their observations during the site inspections, which identified instances of non-compliance with BCA requirements, which have since been rectified. There was dispute as to whether oral dams, lubricant and other safe sex aids were available, and whether there were appropriate contaminated waste containers and containers for sharps, or whether these had simply not been observed on those site inspections. It was common ground that by the time of the site inspection of 7 July 2009 any non compliances with requirements of the Plan of Management had been rectified, and that was still the situation on the site view. There was dispute as to whether laundry of linen used in the premises was occurring at the premises. The invoices in the name of Golden Commercial Laundry (Exhibit 8) do not assist in establishing the extent of laundry services provided by an external contractor. While the invoices purport to be signed on a monthly basis covering the period 5 May 2008 to 10 October 2009, they are sequentially numbered from 1302 to 1320, and invoice number 1312 (5 June 2008) appears out of sequence between invoices 1302 (5 May 2008) and 1303 (5 July 2008); the sequence of numbering does not appear to be consistent with a commercial contractor providing services on a monthly basis. Even accepting the letter of 28 September 2009 from the Golden Commercial Laundry on its face, the presence of a washing machine and dryer on the premises until some time between 2 April 2009 and 7 July 2009 leaves open the possibility that they were being used to launder linen from the premises, in breach of condition 26 requiring that this be done by a private contractor. However, it was common ground that while there had been a washing machine and dryer on the premises, it had been removed by the time of the site inspection of 7 July 2009. 22 Mr Howard for the Council submitted that the approach to be adopted to consideration of past breaches was as outlined by Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408. While accepting that the general principle is that past unlawful use is not relevant as a predictor of future unlawful use, past conduct is relevant in consideration of a development consent for a trial period. In this instance the DCP at 3.1 sets out the purpose of the trial period; the development consent requires compliance with the Plan of Management; the Plan of Management nominates the operator and controls the impacts of the use; and while the trial period ran from 10 April 2008 there has been compliance only since July 2009. On that basis, it could not be said that the applicant has passed the trial period. Mr Baird for the applicant pointed to the purpose of the trial period as being to ascertain the impacts of the operation, and the evidence is that the premises operates quietly and discreetly. While accepting that there were breaches of the BCA, and disputing that there were in fact breaches of the Plan of Management, even on the Council's case those breaches had been rectified by July 2009 and a further trial period would not be warranted. 23 The aims of the DCP 42 are to provide planning controls to ensure the appropriate location of brothels and to provide health guidelines for their operation. In this context, the purpose of a trial period of 12 months imposed in accordance with part 3.1 is to enable the assessment of impacts of the operation of the brothel, by evaluation in terms of complaints received, and to consider compliance with conditions. It was common ground (and confirmed by the Council's Development Assessment Report dated 21 April 2009) that NSW Police had no reported incidents associated with the premises. Evidence from the closest neighbour at 4 Park Crescent was that there were no noise or other impacts from the premises. The concerns of those residents opposed to the application related to general concerns about the nature of the premises rather than any specific adverse impacts. The evidence before me includes a letter dated 31 August 2009 from Rachel Sandford, Manager Sex Workers Outreach Project, stating that since September 2008 the applicant has visited their premises every three months to collect sharps containers, condoms, and health and other safety information. Taking the evidence at its least favourable to the applicant, namely the Council's position that there had been breaches of the Plan of Management particularly in relation to provision of safe sex aids, health information, appropriate disposal of contaminated waste and sharps, and appropriate laundry arrangements, it was common ground that by 7 July 2009 any compliances had been rectified. The reason for the imposition of the 12 month trial period was stated to be to allow Council to monitor the use and to ensure any possible adverse impacts are avoided. During the course of the trial period, issues arising under the conditions of consent and the Plan of Management have been identified and addressed. Past conduct would not be relevant in either of the two senses identified in Jonah, namely as experience of unacceptable impacts that might be expected to continue, or as part of assessment of cumulative planning impact. Reception/waiting area 24 The Council contends that the kitchen, waiting room and reception areas have not been constructed in accordance with the approved plan, and that the construction is unsatisfactory because it does not provide a suitable reception area at the front of the premises that would facilitate the proper management, supervision and overall operation of the premises. 25 The plans approved as part of the original development consent show a waiting room and reception area as the first room upon entering the premises from the terrace at the top of the stairs, and an additional waiting room off the hall before the entry into the kitchen and staff rest area. The plans approved on 28 November 2008 as part of the s96 modification application for the erection of firewalls show a client waiting area as the first room on entering the premises, and an office located within the staff kitchen area in the adjoining room. As was apparent on the site view, and as shown in plan by Romeocad Drawing A-01 revision E (Exhibit B), as constructed there are two separate client waiting rooms off the hall immediately upon entering the premises, and the staff kitchen, office and rest area are located behind those rooms. 26 In the joint report, Mr Sanders expressed the opinion that the originally approved reception/waiting area provided a more satisfactory means for effective management of the premises. Mr Smyth was of the opinion that the business is a relatively small brothel providing two working rooms and two waiting rooms, and that the layout of the reception/waiting area was superior to that on the approved plans as it kept the operation efficient and provided backup for the reception and privacy. In oral evidence Mr Smyth stated that the original plan with waiting room and reception area combined was not appropriate and he supported the present construction which has two separate waiting rooms. In a small brothel it is acceptable to have the reception located in the same place as the staff rest area. The function of that reception area is as a place where payment is made. There is a camera monitoring the entrance and customers are met at the door by the receptionist before entering the premises. The premises could cope with four clients at a time and it would be appropriate for any further clients to be asked to leave and come back later. Mr Sanders was of the opinion that it is not appropriate for the reception area to be located in the same space as the staff kitchen and that it needs to be near the door. Mr Sanders considered that the premises should be constructed in accordance with the original plans. In response to questions Mr Sanders agreed that the plans approved as part of the section 96 modification approval of 28 November 2008 were not ideal as there was only one waiting room at the front, and that to that extent the most recent plans were preferable. Findings 27 It was common ground that the reception and waiting areas of the premises have not been constructed in accordance with either the plans approved as part of the original development consent, or those approved on 27 November 2008 as part of the earlier s96 modification. I accept the evidence of both planners that it is preferable for privacy reasons to have the areas where prospective clients wait separated from public areas such as the reception. The current arrangement provides two separate waiting areas instead of the single waiting area on the plans approved on 28 November 2008 and the combined waiting area/reception on the plans as originally approved. Both planners agreed that the current configuration is preferable to that approved in the previous s96 modification. I accept the evidence of Mr Smyth that in the context of a small brothel, with two working rooms and two sex workers, it is not essential that the reception/office area be located at the entrance to the premises. There is no evidence that the present operation of the premises where the receptionist monitors arrivals by CCTV and greets prospective clients at the door has caused difficulties or placed clients or workers at risk. On that basis, the plans reflecting the current configuration should be approved. Disabled access 28 The Council contends that the applicant has not provided sufficient information to demonstrate that disabled access in compliance with the Disability Discrimination Act 1992 (Cth) should not be provided to the premises due to unjustifiable hardship. Mr Sanders' position was that if development consent were to be granted subject to a further trial period it would not be necessary for disabled access to be provided at this time as it would not be warranted for such a trial period. Mr Smyth disagreed, on the basis that in the original report to the Panel the applicant requested that requirement for access be waived on the basis of financial hardship and that this matter was addressed by the Panel in its determination to grant development consent. Mr Smyth stated that the stairway has four stages to reach the terrace level at the entry to the premises and that it would be an excessive cost to provide disabled access for what is a relatively small brothel. In Mr Smyth's opinion the assessment of hardship could be done as an overall assessment and it was not essential that there be some evidence of the cost or the financial position of the operator. In the written report Mr Smyth identified larger brothels at Granville and Artarmon that have facilities for the disabled. Findings 29 The aims of DCP 31 include ensuring access for all to public buildings, community facilities and new developments. Section 10 of the DCP 31 provides that Council can vary the provisions of the DCP if compliance with the DCP would cause major difficulties or unreasonable costs to a person or organisation. An applicant needs to consider how access might be provided, and substantiate to Council that providing access in accordance with the DCP is unjustified. The premises fall within the "office/commercial" category under the DCP 31, which would require access "to and within all the areas or facilities of the building where there is a reasonable expectation of access by any occupier, employee or visitor". The provisions of the Disability Discrimination Act 1992 (Cth) make it unlawful to discriminate against another person on the ground of the person's disability in relation to the provision of means of access to premises (s23(c)). Section 29A states that discrimination on the ground of a disability is not unlawful if avoiding the discrimination would impose an "unjustifiable hardship" on the person; and s11 sets out the matters to be taken into account in that assessment. 30 Access to the premises is by way of a flight of stairs. The Report to the Ku-ring-gai Planning Panel of 4 March 2008 addressed the issue of access and compliance with DCP 31, noting that the applicant had requested that the requirement for access be waived on the basis of financial hardship upon the business. The Report states: The Plan of Management makes reference to the provisions of a ramp at the rear of the premises but fails to thoroughly justify and examine the ability of providing suitable access in accordance with the Policy. Notwithstanding this, it is clear that the practical difficulties of achieving first floor access would result in excessive cost as it is likely that compliance could only be achieved via a lift or stair climber and would result in significant alteration and further constraint to the existing premises. Similar hardship provisions exist under section 23 of the Disability Discrimination Act 1992 (Cth) and on this basis, the request to waive the requirement is considered reasonable. 31 This recommendation was not qualified by reference to the 12 month trial period recommended in the Report. Having regard to the size and constraints of the site, including the configuration of the shower and handbasin in both working rooms, I am not persuaded that there is any basis on which it would be appropriate to depart from the recommendation of Council officers to waive the requirement, which was accepted by the Ku-ring-gai Planing Panel when development consent was granted. Conditions 32 The Council submitted that if development consent is granted two additional conditions should be imposed in the following terms: 32. Further inspections On two (2) occasions during the 12 month trial period, a private investigator chosen by the Council, may attend the premises and obtain any available services offered at the premises for the purpose of assisting the Council to monitor compliance with this consent, by the private investigator providing a report which deals with the following matters: (i) the time and date of the visit (ii) the name of the person who answered the telephone when arranging the appointment (part 2, Plan of Management (POM) (iii) whether the investigator was advised of the parking options contained in part 3(a) of the POM in relation to parking and transport at the time the appointment was arranged (iv) the name of the person who greeted the investigator on arrival (part 2, POM) (v) whether safe sex aids were offered and used (part 5 of the POM) (vi) whether the staff conducted an examination of the investigator prior to provide any services (part 5 of the POM) (vii) whether the used safe sex aids were disposed of in the contaminated waste disposal bins (condition 33) (viii) general comments on the cleanliness of the premises (part 7 of the POM) (ix) any other observations relevant to compliance with the Plan of Management and these conditions The cost of the private investigator is to be borne by the operator. The report and invoice for the investigator is to be provided to the operator within seven days of receipt by Council. The invoice is to be paid within 14 days of receipt by the operator. Reason: To ensure compliance with the development consent. 33. Register The operator is to maintain a register during the 12 month trial period which contains the following details: (a) any complaints received from customers or the general public including: i. The date of the complaint ii. The name of the complainant iii. The nature of the complaint iv. The response to the complaint (b) Staff rosters (c) A record of laundry pickup and deliveries (including receipts) (d) A record of condom or other safe sex aid deliveries (including receipts) (e) A record of the pickup and disposal of contaminated waste (including receipts) The register is to be provided to the Council upon request. Reason: to ensure compliance with the development consent. 33 Mr Baird for the applicant opposed condition 32 on the basis that it was unduly onerous and possibly unlawful. The Council has powers to ensure compliance and to have the applicant pay for such an investigation could lead to situations of corruption. Condition 33 is not needed if there is to be no further trial period. There have been no complaints so there is no need for 33(a); there are issues of confidentiality with 33(b); the Council's case has not been put on any concerns for safe sex so there is no need for 33(d). Mr Howard for the Council submitted that condition 32 it is relevant and appropriate for the reasons discussed in Dayho v Rockdale City Council [2004] NSWLEC 184 and Bales Investments Pty Ltd v Cessnock City Council [2009] NSWLEC 1102. 34 I am of the view that the application should be approved without the imposition of any further trial period, which would mean that neither of proposed conditions 32 or 33 would be relevant in the terms in which they are expressed. In any event, both parties accepted that the Council has, as part of its powers to monitor and ensure compliance with conditions of the development consent, including the provisions of the Plan of Management, powers to inspect on notice, and power to engage a private investigator to investigate and report. The applicant has responded to rectify previous non-compliances identified on inspection by Council officers, and I am satisfied that neither condition 32 nor 33 is required to ensure compliance with conditions of consent in the future operation of the premises. Conclusion 35 The purpose of the trial period required by the DCP 42 is to enable the assessment of impacts of the operation of the brothel, by evaluation in terms of complaints received, and to consider compliance with conditions. Condition 1, imposing a trial period of 12 months on these premises, was intended to allow Council to monitor the use and to ensure any possible adverse impacts are avoided. That has occurred, and there have been no adverse impacts in terms of noise or other disturbances to nearby residents or to the locality generally. Non-compliances with the conditions of consent and the Plan of Management identified as part of the Council's inspection and monitoring have been rectified. For the reasons set out above, I am satisfied that the purpose of the trial period has been achieved, and that no purpose would be served by imposing a further trial period. The appropriate course is to delete condition 1 of the development consent, and to amend condition 2 to include the amended plans showing the configuration of the reception/waiting areas as currently constructed. Orders 36 The orders of the Court are:

2. The development consent (DA 353/07) granted on 26 March 2008 for the change of use of permises at 1/105 Grandview Street Pymble to a brothel is modified by the deletion of condition 1 and the amendment of condition 2 as included in the Conditions of Consent in Annexure A.

3. The exhibits, except Exhibit B, may be returned.

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