Davis v Parramatta CC

Pont v Hurstville [2005] NSWLEC 33; CASES CITED: Martin v Hornsby [2004] NSWLEC 614

APPLICANT Mr A. Galasso, barrister of Ritchie & Castellan

RESPONDENT Mr C. Gough, solicitor of Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is a Class 1 Appeal 11564 of 2004 between Lyn Davis and Parramatta City Council over the refusal of consent for a brothel at No. 6 Station Street East, Harris Park. As the address might indicate the premises are opposite the Great Western Railway but not opposite the station. The station is a little to the south of this. Opposite the site and several city blocks north is only a footpath and the railway security fence. Station Street ends adjacent to the site at a L-shaped intersection with Marion Street which also ends there. A pedestrian laneway commences at that point and takes one along beside the railway southwards to the station entry and overbridge.

2 The brothel is on the upper floor of an early 1900s two-storey building on the corner of Station and Marion Streets. On the ground floor on the corner is a hairdresser. The next shopfront along Station Street from the hairdresser has windows whited-out, then there is a recessed doorway to the next shopfront. That is the entry to the brothel.

3 The second shopfront is also whited-out with only the street number for identification. The two whited-out shopfronts contain a waiting room and a reception room for the brothel. Behind them on the ground floor are stairs to the upper floor, an office, a bathroom, a small tea room and the door to the rear lane. Upstairs there are four consulting rooms and separate bathroom and a laundry. Three of the consulting rooms have en-suite showers and basins.

4 The next shopfront north past the brothel is a hardware shop and the last shop in the group is a fast food pizza take away. After that along Station Street are older houses and flats, some of which are used as offices, others for accommodation. This one city block along Station Street East is zoned Business under Sydney Regional Environmental Plan No 28, Parramatta, and that is the applicable statute.

5 There being so few shops in Station Street East the main shopping centre is in Marion Street. Opposite the corner in Marion Street beside the pedestrian lane to the rail station is another shop and eastwards along the southern side of Marion Street are various local commercial and retail buildings, some of which have a second storey.

6 In Marion Street on the north side and beside the hairdresser is a fire exit from the upper storey and then there is a rear service lane. On the other side of the lane fronting Marion Street is a restaurant. The shops, commercial premises and restaurants et cetera extend two blocks up Marion Street from the railway past Wigram Street, Albion Street to Harris Street.

7 South of the shops is zoned medium density residential with a mix of flats and older houses. North of the shops in Wigram, Albion and Harris Streets is zoned low density residential. 8 The north and south side of Marion Street where the shops are only, and a long city block north up to Una Street along Station, Wigram, Albion and Harris Streets is a heritage conservation area under Sydney Regional Environmental Plan No 28. A large number of buildings are heritage items.

9 The houses off the rear lane at the back of the subject site front Wigram Street. They are heritage items. The majority of the cottages in the conservation area date from the late 1800s and early 1900s. Many have been restored. Some are used as residences, others as offices and community facilities.

10 Around the corner from the subject site in Marion Street and between the rear lane and Wigram Street are four heritage items converted to restaurants.

11 The issues in the appeal are: 1. The proposal does not comply with the zone objective 1(a) which requires commercial development to support surrounding residential development.

2. Car parking has not been provided in accordance with the provisions of the regional environmental plan in that no car park has been provided for the development.

3. The proposed development will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation and number of employees and other people working in it and would be likely to interfere with the amenity of the neighbourhood.

4. The proposed brothel does not comply with the following requirements and standards of the Parramatta Regulation of Brothels Development and Control Plan.

(a) Cl 2.1 Location. The brothel will be located within pedestrian view from the Anglican Church in Crown Street and the Buddhist temple in Cowper Street and will be within 100 m of land zoned Residential.

(b) Cl 2.2 Access and Layout of Premises. Part of the brothel is located at the ground floor level.

(c) Cl 2.3 Parking. The development control plan requires one space for each two employees. No car parking is proposed.

(d) Cl 2.4 Hours of Operation. Proposed hours of operation being 9am to 12 midnight seven days a week this will have an adverse impact on the community environment and nearby land uses.

(e) Cl 2.7 Security and Public Interest. Sufficient details on measures to be undertaken to safeguard workers, clients and the general public have not have been provided.

(f) Adequate sanitary facilities as required by cl 2 of the Health Standards for Brothels in the development control plan have not provided in each room. 5. The proposed development is situated in close proximity to sensitive land uses being the Western Housing for Youth, residential dwellings and flat buildings, licensed premises, places frequented by children for recreational activities, a public reserve and is a pedestrian thoroughfare linking Marion Street to the Harris Park railway station which is used by school children.

6. Disabled access has not been provided to the premises.

7. Approving the application is not in the public interest.

12 The respondent's evidence on site was from: + Mr N Ellis, objector, of the Harris Park Community Centre at 11 Albion Street, + Mrs E Mats - Bouzoulas, representative of the Harris Park business community with 21 signatories to the objection - she is also proprietor of an internet café in Marion Street with a residence above - + K C Morton representing the Harris Park Progress Association, + the Parramatta Local Area Command New South Wales Police represented by Senior Constable Scaron, and + Mr A Cowell, senior town planner for Parramatta City Council.

13 Written objections were received from a number of local residents and some other local property owners who did not live in Harris Park but were concerned for their investment.

14 One of the written objections is from IBAA Parramatta, a Buddhist monastery at No. 22 Cowper Street on the other side of the railway and to the north of the site 100 m or so.

15 The applicant's evidence was from: + Mr D Jones consultant town planner and + Mr F Rupolo building surveyor and accredited certifier. 16 The parties had agreed that the Court should appoint an expert town planner, Mr N Kennan, who prepared reports and gave evidence.

17 During the hearing it became known that the council staff had, in dealing with the application, decided it did not need advertising because there had been an earlier development application for a brothel entirely on the ground floor of the same site and it had been refused. This application was refused under delegated authority following preparation of a report. The proposal had only been notified after the appeal was lodged.

18 It also became known that the council and any objectors to the earlier public notification may have thought that the entry to the brothel was from the rear lane near the houses and restaurants, whereas the application according to the Statement of Environmental Effects was for customer entry only through the Station Street East shop front door. An adjournment was granted to enable readvertising of the proposal.

19 The number of objections received were somewhat fewer than previously and were in exhibit 7 however the objections raised similar issues to previously and they could be summarised as:

(a) Harris Park residents and shop owners have been cooperating to raise the quality of the local amenity and return it to a family-oriented village atmosphere. A brothel is considered contrary to that amenity. (b) Being near the rail station entry school children will pass by the brothel twice daily. (c) Late night activity of the brothel will encourage anti-social activity that the police and community have been striving to reduce. (d) There will be nuisance to nearby residents and the patrons of the restaurants. (e) There are sensitive uses nearby such as the monastery, the Western Housing Centre for Youth, internet café, the tenpin bowling centre in Cowper Street on the other side of the railway, and public reserves and parkland. (f) Disabled persons access is not provided to the upstairs consulting rooms. (g) The proximity of the schools to the brothel and the nearby churches. (h) Fear of unsavoury characters using the brothel or making victims of its customers. (i) Possible drug use on site or nearby.

20 The applicant noted that even faced with those objections and the issues the brothel had been operating for three years and the police had no record of any complaint or incident and the council has had no complaints until the development application was lodged.

21 In cross-examination Mr Cowell agreed the existing buildings on the subject site, having been built in the early 1900s, had no space for car parking. He said the development generated a need for one space per three employees. He was asked if old commercial premises and shops, that had never had parking, were required to provide it when shops changed tenants and had different commercial or retail uses commence. He said depending on the new use old buildings were not required to provide parking due to the historical deficiency.

22 Asked if the restaurants nearby had car parking when they had apparently been converted from old houses into restaurants that were in the business zone. Mr Cowell said they were not required to provide parking. It was put to him that restaurants generate more traffic than most shops and offices. He agreed.

23 The applicant produced recent approvals for a restaurant at No. 62 Wigram Street and another at No. 48 Station Street East for 120 seats. Neither had a requirement by council for on-site car parking.

24 Mr Cowell said brothel parking was needed for discrete entry for clients. He was asked why he did a pedestrian survey outside the site at 8am to 9am and 2.30pm to 3.30pm. He said to see who passed by the site and he saw school children.

25 It was put to him the operating hours proposed were 9am to midnight seven days a week so the morning count was not applicable. He agreed.

26 It was put to him that the anonymous appearance of the building, that was very plain on the exterior, having only the No. 6 on the recessed entry door of Station Street East, would draw little attention to children or other passers-by. Mr Cowell agreed with that except for the prominent location of the building.

27 It was put to him that to know the building contained a brothel one would have to have been told, or had been there, or have telephoned the brothel or looked it up in the phone book. He agreed, however he still thought its operation could cause nuisance to the adjoining sensitive premises and residents going about their normal activity, especially late at night.

28 It was put to him the restaurants were approved for midnight closure, the same as the brothel. Restaurant patrons, having had an enjoyable evening, were more likely to be noisy while they said goodbye to friends and in slamming the doors of their cars, starting engines and driving away. He agreed they could cause more nuisance to the residents and activity in the street, further he agreed that the restaurants directly adjoined the houses whereas the proposal was at least a laneway width from the back fences of the houses and the customer entry was on the opposite side of the building to any of the houses.

29 In regard to the proximity to the places of worship, being the monastery and the church, it was put to him that to get to either was several hundred metres walk. In particular the monastery, one would have to travel south to the railway station overbridge, across it and then back northwards. Also the monastery faced north away from the site. Persons going to the monastery would not be aware of the brothel at all. Direct line of sight was at least 200 m across the railway tracks. Mr Cowell said the building the brothel is in could be seen from the monastery but he agreed it would only be seen from the monastery roof or by an oblique view from some upper storey windows that were not involved in the public areas of the monastery.

30 In regard to pedestrians going to the railway he agreed there were several entries to the railway station. Most people using the Marion Street laneway would normally come down the south side of Marion Street from the residential areas. The south side of Marion Street is the opposite side to the subject site and so those persons would not pass directly by the brothel.

31 He agreed both local schools were hundreds of metres from the site to the east and north-east, not directly along Station Street, and so most children going there would not pass the site. He also agreed the public recreation spaces were also quite remote from the site. The Western Housing for Youth premises was amongst the shops further up Marion Street.

32 On the difficulty of provision of disabled access to the upper floor of the brothel, Mr Cowell said he thought the applicant in Mr Rupolo's report was making it sound much more expensive and difficult than necessary. He thought it could be provided more cheaply. He agreed he was not a qualified person to give evidence on that. 33 The applicant's submissions, and Mr Jones criticised Mr Cowell for saying the proposal did not comply with Sydney Regional Environmental Plan No 28 for Parramatta, cl 29F(1)(a) objective of the business zone, in that it was not a business use that supports the surrounding residential.

34 Mr Jones said there were two aspects to this. Firstly, the business zone specifically allows brothels with consent. Brothels are permissible in only one other zone in the regional plan area. If it did not comply with the zone objective it should not have been one of those permitted uses.

35 Secondly, although many people may not wish to use the brothel, it does provide a service for local people and others who may wish to do so. The real test for the proposal was whether it could exist with minimum and acceptable impacts.

36 The council Development Control Plan for brothels was established when the state government first permitted them to be considered for development consent during the 1990s. The Development Control Plan had in its aims to make brothels not permissible in the conservation area of Harris Park as well as some other places. The advent of Sydney Regional Environmental Plan No 28 that permitted brothels in the conservation zones had nullified that provision of the development control plan because it could not prohibit a use that the statute permitted. Also the Development Control Plan was made under Parramatta Local Environmental Plan 1997 that had since been repealed.

37 The applicant submitted to a major extent the weight of those facts meant that the Development Control Plan could not apply to the proposal, nevertheless it had been considered. The most relevant aim of the Development Control Plan in this appeal was for it to be "a reasonable distance from residential and sensitive uses and will not have a detrimental impact on the amenity of the neighbourhood".

38 Given the shape of the business zone in Harris Park, being a narrow strip with residential abutting, the location of the brothel was about as far from residential as it was possible to be.

39 The Harris Park business zone being a unique zone in the Sydney Regional Environmental Plan No 28, the allowance of a brothel in it must have been considered in the writing of the statute despite the narrowness of the zone and its proximity to the residential zone.

40 Cl 79 of Sydney Regional Environmental Plan No 28, provides specific considerations for brothels. Subcl (a) and (b) were the most relevant and they deal with potential disturbance in the neighbourhood and amenity impacts. Subcl (c) only applied where other brothels were nearby and there are none, and (d) refers to other statutes that have not arisen in the issues except for disabled access. 41 On parking, cl 54 of Sydney Regional Environmental Plan No 28, applies. It discourages use of private transport and encourages use of public transport.The site is ideally situated for public transport and cl 57 requires that an application does not exceed the car parking calculation. It is a provision to stop somebody providing more parking than necessary and does not apply a minimum number of car parks, therefore car parking can be zero. The weight of that provision again tends to override the Development Control Plan that would require three or four car spaces on site.

42 In view of the council's approving a 120 seat restaurant conversion of an existing house without car parking almost next door to the proposal, it can hardly be said the proposal requires it. In any case brothel customers and staff tend to be discrete and not use on-site parking. The location opposite the railway with low intensity uses adjoining and in the less active part of the shopping centre is discrete.

43 The hours of operation being 9am to midnight and nearby more active premises operating to the same hours means that the brothel will not be active outside normal night-time activity. The small number of consulting rooms, being four consulting rooms and a staff of five sex workers and one receptionist maximum, means that it is a small operation that will not generate large numbers coming and going.

44 The council Development Control Plan requirement for each room to have its own shower and basin is complied with in three consulting rooms and the fourth has a full bathroom accessible directly across the hallway. The management plan provides for the orderly and hygienic running of the premises. Group bookings or clients intoxicated or drug-affected are not to be allowed.

45 Staff will seek the quiet conduct of patrons in arriving and departing the premises. Proper hygienic procedures will be followed in accordance with the normal Occupational Health and Safety requirements.

46 On heritage matters the premises are to remain as they are, and no matter was raised in issues requiring a physical change to the premises except for disabled access. The existing building has only two narrow and steep stairs to the upper floor. The front step at the entry is about 200 mm high and made of marble. The ground floor has differing levels in some rooms compared to others, varying between 110 mm and 200 mm difference.

47 Door widths are too narrow in some cases for wheelchairs as is the main set of stairs. It cannot have a chairlift fitted. The walls are load-bearing masonry and the toilets and bathrooms would need enlargement to enable disabled access.

48 Mr Rupolo said the Disability Discrimination Act 1992 enabled discretion on the provision of disabled access where there was unjustifiable hardship. The internal ramps needed, the widening of doors, the separate lift for wheelchairs, enlarged bathrooms et cetera meant major alterations to the building.

49 Mr Kennan provided supplementary evidence on this aspect and drew from a precedent case Pont v Hurstville [2005] NSWLEC 33 where circumstances were similar to the subject proposal and an exception under s 32(2) of the Disability Discrimination Act 1992 was justified. He did not believe disabled facilities should be required. Mr Kennan's evidence corroborated that of Mr Jones and the applicant's submissions.

50 Security matters were taken care of by the plan of management. The applicant put that in view of the overwhelming expert evidence in favour of the proposal it should be approved and draft conditions in exhibit 4 should be amended by deleting the deferred commencement requirement and condition 1(c) requiring the disabled facilities. That would mean conditions 5, 6, 8, 9, 10(d) and 11 to 29 inclusive would be deleted too as they are all relevant to construction work on-site and none are proposed.

51 The applicant also pressed the deletion of condition 40 for back-to-base alarms and security patrol from 8pm to 6am as the premises would close at midnight.

52 In considering the evidence I had regard to the planning principle in Martin v Hornsby [2004] NSWLEC 614. I have formed the opinion that the statutory submissions of the applicant have determined why the Development Control Plan has little role to play given the provisions of Sydney Regional Environmental Plan No 28. A brothel being permissible with consent in the business zone. The site of the premises is discrete and not obvious to passers-by, including impressionable school children or adolescents. Most of them however, will not pass by the site and are more likely to use Marion Street than Station Street East.

53 The proximity to one entrance of the rail station if that be the lane way, is at such a distance across the street, it does not cause persons to congregate on the footpaths near the premises.

54 This location does not have sensitive uses adjoining or adjacent. Any that are in the locality are at such a distance that the premises would have no effect on their amenity.

55 The restaurants are directly adjacent but around the corner and at the rear and away from the entry and exit to the brothel. It would not normally be seen or interfere with the restaurant patrons' enjoyment of a night out. The restaurants are directly adjoining residences and closer to them than the proposal. Having the same operating hours as the restaurants means that the subject premises will not operate outside normal activity times and not adversely affect the amenity of the neighbourhood or nearby residents.

56 Parking requirements given in Sydney Regional Environmental Plan No 28 and the age and physical layout of the site means that changed use and re-use of the premises for commercial uses such as this can be termed pari passu. Otherwise any use for which parking on-site was mandatory would have to be refused. That is not the case in this proposal.

57 The plan of management, the small scale of the business, the hours of operation will minimise potential for disturbance of the neighbourhood or nearby neighbours to acceptable levels. The discrete appearance of the premises and its entry from Station Street East provides inconspicuous access.

58 The location of the monastery across the other side of the Great Western Railway is so remote from the site, even though visible it could not be such as to justify refusal. The same applies to the church in terms of distance and remoteness from the site.

59 There is no cumulative impact as there is no other brothel in the locality and three years past operation without complaint or incident reveals the minimal impact it has had, and should have, in the future.

60 There is no reason sufficient for refusal of the proposal, therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for a brothel at No. 6 Station Street East, Harris Park, as shown in the drawings in Exhibit H by Building Design & Technology, Project No. 200434 September 2004, Ground Floor Plan and First Floor Plan, as hand annotated in Exhibit H of this appeal and subject to the Conditions and Plan of Management in Annexure 'A' hereto. 3. The exhibits are returned to the parties except Exhibits A, B, F, G, H, 4 and 7. 4. No orders as to costs.

      K G Hoffman
      Commissioner of the Court
      ljr

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