Devey v Hurstville City Council

CASES CITED: Martyn v Hornsby [2004] NSWLEC 614

DATES OF HEARING: 28/07/2006 and 31/07/2006

APPLICANT Mr I Woodward, solicitor SOLICITORS Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10282 of 2006 Clinton Devy v Hurstville City Council

1 I have been able to consider the evidence and the submissions and I shall go to judgment.

2 This is a class one appeal between Clinton Devey and Hurstville City Council in regard to a deemed refusal of a brothel or sex services premises at No. 19 Pritchard Place, Peakhurst.

3 Pritchard Place comes directly off Forest Road, which is a main road. Pritchard Place descends a hill with an industrial zoning on one side and residential zoning on the other. After about 200 m from Forest Road it divides into two branches, each leading to a cul-de-sac, both called Pritchard Place. One cul-de-sac is downhill in the industrial area, the other cul-de-sac is uphill in the residential area. It terminates in an entry to a retirement village. At the point where Pritchard divides into two branches it is like a T-intersection, so drivers coming down from the main road need to make a decision whether to go to the industrial area or the residential.

4 The proposal is at the end of the industrial arm of the cul-de-sac. It is surrounded by industrial uses. There are warehouse factory style units adjoining the site to the east and the west with frontages to Pritchard Place. They are used for the purpose of mechanical repairs and manufacturing of kitchen furnishings respectively. To the rear of the premises a boundary brick wall obscures views and access to the light industrial land uses that front Stanley Street to the south. The Zone 4 Light Industrial characterises the streetscape along Pritchard Place. Generally the site is surrounded by a variety of light industrial and wholesale uses, including wholesalers, mechanical repairs, automotive engineering, furniture manufacturing, showrooms and offices.

5 Within a broader regional context, the site is located within an area of suburban development and enjoys excellent access to services and facilities.

6 Uphill to the north, across the cul-de-sac and across the industrial site on that side, is a public reserve and then the residential zone. In a direct line, the closest boundary of the parkland is 32 m away, however, any view of it is obscured by a large shipping container on an industrial site. Behind the container is a 2.1 m high chain mesh fence on the boundary with the public reserve.

7 The roof and part of one house about 50-60 m away in a direct line can be seen from the car park of the proposal over the top of the container. A large industrial building obscures any other houses. There is no access from the industrial area to the park or the houses except by going up the curved roadway of the cul-de-sac and around the corner of the T-intersection, a distance of about a 150 m to the commencement of the park, and slightly less to the nearest point of the residential zone.

8 There is a closer part of the residential zone, being the retirement village itself, which extends down to the back of the industrial area. It is two allotments across from the subject site. Due to the tapering nature of the allotments at that point, it is only about 25 m away. However, it is not visible from the cul-de-sac or the subject site.

9 The site has an existing building on it. It is a split level building which has a floor arrangement that steps with the topographical fall of the allotment to the rear. The majority of the building, which is level with the street, comprises an entry area and waiting room, a kitchen and four service rooms. A staff laundry is located to the rear a half-level down and is accessed via a stairway. The rear section of the building is an attached large industrial shed. Two staff car parking spaces are provided in the shed as well as the staff laundry. These car parking spaces are accessed via a driveway to the east of the existing building. There are four other visitor car spaces on site at the front of the building, one space is for a disabled person vehicle. There are no signs except for the street number.

10 The use of the premises for the subject purpose has been going on for about two years. The application proposes small alterations to allow disabled person access and for a staff bathroom and toilet within the laundry. The two car spaces in the rear enable a discreet entry and exit for staff members into a secure area. The proposal is required to have a total of three car spaces under the council's code, so with six on site it more than complies with car parking requirements. There were no issues of traffic or other matters raised except the three issues which I shall come to in due course.

11 There is security mesh on all windows and doors. A security system including back-to-base alarm and surveillance cameras are proposed. A comprehensive management plan is included to maintain appropriate hygiene and safety in the operation of the premises together with the necessary staff training and management. The operating hours proposed are Thursday and Friday 10 am to midnight, Saturday to Wednesday 10 am to 10 pm. The number of staff at any one time on site would be one manager and/or receptionist and four sex workers.

12 The issues in the appeal are: (1) The proposed development is contrary to Hurstville Local Environmental Plan 1994 cl 16(A)1(b) objective to ensure that sex services premises are not located near or within view of a school, church or hospital or any place frequented by children, or within or near land that is within a residential zone or used for residential purposes , in that the premises is near a reserve likely to be frequented by children and also close to land within a residential zone and used as such. (2) The proposed development is contrary to the Hurstville Local Environmental Plan cl 16(A)(2)(a) in that the development will be "near or within view of, … (a) a place frequented by children" as the premises is near a reserve likely to be frequented by children. (3) the proposed development is contrary to the Hurstville Local Environmental Plan cl 16(A)(2)(b)(i) and (iii) in that the premises will be located within 100 m of land within the (Residential Zone) No. 2 and of land used for residential purposes. (4) Council considers that the proposed development would be contrary to the public interest. 13 The respondent's evidence was in the form of council reports and six letters of objection from residents of the other branch of Pritchard Place roadway.

14 The New South Wales Police Force rated the crime risk of the property as moderate in a scale of low, moderate, high and extreme. A number of recommendations were stated by the police and they have been incorporated in the plan of management, the physical works on the building and the council's draft conditions.

15 The applicant's evidence came from 11 letters of support from adjacent and adjoining staff and owners of industrial properties and oral evidence given on site by Mr S Koulos of No. 17 Pritchard Place and Mr P Terry of No. 21 Pritchard Place. They said, in summary, that the operations of the premises over the last two years had much less noise and activity than the previous use on the site and the customers were seen to use the on-site car spaces or the street parking in the industrial area. Mr Terry thought security in this part of the industrial area was better at night since the premises operated there. Most industrial uses closed after 6 pm or 7 pm but the presence of the subject activity provided a surveillance function late at night.

16 There was also in evidence the statement of environmental effects by Ms J Bates and the operational plan of management by Ms J Bates and an objection under State Environmental Planning Policy No. 1 prepared by Mr A P Gough, consultant town planner and lawyer. The parties had agreed that the Court should appoint Mr R Smythe, town planner, to give an independent assessment of the proposal. His report is in Exhibit 1.

17 The proposal has been widely notified to properties in the locality for public comment. The residents of the house closest to the site, part of which could be seen from the car park, had not objected to the proposal. The retirement village was probably the closest dwellings to the site across the two industrial lots to the west, but it could not be seen, nor see the site, from that direction. Also, to arrive at the village by road from the subject site was a journey of about 300 m to the other end of Pritchard Place.

18 The next closest house to the site is probably the Dalla-Libera home at No. 10 Pritchard Place. It cannot be seen from the site but it is opposite the park. Their concern is that the subject premises are visible from some positions in the park and that noise and lights of cars looking for the premises at night due to the confusion of the two branches of Pritchard Place would occur. Also, they have two children who use the park to play in and the parents felt that the brothel could destroy the family friendly community in their street.

19 Other objectors say, in their letters, that persons looking for No. 19 already drive into the residential branch of Pritchard Avenue, however, there is no statement of how they verified that. They also state children play in the street and the park and they fear customers of the proposal may ask directions. Others say the proposal is not acceptable in a residential area and that it would destroy the entire street.

20 The council report, in considering these objections, only raised the reserve as "may potentially be frequented by children". It also put that being within 100 m of a residential zone, the use is prohibited under cl 16(A)(2)(b)(i). I should state the whole of cl 16(A) as follows: "16(A)(1), the objectives of this clause are as follows: (a) to specify appropriate planning controls relating to the use of premises as sex services premises;

(b) to ensure that sex services premises are not located near or within view of a school, church or hospital or any place frequented by children or within or near land that is within a residential zone or used for residential purposes;

(c) to provide for sufficient separation between sex services premises so that there is not a concentration of those premises in any one locality;

(d) to limit the size of sex services premises. (2) Despite any other provision of this plan the council may grant consent to the carrying out of development for the purposes of a sex service premises only if:

(a) the council is satisfied that the premises will not be near or within view of any educational establishment, place of public worship or hospital or any place frequented by children; and

(b) the premises will not be located within 100 m of (i) land within zone No. 2, or (ii) land within zone No. 5(a) used for the purposes of an education establishment, place of public worship or hospital, or (iii) land used for residential purposes; and

(c) the premises will not be located within 200 m of the boundary of any land on which there is one or more than one sex services premises lawfully operating; and

(d) the council is satisfied that the premises will not contain more than five rooms used or capable of being used for the purpose of a sex services premises. (3) For the purposes of subcl (2)(d) any room with an area exceeding 18 sq m is taken to comprise two rooms." 21 Mr Smythe does not accept that cl 16(A)(2)(b)(i) is a total prohibition, as there are test cases that render the 100 m distance as a standard that can, in acceptable circumstances, be reduced by a State Environmental Planning Policy No. 1 objection. Mr Gough had prepared such an objection in Exhibit 1 Tab 5 and Mr Smythe agreed with its content, that the objectives of the statutes and cl 16(A)(1) are met due to the location of the premises in the industrial area, well over the 100 m distance from the residential area by the only access route.

22 The respondent put that even if Mr Smythe's support of the SEPP1 objection was upheld, cl 16(A)(2)(a) was not a standard but a precondition that the premises must not be near or within view of, inter alia, any place frequented by children. The respondent put that the park was near, and frequented by children. The applicant put that there was no substantial proof that the park was near or frequented by children when those terms are given their correct meaning.

23 The respondent's case in terms of what is seen on the ground in the locality is that the industrial buildings and the shipping container block any view of the site except for a gap of about 2 m between the container and a building. From that position, a person standing on the far side of the park from the site, the far side being the uphill side, can see part of the car park and the subject building. Mr Smythe said that could easily be resolved by the applicant paying for a solid fence to the reserve. At first he said 1.8 m high but changed this, on-site, to 2.3 m high on the boundary of the park measured in the location where the container stands between the two industrial buildings. The fence would have the advantage of blocking the rather unsightly appearance of the shipping container from the park, as well as blocking any view of the subject premises.

24 It was also proposed the applicant pay for a street sign at the T-intersection of the two branches of Pritchard Place to indicate the street numbers of the industrial estate so that drivers did not venture into the residential end of the street.

25 Mr Smythe's evidence said that the park cannot be considered to be near to the subject site because it is about a 148 m from the site and up around a corner. In access terms it is not in a position that would normally have any interaction with the subject premises. Also, with the fence as proposed, it is not within view of a place frequented by children.

26 Mr Gough and Mr Smythe said the nature of the park, having no play equipment, having a cross fall and existing trees, did not exhibit any regular use by children in the way the term 'regular' is defined by the dictionary: constant or occurring at short intervals. The use would need to be every day, Mr Gough thought, to comply with that definition. The applicant put that if cl 16(A)(2)(a) was defining a distance, then it must be susceptible to a State Environmental Planning Policy No. 1 objection and had Mr Gough put in a supplementary, Exhibit B, to cover that eventuality.

27 In considering that matter, I favour the opinion that the clause is a question of fact on which the council and the Court, standing in the council's shoes, needs, in the terms of the clause, to be satisfied upon. There is a deal of discretion in cl 16(A)(2)(a) that does not exist in cl 16(A)(2)(b). The discretion is there probably to provide flexibility in situations similar to this where the actual proximity of the park, as the crow flies, does not reveal the true situation as seen on the ground.

28 I accept Mr Smythe's evidence that the proposal is not near or within view of the park and there is no evidence to substantiate frequent use of the park in the way the simple dictionary definition of the term requires.

29 I agree with Mr Gough and Mr Smythe that the State Environmental Planning Policy No. 1 objection to cl 16(A)(2)(b)(i) is well founded and the proposal does meet the objectives of the statute in that it meets the appropriate planning controls in cl 16(A)(1)(a) and I have dealt with the objective in subcl (b) above. There is no other brothel nearby as required under subcl (c) and the size of the premises at four service rooms and four sex workers is small, as required under subcl (d).

30 I believe the objections by persons in the residential zone are not well founded given the evidence before me and the impact of the proposal will be minimal and acceptable.

31 The support for the proposal by the 11 letters of industrial area owners and occupants is some indication of its acceptable impacts. This conclusion is further supported by the planning principle tests for brothels in the case Martyn v Hornsby [2004] NSWLEC 614.

32 Therefore, the orders of the Court are: (1) The appeal is upheld. (2) Development consent is granted to a sex services premises at No. 19 Pritchard Place, Peakhurst, as shown in the drawing No. 05/40/1 and 05/04/2 by R Conway dated 12 December 2005 all as amended by, and built in accordance with, the conditions in Annexure A hereto; and (3) The exhibits are returned to the parties except Exhibits 2, 3, 4, A and C. ___________________ K G Hoffman Commissioner of the Court rjs

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