Dong Xing Group Pty Ltd v Hurstville City Council

Expert Appearances 7A Joint Expert Town Planning Report was prepared by Damian O'Toole for the Applicant and Paula Bizimis for the Respondent. Both Mr O'Toole and Ms Bizimis provided evidence at the hearing.

Owners Consent 8The Council was of the view that the application failed to provide owner's consent under the Environmental Planning and Assessment Regulation 2000; namely the approval to the application required the consent of the Owners Corporation given some works on common property were proposed as part of the original application. 9The Applicant did not agree that the approval of the Owners Corporation was required instead proposing various modifications to the plans to remove the requirement to use common property thus removing the need for Owners Corporation consent to the application. These modifications included internalising security lighting and security cameras, changes to the proposed ventilation and not re-instating external walling. 10However, the Council argued that works to reinstate the external wall adjacent to the shower in the staff change room would still be required even if all other works could avoid use of common property. 11The Council also argued that the proposal did not provide disabled access and thus failed to comply with the Disability Discrimination Act 1992 and cl 3.3 (Access and Mobility) of the Hurstville Development Control Plan No. 1 (the DCP). Providing a complying ramp to address the DDA requirements would constitute external works necessitating Owners Corporation consent as it would traverse common property. Detailed argument was provided by both parties on whether or not disabled access should be provided. 12In terms of security, a report prepared by National Security Consulting outlined the security measures that are necessary for the premises to safely operate. These include CCTV cameras being installed. To avoid the need for Owners Corporation consent to have to be provided, it was proposed to confine the cameras to the interior only with views through windows to external areas. The Council was concerned that this would result in inadequate surveillance of external areas.

Permissibility of the Proposed Use 13Prior to considering the merits of the application, a determining factor was whether or not the proposed use was prohibited by the Council's Local Environmental Plan. 14The development application was lodged under the provisions of the Hurstville Local Environmental Plan 1994 (HLEP 1994). Hurstville Local Environmental Plan 2012 (HLEP 2012) was gazetted on 7 December 2012 after the application was lodged but not determined and repealed HLEP 1994. However, cl 1.8A of HELP 2012 contains a savings provision relating to development applications lodged prior to 7 December 2012 requiring the development to be determined as if HLEP 2012 had not commenced and therefore under HLEP 1994. The relevant provisions in determining this appeal are therefore those contained in HLEP 1994. 15Under HLEP 1994, the site is zoned 4 - Light Industrial. Clause 8 of the HLEP contains the Zone Objectives and Development Control Table for the Zone 4 - Light Industrial zone. It was agreed between the parties that sex services premises are permissible with consent in the zone and that such a use is not in conflict with the objectives of the zone. 16HLEP 1994 also however contains a clause, cl 16A, which deals specifically with locations in which sex services premises can be approved. Part 2(a) of the clause reads as follows: (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 services 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. 17The interpretation and application of cl 16A is essential to the determination of this appeal as it was in Yi Yang Huang v Hurstville City Council [2011] NSWLEC 1175. This is because the Council, as it did in Huang, contends that cl 16A(2)(a) acts to prohibit sex services premises, on the facts of a case, because it sets out essential criteria or preconditions in respect of sex services premises that must be satisfied before development consent can be granted, notwithstanding the use may be permitted in the zone. 18The Court determined in Huang that cl 16A(2)(a) is a prohibition (and not a development standard which can be varied) and therefore that the Council/Court must be satisfied that the requirements of the clause are met in order to consent to a sex services premises. This interpretation was upheld on appeal to this Court in Huang v Hurstville City Council (No. 2) NSWLEC151 and an application to the Court of Appeal for leave to appeal this subsequent decision was dismissed with costs. 19In order for the Court to grant consent to the application, it is therefore necessary that I be satisfied that the proposed premises in this instance will not relevantly be near to, or within view of, any of the places listed in cl 16A(2)(a). 20It was agreed by the parties that the only such place which could be argued to be near to, or which could view the premises, was the Sydney Paint Ball Centre (SPBC). 21The SPBC is located opposite the subject site at 17 Norman Street and the Council's evidence that it was 49 m from the front door of Unit 1 was not disputed. In both Huang and Li v Hurstville Council [2006] NSWLEC 178 this Court has held that within 100 m of a premises is deemed to be near such premises. 22In any event, the Council's planner, Ms Bizimis, provided evidence that she had visited the SPBC and that the SPBC had upper floor windows to public areas from which the front door of Unit 1 could be viewed. Notwithstanding the Applicant's argument about the ease or likelihood of anyone partaking of this view, I accept the Council's evidence that the proposed sex services premises is both near to and can be viewed from the SPBC. 23The key issue that the parties did not agree on then becomes whether or not the SPBC are premises "frequented by children". 24The Council argued that the SPCB was frequented by children. The Applicant argued that there was insufficient evidence to confirm this. 25Both parties argued the definition of 'children' and of 'frequented' as these were the determinative considerations under cl 16A(2)(a). 26Ms Bitzimis stated in the Joint Expert report and in evidence that, when visiting the SPBC, she was advised by the centre that 16 and 17 year olds were able to play paint ball if they had a signed parental form and that children of any age were allowed and able to observe others playing paint ball including from the viewing area from which the subject premises could be seen. In evidence, she stated that she was advised by the SPBC that it was not uncommon for children under 16 to be on the premises. The SPBC is open daily until 6pm including all weekend. 27Mr Rigg, solicitor for the Council, argued that the premises did not need to be regularly frequented for it to be a place frequented by children. 28In Yada Martyn v Hornsby Shire Council [2004] NSWLEC 614, Senior Commissioner Roseth stated: Brothels are a legal use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. 29Mr Archibold argued that Senior Roseth clearly sees a distinction between children and adolescents and that the 16 and 17 year olds that can play at the SPBC with parental approval should be considered adolescents not children. Mr Rigg argued that adolescents ought to be regarded as children and, in the context of Yada Martyn, adolescents were seen by Commissioner Roseth as a particularly impressionable subset of children when it comes to brothels. 30In defining the age at which childhood ceases, Mr Archibold referred to a case in 1900, "The Queen v Cockerton", in which Wills J stated: It is impossible to lay down any definite boundary as separating "children" from "young men" or "young women"...Practically I suppose that at somewhere between sixteen and seventeen at the highest an age has been arrived at which no-one would ordinarily call childhood. 31Mr Archibold also quoted the following extract from the 1995 Oxford Dictionary of Modern Legal Usage: child (of tender age or years); young person; juvenile; minor; pupil: In American law, a child of tender age or years has generally not reached his or her 14th birthday. In English law, child itself generally means one who is not yet 14, though some English lawyers, up to the mid-20th century, used child to refer to someone under 21. In most American states, a juvenile is one who has not reached the age of 18....In England juvenile denotes one who has not reached 17... In Scots law minors are those 16 to 18 years old. 32Mr Rigg argued that the term 'children' and 'minor' in Australian legislation are interchangeable. Under the Interpretation Act 1987 (NSW) 'minor' is defined as persons under the age of 18 years. The definitions in this Act are relevant to environmental planning instruments made as stated in ss 3 and 5 of the EPA Act. Other Acts which define child as under the age of 18 are the Child Protection (Offenders Prohibition Orders) Act 2004 and the Children (Protection and Parental Responsibility) Act 1997. Mr Rigg believes weight should be given to the fact that the primary purpose of both these Acts is to protect children which are, in both instances, defined as persons under the age of 18. 33The Macquarie Dictionary states "In Australia, for some purposes in law a young person less than 17 years is a child, for others under 18 or 21 years". 34I accept Mr Riggs' argument that, in the absence of an agreed definition of 'children', the most relevant definition of children for the Court to adopt is that of contemporary Australian legislation which aims to protect children and that contained in the Interpretations Act. Also, in my view, the majority view of the Australian community is that adulthood in Australia is at the age of 18 and people under that age are therefore children, albeit they may also be categorised by sub groups such as teenager or adolescent. 35As children aged 16 and 17 can play at the SPBC, they are likely to visit it and, in any event, all children regardless of age are permitted within the SPBC and are therefore likely to go there. 36The question then becomes whether children "frequent" the SPBC. The Macquarie Dictionary defines "frequent" to mean "to visit often", "go often in" or "be often in". Mr Rigg states that all the evidence indicates that people under the age of 18 (therefore children) visit the SPBC. There was no argument or evidence from the Applicant that children did not go there often or at all. The only evidence before the Court on children frequenting the SPBC was that provided by the Council's planner based on her visit to the SPBC, and not disputed by the Applicant, i.e. that persons of 16 and 17 years of age can play at the centre and children of any age can and do go there to watch others playing. 37The other uses that surround the subject site are industrial in nature and it is reasonable to assume that they are businesses which are not frequented by children nor which facilitate, encourage or permit involvement in or viewing of the business by children. With the evidence provided, the same cannot be said of the SPBC which both permits children of older ages to play at the centre but also children of all ages to frequent the centre. 38The Court can only grant consent if satisfied that the sex services premises will not be near, or within view of, a place frequented by children. As I cannot be satisfied that children don't frequent the Sydney Paint Ball Centre, and the proposed sex services premises are both near to and in the view of that centre, the use is prohibited under Clause 16A(2)(a) of the HLEP and consent cannot therefore be granted by the Court to the application.

Other Considerations 39Given my determination that the use cannot be approved as it is prohibited by HLEP 1994, it is not necessary for me to address the issues of the need to provide disabled access or the requirement for Owners Corporation consent for various works. 40However, if it is the case that I am incorrect that the use is prohibited, I would in any event refuse the application for the reasons that follow. 41Under s 79C of the EPA Act, it is a requirement to consider, inter alia, the social and economic impact of the development. This includes impact on other owners of units on site and the impact on the neighbourhood. 42In this regard, the application was notified and nineteen objections were lodged. The issues raised of relevance to this appeal were: (a)The previous illegal use of the site for a sex services premises reduced property values of the other 19 strata titled industrial units, increased insurance premiums, damaged the image of the development, increased the property maintenance with required security fencing and rubbish clean up, and reduced site security. (b)The previous illegal use of the site for a sex services premises led to graffiti, broken bottles, rubbish, cars illegally parked, and unsociable behaviour in the neighbourhood. (c)The proposed use will operate outside normal business hours when security gates to the premises will need be opened to admit clients to enter and exit, compromising the security of other tenants. (d)Any access ramp proposed to provide access for the disabled is on common property which requires the consent of the Owners Corporation. (e)The proposed use is not permitted under the Owners Corporation Special By-law and therefore consent would not be given by the Owners Corporation for the use or for any works on common property. 43At the onsite commencement of the hearing, objectors reiterated these concerns. The Strata Manager for the development in which the premises are proposed, Ms Smith, advised the Court that only one insurer would insure the premises, and at an increased premium, when it contained a sex services premises, with three insurance companies declining insurance coverage because of the existence of such premises. I therefore accept that the proposed use would result in adverse economic impacts on other strata unit owners in terms of additional insurance premiums and the ability to secure insurance. 44One of the other owners cited instances where the after hours security gates were jammed open by the operators of the illegal sex services premises to provide unimpeded access to the premises, compromising security of other tenants. 45Whilst it is not for the Court to assume the proposed use the subject of this application would operate the same as the operation of the previous unlawful use, I note that the premises are to operate until 4am seven days a week, that the security gate is to be operated at the discretion of the manager of the premises and that the proposed Plan of Management does not address in any detail how after hours access will be managed. 46The only evidence provided by the Applicant in terms of after hours access was advice during the hearing that that the gates would only be operated when customers contacted the premises to gain entry or sought exit. 47As the security gates provide security for and access to 19 other industrial units I therefore accept that the after hours access concerns of the owners of the other units are justifiable and the proposed means of managing after hours access to the site are inadequately addressed in the application. This is particularly given the lack of additional external lighting proposed and reliance on internally placed and operated security cameras to monitor access. 48In Jonah Pty Ltd v Pittwater Council (2006) Preston CJ held that whilst past unlawful use is not relevant of itself in determining an application, it could be relevant in evaluating likely impacts and their acceptability and required mitigation measures. In a utilities order hearing before the Court in 2011 when the premises operated illegally as a sex services premises (Hurstville City Council v Dong Xing Group Pty Ltd [2011] NSWLEC 1297), records of complaints to the Council from neighbouring businesses and from the Owners Corporation were put in evidence and those complaints included damage to common property and security issues associated with the operation of the premises. Dong Xing Group Pty Ltd is also the applicant for this application. 49Previous recorded complaints to the Council on the former use of the premises for a sexual services premises adds weight to the validity of the concerns from adjacent neighbours and owners that the proposed use will have adverse impacts on other owners of the strata development and their neighbours. 50Finally I am not satisfied that the proposed use could be established and operate in a satisfactory manner without the need for works on common property. This in part was due to various iterations and changes to the proposed works that were offered during the course of the hearing to circumvent the need for Owners Corporation consent given that such consent would not be forthcoming. These works included reinstatement of the external wall adjacent to the proposed staff change room shower, ventilation, surveillance and disabled access, should the latter be required. 51Therefore, in my view, even if the use was not prohibited by the Council's LEP, there is inadequate detail in the application for it to be capable of, or suitable for, approval.

Orders 53The orders of the Court are that: 1.The appeal is dismissed. 2.The Application is refused. 3.The exhibits are returned to the parties with the exception of Exhibits 3, 5 and D. J L Smithson Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2013