First Choice Stress Relief v Inverell Shire Council

Environmental Planning and Assessment Act 1979 Flood Plain Management Plan LEGISLATION CITED: Inverell Shire Council Development Control Plan No. 15 Inverell LEP 1988 Disorderly Houses Act Amendment

Zhang v Canterbury CC [1999] NSWLEC 209; CASES CITED: Venice Enterprises P/L v Parramatta CC 43 LGRA 67; Martyn v Hornsby SC 2004 NSWLEC 614

DATES OF HEARING: 21/03/2005, 8/04/2005, 14/04/2005, 28/04/2005 and 03/05/2005 EX TEMPORE JUDGMENT DATE : 05/03/2005

APPLICANT Mr Fox, solicitor of Abbott Pardy & Jenkins

RESPONDENT Mr Simington, solicitor of Lindsay Taylor Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11369 of 2004 First Choice Stress Relief v Inverell Shire Council

JUDGMENT 1 This judgment is for an appeal under section 97 of the Environmental Planning and Assessment Act against Inverell Shire Council's refusal of a development application for at brothel a the site known as Lot 5 in section 2 DP 4077 Wyndham Street, Inverell. The council determined the development application and a notice of determination dated 28 May 2004, was forwarded to the applicant. The reasons for refusal were: 1) The development will have a negative impact on the amenity of the street environment or Wyndham Street, Inverell. 2) The development will have a significant impact on the public interest and social environment of the locality. 3) The development is not compatible with existing land use in the locality. 4) Non-conformity with locality restrictions as set out in DCP No. 15. 2 On 21st March the hearing commenced at the Inverell Court House and the Court carried out a site inspection. The Court also had the benefit of hearing evidence from a number of objectors to the proposal. 3 At the beginning of the proceedings the council presented to the Court consent orders; that is the council no longer raised any issues. The consent orders became exhibit 1 and the council attached a number of conditions that it sought to impose and the applicant did not raise any objection.

4 Consistent with the Court's practice with respect to consent orders, the Court is satisfied that all of the objectors to the development application were advised that the council was entering into consent orders and were given the opportunity of being heard in Court. As I said there were over 70 objections to the application when council advertised it and there were some eight persons that came to the Court to give evidence.

5 Pastor Searle gave evidence to the jCourt and he has been in Inverell for some 20 years and a letter of objection was also written. He is concerned about the fact that in his opinion it is near residential development and the crematorium with a chapel and that there is a conflict in terms of the social impact of the proposed development. He also is opposed to the development on moral grounds. He does not consider it appropriate to have a brothel within view of a crematorium.

6 The other persons who gave evidence were Mr John McCosker the proprietor of the adjacent building next door to the subject site to the east known as the McCosker Bus Service, which runs a bus facility in the township and local area. He considers that the bus depot responds to clients, the office is open and at times children may attend the premises where the bus depot is in search of lost articles. It is noted that there is not a bus stop near the subject premises. He is of the opinion that the proposal is not consistent with the area and should not be allowed on the subject site. Mr McCosker also noted that there was an oval some 400 m from the subject premises 7 Mr Barry Bradley also gave evidence. He has a business on the opposite side of the road to the subject site and he supports council's original refusal of the application and he considers it will impact or affect businesses within the area and attract unruly people. 8 Ms Turner also considers that the proposal is inconsistent and not sympathetic to the values of the town and that families would be impacted if such a development goes ahead. 9 Mr Rudd is concerned about the impact on children in the town and the fact that children under 18 may be on the premises, not working as such, but impacted by the operation of a brothel if children are present. He considers that it is not an appropriate land use for the area. 10 Mr Wigg, expressed concern about the social, environmental and economic impact and the impact on the public of the proposed development. He considers the site is unsuitable for a number of reasons, including the high school and the hospital being in view. He is concerned that the environment be protected and the brothel should not be allowed. 11 Mrs Stewart also gave evidence. She is of the view that the proposed brothel is not consistent with the values of the town and it is something, which would bring immorality to the area. She also is concerned about the impact on families and possible family breakdowns if a brothel is allowed in the area.

12 The Court also heard from council's manager/director of planning and development, Mr David Prior. He advised the Court that in terms of the Flood Plain Management Plan, that is DCP No. 5, the site is in a low hazard flood fringe and there is a condition that requires the floor level to be above one metre, the 1991 flood. He gave evidence that there would be a significant impact of the development and an engineering certificate is required with respect to flood liability. 13 Mr Glasby, in his evidence also raised the issue floodwaters in the town and the flood liability of the subject site.

14 The subject site is zoned Industrial under the Inverell LEP 1988 and brothels are permissible in this zone, as well as other zones, with consent. Council also has a Development Control Plan, the Inverell Shire Council Development Control Plan No. 15. It sets out a number of criteria and objectives for brothels. In particular: "to ensure that all brothels, which are established within the area of the council are appropriately regulated to ensure that any brothels that are established are located where they are compatible with other land uses; to minimise the impact of brothels on nearby land uses particularly residential areas and other sensitive uses; to minimise public health risks to both sex workers and their clients; and to establish criteria against which the development proposal for the site will be assessed." 15 Council also has a number of controls under s 6 where council shall not approve the establishment of brothels on land within the following areas: "Business residential or rural zones as defined in the Inverell LEP, within 50 m of the boundary of the above zones, within 200 m of any established church or place of public worship, hospitals, places regularly frequented by children for recreation or cultural purposes, public recreation reserves, schools in any location more than 3 km from the Inverell post office and brothels are not to be located within remote areas or areas where support services are not conveniently at hand." 16 There are also restrictions in the DCP for the size of brothels "not to have more than four rooms used for the purposes of prostitution." There are also a number of criteria against which development applications must be assessed: the site's location; likely impact of the proposed development on land uses, particularly residential and sensitive land uses; the streetscape; visual impact of the development; landscaping; traffic issues; pedestrian access to the site; submissions received as part of the notification process; the signage is to be restricted to 0.5 sq m in area.

17 The Court had a view of the subject premises and the opportunity of viewing the surrounding area. With respect to the suggestion that the proposed brothel was within the distance of a childcare facility, it was noted on the view that there is a family day care dwelling house that cares for a few children not classified as a day care centre and no objection was received from those premises, that is over 90 m from the subject site for the location of other sensitive land uses such as schools and hospitals, the Court was assisted by council's LEP plan being provided which indicated a radii of 50 m and 200 m to consider the provisions of council's DCP. As can be seen from this map with radii marked the proposed development would not be inconsistent with council's provisions of its Development Control Plan and I must give the DCP central focus in my assessment of the application consistent with the decision handed down by the Chief Justice Spigelman in the matter of Zhang v Canterbury. I have given genuine proper consideration to the provisions of the DCP and it has been central to my assessment.

18 The Court appreciates that there are various people in the community that do not think that brothels should be a permissible land use. However, the Court must assess development applications in the context of the law as at the day. Whilst I have given great consideration to the concerns of the local residents, I must consider the application in terms of the law and controls, that is council's LEP, DCP and the Disorderly Houses Act Amendment which allows for brothels to be a permissible land use with development consent.

19 There is a well established principle on the issue of amenity which is found in the Judgment of Cripps J in Venice Enterprises Pty Limited v Parramatta City Council 43 LGRA 67. In this case his Honour states that: "The Court ought never to allow its own personal view of matters of taste or sexual morality to be a substitution for the evidence or to fill a vacuum left by the evidence but heeding that warning, it does not mean that matters of taste and morality must necessarily be put to one side when determining whether or not a development is appropriate. It must always be a question of fact whether the amenity of a neighbourhood will be or is likely to be adversely affected by a development."

20 Having regard to the above and in my assessment I have decided that there is no reason why the Court should not agree to the consent orders as proposed by the parties. Clearly brothels are opposed by sections of the community on moral grounds and the Court does acknowledge that. The land use planning provisions do, however, provide for brothels. The role of the Court in this matter is to assess the appropriateness of the location of the subject site for a brothel and the impacts on surrounding development.

21 Having regard to the fact that council indicates in its DCP that brothels should be located in industrial areas, then this particular subject site is one in the Court's assessment, is not inappropriate for the location of a brothel. The street, Wyndham Street, is a cul-de-sac. It is not on a main thoroughfare and it is more discreetly located than many other areas within the township of Inverell. As I stated there are and the Court acknowledges that many persons in the community oppose brothels but this hearing on the merits of this application is not an inquiry into whether brothels should be legally permissible. Under legislation they are permissible and I must assess the application on that basis.

22 The subject site is one that is discreet in terms of its location and I'm satisfied with the conditions proposed by the council and agreed to by the applicant that the brothel will not adversely impact to an unreasonable extent on adjoining properties and premises. I do note that children may come to the bus depot from time to time but it is not a bus stop or a thoroughfare leading anywhere and that would be a purposeful visit to the bus depot in the need of finding lost goods and articles.

23 The proposed premises also have landscaping and high fences. It has been agreed between the parties that is a 1.8 m fence be provided for the rear of the premises and a 2.4 m fence proposed for the side boundaries and the front. There is also landscaping proposed.

24 I am satisfied that the proposed development is one that initially there may be curiosity as to the operation of the brothel but in the proposed conditions it will in time sit and operate in a discreet manner in accordance with the conditions of consent. The conditions of consent are imposed to ensure that the brothel does operate in a discreet manner. It is noted that the applicant has changed the name of the brothel from First Choice Street Relief to First Choice Wyndham Street Pty Limited.

25 It is noted that there would be only a business sign visible on the subject premises of a maximum of 0.5 sq m. The street number of the property that would be used for the purpose of advertising, should be clearly visible on the front of the property for identification purposes and ease of directing clients to the premises.

26 The Senior Commissioner of this Court brought down a Judgment last year and he provided a number of criteria for consideration in locating brothels. This judgement that I refer to is Martyn v Hornsby Shire Council 2004 NSWLEC 614. In this judgment the Senior Commissioner noted the following criteria are to be considered for locating brothels:

"Brothels are a legal land use that benefit some sections of the community but offend 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 however criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality.

Brothels should be located to minimise adverse physical impacts such as noise disturbance and overlooking. In this aspect they are no different from other land uses.

There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel this should be supported by evidence.

Brothels should not adjoin areas that are zoned residential or be clearly visible from them. Visibility is sometimes a function of distance but not always.

Brothels should not adjoin or be clearly visible from schools, educational institutions for young people or places where children and adults regularly gather. This does not mean however, that brothels should be excluded from every street on which children may walk.

The relationship of brothels to places of worship which are likely to attract people who are offended by brothels is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather.

There is no need to exclude brothels from every stop on a public transport route however, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses.

Where a brothel is proposed in proximity to several others it should be considered in a context that a concentration is likely to change the character of the street or area. In some cases this may be consistent with the desired future character, in others not.

The access to brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shops and strip clubs predominate, signage should be restricted to the address and telephone number."

27 In his Judgment the Senior Commissioner applies these planning principles. In looking at these principles I am satisfied that the location of the proposed brothel satisfies the criteria established by the Senior Commissioner and that the subject premises are discreet. They may be visible but generally at some distance from other facilities in the Inverell township and the visibility of the premises from community facilities is not prominent. This is partly a function or factor of the distance and the location of the proposed brothel. The site therefore is satisfactory in my assessment.

28 The Court, has given careful consideration to the objectors' concerns and the applicant has agreed to prepare a management plan. The overriding objective of the management plan, is to ensure that the brothel operates and continues to operate in a discreet manner and as such I note the condition of consent the council has proposed for the draft plan of management is to be submitted to council for approval prior to occupation, that is prior to the use of the brothel, and an updated plan submitted three months after commencement of the operations and this plan is to be updated and submitted to council on an annual basis. This will provide a self regulating mechanism and I am satisfied that it is appropriate.

29 The management plan is to provide for such matters as security patrols and associated security arrangements and given the proposed site is within an industrial area, the security of the sex workers which includes the lighting of the establishment is one that must be given consideration in such a plan. The management of clients during client assessment and access issues is to be covered in the management plan. The cleanliness and health of the sex workers and clients and the operation of the brothel is also to be covered in such a management plan. 30 It is noted that the plans that were amended by the applicant provide for en-suites to each of the four consulting rooms and the four consulting rooms have a shower and toilet and they would also need to provide for a hand washing facility as well consistent with the health regulations of the State.

31 The subject site in the plans shows a number of car parking spaces which will more than adequately provide the number of spaces to accommodate the parking for those that work on the premises as well as clients to the premises and for the changeover of clients and for the shift changes of workers to the premises. The plan also indicates the landscaping and the fences as referred to earlier and the signage and display of signage.

32 There are some additional conditions that the applicant and the council have agreed to be imposed and that runs to issues such as the management plan, cleanliness of the premises and the landscaping of the premises.

33 Condition No. 13 states that no sex worker under the age of 18 shall work on the premises and this is to be expanded to also include no persons under the age of 18 shall be on the premises at any time. The purpose of this is to ensure not just the sex workers but no person under the age of 18 are to be on the premises at any time. 34 I am satisfied that there is no reason why the Court should not enter into the consent orders. 35 Therefore on the basis of my assessment the Court orders are: 1) By consent the appeal in respect of the premises known as Lot 5 Section 2 DP 4077 Wyndham Street, Inverell is upheld. 2) The development application submitted to Inverell Shire Council, and as amended and shown in exhibit E is approved subject to the conditions contained in annexure A. 3) The exhibits may be returned with the exception of 1, 8 and E. That is: the consent orders; the conditions; and the amended plans containing four sheets.

J S Murrell Commissioner of the Court ljr

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.