Fowler and Anor v Canterbury City Council

APPLICANT Dr S Berveling, barrister SOLICITORS Russo & Company LEGAL REPRESENTATIVES: RESPONDENT Mr A Simpson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10824 of 2007 Bruce Fowler and Guo Lan Wang v Canterbury City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application DA-297/2007 by Canterbury City Council (the council) for the use of the premises at 269 Canterbury Rd, Canterbury (the site) as a brothel in conjunction with the existing approved use of the premises for a Chinese acupuncture and therapeutic massage establishment. 2 The proceedings were originally heard on 8 November 2007 when an inspection of the site was undertaken and a number of local residents and business operators provided their evidence. At this time the applicant raised a Question of Law that questioned whether development consent was required. This resulted in the proceedings being adjourned after the site view. The Question of Law was heard by Sheahan J on 4 March 2008 where consent orders were made including a declaration that the proposed use would fall within the definition of "identified development" as defined in the LEP. The consequence being that development consent was required for the proposed use.

3 The main issue in the proceedings was the impact on the amenity of the adjoining residential area. The other issue raised by the council related to car parking. The applicant addressed the need for a Plan of Management and disabled access through additional documentation. The site and surrounding area 4 The site is located on the corner of Canterbury Road and Phillips Avenue, Canterbury although direct access from Phillips Avenue to Canterbury Road is denied. The rear boundary has a frontage to Clunes Lane. The site is rectangular in shape and has a width of approximately 4.65 m and a depth of around 41.7 m. An existing two-storey building is located towards Canterbury Road and covers approximately half the site to all boundaries. The rear part of the site is undeveloped and used for car parking with access off Clunes Lane.

5 Development between Canterbury Road and Clunes Lane is predominantly commercial in nature and consists of older style two-storey buildings generally containing ground floor shops and first floor residences or commercial uses. Development on the opposite side of Clunes Lane is exclusively residential. The proposal 6 The proposal provides for the use of the premises as a brothel in conjunction with an existing approved use of the premises for a Chinese acupuncture and therapeutic massage establishment. The premises have been used as a brothel and are subject to Class 4 proceedings in the Court.

7 The brothel is to operate from 9 a.m. to 7 p.m. Monday to Saturday with two sex workers and a manager/receptionist. Pedestrian entry to the brothel is from the front doorway facing Canterbury Road. The access point is to be equipped with an external video camera connected to a screen monitor in the office. No client access is available from the side door or the rear yard gate to the car parking area. A range between 10 and 25 clients per day is anticipated. The rear yard of the site will accommodate three car parking spaces and will be used for staff vehicles. Relevant planning controls 8 The site is located within the Zone 3(f) - (Specialised Business Zone) under Canterbury Local Environmental Plan No 148 - Campsie Precinct (LEP 148). Clause 11 provides that before granting consent of the consent authority must take into consideration the zone objectives. These zone objectives for Zone 3(f) are: (a) Comprehensive development for a variety of retail, display, business and office uses which survey regional or specialised amended and do not detrimentally affect the amenity of residential areas; and (b) Development that does not significantly compete with, or detract from, the existing retail centres in the area. 9 Canterbury Development Control Plan No 23 (DCP 23) applies. DCP 23 applies to all brothel development within the City of Canterbury. The relevant general objective is to ensure that brothels are discreet, sensitively located and are not prominent within the community. Clause 4 provides specific requirements for access and location and states: Objectives: 􀂙 To ensure brothels are located at a reasonable distance from residential occupancies and other sensitive land uses. 􀂙 To encourage the location of brothels above ground floor level. 􀂙 To prevent the concentration of brothels within close proximity to one another. 􀂙 To ensure safe access to brothels for staff and patrons.

Standards 􀂙 A brothel must not be located adjoining or within 100 metres walking distance of any residentially zoned site; and 􀂙 A brothel should not be located adjoining or within 200 metres walking distance of any place of worship, school ,community facility, child care centre, hospital, rail station, bus stop, taxi stand, or any place regularly frequented by children for recreational or cultural pursuits. Note: If there are circumstances when it is not relevant to comply with the above standard, applicants must provide a written submission detailing the reasons why this standard should be varied. The submission must also detail how the objectives of the Code will be satisfied. 􀂙 The preferred location for a brothel is above ground floor level, however access may be provided from the street. If the brothel is at street level it should not be in a shop front location or at the front of premises. 􀂙Access to brothels is to be discreet, particularly if provided from street level. Council will not approve brothel applications where access to the brothel is common to other commercial uses or to dwellings. 􀂙 No patron access is to be provided from a laneway. 􀂙 The operation of a brothel must not cause a disturbance in the neighbourhood taking into account adjacent land uses including any other brothels which may be operating in the neighbourhood. 􀂙 A brothel must not be located within the vicinity of a licensed premises i.e. hotel, club, restaurant. 􀂙 Brothel premises must not contain more than six separate rooms for the purpose of prostitution and associated activities, including office and reception room. Rooms having an area exceeding 18 square metres will be considered as two rooms for the purpose of this Code. 􀂙 A brothel should not be located in proximity to another brothel so as to create a concentration of this type of use in an area. 10 While the paries made reference to the planning principles in Martyn v Hornsby Shire Council [2004] NSWLEC 614, I am satisfied that DCP 23 should be used in the assessment of the proposed development. It is a document that has been prepared and endorsed by the council. Planning principles do not prevail over councils' plans and policies and in this case, DCP 23 provides clear guidance on the location of brothels. The evidence 11 Mr Lawrence Winnacott, a town planner provided evidence for the applicant and Mr Stephen Pratt, a town planner provided evidence for the council. Mr Winnacott stated there is not likely to be any unreasonable detrimental effect on the amenity of nearby residential areas because of conditions requiring: o operating hours between 9 a.m. and 7 p.m. Monday to Saturday, o a maximum of three service providing rooms, o a maximum of three staff at any one time consisting of two sex workers and a manager/operator, o the manager/operator is to reside on the premises, o entry/egress used to be provided only from Canterbury Road, o provision for three on-site parking spaces, and o the adoption of a Plan of Management. 12 In his opinion the brothel will be a small-scale, low key operation trading principally during daylight hours. The entry door facing Canterbury Road is approximately 53 m from the nearest residentially zoned property in Phillips Avenue and is not visible from any residences in the residential zone. Residents of the area will not have a direct view of persons entering and leaving the premises. Mr Winnacott further states that there is no reason why patrons should congregate in the street considering the small-scale nature of the business and also the fact that a waiting room is provided inside the building to encourage patrons to wait in the building.

13 Mr Pratt disagrees and concludes there is likely to be an unreasonable detrimental effect on the amenity of nearby residential areas. He relies on the evidence of a number of local residents who became aware of the use of the premises as a brothel and alerted the council. Even though the proposed development has been amended to provide for a reduction in the number of client rooms to three (from four), the number of staff on the premises at any one time being reduced to three (from four) and all access via the front door on Canterbury Road, Mr Pratt is of the view that this does little to change the scale of the proposed development and therefore the potential impact. 14 The following residents provided evidence of on-site: o Mr Jonathan McKeown and Mr Luke McKeown of 2 Phillips Avenue, o Ms Jin Ling Miao of 2/267 Canterbury Road, o Mr C Eleftheriou of 5 Phillips Avenue, o Mr Rodarellis of 4 Phillips Avenue, o Mr David App, operates a business from 263 Canterbury Road, o Mr G Pericleous, operates a business from 255 Canterbury Road and o Ms Lisa Chan, on behalf of her parents at 271 Canterbury Rd. 15 Their concerns relate to: o increased traffic and parking, o disturbances from patrons of the brothel, including knocking on doors or ringing of doorbells of nearby properties and patrons urinating in the street, o visibility of the brothel from residential areas, o patrons park near the residential properties and walk to the premises, and o impact on businesses through lack of parking. Findings Amenity issues 16 Clause 4 of DCP 23 provides both qualitative and quantitative requirements for access and location for brothels. The qualitative requirements are contained within the objectives and require that brothels be located at a reasonable distance from residential occupancies and other sensitive land uses. Mr Winnacott and Mr Pratt both agreed that the separation distance was to protect the amenity of the residential occupancies and other sensitive land uses. The quantitative requirements relevantly provide for a minimum 100 m separation between a brothel and any residentially zoned site. The 100 m separation is based on a walking distance.

17 Mr Winnacott and Mr Pratt also agreed that cl 4 was to be read in a way that allowed an assessment based on both the qualitative and quantitative requirements. Put simply, a brothel could not be said to be inappropriately located simply because it was within the 100 m separation distance. To give proper consideration to cl 4, the potential impact on the amenity of residential occupancies would also need to be considered notwithstanding a breach of the separation requirement.

18 In this case, I accept the evidence and conclusions of Mr Winnacott on the potential amenity impacts. I agree that the particular characteristics of the brothel (see par 11) will reduce any potential disturbances on the adjoining residential area to a minimum. I acknowledge that the location of the site will likely cause some patrons to park their vehicles in Phillips Avenue and walk to the site. It is also likely that some patrons will travel by bus, taxi or train to the site. The mere presence of the brothel or of patrons parking their vehicles in Phillips Avenue would not, however be a matter that would warrant the refusal of the development application. 19 The Court was informed of a number of events by patrons of the brothel that were seen to be unacceptable by local residents. The more serious events involved ringing doorbells and knocking on doors of nearby properties looking for the brothel and patrons urinating in public areas.

20 I am satisfied that more appropriate signage to properly identify the site should minimise potential impact on the adjoining properties. This can be dealt with as a condition of consent (see conditions 12A and 12B). The conditions should be amended to include the amendments suggested by the applicant (Exhibit A) and also the approved hours of operation. Any lights associated with the brothel should also be switched off after the approved hours of operation to discourage any patrons from attending.

21 In accepting that persons urinating in public places is clearly unacceptable, I am not prepared to place determinative weight on the unacceptable behaviour of a small number of people who may frequent the brothel. While the Court was advised of a small number of specific instances, there was no evidence to suggest that this was symptomatic of the patrons who use the brothel. In my view, it would be unreasonable to place significant weight on the unacceptable behaviour of a small number of patrons when the location and operation is otherwise reasonable. If it was established that this form of behaviour was a consistent problem with patrons then, I would readily accept that this should be given greater weight in considering the suitability of the site for the proposed use. I make these comments in the context of condition 9 that imposes a time-limited 12 month approval on the proposed use. 22 With the benefit of the site view, I am satisfied that the site is a reasonable distance from residential properties and could be described as discrete, sensitively located and not prominent within the community despite the location of residential properties in Phillips Avenue. Without specific knowledge, there is no indication that the site is used as a brothel from the residential properties in Phillips Avenue. The operation is small scale, signage will be discrete, all activity is centred on the Canterbury Rd frontage and the rear car parking area is screened from Phillips Avenue and Clunes Lane (except when the gates are open to allow access to the car parking area).

23 Pursuant to cl 11 of LEP 146, and after considering the zone objectives, I find that the proposed development is acceptable. Parking 24 There was no dispute that the proposed development satisfied the off street parking requirements of the council. A consistent concern from residents and the operators of businesses in the immediate area was the lack of on street parking however this would appear to be an existing problem rather than a situation created by the proposed development. In general terms, the proposed development (based on the particular characteristics of the proposed use) is likely to generate less vehicle movements than a retail use that could also operate from the site. Orders 25 The orders of the Court are: 1) The appeal is upheld. 2) Development Application DA-297/2007 for the use of the premises at 269 Canterbury Rd, Canterbury as a brothel in conjunction with the existing approved use of the premises for a Chinese acupuncture and therapeutic massage establishment is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 8 and D.

      G T Brown
      Commissioner of the Court

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