Fowler & Anor v Canterbury City Council

4 The issues identified for the appeal are summarised as: * Consistency of the application with the zone objectives * Suitability of the site for the development with particular reference to the internal facilities and associated health and safety considerations * Inadequate disabled access * Car parking * Public interest.

The proposal 5 The proposal was described as: * Chinese acupuncture, massage and brothel at ground floor with residential upstairs. * 3 working staff plus 1 receptionist (ie an increase of 1 worker from that previously approved by the Court). * Hours of operation 9am to 7pm Monday to Saturday * 3 stacked car spaces to be provided from Clunes Lane at the rear with the space adjacent to the lane being garaged. 6 During the course of the hearing the applicant amended the application by deleting the Chinese acupuncture component and reducing the number of staff on the premises at any one time to 2 sex workers plus receptionist/manager. The site 7 No 269 Canterbury Road is a rectangular, corner lot with an area of 210 sq m and side boundary of 45.72m to Phillips Avenue and a rear boundary of 4.65m to Clunes Lane. Phillips Avenue is terminated in a cul-de-sac adjacent to the site and provides for on - street car parking.

8 There is a 2 - storey attached brick building and a single detached garage with an additional 2 stacked car spaces located at the rear of the property. There is an attached, external laundry and a detached toilet in the rear yard of the property.

9 To the immediate west of the subject site is a 2 - storey residence (which is the other half of the building). Further to the west of the site (273 and 275 Canterbury Road) are existing 2 - storey buildings containing ground floor commercial uses and first floor residences. To the rear of the site in Phillips Avenue are existing, residential developments. Opposite the site in Canterbury Road is an equipment hire centre, an appliance parts use and a service station.

Planning controls 10 The following controls are relevant: - Canterbury LEP 148; under which the site is in the No 3 (f) Specialised Business Zone. Brothels are permissible with consent and the zone objectives are: (a) Comprehensive development for a variety of retail, display, business and office used which serve regional or specialised demand and do not detrimentally affect the amenity of the residential areas; and (b) Development that does not significantly compete with, or detract from, existing retail centres in the area. - Canterbury DCP 23; which contains the detailed development controls for brothels that are allowed only in Business zones. The general objectives are: o Brothels are discreet, sensitively located and are not prominent within the community . o Appropriate guidelines are established so that brothels are located at a reasonable distance from where people live and other sensitive land uses. o Appropriate guidelines are established which discourage a concentration of brothels in close proximity to one another. o Appropriate health and building standards are maintained. - Canterbury DCP 20; Car parking The evidence 11 Detailed evidence was presented in a joint planning report by Mr A Betros, the council's consulting planner and Mr L Winnacott, the applicant's consulting planner.

Zone objectives 12 The planners considered the stated zone objectives and consequently agree that: * The development will contribute to a variety of business uses, which serve a regional or specialised demand. * The development will not significantly compete with or detract from existing retail centres in the area.

13 However the planners disagree on the impact of the development on the amenity of the residential areas. Mr Winnacott supports the application because of its relatively small scale, limited times of mainly daylight operation, adequacy of parking and the requirement for compliance with an approved Plan of Management (POM).

14 According to Mr Winnacott, this is a low impact use with the number of clients being in the order of 10 - 20/day. As the main entry door faces Canterbury Road, which is approximately 53m from the nearest residentially zoned property, it is not visible from the residences in Phillip Avenue. Also the rear of the property is screened by a high metal fence, which reduces any potential impacts on the nearby residents.

15 Against this, Mr Betros says that the proposal would detrimentally affect the amenity of the residential area in the following way: * There is insufficient buffer between the brothel and the residential uses and residentially zoned land. Such buffer would avoid the visibility of the brothel premises, reduce acoustic impacts and avoid interaction with parking movements. It should also provide adequate discretion for the staff and clients on the premises. * The reliance by brothel clients on parking in Phillips Avenue does not provide a satisfactory level of discretion. Proximity to residential properties. 16 The relevant controls in DCP 23 include the following 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. 17 The associated standards are: * A brothel must not be located adjoining or within 100m walking distance of any residentially zoned site, and * A brothel should not be located adjoining or within 200m 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. 18 The planners agree that as the rear boundary of the site is separated by Clunes Lane, this distance is less than 100m and does not comply with the DCP provisions.

19 Mr Winnacott relies on the aforementioned details that indicate the separation distance in the order of 53m is satisfactory in the circumstances to exercise the discretion available in the DCP. But Mr Betros says that: * The location of the brothel premises within view of residential dwellings and immediately opposite residential units whose windows overlook the brothel is inappropriate. * Having considered the objections, there was apparently some affront and interaction due to the close proximity to No 2 Phillips Avenue. * The lack of off-street parking at the brothel encourages brothel clients to park in the Phillip Avenue and its cul-de-sac, which creates undesirable interaction for the residents. Therefore greater separation from the residential area is required. 20 In order to resolve these competing positions regarding the separation distance and associated amenity impacts I have considered the findings in the previous Court case of Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146, where Commissioner Brown said: 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 Furthermore, when the current application was assessed by council planners, the objections and complaints about the operations were considered and this resulted in a recommendation for approval subject to a 3 - year trial period. 22 From my observations at the view of the context of the immediate locality, I am satisfied that this is a small scale brothel with its main entry from Canterbury Road, which should minimise any adverse amenity impacts on the residential area. As such, I am also satisfied that a well managed brothel, which complies with the conditions of consent, including the POM should not cause adverse amenity to the occupants of the nearby residential properties. Therefore the discretion available in the DCP regarding the separation standard can be exercised because the objectives should be achieved.

Car parking 23 The issue of car parking was raised in terms of the management of the on - site spaces for the staff and the competition for the on - street spaces. However it seems to me that the provision of the 3 on - site spaces are adequate for this development and management can be incorporated into the POM. 24 Whilst no detailed parking surveys were undertaken or client access arrangements assessed, I note that the parking in the Phillip Ave is 90 degrees to the kerb. This should increase parking spaces adjacent to the subject premises. Given the limited scale of the brothel, it would seem the majority of the clients would utilise this on - street parking space and thereby avoid walking past the residential properties. If trucks or other vehicles park illegally, then that can be dealt with separately. I do not consider it reasonable to reject this application on the grounds of inadequate parking. Objections 25 In reaching this conclusion I have considered the various objections from the neighbours, which include: * Visibility of the rear yard activities associated with the brothel when the rear garage door is open. * Parking problems caused by brothel patrons parking in front of and across the residential driveways and causing disamenity and inconvenience, particularly truck drivers. * Alleged intimidation by the brothel operator. * Anti - social behaviour in the vicinity of the brothel, including urinating in the street

Conclusions 26 Having carefully considered the evidence, the submissions and undertaken a view, I am satisfied this application merits conditional consent. 27 Insofar as the brothel has operated on the basis of a trial period, I accept aspects of that operation have been unsatisfactory. But that stems to a large extent from the non - compliance with the conditions of consent. Providing the brothel operates within the conditions, then the brothel should reasonably satisfy the relevant objectives and not cause adverse impacts on the amenity of the residents in the nearby residential area. 28 The conditions of consent required all entry/egress to the brothel to be via the front entrance in Canterbury Road, except in an emergency. Appropriate directional signage was also required in Phillip Avenue. Apparently this has not been enforced and patrons have used the side door into Phillip Avenue, which is unsatisfactory but capable of rectification. 29 The conditions also required upgrading to provide adequate access for disabled but this has not been done either. It seems somewhat unfortunate that the Occupation Certificate was issued without requiring compliance with the conditions of consent. This is likely to have contributed to the adverse amenity claims by the neighbours. Accordingly, I consider the essential upgrading works should be undertaken before the brothel resumes operation. 30 Importantly, I agree with council's submissions that the internal amenity is unsatisfactory but capable of rectification. The use of the external shower and detached toilet at the back of the property has caused some adverse amenity for the neighbours but the applicant's agreement to upgrade the existing laundry with shower and toilet facilities, which are screened should address this concern. However I consider it reasonable to cover this by way of a deferred commencement condition to ensure it is completed prior to the brothel operation resuming. 31 Likewise I find that the ground floor layout somewhat inconsistent the intent of the operation. The original POM required the installation of a CCTV camera at the entry and connected to a screen monitor in the office. No satisfactory explanation was given as to why this was not done. Surprisingly no office area has been designated. However with the deletion of the acupuncture component, it appears reasonable that one of the 2 ground floor waiting rooms be utilised as the office and the security monitor installed, again prior to resumption of the brothel. This still leaves 3 service rooms. 32 The original conditions of consent required the manager to reside on the premises in the 1st floor section. From my observations at the view, it appears the manager's section is very basic without any living or sitting room. Whilst the manager apparently utilises the common ground floor kitchen, I consider it appropriate to alter the 1st floor layout to incorporate a living rooms and ensure these rooms are not used for expansion of the brothel. The conditions of consent can cover these matters. 33 In terms of the separation distance to the residential area, I am satisfied to follow the previous determination in this regard and exercise the discretion in the DCP because a complying brothel should not cause undue adverse amenity to the residential area. In this regard, I note Dr Beverling's submissions regarding Segal & Anor v Waverley Council [2005] NSWCA 15 about the comity of decision making wherein it was stated: 96 My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed. 97 Finally, the only authority which the Court researcher was able to discover where a judicial observation had been made of the undesirability of two judges at first instance of the same court arriving at different results on substantially similar facts was that of Finkelstein J in Applicant WAIW of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCA 1621 where at [13] his Honour said: "It would be strange indeed if, on substantially similar facts, two judges of this Court arrived at different results. If nothing else, that would tend to suggest a breakdown in the rule of law in favour of idiosyncratic law making, a concept much discussed in recent times. Of course there will be some occasions when it is necessary for one judge to reach a conclusion which is different from another although the facts of both cases are similar. But that would be a rare case and this is not one of them." 34 In the subject matter the facts are substantially the same and I do not consider that any particular circumstances were identified, which would merit setting aside the previous findings. However, I consider that additional conditions, as mentioned should be imposed to ensure reasonable amenity results. Taking into account the upgrading requirements, I am also satisfied that the conditions should impose a 3 - year trial period, following completion of the aforementioned works.

Court orders 35 The Court orders: 1 The appeal is upheld. 2 Development consent is granted for the use of the premises at 269 Canterbury Road, Canterbury as a brothel for a trial period of 3 years in accordance with conditions of consent in Annexure A. 3 The exhibits may be returned except for 2, 3, A, B and C.

      R Hussey
      Commissioner of the Court
      ljr

Page 1 of 6 Annexure 'A' Conditions of Consent

Bruce Fowler and Guo Lan Wang v Canterbury City Council

THAT Development consent be granted to Development Application No. 309/2009 of 26 October 2009 for use of premises being Lot B in Deposited Plan 368248 known as 269 Canterbury Road for a brothel, subject to the following conditions:

1 DEFERRED COMMENCEMENT Pursuant to section 80(3) of the Environmental Planning & Assessment Act 1979, this consent will not become operative until the Applicant satisfies Canterbury City Council, in accordance with the regulations, within two (2) years of the date of this consent, that the following matters have been carried out: a The plans the subject of the consent shall be amended as follows: i The ground floor plan is to include a room which is to be used solely as an "office" for and in connection with the brothel use. The office shall be located in one of the two (2) ground floor waiting rooms in lieu of one of those waiting rooms. ii The first floor manager's residence shall incorporate living rooms, bathrooms and only provide one (1) bedroom. The first floor residence is for the exclusive use of the manager of the brothel. iii The existing external shower/laundry area at the rear of the premises is to be upgraded to provide for bathroom facilities which shall incorporate within that upgraded area shower, wash basin and toilet. The area shall be covered by a roof. Access to the area from the rear of the premises shall be discreet so that entry to this area from the rear of the premises cannot be viewed from adjoining premises. iv The side security door shall not be used as a general access door to the brothel. v Provide details of the type and construction of the side security door to Philip Street. vi To provide for the installation of a Closed Circuit Television at the entrance to the brothel, with the monitoring system to be located in the ground floor office. b The following works shall also be carried out prior to the issue of a final occupation certificate. i Upgrading of the existing external shower/laundry area at the rear of the premises and roof there-over as to be shown on the plans. ii Installation of a privacy screen at the end of the parking slab. iii Installation of closed circuit television and monitor therefore in ground floor office. iv Provision of disabled access to the ground floor of the premises in accordance with condition 10 below. v Securing side security door along Philip Avenue as to be shown on the plans. vi Change the layout of the Manager's residence at the upper level so that living rooms are incorporated within that area with only one (1) bedroom to be provided at the upper level to be used only by the Manager of the brothel.

GENERAL 1 The development being carried out in accordance with the plans, specifications and details received by Council on 6 August 2009 and the drawing labelled 'site plan', received by Council on 17 June 2009, except where amended by the conditions of this consent. 2 The acupuncture use of the premises is to cease once the brothel use commences. 3 Three (3) off-street car spaces being provided in accordance with the submitted plans. These car parking spaces shall be adequately sealed, drained and line marked. 4 The maximum number of persons working on the premises being limited to three (3) consisting of two (2) sex workers and one (1) manager/receptionist on the site at any one time. 5 All activity being conducted so that it causes no interference to the existing and future amenity of the adjoining occupations and the neighbourhood in general. 6 The hours of operation being confined to between 9.00am and 7.00pm Monday to Saturday. 7 This consent is for a limited period of three (3) years only. 8 All entry/egress into the premises shall be restricted to the main entrance doorway from Canterbury Road with no access from the side entrance door in Phillips Avenue, excluding emergency circumstances, or through the rear car parking area. 9 The manager/operator of the premises shall reside on the premises with the brothel use being limited to the ground floor as identified in the drawings received by Council on 6 August 2009 and the drawing labelled site plan, received by Council on 17 June 2009. 10 The brothel, excluding the manager's residence shall be upgraded to ensure that it provides adequate access for persons with a disability in compliance with the Disability Discrimination Act and Australian Standard AS1428.1. In this regard, the following alterations require attention and shall be included on the plans and details forwarded with the application for a Construction Certificate: 10.1 The main entry door and internal doorways to the waiting room, one service room and the doorway to the bathroom/toilet are to have a width of 800mm when the door is open; and 10.2 A clear and uninterrupted accessible path of travel shall be provided to the waiting room and at least one treatment room. The premises shall not be used as a brothel until these works have been completed to Council's satisfaction. 11 To ensure the health and security of workers and to minimise impacts to patrons and residents, the premises shall operate strictly in accordance with the Plan of Management submitted to Council on 17 June 2009. The Plan of Management is to be updated to include provisions in relation to the Philips Avenue access side door and the manner in which it is to be used and a requirement that it be brought to patrons attention that in parking in proximity to the premises such patrons recognise the amenity of residents within the environment. The updated Plan of Management is to also make provision for the keeping of a complaints register on site. The use of the premises shall be conducted in accordance with the Plan of Management the subject of this consent. 12 A sign shall be placed above the doorway or on the door along Phillips Avenue directing persons to the front entrance on the Canterbury Road frontage of the premises. 13 Any sign for the subject use shall only include the name of the business, the street number and the hours of operation. The sign shall not refer to "brothel" or sex services of any kind and shall be located on the Canterbury Road frontage near the entrance to the site. Any lighting associated with the use of the premises as a brothel shall be switched off after the approved operating times. 14 Suitable site storage, handling and disposal of waste material arising upon the premises. Disposal options may include recycling, removal by private contractor, or by Council Trade Waste Services. Further information is available on 9789-9392. 15 The colourbond fence along the eastern side is to achieve a height of 1.8m above the Philips Avenue foothpath level. 16 Screen planting to a minimum height of 2.5m is to be provided along the western common boundary with 271 Canterbury Road between any outbuildings and the rear parking area. 17 Screen planting is to be provided along the eastern boundary of the rear parking and yard area to a minimum height of 2.5m.

ENVIRONMENTAL HEALTH 18 NSW Health and WorkCover NSW have developed detailed guidelines known as "Health and Safety Guidelines for Brothels Guide 2001" (publication number 120.1E) which address the key occupational health and safety responsibilities for those involved in the sexual services industry. It is a requirement of Council and the responsibility of brothel proprietors and principal sex workers that a full copy of the Guidelines is obtained and utilised at the premises. The Guidelines can be obtained from WorkCover NSW Ph: 1800 658 134. 19 The premises shall be maintained in a clean, sanitary condition and kept in a satisfactory state of repair at all times. 20 Storage areas be provided for storage of lubricants, condoms, towels, disinfectants etc within the premises. 21 Clean linen and towels shall be provided for the use of each client. 22 Adequate receptacles with close fitting lids shall be provided for the separate storage of used and clean linen. 23 The proprietor shall ensure that all linen, towelling and other bed coverings which come into contact with clients shall be changed immediately after each use. 24 The proprietor shall enter into a commercial contract to launder linen or install and use a commercial washing machine capable of washing at a temperature of not less than 70 degrees Celsius. 25 The proprietor shall supply an adequate supply of condoms, dental dams and water based lubricant free of charge for sex workers and their clients. 26 All hazardous waste including sharps waste shall be stored in an appropriate container and disposed of in accordance with the Environmental Protection Authority's requirements. 27 The proprietor shall provide written information, i.e. pamphlets and brochures for sex workers and clients on sexually transmitted infectious diseases in a variety of languages including those of any sex worker who has difficulty communicating in and/or reading the English language. 28 The proprietor shall ensure that sex workers receive appropriate induction, are adequately trained and continually being provided with updated information to examine clients for any visible evidence of sexually transmitted diseases, and that examinations are conducted before any sexual contact. 29 That the premises shall be provided with artificial lighting to provide a level of illumination appropriate to the function or use of the building/ spaces to enable safe use and movement to occupants in accordance with Part F4 of the BCA. 30 The proprietor shall ensure that all sex workers undertake regular health check-ups. Note: The proprietor's attention is drawn to the provisions of Section 13 of the Public Health Act 1991, which makes it an offence to knowingly permit sex workers suffering from a sexually transmissible disease to have sexual intercourse with other persons unless the client has been informed of the risk and voluntarily agrees to accept the risk. 31 Adequate sanitary facilities shall be provided for the use of both sex workers and clients. 32 Each working room be provided with a panic buzzer. 33 All required wash hand basins shall be provided with an adequate supply of potable warm water under mains pressure, mixed through a common outlet. 34 Skin penetration activities as defined by the Public Health Regulation 2000, shall not be conducted on the premises without the prior approval of Council. 35 The lighting system being appropriately zoned to facilitate cleaning of rooms, cubicles, booths or the like during times when the premises is commercially open. 36 Adequate facilities shall be provided for the disposal of used condoms, soiled paper and other waste products of sexual activity in all rooms, cubicles, booths or the like where sexual activity occurs. 37 Equipment which cannot tolerate immersion must be cleaned by wiping with detergent and water and then disinfected by wiping with either a solution of one part bleach to two parts water or 70% alcohol, rinsed and allowed to dry prior to use. Cleaning and disinfection should be compatible with the manufacturer's instructions. 38 The lighting to all rooms, cubicles, booths or the like shall be fitted with user adjustable dimmer switches or the like to assist safe sexual practices. 39 Certification is to be provided to Council to demonstrate that the underside of the first floor (including the sides and undersides of its floor beams, if any) is protected to BCA Specification C1.1. Conversely, you may wish to submit an alternative solution that complies with the performance requirements of the Building Code of Australia.

40 Each exit door must swing in the direction of egress (unless it serves a building or part with a floor area not more than 200m², it is the only required exit from the building or part and is fitted with device for holding it in the open position) to BCA Clause D2.20. 41 Exit doors in a required exit, forming part of a required exit or in the path of travel to a required exit must be readily openable: a without a key to a person seeking egress, and b by a single hand downward action or pushing action on a single device, and c located between 900mm and 1200mm from the floor, to BCA Clause D2.21.

42 Annual certification is required for the existing services consisting of Fire door, Portable fire extinguishers, fire blanket, exit signs and linked smoke alarms.

R Hussey Commissioner of the Court ljr

27/05/2010 - deletion of word - Paragraph(s) condition 16

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