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.