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[2010] NSWLEC 1003
Land and Environment Court (NSW)
2010-01-08
Original judgment source is linked above.
Background 8 In 1993, the council approved DA 96/93 for the use of the premises for the purpose of a 'Muscular, Joint and Aromatherapeutic Treatment Clinic' subject to conditions including that the premises "not be used for the purposes of a brothel". In 2003, a s96 application was lodged, and subsequently approved by council, to extend the hours of operation (10am to midnight) and the number of staff (8, including one admin staff). The current application does not seek to change those arrangements or to change the internal layout of the premises or to provide parking.
9 The development application before the Court was lodged on 9 March 2009 and advertised in accordance with council's procedures. Twenty three submissions opposing the development were received. The submissions raised concerns over the proximity of the site to community land uses such as the library, Uniting Church, bus stop, children's play ground in Fred Kelly Reserve, Five Dock Public School, child care centres and the public right of way (Thompson Lane). In particular, the focus was on community land uses and areas likely to be frequented by children. 10 On 21 July 2009, council refused the development application.
Statutory controls 11 The site is zoned B4 Mixed Use zone under Canada Bay Local Environmental Plan 2008 (CBLEP). The objectives of this zone are: To provide a mixture of compatible land uses. To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. 12 Sex services premises are permissible with consent. The B4 zone is the only zone in the CBLEP that permits this use. 'Sex services' and 'sex service premises' are defined in CBLEP as:
sex services means sexual acts or sexual services in exchange for payment.
sex service premises means a brothel, but does not include home occupation (sex services). 13 Clause 6.6 of CBLEP relates to 'Restriction on consent for particular sex services premises". This clause provides:
(1) Development consent must not be granted for development for the purposes of sex services premises if the premises will be located on land that adjoins, or that is separated only by a road from, land: (a) in Zone R1 General Residential, Zone R2 Low Density Residential or Zone R3 Medium Density Residential, or (b) used for community, school or church uses, or (c) in Zone RE1 Public Recreation.
(2) In deciding whether to grant consent to any such development, the consent authority must take into account the impact that the proposed development would have on children who use the land.
14 Clause 1.9(2) of CBLEP states that State Environmental Planning Policy No 1-Development Standards (SEPP 1) does not apply to CBLEP. Instead cl 4.6 of CBLEP provides a mechanism by which development standards in CBLEP can be varied. The parties disagreed on whether cl 6.6 is a development standard and consequently whether cl 4.6 applies. Clause 4.6 states:
4.6 Exceptions to development standards (1) The objectives of this clause are: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, and (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence. (6) Consent must not be granted under this clause for a subdivision of land in Zone RU1, RU2, RU3, RU4, RU6, R5, E2, E3 or E4 if: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4. The contentions 15 The council contends that, not withstanding a sex services premises is a permissible use within the B4 mixed use zone, it is prohibited by the provisions of cl 6.6(1)(b).
16 The applicant contends that cl 6.6(1)(b) is a development standard that does not contain a prohibition against the proposed development and, as such, a variation to the application of the development standard is sought under cl 4.6 of CBLEP. 17 The council also contends that the application fails to take into account the likely impacts on children as required in cl 6.6(2). The applicant contends that CBLEP assumes that sex services premises will be near other land uses frequented by children because of the zoning of the land where such premises are permitted. 18 Another matter raised by council is that there is a lack of on site parking that now becomes desirable due to the sensitive nature of the use of the land and the proximity to areas frequented by children. In reply the applicant states that the change of use retains the same number of staff as the current use and that no parking is required. 19 Council also contends that, if approved, the proposed change of use of the land will create an unacceptable precedent within the Canada Bay local government area. The evidence 20 The Court visited the site and surrounding area and heard an objection from Mr Giorgio who was principally concerned about the proximity of the premises to the church and library. He considered the area to be frequently used by children who would come into contact with customers of the sex services premises. 21 The Court heard expert planning evidence from Mr B Goldsmith, for the applicant and Ms K James, for the council. 22 The parties agreed that the proposed use of the premises for sex services did not comply with cl 6.6(1)(b) of CBLEP as it adjoins community and church uses. The key difference in opinion between the parties centred on whether cl 6.6(1)(b) is a development standard. If we accept Mr Paterson's submission for the couincil and find that cl 6.6(1)(b) is not a development standard then the use would be prohibited and the application would fail. If we accept Dr Berveling's submission for the applicant that cl 6.6(1)(b) is a development standard then the variation to the standard must meet the tests in cl 4.6 of CBLEP prior to any assessment of the merits of the application. For the reasons outlined below we have found that the proposal does not meet cl 4.6 and therefore the application cannot be approved or the appeal upheld.
Exception to development standard . 23 As required by cl 4.6(3), Mr Goldsmith prepared a written request seeking to justify the variation of the development standard (the Request) by addressing the matters in cl 4.6(3)(a) and (b) as follows: 4.6(3)(a) Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?
compliance with the standard is unreasonable and unnecessary as: Any assessment of the need to comply with the development standard to further reduce the area of land on which such use is permissible should take into consideration the very limited opportunities for use of land to which the LEP applies for the purpose of sex services premises. Such use is limited to land in zone B4 mixed use - only a small area of land to which the LEP applies. The component of the proposed development which might cause any impact which the development standard seeks to address is its gate/entry from the rear lane. The location of the gate/entry has not caused any complaint of disorderly conduct or loitering at the site. There is no signage or advertising to alert persons to the fact that the premises exist. It is inconspicuous. The westerly wall of the subject premises gives no indication whatsoever of the proposed use. It is unreasonable or unnecessary to comply with the development standard in the present case, as there is clearly an absence of harm from the development which has been in operation for many years and there is no record of complaint of disorderly conduct or loitering at the site.
4.6(3)(b) Are there sufficient environmental planning grounds to justify contravening the development standard.
The following environmental planning grounds justify departure from the development standard: Compliance with the development standard would hinder attainment of the EP&A Act's object to promote orderly development of land. It would so significantly limit the land to which the LEP applies and for which consent may be granted to use it to the purpose of sex services premises. There is a proven absence of harm in the present case, as its use over many years has not caused any complaint of disorderly conduct or loitering at the site; and The use is inconspicuous - there is no signage or advertising to alert persons to the fact that the premises exist, the gate is discreet, and the western wall of the subject premises gives no indication whatsoever of the proposed use. 24 Mr Goldsmith also addressed the matters in cl 4.6(4) (i) and (ii) of which the consent authority must be satisfied if consent is to be granted. In Mr Goldsmith's opinion the matters in cl 4.6(3) had been adequately addressed. Mr Goldsmith considered that the objectives of the development standard, although not stated in cl 6.6, are:
To provide some distance between sex service premises and other land or uses…or to impose a locational requirement for sex service premises so as to minimise potential objectionable behaviour (environmental or social harm) arising from the use of premises for sex service premises). 25 Mr Goldsmith stated that the proposal would be in the public interest as it met the objective of the standard as it had been in operation for a number of years without complaint or disorderly conduct and it is inconspicuous. 26 Mr Goldsmith also considered that the proposal met the objectives of the B4 zone as it is permissible within the zone and the use of the land is clearly contemplated for sex service premises. It therefore meets the objectives of providing a "mixture of compatible land uses". The proposal is in an accessible location and therefore meets the objective to "maximise public transport patronage and encourage walking and cycling". 27 In Ms James opinion cl 6.6(1) is not a development standard, however, in response to the Request Ms James states that the proposal does not meet the objectives of cl 4.6 as it does not achieve a better outcome for and from development by allowing flexibility in particular circumstances. 28 Ms James states that: The subject site is located adjoining the right of public access frequently used by children of all ages, is separated only by a right of way to the Five Dock Library (of which there is only one other servicing the LGA) and is within close proximity to a concentrated cluster of sensitive uses, which by nature of their development type, children are high consumers. The existing entrance for the subject premises is from the rear (western boundary) facing the library, utilising the right of public access to gain entry to the site. The alternative entrance for the premises is accessed via Garfield Street. Garfield Street is identified as a major route used by children of all ages as evidenced by surveys undertaken…. The proposed change of use would not achieve a better outcome than if it were separated from the sensitive uses, thereby reducing the potential impact on members of the community, including children. Flexibility is therefore not warranted in this particular circumstance and under cl 4.6 (1)(b), the subject application does not propose a better development outcome than could otherwise be achieved through an alternative location. 29 In Ms James opinion the Request did not demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case. She stated that:
The B4 mixed use zone in Five Dock provides more than adequate opportunity to accommodate sex service premises on lots that are not adjoining or separated only by a road to sensitive land uses. 30 Ms James acknowledged that no parking was required for the change of use as it did not involve an increase in intensity, however she was concerned that without parking, access to the premises would be either from the nearby public parking areas, including the library car park, or by public transport or walking. In her opinion customers of the premises and users of the library, church and other areas frequented by children would inevitably come into contact with each other. 31 Both Ms James and Mr Goldsmith agreed that the area was frequented by children and that the premises, including the current access from the rear, would be visible from the parts of the Library. The applicant has agreed to change the entry to be off Garfield Street, if required. In Mr Goldsmith's opinion this would limit the potential for overlooking of the entry from the library and the use of the right of way by customers of the sex service premises. Findings 32 Both Ms James and Mr Goldsmith referred the principles of Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 where the Senior Commissioner commented on criteria for locating brothels (sex service premises) and relevantly said:
Brothels are a legal land 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. 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 impact, 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 application, 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 adolescents 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 the 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 shop and strip clubs predominate, signage should be restricted to the address and telephone number.
33 Clause 6.6(1) of CBLEP has adopted its own locational criteria which include that sex services premises not adjoin certain residential zoned land, community, school or church uses or land zoned Public Recreation. The proposal does not meet this control. While no objectives for the control are stated in CBLEP the evidence of Mr Goldsmith and Ms James would suggest that the underlying purpose is to locate sex services premises where they are least likely to offend or have adverse impacts by separating the use from other sensitive uses to avoid the potential for contact and conflict. This recognises that sex services premises are a permissible use but one on which the community has divided opinions. The comments in Martyn clearly articulate the rationale for the location of brothels. 34 We note that planning documents for different local government areas have different controls for the location of sex services premises, but generally limit their proximity to residential areas, school, churches, etc and places frequented by children. This is sometimes done through distance requirements such as 200m, or terms such as "nearby". CBLEP is more specific and employs the term "adjoins, or that is separated only by a road from". The purpose of these controls is to locate sex service premises where the potential for conflict between specific uses and sex service premises is addressed through avoiding situations where they are in close proximity. 35 The key question before the Court is whether the non compliance with cl 6.6(1)(b) satisfies the criteria in cl 4.6(4)(a). Clause 4.6(4)(a)(i) requires a finding of satisfaction that the Request adequately addresses the matters required to be demonstrated under cl 4.6(3) namely that compliance with cl 6.6(1)(b) is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and that there are sufficient environmental planning grounds to justify the contravention of the development standard (cl 4.6(3)(a)). 36 While not expressly applicable to cl 4.6(4)(a), the principles in relation to SEPP 1 are of assistance in determining whether compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. His Honour states that:
38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1)…… 37 At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:
42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard… The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 38 In examining whether compliance with cl 6.6(1)(b) is unreasonable and unnecessary in the circumstances of the case, Mr Goldsmith stated the objectives of the standard and considered whether they are met. 39 Firstly, Mr Goldsmith places significant weight on the permissibility of sex service premises within the B4 zone and that compliance with cl 6.6(1)(b) would unreasonably restrict the provision of sex service premises within this zone.
40 Secondly, Mr Goldsmith contends that the brothel is discreetly located in a manner which people would not be aware of its presence. 41 Thirdly, Mr Goldsmith relies on the existing operation of the premises, which although approved as a 'Muscular, Joint and Aromatherapeutic Clinic' has, on his evidence, operated as a sex service premises for a number of years without incident or adverse impacts. 42 For similar reasons, Mr Goldsmith also found that there are sufficient environmental planning grounds to justify the contravention of the development standard. 43 In relation to the first matter, Mr Goldsmith's evidence is that children frequent the Five Dock retail/commercial centre and other centres in the B4 zone and it would not be possible to locate a sex service centre where children are not present. While this may be the case, it is not a criterion that must be met under cl 6.6(1), although it is a consideration in cl 6.6(2). 44 Clause 6.6(1) does not allow sex service premises to adjoin, or be separated only by a road from certain uses, potentially the uses most likely to be "offended" by the presence of sex service premises or where there is likely to be the greatest community concern, including land used for community and church uses. These uses are also likely to be areas used by children and where they congregate. Clause 6.6(1) does not prevent sex services premises from being located near or adjoining other uses in the B4 zone, which may be used by children such as bus stops. In this respect cl 6.6(1) is less restrictive than other planning instruments, which permit sex service premises only in industrial zones and also restrict their location to not be near or be visible from a wide range of uses frequented by children. 45 We therefore do not accept that compliance with cl 6.6(1)(b) would be so restrictive as to prevent the location of sex service premises within Five Dock retail/commercial centre. Compliance with the clause prevents a sex service premise being located on the site as it adjoins the library, which is a community use and is across the road from a church. However, there is no evidence that it would restrict a sex service premise from being located elsewhere in the B4 zone. 46 In relation to the second matter, while the premises are discreetly located upstairs with no signage, these are not of themselves sufficient environmental planning grounds to justify the contravention of the development standard. No parking is provided and, as currently proposed; customers will access the premises off Thompson Lane, which is a pedestrian right of way providing access to the library and other uses such as the playground and supermarket. Even if access is restricted to Garfield Street, it is unavoidable that users of the premises and other facilities will come into contact and that the potential for conflict between those users is not minimised which we consider to be an objective of the standard that is not met. 47 Further, although not raised by council, the proposal is accessible only by stairs and does not provide disabled access. Nor does the proposed Plan of Management provide adequate detail on the security and access arrangements to demonstrate that patrons will not need to wait on the street to gain entry to the premises. There are also no details of the alternate entry arrangements from Garfield Street, which would require internal alterations to relocate the office and waiting area. 48 In relation to the third matter, the sex service premises has operated for a number of years without consent and on Mr Goldsmith's evidence without incident. Dr Berveling submits that this should be given considerable weight. 49 While not referred to by either party, Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 at [35-38] provides guidance on the weight to be given to existing illegal operations. His Honour states:
In undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. ……
The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however that past use - without any consideration of its unlawfulness cannot ever be relevant.
For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 50 The evidence of Mr Goldsmith is that the past use of the premises has not resulted in complaint or disorderly conduct. We note that a couple of submissions made in response to the notification of the development application complain about the existing operation of the premises. However, we accept that the current operation may be without incident but we do not consider that of itself this would be a reason to find that compliance with the standard is unreasonable or unnecessary. The appropriateness of the use and whether it meets the objectives of the standard must be assessed independent of the current or future operator and their management practices. 51 The location of the sex service premises adjoining both the library and the church does not comply with cl 6.6(1)(b) nor does it meet the objectives of the standard to separate sex service premises from sensitive uses to minimise the potential for conflict. There are no particular circumstances of this case that demonstrate that compliance with the development standard is unreasonable or unnecessary. Nor are there sufficient environmental planning grounds to justify contravening the development standard. The proposal therefore does not satisfy cl 4.6(4)(a)(i). 52 The proposal also does not satisfy cl 4.6(4)(a)(ii) that: (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 53 For the above reasons the application must fail and the appeal dismissed. 54 As discussed above, it is not necessary to adjudicate on whether cl 6.6(1) is a development standard. However, by way of comment, if council intends this to be the case it would be preferable to clarify the applicability of cl 4.6 of CBLEP to cl 6.6 in a similar way that cl 4.6(8) excludes its operation from other development. Orders 55 The orders of the Court are: 1. The appeal is dismissed. 2. The development application (DA118/09) for a proposed change of use from a previously approved 'Muscular, Joint and Aromatherapeutic Clinic' to a 'Sex Services Premises' at 133 Great North Road, Five Dock is refused. 3. The exhibits may be returned.
Annelise Tuor
Commissioner of the Court
Judy Fakes
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.
Gioxle Pty Ltd
Canada Bay Council
CITATION : Gioxle Pty Ltd v Canada Bay Council [2010] NSWLEC 1003
Martyn v Hornsby Shire Council [2004] NSWLEC 614 CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408
(2006) 144 LGERA 408