Golden Paradise Corporation v Kogarah Municipal Council

CASES CITED: Zhang v Canterbury City Council [2001] 51NSWLR 589 at 602; Martin v Hornsby Shire Council [2004] NSWLEC 614

APPLICANT Mr J Doyle, barrister Instructed by: Mr M Carr, solicitor Of: Forshaws Neill LEGAL REPRESENTATIVES: RESPONDENT Ms L Finn, solicitor SOLICITORS Abbot Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10161 of 2006 Golden Paradise Corporation v Kogarah Municipal Council

JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication.

1 This appeal relates to Development Application No. 39/04 dated 4 February 2004, which is for the use of the second floor of the existing three storey building at 645 Princes Highway, Blakehurst, as a dwelling and certain associated building works. Those works include the installation of bedroom windows, the completion of the fit out of bathrooms and the kitchen, reconfiguration of the car park and Building Code of Australia requirements, particularly in relation to balustrades.

2 The existing building is presently occupied on the ground floor by a shop and on the first floor by a brothel. There is a car park at the rear with access alongside the building from the Princes Highway.

3 Whilst the site has a somewhat complicated planning history, relevant aspects of that history include by the approval by the council in December 1995 for the conversion of the second floor of the building to a dwelling and the approval by the Court in May 1997 for the use of the first floor of the building as a brothel. It is not in dispute that certain works within the building have been carried out without consent.

4 The site is situated in the 3(a) zone under Kogarah Local Environmental Plan 1998 and in this zone, a dwelling house is permissible with development consent. A brothel is now prohibited in this zone.

5 The application was advertised and four submissions were received, expressing concerns in relation to the likely increased use of the premises as a brothel, increased car parking demand and lack of landscaping. Concerns were also expressed as to the fundamental incompatibility between residential apartments and a brothel. Three subsequent additional letters were sent to the council, expressing concerns in relation to the use of the rear of the adjoining commercial and retail premises for access to the subject site. None of these objectors gave evidence at the hearing.

6 The application was considered by the council in the light of a council officer's report dated 28 February 2005, that recommended conditional approval. Despite this, the council decided that the application should be refused for reasons, relating to an increase in traffic and consequential amenity impacts on neighbours and concerns that the submitted floor plans depict a layout consistent with the use of the second floor as a brothel, which use is prohibited by the LEP.

7 The Statement of Issues identified three issues essentially involving the use of the proposed dwelling as an expansion of the existing brothel, impacts on neighbour amenity in terms of increased vehicle parking demand and the unsuitable location of the dwelling being situated directly above the existing brothel and having a common access stairway.

8 The issues involving the extension of the brothel and car parking were considered by Mr Ball, the Court-appointed expert town planner, who concluded that these matters have been resolved or were capable of resolution by the imposition of conditions involving works to prevent internal access between the dwelling and the brothel and plans depicting the car parking arrangement at the rear of the site. These issues were not pressed by the council and subject to appropriate conditions, no determinative matter arises here.

9 The issue for the determination of the Court, as considered in detail by Mr Ball, involves the common use by the proposed dwelling and the brothel of the access stairway and to a lesser extent, the car park at the rear of the site that is available for the brothel, the ground floor shop and the dwelling. Whilst he acknowledged that council's Development Control Plan No 15, Regulation of Brothels is not strictly applicable because it only applies where brothels are a permissible use, the principles contained therein, can nevertheless be applied. In this regard, I agree with Mr Ball and some weight can be given to the DCP, although not the same weight that it would otherwise attract pursuant to s 79C of the Environmental Planning and Assessment Act 1979. In particular, cl 2.2 of the DCP states that brothels must not be sited immediately adjacent to or within property used or partly used for residential purposes. (Even if the DCP was applicable and given weight accordingly, this would not mean that this application should automatically be refused. In other words, strict compliance may not be required, rather the provisions of the DCP would need to be given careful consideration in the light of the facts and circumstances of the application. (See Zhang v Canterbury City Council [2001] 51 NSWLR 589 at 602)).

10 Taking into account cl 2.2 of the DCP, Mr Ball contended that the proposal is unacceptable given the shared access and shared car park and because this will result in new residents being exposed to and thus interacting with, brothel patrons and sex workers. More generally, he said that normally accepted town planning practice requires separation between a brothel and a residential use, notwithstanding that there may be occupants of the dwelling who would accept interaction with brothel patrons. A better outcome would be for the floor space on the top floor of this building to be used for some other more compatible commercial purpose. He concluded that the proposal cannot survive this issue, given the antipathetic nature of these land uses.

11 In Martin v Hornsby Shire Council [2004] NSWLEC 614, Roseth SC dealt with the criteria for locating brothels. Having noted that brothels are a legal land use that benefits some sections of the community but offends others, he said that the aim should 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. He also said that brothels should not adjoin areas that are zoned residential or be clearly visible from those areas. This approach would appear to support the approach advocated by Mr Ball, in terms of providing an appropriate degree of separation between brothels and residential land uses and in principle, I agree with this. It is to be noted that this principle is about locating new brothels in relation to existing residential uses or residential zones. However, this case does not involve the location of a new brothel in the vicinity of residential land uses where possible adverse impacts on existing residential development might result. Instead, it is proposed to introduce a residential dwelling to a position adjacent to an existing approved brothel. It is also important to recognise that the site is in a commercial, not a residential zone. It is obvious that where residential uses are situated in non-residential zones, the amenity that can be expected, cannot be as good as the amenity that would otherwise be provided in a residential zone. This is because of the very different character and nature of activities that occur in non-residential zones - in this case, a commercial zone that has a very different amenity. Because a brothel is a commercial activity, its location in a commercial zone can in principle, be considered to be appropriate, notwithstanding that brothels are prohibited in the 3(a) zone.

12 If a residential land use as is here proposed is to occur in a commercial zone, a different amenity is to be anticipated. Hence, as a matter of principle, the proximity of and the amenity created by the brothel should not automatically be a reason for the refusal of the application but the particular impacts involved need to be considered. The question that thus arises, is whether the amenity and in particular that of the common stair and car park would be so antipathetic to the proposed residential use or so offensive that the application should be refused. In this regard, I disagree with Mr Ball.

13 The conditions for consent of the brothel limit its use to four bedrooms and three sex workers. The approved closing time is twelve midnight. (Although I note that this condition may not be being presently complied with, such non compliance being a matter for the council). From time to time, the residents of the proposed dwelling and the visitors will find themselves in the immediate vicinity, especially on the stairway of these sex workers and their patrons. Mr Ball believed this to be unacceptable, based on his experience dealing with brothel applications elsewhere and because of other residents' concerns. He nevertheless commented that some people may not have a problem living above a brothel, and this can be a matter of choice.

14 I heard no evidence to persuade me that the sex workers and their patrons associated with this brothel, are likely to behave in an anti-social manner on the premises although I accept that it could happen. However, taking into account the scale of the brothel and the fact that only one dwelling is here involved and whose occupants will be aware of the brothel before they move in, I would expect the likelihood of an offensive confrontation to be reasonably remote and certainly not sufficient to warrant refusal of the application.

15 The applicant has agreed to a condition requiring that prospective tenants of the dwelling be notified of the existence of the brothel. Moreover, the brothel's existence is reasonably apparent to persons using the stairway. Hence, prospective residents of the new dwelling will thus be aware of the amenity associated with the brothel and can choose whether or not to live there.

16 In all of the circumstances, I have therefore decided that the appeal should be upheld and conditional development consent granted.

17 The conditions in Exhibit 4 were largely agreed to, including a number of conditions that were amended during the proceedings. Condition (8) that requires a more direct access from the living rooms to the bathroom in bedroom 2, is deleted as I have not been persuaded that this is necessary. Condition (11), dealing with the deletion of the side gate, which in its amended form, requires that as an alternative, the gate can be permanently padlocked closed is retained. The first sentence in Condition (17) that would require amended plans, is deleted as these matters are sufficiently dealt with by various other conditions.

1. The appeal is upheld. 2. Development application No. 39/04 for the use of the second floor of the existing three-storey building at 645 Princes Highway, Blakehurst, as a dwelling house and certain associated works as described in the "Proposed Plan: Separate Apartment", Site Plan and Elevations dated 7 September 2006 being the following works: a) the installation of highlight windows to the bedrooms, b) kitchen fitout, c) works associated with parking reconfiguration shown in the Site Plan, d) works to balustrading to make it BCA compliant, and e) any works required by the certifying authority associated with the rear external staircase. is determined by the granting of development consent subject to the conditions in Annexure 'A' hereto.
2. Exhibits A, B and 4 are retained.

      T A Bly
      Commissioner of the Court
      rjs

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.