Guo v Parramatta City Council

CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; Martyn v Hornsby Shire Council [2004] NSWLEC 614

APPLICANT Mr R. Creighton (Agent) LEGAL REPRESENTATIVES: RESPONDENT Mr Marincowitz, solicitor of Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10213 of 2007 William Guo v Parramatta City Council

JUDGMENT Background. 1 This appeal was lodged against Councils refusal of a development application for the expansion of an existing brothel at 110 - 112 Ballandella Road, Pendle Hill. The brothel operates on the basis of consent orders granted by the Court on 9 January 2006, which imposed a set of conditions for the use of the property. Apparently the subsequent operations of the brothel have not been in compliance with the conditions of consent and proceedings were undertaken in respect of the contraventions.

2 A number of issues were initially raised for the appeal and subsequent conferencing by the parties reduced the outstanding issues to: o Whether the proposed development is an unacceptable intensification of use, o Inappropriate location, in terms of the separation distances to residences, o Fire safety in terms of compliance with the BCA, o Poor management practices, o Public interest matters raised by the objectors.

3 The subject site is Unit 1 and described as Lot 1 in SP 37905. This site contains 5 strata titled industrial units and an open car park with the capacity for 18 vehicles. The industrial units have 6m high ceilings and a mezzanine level with windows that face the carpark. Unit 1 is the first unit within the complex and is located adjacent to Ballandella Road and the internal access way. It has a number of windows that front Ballandella Road.

4 The ground floor level of the unit has a floor area approximately 320 sq m and the mezzanine level of the unit has a floor area approximately 130 sq m.

The proposal. 5 This proposal involves building alterations to the ground floor and other alterations to the mezzanine level to increase the number of client service rooms from 6 to 11 and increasing the number of sex workers from 6 to 11. The works involve the following alterations to the ground floor level: o A client service room with spa o A client service room with the bathroom designed for disabled access o Two staff rooms o A client waiting room o A staff dining-room with kitchen o 4 car parking spaces o A laundry room.

6 The other works involving reconfiguration of the existing rooms on the mezzanine level comprise: o 3 additional client service rooms with showers o A laundry room o existing client service rooms with showers are to be retained

7 The external works to the building proposed include: o Addition of louvres to 4 ground floor windows that face Ballandella Road o Removal of fluoro lighting strips on the roof of the building.

8 Parramatta Local Environmental Plan 2001 (LEP). The site is zoned Employment 4 under this LEP and brothels are a permissible use in this zone.

9 Clause 24 of the LEP contains locational requirements for brothels and matters that the consent authority must consider when determining an application to carry out development for the purposes of brothel as follows: 24 Brothels (1) Regardless of any other provision of this plan, premises shall not be erected or used for the purpose of a brothel where they are located: (a) on any land zoned residential or within 100 metres of any land zoned residential, or (b) near or within view from any church, hospital, school, community facility or public open space or from any other place regularly frequented by children for recreational or cultural activities, or (c) within 50 metres of a public transport facility, being a railway station entrance, bus stop, taxi rank, ferry terminal or the like. (2) In determining an application to carry out development for the purpose of a brothel, the consent authority must consider the following matters: (a) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it, (b) whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood, (c) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood involving similar hours of operation, (d) any other environmental planning instruments that the consent authority considers relevant. 10 However, the LEP was amended on 1 June 2007 (Amendment No 13) and Schedule 1 relevantly includes the following provisions: [3] Clause 24 Brothels Omit clause 24 (1) (a). Insert instead: (a) on any land zoned residential or within 200 metres (measured from the boundary of the allotment upon which the brothel is proposed) of residences for any land zoned residential, or [4] … [6] Part 4 Insert at the end of Part 4 (with appropriate clause numbering): Savings for development applications lodged before commencement of Parramatta Local Environmental Plan 2001 (Amendment No 13) (1) A development application that was lodged with the consent authority, but that was not finally determined, before the commencement of the amending plan is to be determined as if the amending plan had been exhibited but had not been made. (2) in this clause: the amending plan means Parramatta Local Environmental Plan 2001 (Amendment No 13).

11 Parramatta Development Control Plan 2001 (DCP). The development is subject to the requirements of the DCP, from which the following has been identified as relevant: Part 4.1 - Environmental performance Part 4.2 - Social performance Part 4.3 - Amenity issues Part 5.9 - Industrial development.

The Evidence. 12 Expert evidence in this matter was presented by Mr J Goodwill (Councils senior development assessment officer) and Mr A Martin (Consulting town planner for the applicant), in the form of the joint planning report - Exhibit 10.

13 A significant number of written objections were lodged against the proposal and other objections made at the view. These objections can be summarised as: o Adverse social impacts on residents of the area; the expansion of the brothel will have adverse social impacts on the surrounding area in terms of the number of children and women walking past the brothel on the way to the station, increase in rubbish and litter around the brothel, attraction of undesirable people that may commit crime and experience with unacceptable behaviour of brothel clients. o Likely reduction in property values. o Adverse traffic impacts arising from the intensification of use due to increased traffic. o Moral issues.

14 Insofar as many of the aforementioned objections were re-iterated at the view, other objections were raised by Mrs Tunks from 12 Ballandella Road, regarding unwelcome people calling at her property due to confusion with the address of the existing brothel. Councillor C Worthington did not support the proposal on the basis that the approval of the development is likely to increase antisocial behaviour in the neighbourhood.

15 Mr N Rees opposed the expansion of the brothel due to the proximity of the nearby residential area, which adjoins the subject industrial area. He says that as there is a church and schools nearby and he is aware of antisocial behaviour caused by the brothel patrons, the provisions of the amended LEP should be imposed and the development refused.

16 Notwithstanding the aforementioned objections, I accept that appropriate conditions of consent can be imposed which address some of these issues and mitigate to a reasonable extent some of the objections lodged. This is the case with the non-compliance with BCA requirements, whereby this relatively recent building can be upgraded to satisfy these matters.

17 Likewise, I consider that some of the amenity impacts can be reduced to acceptable levels by improvements to the building exterior with the provision of fixed louvres to the street front windows, which prevent viewing into the premises from the street. Also, conditions could be imposed which restrict the intensity of the external lighting and advertising signage. I understand that the applicant is agreeable to conditions of this nature.

Conclusions. 18 Having considered the evidence, the submissions and undertaken a view I consider an appropriate starting point to assess this development application is that the property has the benefit of an existing consent for a brothel to accommodate 6 sex workers and other ancillary staff.

19 The brothel has been operating since its grant of development consent on 9 January 2006 and I note that action has been taken due to non-compliance with some of the conditions of consent. I also note the evidence of the residents that the street level windows fronting Ballandella Road have not been covered, resulting in unacceptable viewing impacts for some general users in the public road domain and that some patrons from the brothel have contributed to additional traffic usage and disturbance later in the evenings. Complaints were also made about rubbish and beer bottles being left in the public areas around the brothel.

20 This evidence however is somewhat inconclusive in my opinion, in directly linking this disamenity to the brothel. Whilst I accept that brothels are quite sensitive developments that often generate widespread community opposition, nevertheless their location in industrial areas, which are separated from the general residential precincts, often results in an acceptable planning outcome.

21 It seems to me that this was the position when the consent orders were granted for the existing development and a reasonable outcome should be achieved, subject to the brothel operators' compliance with conditions of consent. Consequently, I accept that the applicant could have an expectation that as the subject premises can physically accommodate the proposed building alterations, then the expansion to allow the additional sex workers in this industrial area is suitable. This is consistent with the initial assessment (19/1/2007) by council officers, who recommended the subject application be granted conditional consent.

22 However Mr Goodwill reviewed this initial assessment of the proposal (19 January 2007), because he said at that time he did not consider Amendment No 13 was imminent and certain. As this amendment has now been made, it is a relevant control and he says it should be given significant weight because; "the boundary of the site is within 124m of the nearest residential allotment, this contravenes the 200m separation requirement stated in the LEP. The significant expansion of the brothel is contrary to the desired future character of the area and the underlying intention of the amending LEP."

23 Accordingly, Mr Goodwill now says that this development application should be refused.

24 Against this, Mr Martin supports the proposal and says that the issues raised by the objectors can be dealt with by appropriate conditions of consent. Furthermore, he notes that the proposal was referred to the Police, who have raised no objections.

25 Mr Marincowitz's submission is that the approach of Mr Goodwill should be accepted in accordance with the line of authority established in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 where there was a similar situation of a new planning control coming into effect after lodgement of the development application, and appropriate weight had to be assigned to the control on the basis that it was a draft instrument.

26 In Terrace Towers, Cowdroy J decided that the new LEP provisions should be given significant weight because it had come into force. On appeal, His Honour Mason P said: 46 The cases permit a consent authority to give weight to its perception of the likely (or unlikely) imminence of the relevant provisions of the exhibited draft instrument coming into force; or if it has in fact come into force, to treat it (draft though it is in its direct applicability) as if its provisions were "certain and imminent". This approach has long been adopted by the Land and Environment Court and its predecessors, the Land and Valuation Court and the Local Government Appeals Tribunal (see Ward v Warringah Shire Council (1963) 80 WN (NSW) 841; 10 LGRA 114 at 119-120; Pymble Industrial Village v Ku-ring-gai Municipal Council (1975) 3 LGATR 161 at 165; Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 201-202; Mathers v North Sydney Council [2000] NSWLEC 84 at [42]; Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49 at [36]-[37]; Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 at [6]; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at 297-298. See also Teston Investments Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 62 LGRA 346 at 353-354).

51 Cowdroy J did not err in law in paying significant weight to the fact that LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(l)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgement of the instant development application). Common sense explains why significant regard may be given to an instrument whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival".

27 Following this line of authority, I am satisfied significant weight can be given to Amendment No 13, as submitted by Mr Marincowitz. However, in conjunction with this, cl 24 (2) identifies specific matters that must be considered. In particular 2 (a) requires consideration of whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it.

28 The effect of Amendment No 13 is that no new brothel would be permitted on the subject site, because it does not comply with the 200m separation standard. Therefore the residents of this area would not expect any disturbance or adverse amenity impacts arising from a brothel under these new controls because it would not be part of the character of the neighbourhood. However, I acknowledge the existing approval for the brothel with 6 sex workers and that this will generate some levels of impact in the neighbourhood, particularly in its late-night trading hours, which has resulted in additional patron traffic according to the nearby residents.

29 Taking the amenity impacts of the existing brothel as a benchmark, it seems to me that the "effective" doubling of the number of work rooms and sex workers will significantly increase patron vehicular traffic through the nearby residential streets and also likely increase pedestrian activity in the public domain near the brothel, which is shared with other members of the public who wish to access other facilities and station along Ballandella Road.

30 Under these circumstances, I accept the general thrust of the objectors evidence, that the existing brothel has caused disturbance in the neighbourhood in the form of additional late-night traffic and noise annoyance and disturbance to residents and particularly Mrs Tunks. I therefore do not consider its proposed expansion reasonably satisfies the provisions of cl 24 (2) (a) and (b) of the LEP, based on the objectors evidence concerning the interference with the amenity of this neighbourhood.

31 The question of the appropriateness of the location of a proposed brothel was set out by Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614, wherein the following criteria was specified, in the absence of local criteria: o Brothels are a legal land use and benefit 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 brothel is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for local brothel should not be so onerous as to exclude them from all areas of a municipality. o 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… o …

32 It is apparent from these principles that brothels should be located where they are least likely to offend the general community. Applying these principles to the subject application, it is located in a relatively prominent position, rather than a more discreet location within the industrial complex, and I accept the objectors evidence that the expanded scale of the proposal is likely to offend more members of the public due to the increased usage of this prominent site, which is not consistent with these principles. Accordingly I do not consider this proposal adequately satisfies the merit consideration required by s 24 of the LEP.

33 Even though I have initially acknowledged that the building can be upgraded to minimise adverse amenity impacts on the neighbourhood, nevertheless I do not consider that this site is suitable for the significant increase in its scale of operations in this neighbourhood. In line with the authority stated in Terrace Towers, I also consider it reasonable to be give significant weight to the provisions of Amendment No 13, which now restricts any brothel on the site due to its non-compliance with the 200m separation control.

34 For these reasons, I do not consider the approval of the expanded brothel on this site is suitable, or consistent with the provisions of Amendment No 13 and that the public interest would be well served so as to merit consent of the development application. This conclusion is consistent with the opinion of Mr Goodwill, on which I rely.

Court Orders 1. The appeal is dismissed. 2. Development application No DA/1019/2005 for the expansion of the existing brothel at 110 - 112 Ballandella Road, Pendle Hill is refused. 3. The exhibits be returned except for A, 4 and 10.

      R Hussey
      Commissioner of the Court
      ljr

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.