Hack, Hack and anor v Randwick City Council

KEY ISSUES: APPEAL :- three separate but related appeals against the refusal of a develoment application to use an existing premises for a brothel, the refusal of an application to modify an existing consent to allow the use of the premises as a brothel and an appeal against an Order to cease the use of the premises for a brothel - inconsistency with zone and other objectives - relationship with other land uses - access arrangements - amenity impacts

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998

CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614

APPLICANT Dr S Berveling, barrister SOLICITORS Russo & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay, barrister SOLICITORS Shaw Reynolds Bowen & Gerathy

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10258 of 2009 Gregory Hack v Randwick City Council 10796, 10842 of 2009 Gregory Hack and C. Wang v Randwick City Council

JUDGMENT 1 COMMISSIONER: These are three separate but related appeals that relate to the use of Unit 6, 878-890 Anzac Parade, Maroubra (the site). The site is occupied by a three-storey mixed commercial and residential building that is strata subdivided into 13 lots. 2 On 9 November 2009, Development Consent No. 778/2005 was granted by Randwick City Council (the council) to use Unit 6 for a remedial massage therapy centre. The relevant conditions of consent are: 2. The operation of the premises is to be restricted to remedial massage. The premises is not to be used for the purpose of a brothel and in this regard, no sexual services are to be offered in association with the massage usage. 3. The maximum number of employees operating from the subject premises is restricted to 1, and their relevant remedial and therapeutic massage qualifications are to be provided to Council's satisfaction. Council will keep a record of the employee and their relevant qualifications, and that no time the employees to vary without first notifying Council. 4. The hours of operation of the business restricted to: Monday - Friday: 10:00am - 7.00 pm Saturday - Sunday: 10:00am - 7.00 pm The appeals Appeal No 10258 of 2009 3 This is an appeal against a Brothel Closure Order being Order No. 1 in the Table to s 121B and s 121ZR of the Environmental Planning and Assessment Act 1979 (the EPA Act) requiring the applicant to cease using the site for: a. the purpose of a brothel; or b. the provision of sexual acts or sexual services in exchange for payment; or c. the provision of massage services (other than genuine remedial there appeared massage services) in exchange for payment.

Appeal No 10796 of 2009 4 This is an appeal against the refusal by the council of DA/586/2009 to use the site as a brothel with trading hours between 10.00 am and 10.00 pm Sundays to Wednesdays and 10.00 am and 11.00 pm Thursdays to Saturdays with a total of 2 sex workers and 1 manager.

Appeal No 10842 of 2009 5 This is an appeal against the refusal by the council to modify Development Consent No. 778/2005 by the deletion of conditions 2 and 3 and the modification of condition 4 to read 4. The hours of operation of the business restricted to: Monday - Friday: 10:00am - 10.00 pm Saturday - Sunday: 10:00am - 11.00 pm 6 The parties agreed that the appeals are to be heard concurrently. The contentions Appeal No 10258 of 2009 7 Dr Berveling, for the applicant, submits that that the Order is invalid as it does not comply with the requirements in s 121F - s121K of the EPA Act and also that no reasons were given for the Order. 8 Mr Clay, for the council rejects this submission. He submits that a Brothel Closure Order is exempt from the requirement to comply with s 121F - s121K by way of s 121ZR(2) that states: 2) Natural justice requirements not applicable A person who gives a brothel closure order is not required to comply with sections 121G-121K. Note. Sections 121G-121K provide, among other things, for notice of proposed orders. Sections 121L and 121N apply to brothel closure orders and provide for reasons for an order to be given to the person to whom an order is given as well as information about appeal rights. 9 If the submission of Dr Berveling is that the Order is not a Brothel Closure Order and therefore the exemption does not apply then Mr Clay submits that the Order is plainly a Brothel Closure Order as it is an Order to cease the use of the premises for a brothel. Related sex uses is also a defined term within s 121ZR(1)(c) that states: related sex uses means the following: (a) the use of premises for the provision of sexual acts or sexual services in exchange for payment, (b) the use of premises for the provision of massage services (other than genuine remedial or therapeutic massage services) in exchange for payment, (c) the use of premises for the provision of adult entertainment involving nudity, indecent acts or sexual activity if the entertainment is provided in exchange for payment or if the entertainment is ancillary to the provision of other goods or services . 10 Mr Clay also rejects the submission of Dr Berveling that no reasons are given for the Order because it is clear from the history of the use of the premises, the earlier Order in Class 4 proceedings of the Land and Environment Court and the terms of the Order that the unlawful use of the premises is for a brothel, which is both the circumstances enlivening the power and the reasons for the Order.

Appeal No 10796 of 2009 11 The contentions raised by the council relate to be non-satisfaction with the objectives for the zone in which the site is located, particularly that the brothel will be situated in close proximity to other commercial premises both external to and within the same building and will result in the disturbance and adverse impacts on their operation. Further, the council contends that the brothel will adversely impact on the social and cultural requirements of the town centre and is an inappropriate use of the premises.

Appeal No 10842 of 2009 12 The applicant contends that the development to which the consent, as modified relates is substantially the same development as the development for which consent was originally granted. Further, any subsequent use for which consent is sought does not affect whether the consent, as modified, relates is still essentially the same development as a development which consent was originally granted. 13 The applicant also contends that the proposed modification does not result in adverse impacts.

The Court's approach to the contentions 14 The town planning evidence in the proceedings centred on the suitability or otherwise of the site for a brothel. The ultimate findings reached by the Court on the merit town planning issues will dictate the Orders for all three appeals. Because of this, it was agreed that the most appropriate way to deal with the multiple appeals would be for the Court to provide findings on the merits (Appeal No 10796 of 2009 and Appeal No 10842 of 2009) and then allow the parties to make submissions on the terms of the Order (Appeal No 10842 of 2009), if the merit assessment finds in favour of the council. Relevant planning controls 15 The site is located within Zone No 3A (General Business Zone) under Randwick Local Environmental Plan 1998 (LEP 1998). Brothels are separately defined within LEP 1988 and are a permissible use with consent within this zone. Clause 13(1) provides objectives for the zone. The site falls within the area defined as the Maroubra Junction Town Centre and is subject to the requirements of cl 42D. Clause 42D(2) provides that consent must not be granted unless the Court is satisfied that the proposed development is consistent with the zone objectives and the objectives in this clause. There are no specific requirements in LEP 1998 that relate to brothels. 16 There are no development control plans that relate to brothels. Appeal No 10796 of 2009 - Is the site suitable for a brothel? The evidence 17 Mr Simon Ip, a town planner with the council provided town planning evidence and Mr Oscar Gullien, and environmental health officer with the council provided evidence on health-related issues although it was generally agreed that the concerns raised by Mr Gullien could be addressed through conditions if development consent was to be granted. Mr Lawrence Winnacott, a town planner, provided evidence for the applicant. 18 Some persons who owned units and occupied units within the building containing the subject site provided evidence, as did a number of local concerned residents. 19 Mr Ip and Mr Winnacott differed on a number of matters associated with the use of the premises for a brothel. These areas are: Impact on the existing commercial premises 20 Mr Ip states that potential patrons will need to contact the premises via the intercom and wait for admission on the footpath outside the building rather than an area not easily visible by the general public. The need to use the intercom may also result in negotiations being carried out on the public street. In his opinion, the proposed access is not discreet and is likely to offend passers-by and customers and employees of the nearby commercial premises. 21 Mr Winnacott states that patrons of a brothel would be indistinguishable from other persons visiting other premises in the building and there is no evidence to suggest that person speaking into the intercom would be so loud as to attract the attention of passers-by. Proximity to bus stop 22 Mr Ip states that a bus stop is located approximately 55 m to the north of the entry to the building. This bus stop is used regularly during the week by high school students. Given that potential patrons would need to wait on the street before being admitted to the building the relationship of the site with the bus stop is unacceptable

23 Mr Winnacott states that the location of the bus stop is sufficiently removed from the premises to not create a problem, and in any event, the patrons of the brothel would be indistinguishable from other persons. Shared use of the internal stairwell 24 Mr Ip states that patrons will need to walk past other commercial and residential units before reaching the second floor where the brothel is to be located. This access arrangement is undesirable as there are likely to be female residents, employees and visitors to other premises within the building. Also, it is impossible to control the behaviour of the patrons once admitted into the building. This is outside the direct supervision and control of the brothel management. 25 Mr Winnacott states that clear and unambiguous signage can be installed in the internal stairway to provide directions and identification of the proposed brothel. Screening of visitors via the intercom is likely to reduce the potential for people entering the building who may cause offence. The size of the proposed brothel is likely to attract very low levels of patrons within the building (approximately 1 to 1.25 visits per hour) and because of this, the use of the premises is unlikely to cause disturbance or offence. In the event that there are problems that the management cannot address, the police will be called.

Findings 26 The contentions raised by the council in this appeal relates principally to the inconsistency with the zone objectives and the specific objectives relating to the Maroubra Junction Town Centre in cl 42D. These objectives are necessarily broad and while relevant, provide no specific guidance for the location of brothels. What can be understood from the LEP 1998 controls is that the 3(A) zone contemplates the use of land for commercial, retail, residential and community purposes. While residential development was always permitted in the 3(A) zone (cl 13(1)(b)), the amendments created by cl 42 encourages a variety of housing forms (cl 42 (2)(c) and (d)).

The Martyn planning principles 27 In the absence of any specific controls for the location of brothels, the planning principles in Martyn v Hornsby Shire Council [2004] NSWLEC 614 have added importance. While not identified in the contentions, the principles were addressed in the Statement of Environmental Effects prepared by Mr Winnacott as part of the development application. Mr Ip and Mr Winnacott also addressed the principles during the hearing. 28 These principles state 18 The following are criteria for locating brothels: · 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 . 29 If the proposed development is tested against the principles in Martyn, then I agree with conclusions of Mr Ip, although not for all the reasons he stated. The principles in Martyn reinforce that a brothel is a legitimate use however it has the potential to offend some members of the community and as such some additional care should be taken to ensure that it is located where any potential impact are minimised. 30 In this case, I am not satisfied that the proposed location is acceptable for a number of reasons. First, the relationship of Unit 6 with other units in the building. While the strata subdivision of the building provides for 13 lots, there are a number of separate entrances to provide access to the lots. In this case, the access directly from Anzac Parade provides access to Units 1 and 2 on the first floor and Units 4 and 6 (the site) on the second floor. Access is provided through a locked door with an intercom system to each of the units to allow for remote opening of the door. Units 1 and 2 are currently used for residential purposes and unit 4 is used for commercial purposes. 31 The necessity for patrons of the brothel to share the common entry and stairway with residents and occupiers of the commercial units is unacceptable, in my view, as it creates the potential for conflict and offence to other occupiers and visitors to the building. The unsuitability of the shared access arrangements was confirmed from the evidence of the occupier of the unit 4 where he states that the use of the site has created problems with the operation of his business in that patrons seeking access to the brothel had entered his unit and were reluctant to leave despite been requested to do so. The occupier also mentioned his unwillingness to invite clients to his unit because of the proximity to Unit 6. He indicated that he had called be police on a number of occasions because of the activities at Unit 6. 32 The owner but not occupier of Unit 2 provided a written submission to the council objecting to the use of Unit 6 for a brothel. The submission stated that tenants had indicated concerns associated with the intercom being buzzed at all hours of the night from people seeking to gain access to Unit 6, directions were sought for access to Unit 6 from the tenants of Unit 2 at all hours of the day and night, rubbish is left in the stairwell outside the unit, noise from people walking in heels in Unit 6 directly above Unit 2, the smoke alarm being activated by activities in Unit 6 and numerous examples of physical violence resulting from the activities in Unit 6 and the need to call police. 33 Even though I accept that it is not reasonable to attribute every act of unacceptable behaviour identified by the owners and tenants to the operations of Unit 6, I am satisfied that sufficient evidence was provided to confirm the unsuitability of locating a brothel in a building that has common access arrangements with commercial and residential uses. In coming to this conclusion, I would acknowledge that even though the 3A zoning encourages mixed commercial and residential development, residential properties are still entitled to a reasonable level of amenity even though it may not be at the same level as an area containing predominantly residential dwellings. The issue is not about commercial and residential uses co-existing in an acceptable manner (like the residential uses in Units 1 and 2 and the commercial use in Unit 4) but the particular characteristics of the proposed brothel use and how they interact with other occupiers in that part of the building with access off Anzac Parade. 34 While Martyn makes reference to the term "zoned residential", I am comfortable that the reference applies equally to property used for residential purposes, particularly when the site is located in a mixed residential and commercial zone. 35 I find that the proposed development is in conflict with the principles in Martyn that provides for brothels to locate … where they are least likely to offend, be located to minimise adverse physical impact, such as noise disturbance and should not adjoin areas that are zoned residential, or be clearly visible from them. 36 Second, the access arrangements are unacceptable. I agree with Mr Ip that the process of gaining access to Unit 6 by first pressing the buzzer at the Anzac Parade frontage and then gaining access only if the permitted by the operator is unacceptable. This process clearly encourages discussions between patrons and management at the street frontage. The discussions could escalate if there was some dispute over whether access should be granted. 37 The proposed access arrangements also encourage the congregation of patrons at the street frontage. I do not accept that the preparation of a Plan of Management can satisfactorily address potential problems associated with discussions at the street frontage and congregation of patrons given the small number of employees, the legal inability to address any problems on public land apart from seeking police assistance and the often spontaneous outbursts that offend and disturb but are short in duration. 38 Similarly, I do not accept that signage would provide any meaningful help and avoiding discussions or congregating of patrons at the footpath particularly considering that any signage needs to be unobtrusive and limited in size and content. 39 I find that the proposed development is in conflict with the principle in Martyn that provides that access to brothels should be discreet and discourage clients gathering or waiting on the street. 40 Mr Ip also raised the proximity of the proposed use to an existing bus stop. This is a matter also raised in Martyn where it states that 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. In this case, I am satisfied there is sufficient separation between the bus stop and the proposed use that it would not be a reason to refuse the development application. 41 For the reasons identified in the previous paragraphs, the proposed brothel is unacceptable and the development application could be refused for either the location that shares a common access with commercial and residential uses and the street access arrangements. Zone and cl 42D objectives 42 The relevant zone objectives are: ( a) to maintain the viability of existing business centres, and (b) to facilitate developer of land, in places identified by the Council as suitable to be used as business centres, for commercial, retail, residential and community purposes; (i) … (ii) by encouraging economically viable retail course which are centrally located and in close proximity to public transport 43 The relevant cl 42D(2) objectives are: (b) to encourage a vibrant and active town centre that provides a range of facilities and services that benefit the locality and local government area. (e) to ensure that social and cultural needs are considered with any development proposals in the town centre. 44 Clause 42D(2) provides that consent must not be granted unless the Court is satisfied that the proposed development is consistent with the zone objectives and the objectives in this clause. The Statement of Facts and Contentions identifies the proposed development as being inconsistent with the above objectives on the basis of those matters previously addressed as part of the discussion on the planning principles in Martyn. 45 The identified objectives, by necessity are broader and designed to address a wider range of matters than a development application for a brothel however I am satisfied that the findings made in the assessment of the development application using the planning principles in Martyn can reasonably be applied to the identified zone and cl 42D objectives notwithstanding their broader application and the absence of any directly relevant planning controls for brothels. 46 Consequently. I find that development consent cannot be granted because the proposed development is inconsistent with the zone objective (a) and (b)(ii) and cl 42D(2) objectives (b) and (e). Orders 47 In Appeal No 10796 of 2009, the Orders of the Court are: 1. The appeal is dismissed. 2. DA/586/2009 to use Unit 6, 878-890 Anzac Parade, Maroubra as a brothel is refused. 3. The exhibits are returned, except exhibits A, B, 2, 3 and 4. Appeal No 10842 of 2009 -can the consent being modified? The evidence 48 Mr Ip states that the development application DA/778/2005 is for the use of the premises as a massage therapy centre. Condition 2 was imposed on the consent to reinforce the intended use as nominated in the application. 49 The s 96 application would intentionally and effectively enable the use of the premises for the provision of sexual services. The nature and purpose of the premises will be fundamentally altered by the modification proposal, despite the fact that no material changes are made to the physical fit out. The associated impacts on the adjoining nearby uses will also be substantially different as compared to the approved development. 50 Mr Winnacott states that development application DA/778/2005 as modified by the s 96 application will be substantially the same development for which the original approval was granted. The modification application will merely remove restrictions on the rendering of sexual services, staff numbers and staff qualifications and extend operating hours. The remedial massage would continue to operate from the same premises with extended hours and the potential for additional staff. The modification also does not seek consent for the sole use as a brothel.

Findings 51 It is unclear whether the modification application was submitted under the provisions of s 96(1A) that deals with modifications involving minimal environment impact or s 96(2) that deals with other modifications however as I understand the principle issue relates to whether the consent as modified is substantially the same development as the development which consent was originally granted. This test is identical in s 96(1A)(b) and s 96(2)(a). 52 Both sections require the Court to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and . 53 In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, Justice Bignold (at 390) identified the relevant test. His Honour stated: The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is essentially or materially the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context (including the circumstances in which the development consent was granted) 54 In considering the different evidence of Mr Ip and Mr Winnacott, I am satisfied that the consent as modified would not be substantially the same development as the development for which consent was originally granted. I agree with Mr Ip that the removal of conditions 2 and 3 and the modification of condition 4 substantially changes the characteristics and operation of the use at the site. 55 A brothel is a separately defined use within LEP 1998 (compared to be more general classification of a shop or commercial premises) simply as it requires a different assessment because of the particular characteristics of the use. As previously stated, a brothel is a legitimate and permissible use within the zone but it has the potential to offend some members of the community (even if not used as a brothel on a full-time basis) and as such some additional care should be taken to ensure that it is located where any potential impact are minimised. 56 The proposed modification application is a good example of where there are no physical changes (or quantitative changes using the words in Moto Projects) but the operational changes (or qualitative changes using the words in Moto Projects) create a significantly and fundamentally different use to the use for which consent was originally granted. Orders 57 In Appeal No 10842 of 2009, the Orders of the Court are: 1. The appeal is dismissed. 2. The application to modify Development Consent No. 778/2005 for a remedial massage therapy centre at Unit 6, 878-890 Anzac Parade, Maroubra is refused. 3. The exhibits are returned, except exhibits A, B, 2, 3 and 4. Appeal No 10258 of 2009 - the Order 58 Section 121ZK(4) of the Environmental Planning and Assessment Act 1979 provides: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit 59 Having found that the use of the site for a brothel is unacceptable, it follows that an Order requiring the applicant to cease using the site for a brothel is appropriate. 60 Dr Berveling and Mr Clay made differing submissions on the councils Order, including a question of whether the Order was invalid. Given the findings on the unsuitability of the site for a brothel, I propose to allow the parties to make further short submissions on the form the Order should take prior to making Final Orders.

61 Directions will be made for these submissions after discussion with the parties.

      G T Brown
      Commissioner of the Court

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