Consideration
32In considering whether the proposed development should be approved, the relevant considerations include the zone objectives and cl7.6(3) of the LEP. The focus of the Council's submissions was on cl7.6(3), which is considered below. The zone objectives include consideration of whether the proposed use is compatible with and does not detract from the surrounding industrial land uses, and in relation to this issue the focus of the evidence and submissions was on the design and external appearance of the building, landscaping, and whether the location is appropriate for the proposed development, discussed below.
33Section 79C(1)(a)(iii) requires consideration of any development control plan. As noted above, the 2011 DCP replaced the 2006 DCP after the development application was lodged, and the 2011 DCP provides that this application could be assessed under the 2006 DCP. The expert planners were of the opinion that the 2006 DCP has the potential to be more onerous than the 2011 DCP, and that from a practical perspective it is appropriate to rely on the provisions of the 2011 DCP.
34The primary reason why the 2006 DCP could be considered to be more onerous is the exclusion of the site from the areas marked on Map 1, and the inclusion of the statement that development for the purpose of a brothel "must not be carried out" on land outside the area shown on the map (see [14] above). However, development for the purpose of a brothel is permissible with consent in the IN1 zone, and any provision in the development control plan that purported to prohibit such a use would not be consistent with the LEP: s74C(5) of the Act. This provision should be regarded as an indication of the Council's preferred location for brothels in the industrial area, which would not include the subject site.
35In most other respects the provisions of the 2006 DCP and the 2011 DCP are similar. The required considerations are similar, however those at cl5 in Part F: Chapter 2 of the 2006 DCP are framed in terms of matters that are required to be considered, while many of those in Part D5.4 of the 2011 DCP are in more prescriptive terms. The provision for a trial period is expressed differently, however both provide for a trial period for the use for 12 months. In my view it makes no difference whether the proposal is assessed against the 2006 DCP or the 2011 DCP controls, as I am satisfied for the reasons outlined below that the proposed development complies and is consistent with those controls.
36The parties referred to the planning principle in Martyn v Hornsby Shire Council [2004] NSWLEC 614, in which the former Senior Commissioner sets out principles for assessing brothels in areas where there are no locally adopted guidelines, reflecting the principle that brothels are a sensitive land use, and their location needs consideration beyond that of mere physical impact. The planning principle incorporates recognition that brothels are a legal land use and that while the aim should be to locate them where they are least likely to offend, the criteria for their location should not be so onerous as to exclude them from all areas of a municipality. The planning principle in Martyn is of limited assistance in circumstances where both the 2006 and 2011 development control plans provide controls for assessment of brothels, in the context where the provisions of the development control plan, while not determinative, are a fundamental element and a focal point of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. In any event, many of the criteria outlined by Roseth SC have been incorporated in the LEP and development control plan controls, including the principle that brothels should not adjoin or be clearly visible from schools or places where children and adolescents regularly gather, and that access to brothels should be discreet and discourage clients from gathering or waiting on the street. To the extent that the planning principle in Martyn assists in determining this application, I am satisfied that the proposed development is consistent with the criteria outlined by Roseth SC.
Design and external appearance of the building
37Both the 2006 DCP and the 2011 DCP require consideration of "the design and external appearance of the building and any associated structure and their impact on the character of the surrounding built environment". I agree with Mr Brown that the surrounding built environment is eclectic in character, with a range of building styles and heights as a consequence of the diversity of industrial uses in the locality. The design of the present building reflects its function as an office building. I am not persuaded that the proposed increase in height and reduced setback continuing the style of the present structure, or the provision of security fencing, are such as to result in a building out of character with the surrounding built environment.
Impact on places likely to be frequented by children
38Clause 7.6(3) of the LEP requires that the impact of the proposed development on "any place likely to be frequented by children" be considered. The objective of this provision is to minimise land use conflicts and adverse amenity impacts by providing a reasonable level of separation between the sex service premises and places regularly frequented by children (cl 7.6(1)).
39The 2006 DCP requires consideration of whether the brothel "is to operate near, or within view from a ... community facility, ... public open space, residential development or any place regularly frequented by children for educational, recreational or cultural activities". The 2011 DCP is more prescriptive, stating (at D5.4 (2)) that sex services premises "must not be located near, or within view from" such places, and (at (4)) that the entrance to and exit from a sex service premises is not be within view of any place regularly frequented by children. The objective of these controls is stated to be that sex services premises not adversely affect the amenity of land used for "educational, recreational, residential, service industrial, business, cultural or community purposes", and to ensure that sex service premises "will not have adverse impacts on the community".
40The Council submits that the site is both near to the hockey fields and other places frequented by children, and in a location where children have to pass on their way to the hockey fields, and that those who walk or ride bicycles past the site will have a direct view to the entrance to the premises.
41It was common ground that the hockey and football fields are used by children, and that the vehicle entrance is located at the end of Millwood Avenue some 250m from the site. The evidence as the numbers of children who use the playing fields, and who therefore pass the site, comes primarily from the written submissions made in response to notification of the development application. The President of the Macarthur Skylarks Hockey Club in her written objection to the application stated that on a weekly basis "approximately 1000 young hockey players and 500 adult team members and parents drive or walk past the proposed development". Those numbers are confirmed in the written objection made by the Secretary of the Macarthur Hockey Association Inc, who comments that "most children visit the complex at least twice, this means they pass by the suggested premises at least 4 times a week". Mr Rowan's evidence was that the hockey training season runs from February to April and that hockey and football competition runs until September. The Council Assessment Report notes (at p9) that during the hockey season the fields are used until 9.00pm Monday to Thursday, 10.00pm on Friday, 8.00am-3.30pm on Saturday and 8.30am-6.30pm on Sunday. The report also notes that during daytime hours the fields may be used by local schools, however the bookings are not regular and the children are always transported by bus, and continues (at p10):
During the assessment process three inspections took place on various days and included a Saturday between 9.00am and 1.00pm and on a Monday at 4.00pm.
During all times it was observed that all patrons coming into the venue were in vehicles. On the Saturday morning when competition was on and presumably the busiest period, vehicles were parked along Millwood Avenue but not in any location or proximity that a child may be able to adequately view towards, and into, the sex premises.
42The other evidence as to pedestrian movements on Millwood Avenue comes in the observations recorded by Mr Bridgman on 18 November 2011. Mr Rowan accepted that he had not observed pedestrians on either of his two visits to the site.
43It was common ground that the playing fields are regularly used by children for recreational activities. The Macquarie Dictionary defines the verb "frequent" to mean "to visit often; go often to; be often in", and I accept that using the word in that sense, the playing fields are a place "regularly frequented by children". The entrance to that facility is approximately 250m from the site, however the playing fields themselves are located some further distance away, and the playing fields and parking area are not visible from the entrance at the end of Millwood Avenue. While Mr Brown conceded in oral evidence that 250m could be regarded as "near", based on the view there is nothing at the entrance itself that would make it a place where children might gather, and while part of the building is visible from that location, the proposed entrance to the premises is not. I am satisfied that the proposed development would not operate within view from the playing fields, and given the distance to the playing fields themselves, it could not be said to operate "near" that facility. I am satisfied that there is an appropriate separation between the proposed development and the playing fields.
44While there is evidence as to the numbers of people, including children, using the hockey fields between February to September, the evidence before me does not establish that a significant number of young people using the facility would be passing the proposed development on foot. Council officers made three inspections at times considered likely to be those when young people would be going to the hockey fields for training or for competition, and did not observe children walking to or from the playing fields. It was common ground that the nearest bus stop is on Camden Valley Way, approximately 950m away, and Mr Brown's evidence that this distance is greater than one appropriate for someone aged 8 to 15 years to walk by themselves was not disputed.
45I am satisfied, based on the evidence of the Council inspections and the distance to public transport, that it is unlikely that a child would pass the site other than by private vehicle or a school bus. I agree with Mr Brown that there is nothing at the site or in its vicinity that would attract children to linger. In those circumstances I am satisfied that while children may pass by the site, most would do so by vehicle, and it is not a place which children visit or go to, and thus is not a place which children "regularly frequent".
46I accept the evidence of the planners that the post office delivery centre is used by members of the public to collect parcels and to access private mail boxes. There is no evidence before me to indicate that this facility is attended by unaccompanied children, and the hours of operation and distance from public transport suggest that this would be unlikely. There is no evidence as to the hours of operation of the Council depot, and while it is possible, as Mr Rowan suggested, that children may go there, there is no evidence to indicate that it is a place that children would regularly frequent.
Other impacts
47Clause 5(b) of the 2006 DCP requires consideration of whether the operation of the brothel is likely to cause disturbance in the neighbourhood when taking into account other land uses within the neighbourhood involving similar hours of operation. A similar provision is made in cl 14(a) of part D5.4 the 2011 DCP. Mr Rowan was of the opinion that there is a potential for anti-social behaviour arising from operation of both the proposed development and the approved country club between 10.00pm to 3.00am. In oral evidence Mr Rowan stated that his concern was that people would leave the licensed premises and go to the brothel and increase the risk of conflict with management and staff of the brothel. Traffic to and from the country club along Graham Hill Road would pass its intersection with Millwood Avenue within 300m of the proposed development. The proposed development was not envisaged when the licensed premises were assessed and approved and there had not been any assessment of potential future conflict in the event that the premises becomes a destination for intoxicated persons leaving the licensed premises and resultant anti-social behaviour.
48Mr Rowan stated that he is not concerned with the proposed hours if the country club is not operating. He recommended that approval of the hours 10.00pm to 3.00am should be for a temporary period only, to cease 24 months after the operation of the licensed portion of the approved country club, subject to a modification application to extend the hours no sooner than 12 months after commencement of the licensed operations associated with the country club. The Council's position is that a trial period for extended hours of 12 months from the issue of an occupation certificate for the proposed development is appropriate.
49The issue of whether there should be a trial period consistent with cl 6.7 of the 2006 DCP or cl B1.18 of the 2011 DCP is considered below. Mr Rowan's specific concerns about the operation of the proposed development and the country club for the same hours, which might be relevant for consideration under cl 5(b) of the 2006 DCP or cl 14(a) of the 2011 DCP, are not supported by the other evidence available. In particular, the Safer by Design Evaluation undertaken by NSW Police notes (Exhibit 1, p30) that the evaluation measures "include crime likelihood (statistical probability), consequence (crime outcome), distributions of reported crime (hotspot analysis), socio-economic conductions (relative disadvantage), situational hazards and crime opportunity". The NSW Police report to Council makes no reference to any concerns about the hours of operation, or to any concerns about the operation of the proposed development in the context of the existing hotel on Camden Valley Way or the approved country club. The site is not on a direct route for those patrons leaving the country club using Graham Hill Road, and Mr Rowan accepted that not all patrons leaving the approved country club would need to use Graham Hill Road. I am not persuaded that the evidence supports a conclusion that the operation of the proposed development is likely to cause disturbance in the neighbourhood taking into account the prospective operation of the country club during the hours 10.00pm to 3.00am.
50Considering the proposed development against the other controls in the 2006 DCP, it was common ground that there are no other brothels in the neighbourhood; there is suitable access to the brothel; the proposed alterations to the building include provision of waiting areas inside the premises; there is sufficient off street parking; and the only signage will be a street number. Proposed conditions of consent include provision for employment of security personnel between 8.00pm to 3.00am, limitation on the number of sex workers to five; provisions for laundering and changing of linen and provision of safe sex supplies; security for doors and installation of CCTV; and lighting. The controls in the 2011 DCP at D5.4 are similar. Whether the 2006 DCP or 2011 DCP is applicable, I am satisfied that the proposed development is consistent with and complies with the applicable controls.
Landscaping
51The proposed development will result in the loss of one street tree to enable the additional driveway access to be provided. Based on the view, the remaining landscaping will screen the entrance to the building for users of Millwood Avenue other than in the vicinity of the driveway entrance, and in particular, from the entry to the hockey field area at the end of Millwood Avenue. The Council accepted that the loss of this street tree would not be a basis for refusal.
Impact on use of the vehicle repair station
52The Council contends that the proposed development will lead to an overdevelopment of the site because of the likely impacts on the use of the site as a vehicle repair station. It was common ground that the current use of the site as a vehicle repair station is not an approved use. The evidence before me does not establish when that use commenced, and whether the change from the use approved in the 1995 development consent may have been authorised as exempt development. The Council submits that while the vehicle repair station is not an approved use, it should be considered on the basis that it is an actual use of the site. In support of the submission that even if the present use is unlawful it should still be considered, the Council relied on Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99. The Council submits that potential impacts on vehicle access to and manoeuvring on the site, and the potential need for vehicles to be parked on the street, are relevant matters.
53Jonah is authority for the proposition that past unlawful use is not relevant in undertaking a merit determination of whether to grant a development consent, other than in a context where past unacceptable impacts might be relevant in evaluating the likely impacts of a prospective use. Regardless of whether the use of the site as a vehicle repair station is authorised or not, and whether impacts on that use arising from a different prospective use are relevant, the evidence before me does not support a finding that approval of the proposed development would be likely to have an adverse impact on the current use of the site. The evidence is to the contrary, in particular the evidence of Mr Bridgman and Mr Hutcheson that there is adequate provision for car parking on the site for the vehicle repair station; that manoeuvrability of vehicles and heavy goods vehicles within the vehicle repair station will be satisfactory; and the proposed development would not directly result in on street parking of heavy goods vehicles awaiting repair or other on-street parking. Accepting that evidence, the possibility that additional on-street parking for the vehicle repair station may be generated by the provision of separate parking for the proposed development would not in my view be a basis for refusal of consent.
Conclusion
54I am satisfied that the proposed development is compatible with and does not detract from the surrounding industrial and other uses, and in its location provides a reasonable level of separation from places regularly frequented by children. I accept that it is likely that the nature of the use of the building will become known to people in the area, including to young people who pass the site on their way to and from the playing fields. However, that knowledge of itself would not in my view have an adverse impact on the use of the playing fields, or on the amenity of other land in the area or on the community generally. I am satisfied that the proposed development is consistent with the specific controls applicable to sex service premises in the 2006 DCP and the 2011 DCP, and that the proposed conditions relating to provision of lighting in the car park area and entry way, CCTV cameras, provision of security personnel, and security and surveillance systems, and the requirement for compliance with the approved Plan of Management, will minimise any adverse impacts that might arise from the proposed use. I am satisfied that the proposed development should be approved.