Hang H v Strathfield MC

DATES OF HEARING: 21/01/2005 and 22/02/2005 EX TEMPORE JUDGMENT DATE : 02/22/2005

APPLICANT Mr D J Galpin, barrister

LEGAL REPRESENTATIVES: RESPONDENT Ms J Wauchope, solicitor instructed by Maddocks solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11005 of 2004 Hong Hang v Strathfield Municipal Council

JUDGMENT 1 This was a Class 1 appeal No 11005 of 2004 between Hong Hang and Strathfield Municipal Council in regard to the refusal of application 0304/276 for the use of a brothel at Industrial Bay No 2 at 81-89 Cosgrove Road, Strathfield South being Lot 2 in Strata Plan 67469.

2 The brothel was in operation at the time of hearing. It had on the ground floor, the entry, lobby, office and TV surveillance room, two waiting rooms, toilets, a shower room, laundry, kitchen and a staff room and five customer service rooms. On the mezzanine level were two more customer service rooms and a toilet.

3 The surveillance cameras monitored the car park and driveway and entry areas outside and the lobby and corridors inside. There was a lattice screen outside on the entry which was laced with artificial flowers and there were flashing coloured lights above the entry awning. Three of the client service rooms had showers. Having no external windows to most rooms the facility had air conditioning and exhaust ventilation. There were three car parking spaces on title of Lot 2 and the common property of the strata plan had a disabled car space for use by visitors to the site.

4 There was a plan of management in evidence to ensure health and safety of its operations. The construction of the internal rooms and the lattice and lights had been done without consent and so this appeal was only in regard to the use. Council would need to consider the building certificate matter separately.

5 The issues in the appeal filed on 1 October 2004 had been negotiated to some extent.

7 Issue 2 remained, stated as parking: The proposal does not provide sufficient parking in accordance with Strathfield Development and Control Plan No 15 . Particulars for the relevant planning controls are cl 32(b)(ii), cl 61GB(2)(a) of the Strathfield Planing Scheme Ordinance 1969. Specific assessment criteria 2.2 of cl 2 of the Strathfield Development Control Plan No 15 Establishment of Brothels , cl 3.3(a)(b) and (c) of DCP 15. Cl 29(1)(a) of the Draft Strathfield Local Environmental Plan 2003.

8 Issue 3 remained, being amenity; (a) The proposed development is within proximity of access ways being in proximity to entrances to Begnell field, which is used by children and is accessed from Cosgrove Road. Particulars of relative planning controls are cl 61GB(2)(a) of the Strathfield Planning Scheme Ordinance , specific assessment criteria 2.2 of cl 2 of Development Control Plan 15 and cl 29(2)(d) of the Draft Local Environmental Plan 2003 and

(b) Whether the isolated location of the brothel is suitable having regard to the safety of staff and clients. Particulars of the relevant controls are specific assessment criteria 2.2 of cl 2 of Development Control Plan 15 and cl 3.2(b) of Development Control Plan 15.

9 At the on-site inspection some objectors gave evidence. They were: o Mr Jenner, resident objector of No. 7 Blanche Street, o Mrs Bromwich, resident objector of No. 124 Cosgrove Road, o Mr Beckman, resident objector of No. 20 Patricia Street, and o Mrs Fiorillo, resident objector of No. 128 Cosgrove Road. 10 There was a petition signed by about 300 residents, the majority from Patricia Street, Birriwa Avenue, Blanche Street, Cecily Street, Madeline Street, Robinson and Excelsior Streets and Cosgrove Road in the suburb of Belfield.

11 The council reports were also in evidence. The reports recommended conditional approval of the brothel but included an alternate recommendation for refusal due to the level of public interest and concern.

12 For the applicant there was a report by Mr J Boers, consultant town planner, plus the Management Plan he had prepared.

13 There was a Court-appointed expert town planner, Mr L Winnicott and his report was tendered and he gave evidence.

14 The area was zoned Industrial 4 under the Strathfield Planning Scheme Ordinance. At the rear of the site was the railway Enfield Marshalling Yards and on the opposite side of the street was industrial uses on Zone 4 land that extended over to the Cooks River and Coxs Creek. Along both the river and the creek was parkland, and beyond that, residential land in the suburb of Belfield within which nearly all the objectors lived. Coxs Creek intersects with Cosgrove Road about 650 m to the south away from the proposal. The parkland beside the creek was called Begnell Park and the first houses in Cosgrove Road were beyond the park. Mrs Bromwich and Mrs Fiorillo's houses were in that first group of houses in Belfield.

15 The house numbering in Cosgrove Road did not reflect any normal proximity to the site because the railway marshalling yards had extensive frontage to Cosgrove Road. Blanche Street was the first intersection in residential areas south of the site about 800 m. It was left turn only from Blanche Street into Cosgrove so to enter the rest of the residential area from Cosgrove Road one had actually to drive to Punchbowl Road about one kilometre away.

16 In the northern direction on Cosgrove Road there was only industrial and commercial uses for about one kilometre to the intersection with Liverpool Road. Slightly to the west on Liverpool Road was South Strathfield High School.

17 To the east from the site through the industrial area one came to Madeline Street. It travelled more or less parallel to Cosgrove Road and had industrial uses both sides until it too intersected with Coxs Creek. Beyond Coxs Creek it entered the Belfield residential area about 450 m from the site. At the point of crossing the creek Madeline Street had the other end of Begnell Park on its east and Cooks Park on its west.

18 Mr Jenner said school children walk between the high school and Belfield. The most direct route was Cosgrove Road past the brothel. The school used the playing fields on the two parks so it was not just the local youth who lived in Belfield. Mr Jenner coaches junior soccer on the park and had heard youth discuss the brothel. He says it should have the flashing lights and the lattice removed at the entry door, and the entry door itself should be put around the side of the building instead of facing the street. That would make it less obvious.

19 Mrs Bromwich agreed with Mr Jenner and added she was concerned about increased traffic, especially late at night. She said already Cosgrove Road was used by cars occasionally that raced each other due to the lack of intersections and the isolation of Cosgrove Road. The brothel might attract more.

20 Mr Beckman said he thought the brothel was the one that had been in the newspapers recently for employing illegal immigrants and even holding an employee against her will. Both the applicant and the respondent assured the Court that this was not so and tendered a letter from the police, Flemington Local Area Command. The letter supported the brothel as being in a good position and not in the near vicinity of schools nor churches nor residential premises.

21 The police cautioned, however, that at night the site was isolated within the industrial area and operators must provide safety for staff and clients. The minimum recommended should be adequate lighting, duress alarms, security doors and an entrance area that was not concealed and did not have any entrapment areas.

22 Mrs Fiorillo supported Mr Jenner and Mrs Bromwich. A petition from all the other residents said in summary: (a) It was not an industrial use and would set a precedent for similar uses. (b) The brothel would attract persons with a criminal record and increase crime in the area affecting both industrial and residential properties in the area. (c) Cook Park and Begnell Park are used by residents and youth and are only 200 m and 400 m respectively from the brothel. (d) Madeline Street is a residential street only 200 m from the brothel. (e) Blanche Street is 500 m from the brothel. (f) Hungry Jack's, a fast food outlet, is 1.5 km from the brothel. (g) Three schools are within a one to 2 km radius of the site. (h) A 10-pin bowling alley is about 1 km away from the site. (i) The appearance of the brothel is offensive. (j) The 24 hour a day and 7 days a week operation proposed will cause disturbance to the neighbourhood. (k) The entry is not discreet and other users of the industrial development would mix in the common driveways, and (l) Parking for three cars only is inadequate.

23 Mr Winnicott and Mr Boers in their evidence showed that the industrial Zone 4 is the only zone in all of Strathfield where brothels were a permissible use with consent of the responsible authority. The draft Strathfield Local Environmental Plan 2003 retained the same zone on the site and the same permitted uses so that the council intended that brothels, if allowed, must in the future be in the industrial zone.

24 The council's own Development Control Plan No 15 was the detailed control for brothels and required sensitive uses such as those nominated by the objectors to be 250 m from the site. 25 The petition was incorrect in stating the distances from the parks. Begnell Park along Cosgrove Road was 650 m from the site and the first houses were beyond that. The frontage to Begnell Park off Cosgrove Road had a strong man-proof steel mesh gate that was padlocked. The main pubic access to Begnell Park appeared to be off Madeline Street.

26 Whilst it was only about 200 m to Madeline Street within the industrial estate at that point Madeline Street was deep within the industrial estate, and it did not become residential until about 450 m or more from the site when Madeline crossed Coxs Creek. At that point the entrances to both Cook and Begnell Parks existed so the first houses on Madeline Street were beyond Begnell Park.

27 The other uses such as schools, fast food outlets, indoor recreation facilities, were all more than a kilometre away outside the industrial zone. The one potentially sensitive use was a bus stop about 160 m away on Cosgrove Road but it would appear to be a bus stop that would be used primarily by industrial zone employees. If children did use it to travel to the high school they would have to walk quite a distance and pass another bus stop from the residential area. In any case, they would reach the bus stop, when coming from the south, well before they were near the brothel. Returning home from school the first bus stop that school children are likely to us is near the park and houses more than 650 m away from the site. The bus stops were not sensitive in this appeal due to their remoteness from the site.

28 In regard to the concern of the objectors in regard to a criminal element being attracted to the site the management plan specifically prohibited any anti-social or illegal behaviour on the site and in any case such activity would activate the existing legislation for brothels and it could be closed down.

29 In this instance, Mr Winnicott did not necessarily think there was any reason to fear a criminal element might be attracted to the site, and in view of the applicable legislation, it could be controlled.

30 In both Mr Winnicott's and Mr Boers' opinions as well as Mr Jenner's and Mrs Bromwich's, provided the lattice in the porch, and the flashing lights, and all identification, except the street number and a small business name, was removed from the exterior, then the attention that currently was drawn to the premises would disappear. School children if they walked or bicycled past would not be aware of its presence.

31 The town planners did not think the entry door needed to be moved around the corner. With the lattice, signs and lights gone, the entry doors would just look the same as the other factory bay entries.

32 The police favoured the entry doors being visible from the street as it eliminated possible points of entrapment and facilitated the security camera's operation. Also moving the door to the side of the building would block one car space.

33 The town planners said they agreed with the police. The site for the brothel was a good one provided safety and security of patrons of employees were addressed and also provided the question of parking was dealt with. The plan of management on cleanliness and health issues and the security cameras and security services proposed in the management plan were quite satisfactory, the planners said, and met the sorts of requirements contained in the police letter.

34 In regard to off-site security and parking demand, they said staff usually did not travel by private car to and from the brothel. A taxi or a driver employed by the brothel would be provided by the employer.

35 Mr Winnicott said in assessing the planning aspects of other brothels, he had concluded that most patrons did not park at brothel premises. For reasons of discretion they parked away from a brothel. The same would apply here. The ample availability of on-street parking in the vicinity meant that there would be no unacceptable demand for parking placed on the public streets, and that this brothel with a maximum of seven workers would not generate the need for more than three car parks provided.

36 The council requirement under Development Control Plan 15 was 7.5 car spaces. The respondent said, in the interests of more abundant caution, that due to the daytime parking demand by industrial workers a limit of seven persons including the receptionist/proprietor/manager/part-time cleaner was pressed between 6am and 6pm daily.

37 Mr Winnicott said that a disabled person's car park was needed in addition to the three ordinary car spaces. The applicant furnished a copy of the strata plan showing that the common property on the title provided a disabled car space. It was located a short distance from the entrance to the brothel along the level concrete driveway, that a wheelchair could easily traverse.

38 Mr Winnicott was questioned about the council's proposal for a 12 month trial period. The council put to the Court it was a standard condition arising out of Development Control Plan No 15. Mr Winnicott said the 12 month trial was not mandatory under Development Control Plan No 15. Cl 3.6(d) said council may require a trial period.

39 Although the brothel had previously operated without consent, Mr Winnicott said there had been no incidents to date warranting police action, nor any complaints arising from anti-social behaviour during its operation, and, if not for the flashing lights and decorated entry it was unlikely passers-by would have known of its existence to date. The restricted premises legislation had provisions to close the brothel down if any unacceptable events occurred. Mr Winnicott had concluded that subject to conditions the site was quite appropriate for a brothel and he did not see the need for a trial period.

40 In coming to a conclusion on this appeal I was mindful of cl 61GB(2)(a), (c) and (f) of the Strathfield Planning Scheme Ordinance and cl 29(2)(d) of the draft Strathfield Local Environmental Plan 2003. The evidence has shown that the parking to be provided would be adequate.

41 In regard to the appearance and effect on the character of the area, with the deletion of flashing lights, and lattice at the entry and the removal of the existing signs, except for the large "No. 2" mounted in the glass of one of the doors of the entry, and the small sign on the wall beside the door that complied with Development Control Plan No 15, there would be no unacceptable effect on the locality from its appearance. 42 In regard to amenity of the locality the evidence of the experts and the police was that the remoteness of the site from sensitive uses nominated in Development Control Plan 15 made the location an appropriate one for the brothel that would probably have no effect on the amenity of the sensitive uses which were at some distance from the site, and would have minimal and acceptable effect on the amenity of the industrial area.

43 The hours of operation although 24 hours a day, 7 days a week was acceptable given the other considerations, and was most unlikely to cause any nuisance to anybody. The traffic generation of the site would be very low and not add noticeably to that already experienced at night by residents along Cosgrove Road, 650 m away from the site. The residential areas, due to the local one-way and restricted entry streets, were most unlikely to receive any traffic at all from the proposal.

44 Given the overriding legislation that would enable the brothel to be closed down in the event of poor management or unacceptable incidents, and the recommendation of the expert witnesses, I do not impose the twelve month trial period but do impose the restriction of staff numbers in condition 5 during daylight hours, and allow the full complement of staff at other times.

45 The parties were directed to review the draft conditions and Management Plan and a revised set was filed with the Court on 28 January 2005. Condition 2 schedule B in regard to the trial period is deleted. The Orders of the Court are:

2. Deferred commencement consent is granted to a brothel at Factory Bay 2 at No.s 81-89 Cosgrove Road, Strathfield South as shown in the drawings in exhibit 'A', all subject to the conditions in "Annexure A" hereto including the Plan of Management by Mr J Boers dated January 2004 in exhibit 'C' as annotated. 3. The exhibits are returned to the parties except exhibits A, B, C, D and exhibit 2.

K G Hoffman Commissioner of the Court ljr

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