Kemthong v Griffith City Council

The site and its context 8The site is located on the eastern side of Hams Street, is an irregular shaped allotment with a frontage of 30m, rear boundary of approximately 41m and side boundaries of 50 and 52m resulting in a site area of 1771sqm. It is located within an industrial area, known as the Mooreville Industrial Park, to the south east of the Griffith City Centre. Hams Street, a local road, connects Collier and Whybrow Streets. Development within the vicinity of the site primarily comprises industrial and storage buildings. 9The building erected on the site contains a two-storey brick structure at the front with a warehouse building attached to its rear. Vehicular access to the building is currently available from a roller shutter door in the eastern facade and a driveway to the south of the building. That driveway also serves an area available for on-site parking and provides for truck turning into two loading docks with sliding doors, one in the southern and one in the rear, eastern walls of the warehouse.

The proposal 10The works proposed involve the removal of the front roller shutter door and an existing doorway within the front facade, alterations to the ground floor brick building to provide an office, introduction room, staff amenities, linen store and four workrooms, all with individual ensuite. The warehouse area would be linemarked to provide 10 carparking spaces, one of which is an accessible space. The main doorway that provides access to the building off a pathway that connects to Hams Street would be retained, as it is a required exit however it would not be used as an entrance to the brothel. All access would be from the internal doorway off the carpark to the introduction room. The existing windows would be treated to prevent views into the area. 11The proposed hours of operation are 10am to 3am seven days per week and up to eight staff including a receptionist, one to two security staff, a cleaner and four sex workers would be employed. Provision for up to 15 car parking spaces can be made on site.

The issues 12The contentions in the case are that because the first floor of the premises is used as a dwelling, the use of the remainder of the building as a brothel is both contrary to the zone objectives and prohibited under the zone table and the council's policy for restricted premises and brothels; and that the use of the remainder of the building as a brothel is contrary to that policy and not in the public interest. The council did not press a contention that the social impact statement lodged with the application was inadequate as further information in regard to that issue had been provided by the applicant. 13To overcome the first contention, the applicant amended the application by deleting the use of the first floor dwelling and undertook to surrender the consent that authorised use of that area as a dwelling in the event that the Court upheld the appeal. The surrender of that consent would be a deferred commencement provision.

The planning controls 14The site is zoned 4(a) General Industrial under Griffith Local Environmental Plan 2002 (the LEP). Brothels are permitted with consent in that zone. Dwelling houses (other than a caretaker's/security residence used in conjunction with a use consented to) are prohibited. 15Three development control plans are relevant to the application. They are DCP No. 3 Industrial Development, DCP No. 20 Off-Street Parking Policy and DCP No. 25 Public Notification of Development Applications. 16The council has an adopted policy which applies to restricted premises and brothels. That policy is titled APPROVALS - Development Restricted Premises and Brothels was adopted by the council on 9 June 2009 and is due to be revised by March 2013. The objectives of the policy are:

• To inform applicants and the community o the primary considerations for the location and establishment of restricted premises and brothels.
• To provide guidance for the assessment of restricted premises and brothels.
• To minimise potential social impact and nuisance associated with restricted premises and brothels.
• To establish local standards, acceptable to the community in general, for the location and establishment of restricted premises and brothels. 17The policy includes a statement in regard to the location of restricted premises and brothels which states: The establishment of new restricted premises and brothels, after the date of adoption of this policy, will only be considered in areas zoned 4(a) General Industry in terms of the Griffith Local Environmental Plan 2002, and in no other zone. No part of a restricted premises or brothel is to be located: within 200 metres distance from any residential dwelling or residentially zoned land (excluding a bona fide caretaker's residence on industrial zoned land); or within 200 metres distance of any place of worship, school community facility, child care centre, hospital, or any place likely to be visited by children for recreational or other pursuits; or In arcades or other thoroughfares open to the public or used by the public. 18The policy does not include advice on how the 200 metre distance is to be measured. A definition of restricted premises is provided and states that it is: Restricted premises has the same meaning as in the Griffith Local Environmental Plan 2002; but, for the purpose of this policy, also means a building or place used or intended for use of a shop in which: any classified publications (other than unrestricted publications) within the meaning of the Classification (Publications, Films and Computer Gamers) Enforcement Act 1995 are available for sale or rental to the public, or a business is conducted, an object of which is the display or exhibition of any article that is primarily concerned with sexual behaviour, but is not printed matter, but does not include a shop where the business of a newsagent, clothes or lingerie retailer, video/DVD hire, or registered pharmacist is genuinely carried on.

The evidence 19The hearing commenced on site when a view of the premises was conducted in the company of the parties and their experts. A premises located at 16-24 Whybrow Street was also inspected. That site contains a number of factory units including two, at the front, central section known as units 11 and 17, used as a dance studio. Those premises were not in use at the time of inspection however, a number of industrial activities were being undertaken on the site at the time. 20The development application for the dance studio was lodged with the council on 25 March 2010, after the date subject application was submitted. The assessment report of the council officers in relation to the dance studio application was tendered to the Court as Exhibit H and the application was approved in May 2010. 21Two objectors to the application provided evidence in Court. They had both lodged objections to the council and spoke of their concerns with regard to the brothel. They both stated that the brothel would lead to health issues for workers and clients and violence against women, that it is not possible to monitor the operations to ensure that there is no risk of sexual disease, the area does not have sufficient health resources to monitor the operation or deal with any social or health issues that may arise if the development proceeds and that there is no need for a brothel in Griffith. 22Expert town planning evidence was heard from Mr W Stimson for the applicant and Mr K McNicol for the council. 23The experts agree that a consent condition requiring the surrender of the consent for the use of the first floor as a dwelling would resolve the issue in relation to the conflict between the residential and brothel uses; that the use of the site as a brothel is permissible with consent; that the chance of persons attending the dance studio travelling past the site is minimal; the visual presence of the building will not itself attract people to pass or visit the brothel; that at the time the application was lodged, it would have been difficult to know that the dance studio was operating without development consent without substantial knowledge of the local area and that moral issues should not be a consideration in the assessment of the application. Both accept that the 4(a) zone is an appropriate location to establish a brothel provided it is sufficiently separated from sensitive land uses. 24They do not agree on the means of calculating the distance between the dance studio and brothel and whether the separation between the two uses is acceptable or whether the brothel will result in social impacts. 25Mr Stimson had prepared a plan that identified a number of paths that could be walked between the entrance to the brothel and the entry to the dance studio. That plan was Exhibit D and shows 3 paths which vary in distance from 277.5m to 281.9m and was prepared using a measuring wheel. He said that the distance includes 55.2m from the site boundary to the brothel entry and 77m from the property boundary of the dance studio site to the door used by children to access the studio and that excluding the area within the sites, the distance between the two closest common boundaries would range from 139m to 150.3m, all of which are less than the 200m required by the council's policy however, says that the larger figures are more relevant as the aim of the policy is to separate uses rather that to separate boundaries. He says that the aim is to minimise potential social impact and nuisance associated with restricted premises and brothels and that practically, the distance provided by the shortest route travelled provides for an appropriate level of separation that could not otherwise be enhanced in this locality were a radial measurement to be used. It is his opinion that the proposed brothel not only satisfies the numerical separation distance requirements of the council's policy, but also the intent and stated objectives of that policy. 26Mr McNicol says that the most appropriate method to measure "distance" is to use a radius of 200m, that such is quantifiable and easily mapped, can easily be interpreted and is the best method of measuring distance to ensure the objectives of the policy are met. He says that using a different method has the potential for a brothel to immediately adjoin a sensitive landuse by allowing uses to be immediately adjacent (e.g. to the immediate rear of) but involving a walk in excess of 200m between each use. Applying his calculations the dance studio is 143m from the site and therefore does not satisfy the requirements of the policy. He says there are many other locations more suitable to establish a brothel, that the proposed site does not satisfy the objectives of the policy and is not in the public interest. 27Mr McNicol was the author of the assessment report undertaken in relation to the development application for the use of the dance studio and advised that he did not take into consideration the existence of the consent for the adult shop at the site despite that consent still applying to the land and the council policy applying to that use. He said that this was because the use as the adult shop had ceased to operate however acknowledged that it could reopen at any stage without the need for any further approvals. Mr Stimson said that the applications for the brothel and dance studio were being considered at the same time and therefore it would be prudent to consider both in terms of the council's policy. 28The planners both reference the planning principles in Martyn v Hornsby Shire Council [2004] NSWLEC 614 and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 to assist in determining siting requirements. Mr McNicol says that Martyn is not as relevant in the case because Griffith Council has an adopted policy for the siting of brothels however, he does acknowledge the comment of Roseth SC that, in part says, brothels should be located where they are least likely to offend. He says the principles in Stockland that apply to a policy that has been the subject of public consultation, is consistent with the council's environmental planning instruments and development control plans and has been consistently applied since its adoption means the policy should be given significant weight. 29Mr Stimson says that M artyn is a relevant consideration and that the application is consistent with those planning principles and for that reason would not diminish the public interest. He says that the policy should be given little weight, as during its 28 day exhibition period (plus 14 days to receive submissions) only one submission was received from two individual members of the public and concludes that considering the significant period of time in which the policy was on exhibition the receipt of one submission does not represent the result of a significant level of consultation with the community so he is of the view that the policy should not be given a comparable level of weight to that which would be given to a development control plan. However, he remains of the opinion that the proposed development satisfies its provisions, particularly in relation to separation distances from potentially sensitive land uses.

The conditions 30The draft conditions provided by the council as Exhibit 6 include deferred commencement provisions that require the surrender of the consent and any existing use rights that apply for use of the upper floor as a dwelling. These are agreed by the applicant. 31The applicant does not agree to a number of the operational conditions the council is seeking to impose should consent be granted. Those in dispute and the reasons they are opposed relate to a condition which seeks to ensure the premises is not used as an escort service (not relevant as consent not sought for that purpose), one that requires the removal of an existing, angled pathway that connects the roadway to the exit door and its replacement with a perpendicular pathway (not reasonable or necessary), one prohibiting the sale or provision of food or beverages including alcohol to customers (unreasonable to have no food or beverages on the premises and no liquor licence is proposed) and one that requires the use of the ground floor brothel to cease if the upper level is used as a dwelling (adequately addressed by other conditions and separate consent would be required for use of that area as a dwelling).

Conclusion and findings 32The primary issue between the parties is whether the site is within 200m of the dance school. In this regard, the council says the distance should be measured radially and applying that interpretation, the site is less than 200m so does not comply with the council's policy or its objectives so should be rejected. The applicant argues that the site is in excess of 200m from the dance school and that because it is agreed between the planning experts that it is unlikely that any persons attending the dance studio will travel past the site the objectives are met. 33I accept that the council policy should be given significant weight for the reasons provided by McClellan in Stockland where he says: 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: the extent, if any, of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 34In determining the weight to be applied to the policy, I prefer the evidence of Mr McNicol and do not accept that because only one submission was received, the test of research and public consultation was not met. 35The problem before the Court is determining how to apply the distance standard. The policy states that no part (emphasis added) ...of a brothel is to be located...within 200 metres distance of...any place likely to be visited by children for recreational or other pursuits . I accept that the dance studio is they type of use envisaged in that clause. 36The policy does not assist in how this distance is measured. The plan prepared by Mr Stimson shows three paths of travel and in this regard, the distances shown on that plan are not in dispute. I consider that the most appropriate method of measuring distance in this particular case is the distance walked rather than the radial distance. That is because the intent of the policy is to minimise potential social impact and nuisance associated with restricted premises and brothels and in this case, that intent would be met by ensuring that the uses were no closer than 200m walking distance. I do not accept that the distance should be measured to the proposed entry but rather than the closest point and therefore disregard the 55m travel path within the site to the entry however, I also include the path walked within the land occupied by the dance studio to access the closest part of that premises. This means that a distance of between 215.6m and 222.5m would separate both uses and the numerical requirement would be met. 37Even if I am wrong in interpreting the way the distance is measured, I find that the intent of the policy is met and that the separation distance is sufficient to ensure that there will be no social impact to persons attending the dance school and my view on this is reinforced by the planner's agreement that any children attending the school would be unlikely to pass the site as they travel to or from that facility. 38The council's policy requires that brothels are only to be located in the 4(a) zone and accordingly, it must be satisfied that the zone objectives are met, in particular, objectives (g) and (i). 39With regard to the matters raised by the objectors, I am satisfied that the conditions of consent proposed by the council reflecting the recommendation of NSW Health and Police are adequate to address those concerns. The Plan of Management should further address the issues. It is the council's role to ensure that all conditions of consent are met and a concern that there are insufficient resources to enforce conditions is not a reason that would lead to refusal of the application. The Court expects that an applicant will comply with the conditions of consent and appropriate options are available to the council to ensure this occurs. 40The conditions of consent sought to be imposed by the council are considered appropriate with the exception of that condition that requires the replacement of the pathway. There is no reason that this pathway cannot perform its function and, due to it minimal use (as an emergency exit only) it would be unreasonable to require its removal and replacement. It is not unreasonable to prevent the provision of food and alcohol to customers and such a requirement does not prevent staff of the brothel bringing food to the premises. No areas have been detailed on the plans submitted for food preparation that would comply with the Food Standards Code . I do find that the condition, which requires the cessation of the brothel use to be superfluous, particularly if the consents to use the dwelling component, are surrendered. Any consideration of the use of the first floor as a dwelling would sit with the council and need to be assessed against its planning instruments. 41Having considered all of the relevant planning instruments and policies and evidence provided, I am satisfied that the proposal meets all of the qualitative and quantitative controls and the objectives of the council's policy for restricted premises and brothels. For that reason, it is appropriate to grant consent to the application.

Orders 42The Orders of the Court are: (1)The appeal is upheld. (2)Development application No. 62/2010 for internal alterations and use ground floor premises at No. 8 Hams Street, Griffith as a brothel is approved on the basis of a deferred commencement consent and subject to conditions included in Annexure 'A'. (3)The exhibits, other than exhibits A and 1 are returned.

Sue Morris Commissioner of the Court

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. Decision last updated: 12 January 2012