Kim v Council of the City of Sydney

APPLICANT LEGAL REPRESENTATIVES: Mr P Larkin, barrister INSTRUCTED BY Spiegel & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the Council of the City of Sydney (the council) of Development Application D/2006/661 to permit commercial premises at 134 Abercrombie Street, Chippendale (the site) to be used for the purposes of a brothel. The site, although with a street address of Abercrombie Street (a busy arterial road), is in fact entered from Cleveland Street, another busy arterial road.

Premises at 131 Abercrombie Street are across Abercrombie Street from the site at a distance of, perhaps, 45 m. These premises are known as "The Kastle" and house what is described as a "bondage, discipline and sado-masochism" brothel. It is not contested that The Kastle and the site have both operated as brothels (albeit to differing markets), without either having the benefit of a development consent, for about 15 (or more) years. There is no significant history of public complaint about either premises - a topic to which I will return.

The proposed use is to take place on the first floor of the site, with the brothel operating from 11 am until 4 am the following day, seven days per week.

The relevant history of the use of the premises is that, in December 1997, a development application was lodged with the then South Sydney City Council (the former council) for the purposes of permitting the premises to be used as a commercial brothel. Consent was granted for those purposes for a trial period of 12 months. Although the trial period expired, the premises have continued to trade as a brothel during the intervening period of time.

In June 2001, the applicant lodged a development application with the former council to regularise that continuing use. The 2001 development application was refused by the Planning and Development Committee of the former council on 5 March 2003.

After that decision, the former council was, relevantly, subsumed into the area of the Council of the City of Sydney.

An appeal against the 2003 refusal was heard by me and dismissed [see Rosawan Pty Ltd v Council of the City of Sydney [2005] NSWLEC 630].

The dismissal was based, at that time, on very narrow grounds. The gravamen of that decision was the entirely inappropriate layout of the ground floor and the conflicts inherent between the two commercial spaces in the building rendered approval inappropriate. This conclusion was described thus: 45 I have therefore concluded that, even where were no other issues which acted as an impediment (and I am satisfied in this case that parking is a minor and not substantial impediment), the nature of the entrance foyer is one which, in the present design and configuration of the building, represents an insuperable barrier to consent being granted.

Following that decision, the proprietors have developed a revised design for the entrance foyer which, Mr Kondilios, solicitor for the council, quite properly conceded resolves those conflict issues. However, this appeal has been resisted on different grounds.

However, since that decision, the council has also adopted a new Development Control Plan - the City of Sydney Adult Entertainment and Sex Industry Premises DCP 2006 (the Sex Industry DCP).

The Sex Industry DCP sets, inter alia, planning controls for all adult entertainment and sex industry premises requiring development consent

It deals with the issue of location by describing three objectives for the siting of such premises. These, and the introduction to them, read as follows:

3.1 Location The locations where adult entertainment and sex industry premises are permitted are generally prescribed by land use zones in the relevant Local Environmental Plans (LEPs). This DCP provides additional provisions associated with the location of adult entertainment and sex industry premises in relation to existing residential and sensitive land uses, and in relation to existing, approved adult entertainment and sex industry premises.

3.1.1 Objectives (a) to permit the location of adult entertainment and sex industry premises in areas which optimise the safety and security of the staff and visitors to the adult entertainment and sex industry premises; (b) to ensure that adult entertainment and sex industry premises are located in appropriate areas where they do not have an adverse impact on the character or amenity of the area and neighbouring properties, in particular upon residential and sensitive land uses; and (c) to prevent any adverse impact on the character or amenity of the area and neighbouring properties which may result from the concentration and/or accumulation of adult entertainment and sex industry premises. 13. The Sex Industry DCP then sets out the controls it proposes in furtherance of those objectives. They are:

3.1.2 Controls (1) Adult entertainment and sex industry premises must not be located in areas zoned residential, within buildings containing a residential use, or immediately adjacent to or directly opposite (to any elevation) land developed for residential purposes. Adult entertainment and sex industry premises must be separated from land developed for residential purposes by at least one other non-residential land use. (2) Adult entertainment and sex industry premises must not be located adjacent to or directly opposite (to any elevation) a sensitive land use defined in this DCP unless separated by at least one other non-sensitive land use. A nonsensitive land use does not include a waterway, un-developed site or road less than 30 metres in width. (3) Adult entertainment and sex industry premises must not be located within a radius of 75 metres from an existing, approved adult entertainment or sex industry premises. The radius must be measured from the centre of the "primary access(s)" to the proposed and existing adult entertainment or sex industry premises and is to include buildings located within a neighbouring Local Government Area (LGA).

The council raises the issue, arising from control (1), of the location of the premises immediately adjacent to residential properties on both its Cleveland Street and Abercrombie Street frontages and opposite residences on the southern side of Cleveland Street.

Control (2) is not relevant to these proceedings.

Control (3) comprises the anti-clustering provisions. The council also raises in these proceedings the impact of the anti-clustering provisions on the present application. The council says that these provisions, on merit, are determinative and warrant refusal of the application.

The council also raises the appropriateness of the proposed staff/management car parking provisions and the question of inappropriate behaviour of patrons in nearby residential streets.

As to the emphasis I should give to the Sex Industry DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent.

In addition, it is also appropriate to consider the broad planning principles for assessing the appropriateness of the location of a proposed brothel as set out by Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 at paragraph 18. The following are the relevant elements which are applicable to this appeal: 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 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. o 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.

From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. o First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered; o Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan; and o Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

I turn, first, to the matter of the adjacent residential uses.

In this context, I note that The Kastle has been given its development consent even though there are residential premises immediately adjacent to it on its northern boundary. The relevant council documents inform that the reason that there was no objection raised by the council on this basis was because there was a letter of support from the residents of those adjacent premises.

This, of course, is not a valid basis for setting aside those concerns because planning and the granting of a development consent are matters that run with the land rather than being confined to the present occupants of that brothel and its impact on the present occupants of the neighbouring property.

However, setting aside the question of the letter of support, it is clear from the material available to me concerning those premises that there is no history of complaint with respect to their operations.

That, I am satisfied, would be an appropriate basis, in that instance, for there to be an appropriate satisfaction that a provision of the DCP could not have acted as an inhibition to the granting of that consent on a proper consideration of that issue.

Similarly, with respect to the site, although there are immediately adjacent residential premises to the north on Abercrombie Street and to the east on Cleveland Street, there are no present complaints from occupants or owners of those premises nor do I have any information suggesting a history of complaint from persons associated with those premises.

As early noted, both Abercrombie Street and Cleveland Street, are, effectively, major thoroughfares. There was no visual suggestion from the examination of either of the adjacent residential premises that such external areas at the street frontage as were possessed by them were used in any active fashion. Indeed, given the singular lack of amenity that such spaces would enjoy, there is no reasonable likelihood of such activity ever occurring to any significant extent.

Although there are windows in each of these residential premises which are in reasonably close proximity to similar windows on the site, there are no direct views from either premises into the site. With respect to the premises on the southern side of Cleveland Street, they are at a distance of some 40 m across a major arterial road. Although there would be some prospect of viewing into windows on the site, the applicant accepted the appropriateness of a condition requiring frosted glass to the windows of the work rooms capable of being so viewed.

Therefore, I am also satisfied that this lack of complaint; the lack of any likely impact on the amenity of external use of the adjacent residential premises and the lack of or elimination of potential overlooking of the activities conducted at the premises are bases upon which I can be satisfied that, despite the provisions of cl 3.1.2(1) of the DCP, this control does not warrant refusal of this application nor would it make other than a de minimus contribution to the warranting of such a refusal. This also resolves the second relevant planning principle extracted above from Martyn.

I now turn to the question of the anti-clustering provisions. These are broadly similar to those which existed in the former council's controls.

In Rosawan, I dealt with the then anti-clustering provisions (and the site's contextual relationship with The Kastle) as follows: 21 In the present instance, there is a premises at 131 Abercrombie Street which has an existing consent, which consent was given to an application lodged contemporaneously with the original application for these premises. However, the consent was subject to a condition which rendered that consent dormant if the provisions of a deferred commencement condition for the provision of additional information to the council were not satisfied. 22 It is accepted by the council that that condition has not been satisfied and that the continuing use of the premises at 131 Abercrombie Street is as an unauthorised sex industry premises rather than one subject to an operating consent.

23 Therefore the clustering provision that is sought to be applied is one which relates to premises of an unauthorised nature, but which are formally made known to the council by virtue of the original application.

24 I am of the view that it would be inappropriate for me to refuse or contribute to the refusal of this application for the regularisation of a use, by having a regard to that unauthorised use at 131 Abercrombie Street, given that an application had made for those premises; it had been provided with terms under which its operation could have been authorised and regularised; and its proprietors have not chosen to fulfil the necessary conditions to keep that consent alive. 25 The only way that the premises at 131 Abercrombie Street could be returned from the state of dormancy within which their consent presently lies, would be by an application pursuant to s 96 of the Act to modify the consent by removing the dormancy effecting condition. 26 I am satisfied that if I were to approve the present application and such a s 96 modification application were to be made for 131 Abercrombie Street, the premises at 131 Abercrombie Street would be the one which would legitimately run into the issue of conflict with the clustering policy.

At the time of lodgement of the present appeal, The Kastle continued to operate without the benefit of a development consent.

However, less than a week before this hearing, the council granted an unconditional development consent to The Kastle.

Thus, the present application must be assessed against the anti-clustering provisions of the Sex Industry DCP in the context of the consent issued for The Kastle.

Spigelman CJ also set out, in Zhang, the presumption in favour of a standard such as that contained in the anti-clustering provisions. 77 There was a relevant and applicable "standard" which he was obliged to "take into consideration". It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. The evidence, or rather the absence thereof, about actual effects, was not entitled to determinative weight, without regard to the presumptive "standard" in this way.

I therefore must have regard to the inherent policy contained in clause 3.1.2 as well as to any actual impacts which may have arisen with respect to the activities on the site or associated with its patrons. This approach is consistent with that taken on this issue by Roseth SC in Martyn.

A number of written objections were tendered by the council. Several of them were, although detailed, submitted anonymously. As I had no evidence of the provenance of such documents or the authorship, I declined to admit them.

However, those that did have appropriate authorship acknowledgement, coupled with the oral evidence one resident of a nearby street - such oral evidence being given during the course of the site inspection - gave a background of what impacts might be, at worst, ascribed to patrons of the site.

I also noted, earlier, and that the evidence was that there were different client markets, apparently, for the two brothels. Even in accepting this evidence and, on that basis, accepting that the various behaviours complained of in the resident letters could all be ascribed to patrons of the site, they do not, collectively, comprise a significant litany of misbehaviour.

These behaviours of putting leaflets advertising the brothel on the windscreens of vehicles or in letterboxes or the unwelcome enquiries at residential premises seeking the location of the site or, indeed, occasional late-night Street conversations or car door slamming (if ascribed to patrons of the site) would not, collectively, constitute such antisocial behaviour as would warrant refusal.

There is no suggestion, for example, that the nature of this behaviour which is of concern to residents would remotely approach the levels described by Preston CJ in City of Sydney Council v De Cue Pty Ltd [2006] NSWLEC 763.

This consideration also resolves the first relevant planning principle extracted above from Martyn.

However, the third relevant planning principle from Martyn, as earlier noted, reads: 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.

This planning principle is consistent with the concept of a "standard" as adverted to by Spigelman CJ in Zhang.

Although I am not obliged to adopt the planning principles set out by the Senior Commissioner in Martyn, I am satisfied that they do provide an appropriate framework for consideration of such issues. I therefore adopt them for the purposes of this decision.

The Sex Industry DCP, by necessary inference from the controls in the anti-clustering provisions, seeks to prevent change or erosion of the character of residential areas. Whilst, in this instance, as submitted by Mr Larkin, barrister for the applicant, there is a major thoroughfare separating the two brothels and, as earlier noted, street frontage open space living will be minimal as a consequence of the two major thoroughfares, nonetheless there is a significant residential component of the immediate vicinity of the site.

The clustering provisions of the Sex Industry DCP are clearly designed to prevent the risk of such change or erosion to such areas whether or not they are on major thoroughfares or in the backwaters of a residential precinct.

In this regard, the council's planner who assessed the application for development consent made by The Kastle did not, in my view, properly understand and consider the rationale behind the anti-clustering provisions when he wrote: The two brothels are separated by a 15 metre arterial road and access to 134 Abercrombie St is via an entrance on Cleveland Street. The separation created by the road in addition to the alternate Street entries negates the appearance of the area as a red light district. Even if 134 Abercrombie successfully appeals Council's refusal the appearance of the area will not resemble a red light district.

Although there may not be in appearance of a red light district (a question which I do not need to determine as I do not consider it is the relevant one), this does not respond to the appropriate issues which do arise from the anti-clustering provisions of the Sex Industry DCP.

The anti-clustering provisions are clearly not designed merely to deal with appearances. They are clearly designed, as is obvious from objective 3.1.1(c) of the Sex Industry DCP not for cosmetic reasons but, as it states, to prevent any an adverse impact on the character or amenity of the area and neighbouring properties which may result from the concentration and/or accumulation of adult entertainment and sex industry premises.

As the council's Sex Industry Liaison Officer notes, in an e-mail from that officer, there may have been instances where the anti-clustering provisions have been waived for premises in Erskine Street Sydney and Oxford Street Darlinghurst.

However, I have no information on the reasons for such waivers and, hence, no basis to assess whether or not the council is now seeking to act in an inappropriate and inconsistent basis in this instance in applying the anti-clustering provisions of the Sex Industry DCP to these premises where they have not been applied strictly elsewhere [contra the comments of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 86 et seq].

Therefore, any such waivers cannot be of assistance to the applicant in these proceedings.

I cannot be satisfied that there is any compelling or coherent basis upon which I can be persuaded that it would be inappropriate to apply the anti-clustering provisions in the present instance. Although the lack of serious complaint deals with the isolated impacts of the particular brothel, it is not an answer to the question of impact on the desired future character of the area - that being the issue which arises from the anti-clustering provisions of the DCP.

Although the council's sex industry liaison officer recommended approval with conditions and did not see the anti-clustering provisions as a barrier, this view was taken from the very narrow perspective of that officers sex industry responsibilities. It does not address matters on a broader planning basis.

Despite this narrow view, when considering this proposal on such a broader planning basis, as discussed above, the anti-clustering provisions of the DCP must act to prevent the approval of the present application.

I now turn to the appropriateness of the proposed staff/management car parking provisions.

In Rosawan, I dealt with car parking as follows: 28 First, it is clearly agreed between the experts, and indeed confirmed on the view, that it would not physically be possible to provide parking on the site.

29 The applicant has provided evidence together with accepted further information from the bar table (not objected to on behalf of the council), that two parking spaces would be available on permanent lease from the Waldorf Apartments, being an apartment block some 100 m or so to the east of the site.

30 Those parking areas would be used by the manager and, on some form of rostering arrangement, by one or more of the employees of the premises.

31 It is well accepted in proceedings in this Court relating to such applications that patrons of brothels, whether or not parking is provided, prefer (for reasons of anonymity in very many instances) to approach the premises on foot having parked some distance away or having arrived by some other method of transport.

32 I am also satisfied that from the experience of the Court this morning, that there is a significant demand for street parking in the vicinity.

33 There is no detailed evidence to the likely level of demand for parking that might be generated. It is put on behalf of the applicant that the parking demand likely to be generated would be outside the hours of operation of other commercial premises and I accept that that may well be the position. However, if it is outside the hours of operation of other commercial premises, it is more likely to be during hours when residents in the surrounding residential precinct were in occupation of their homes and therefore contributing to the on-street parking from residential premises.

34 I am satisfied that there would be a degree of additional load for parking that would be generated by these premises, but in the absence of some form of prescriptive calculation in a planning instrument (there being none in evidence), I am not satisfied that that would be an issue in itself which would warrant refusal or indeed which would weigh heavily on the scales in favour of refusal.

Although the council now also pressed the question of the comparative remoteness of the parking from the site and the fact that those from the site who would access the parking would be doing so along comparatively narrow streets potentially late at night or in the early hours of the morning - with the attendant personal security risks of doing so - I am not satisfied that this additional factor adds any significant weight to this issue as a basis of contribution to refusal of the application.

As a consequence of all the foregoing, whilst the applicant may feel a sense of grievance about the timing of the success of The Kastle's application, it is, nonetheless, a significant change in the local planning context of the site.

Although there are no significant merit issues which could, on the evidentiary basis upon which they are now put (in these, as opposed to the earlier, proceedings), do more than make a minor contribution to a merit refusal (absent the anti-clustering provisions of the DCP), these anti-clustering provisions have now become an insurmountable obstacle for these premises being granted a consent to regularise their longstanding use.

The orders of the Court therefore are: 1. The appeal is dismissed; 2. Development Application D/2006/661 for the use of the first floor of premises at 134 Abercrombie Street, Chippendale, for the purposes of a brothel is determined by refusal of development consent; and 3. The exhibits are returned.

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