Li v Hurstville City Council

Martyn v Hornsby Shire Council [2004] NSWLEC 614; CASES CITED: New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; Zhang v Ashfield Council [2004] NSWLEC 259

APPLICANT Mr J. Burrell, solicitor of Burrell Solicitors LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This is an appeal against the refusal by Hurstville City Council (the council) of a development application for the use of an existing industrial unit as a sex service premises (brothel) at 49 Barry Avenue, Mortdale. The site and locality 2 The site is located on the southern side of Barry Avenue. It is rectangular in shape with a frontage of 15.24m to Barry Avenue and has an area of 650.2sqm. It is occupied by two industrial buildings. The brothel is proposed in the building facing Barry Avenue (the site). This building is set back 4.8m and is single storey to Barry Avenue with a lower level at the rear. It is currently vacant. 3 There is a single storey warehouse at the rear of the site which is currently used for metal works. It does not form part of the proposal. 4 The lower level and the rear warehouse are accessed off Barry Street by a right of way which runs along the western boundary of the site. 5 The locality and adjoining development is industrial, however there are also the following: a) a Place of Worship the "Next-Generation Christian Centre" located 120 metres west of the site b) the "Funhouse and Adventure Play Centre" located 105 metres east of the site c) the Australian Model Railway Association (AMRA) located 61 metres diagonally to the northwest of the site d) Rogerson Dance Studio located 160 metres southeast of the site.

The proposal 6 The proposal is to use the industrial unit as a brothel with internal fitout to provide four consulting rooms, client and staff waiting areas, office and entry. Two client car spaces are provided in the front which requires alteration to the Barry Avenue façade. Two staff spaces are provided in the lower level which requires alterations to the doorway and columns. 7 The applicant originally sought 24 hour operation 7 days a week. The following hours of operation are now sought: Mon -Thur:10.00 am to 1.00 am Fri and Sat: 10.00 am to 2.00 am Sun: 3.00pm to 1.00 am Closed on Easter Friday and Christmas day. 8 The Brothel will operate in accordance with a Management Plan. 9 The applicant has accepted a condition of consent that would limit the consent to a one year trial period.

Planning framework 10 The site is in Zone 4 (Light Industrial Zone) under Hurstville Local Environmental Plan 1994 (LEP1994). Amendment 7 to LEP 1994 was gazetted on 31 March 2006. This amendment prohibits "sex service premises" in a number of zones within the municipality. Sex services premises are not prohibited in Zone 4. 11 Amendment 7 includes the following definitions:

Sex service premises means premises habitually used for the purposes of sex services. Sex services means sexual acts or sexual services in exchange for payment. 12 Clause 16A provides:

(1) The objectives of this clause are as follows; (a) to specify appropriate planning controls relating to the use of premises as sex services premises, (b) to ensure that sex services premises are not located near or within view of a school, church or hospital or any place frequented by children, or within or near land that is within a residential zone or used for residential purposes, (c) to provide for sufficient separation between sex services premises so that there is not a concentration of those premises in any one locality, (d) to limit the size of sex services premises.

(2) Despite any other provisions of this plan, the council may grant consent to the carrying out of development for the purposes of sex services premises only if: (a) site at the premises will not be in the O'Connell or within view of, any educational establishment, place by the worshipful hospital or any place frequented by children, and (b) the premises will not be located within 100 metres of: (i) land within Zone No 2, or (ii) land within Zone No 5(a) used for the purposes of an educational establishment, place of public worship or hospital, or (iii) land used for residential purposes, and (c) the premises will not be located within 200 metres of the boundary of any land on which there is one or more than one sex services premises lawfully operating, and (d) are currently satisfied that the premises will not contain more than five rooms used, or capable of being used, for the purposes of sex services.

(3) the purposes of subclause (2)(d) any room with an area exceeding 18sqm is taken to comprise two rooms. 13 Development Control Plan No. 2 - Car Parking (DCP 2), Development Control Plan No. 18 - Crime Prevention through Environmental Design (DCP 18) and the Extended Trading Hours Policy are relevant The issues 14 The Statement of Issues contains 9 issues. Issue 1 was resolved by the gazettal of Amendment 7. Issues 3 and 8 were generally dealt with by conditions and were not pressed by council. Issue 9 was dealt with by amended plans which changed the parking layout. Council accepted that the proposal complied with the requirements of DCP 2. 15 The other issues can be summarised into the key issue of whether the proposal does not meet objective cl16A(1)(b) and the requirements of cl16A(2)(a) of Amendment 7 as it is near or within view of a place frequented by children. The evidence 16 Mr Steven Layman, town planner and architect, was the Court appointed expert. Mr B Conneeley, traffic engineer, provided a Statement of Evidence for the applicant. 17 The following objectors provided evidence: · Mr S Kalipiyan, 17A Barry Avenue, · Ms J Webber, 35 Barry Avenue, · Ms J McFarlane, Rogerson Dance Studio · Ms K Van Steen, 1B Barry Avenue, · Mr K Bowles, owner of 4 industrial units in Barry Avenue and speaking on behalf of AMRA, · Ms P Margiotta, 99 Hudson Street, Hurstville · Minister of Next-Generation Christian Centre, 63 Barry Avenue, · Mr A Bennett, owner of 47 Barry Avenue · Mr F McCabe, 44 Boundary Road. 18 The main concerns of the objectors can be summarised as the proposal will attract "undesirable" people into the area which will result in anti social behaviour. This is particularly of concern as the street contains a number of facilities which are used by children, including the dance studio, party centre, AMRA and the church. The objectors were concerned about the safety of the children and workers at these facilities, particularly as some are open at night. The objectors considered that the presence of the brothel in close proximity to these activities was inappropriate for children. Further, they stated that Barry Avenue is "different" and not like a normal industrial street as it has other uses which operate at night and cater for children. The objectors stated their fears were justified as an illegal brothel had operated opposite the dance studio and caused similar problems.

Planning principles 19 In Martyn v Hornsby Shire Council [2004] NSWLEC 614, the Senior Commissioner established planning principles for assessing the appropriateness of the location of a brothel. 20 The relevant principles in this Appeal are:

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 therefore should 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 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 in which children may walk. Findings 21 Amendment 7 seeks to locate brothels where they are least likely to offend. While brothels are permissible in the Light Industrial Zone, Cl 16A of Amendment 7 also specifies locational requirements that must be satisfied. These include requirement that brothels should not be located near or within view of sensitive land uses such as school, church, hospital any place frequented by children, or residentially zoned land or residential use. 22 Mr Layman, considered that the proposal met the locational requirements in the LEP. He stated that:

A proposed brothel is not in close proximity to residential land. It is not within view of a hospital or school. However there is an industrial style building used as a place of public worship, called the Next Generation Christian Church at no. 63 Barry Ave. on the corner of Anderson Road approximately 120 metres to the west. The subject site is not visible in my view from immediately in front of 63 Barry Ave….

The Fun House and Adventure Play Centre located about 110 metres to the east at no. 35 Barry Ave. is clearly aimed at children. The Rogerson Dance Studio is 160 metres to the east of the subject site at no. 31 Barry Ave. and caters for children and adolescents as well as adults. However there is no view of the subject site from these premises due to the kink in Barry Ave. Therefore the question is whether or not the proposal is "near" these uses. The standard in subclause (2)(a) refers to 100 metres separation from residential land, special uses (educational establishment) or place of worship. This seems to be a reasonable standard for "nearness" and is met by the proposal. 23 The AMRA is 61m from the site. In Mr Layman's opinion it is in an oblique line of sight although views are restricted by the setback of the AMRA building from the street. Mr Layman considered that while the facility is visited by children from time to time the separation was adequate and would not result in conflict between these uses. 24 I accept that 100m is a reasonable standard to establish whether a brothel is "near" any place frequented by children. I also accept Mr Layman's evidence that the proposal complies with the location requirements in cl 16A. Although there are places that are frequented by children in Barry Avenue, they are not in view or so near the site that the activities of the brothel and those of the other uses are reasonably likely to cause conflict. The knowledge that a site is used as a brothel is not sufficient reason to refuse the application. While I recognise the concerns of the objectors, the test to be applied is that stated by Lloyd J in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 where his honour stated:

That the subjective fears and concerns must have a rational basis and be amenable to objective assessment in order for any significant weight to be attached to them 25 The principle concern of the residents is that children and staff will be exposed to the activities of the brothel and to unacceptable behaviour. 26 In Zhang v Ashfield Council [2004] NSWLEC 259 Bly C states:

Insofar as the behaviour of brothel patrons might affect the amenity of the area….patrons should be considered as ordinary members of the community. Hence any concerns about safety and security cannot be justified by assertions that brothel patrons are, in this regard, different to the rest of the community. 27 The brothel is small, with four consulting rooms and satisfies the size and separation requirements between brothels in cl16A(2)(c), (d) and (3). The parking satisfies the requirements of DCP 2. The management plan and conditions meet the recommendations of the NSW Police "Safer by Design Crime Risk Evaluation" and DCP 18. In this regard Mr Rigg, for the Council, raised concerns that there was no internal access to staff parking being by the right of way and was a safety issue. Mr Burrell's submission, for the Applicant, was that the right of way was illuminated and had surveillance cameras. While I accept that it would be desirable for there to be internal access I do not consider that its absence poses sufficient risk to warrant refusal of the application. 28 It is therefore reasonable to assume that the size and operation of the brothel will not result in unreasonable impacts. Its separation and visibility from the uses which it is agreed by the parties will be frequented by children meets the requirements of Amendment 7. While the AMRA is used by children and is within 100m of the site. I do not consider that from the evidence that it is a place that is frequented by children sufficient to warrant refusal of the application, particularly given the visibility of the site from the AMRA building, the nature of the activities which occur inside the building and that children, particularly if they are attending at night will be in the company of adults and supervised. 29 The only condition in dispute was condition 53 relating to the operating hours. The applicant sought a 2am closing time on Friday and Saturday nights, whereas council considered 1am to be more appropriate. Given that surrounding land uses are not likely to be operating at this time and that residential uses are sufficient distance from the site the use of the proposal until 2am on these two night is not likely to result in any unacceptable impacts. 30 The proposed conditions agreed to by the applicant include a 1 year trial period. I accept that for abundant caution a trial period is appropriate to ensure that the brothel operates and its impacts are consistent with the evidence provided to the Court. Orders 31 For the above reasons, the Orders of the Court are: 1) The appeal is upheld. 2) The development application for use of an existing industrial unit as a sex services premise (brothel) at 49 Barry Avenue, Mortdale, is approved subject to the conditions in Annexure "A". 3) The exhibits, except Tab 4 of exhibit A, exhibits B, 1, 2 and 5, may be returned.

      Annelise Tuor
      Commissioner of the Court

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