46 Mr Leggat submitted that the Court should reject the application having regard for the extent of community concern. He submitted that this was the wrong location for a brothel and there is a "real issue about Martyn" and its planning principles need to be applied consistently.
47 In Martyn the facts were that a brothel was proposed in an existing single-storey brick building at No 373 Pennant Hills Road, Pennant Hills. That site had a frontage to Pennant Hills Road of 6m and the premises was set back 2m from the road. The land was zoned Business B (Special) , and business premises [including a brothel] are permissible with consent. No on-site parking was possible at that site, as here. The applicant had prepared a management plan and the Senior Commissioner dismissed the appeal mainly for reason of the close proximity of the proposal with the next-door premises the Sydney College of Skin Care. The Senior Commissioner took into account that the entrance of the proposed brothel would have adjoined the entrance to the college. The principal of the college gave evidence in that case that the parents of her students would not like their daughters attending premises next to a brothel and would take them out of her college if the brothel were approved.
48 In that case, the door to the proposed brothel would have been only about 4m distant from the entrance to the college. In order to approach the front door of the college it would have been necessary for visitors to the college to share a ramp with the clients of the brothel, as the ramp gave access to both uses from Pennant Hills Road. [Note: photograph in Exhibit E].
49 In the present case the front door of the proposed brothel would be accessed directly off the southern footpath of Bayswater Road some 8m distant from the Fuss Beauty College. Also students of the college arriving from Kings Cross railway station or bus stops on the northern side of Bayswater Road, would most likely cross Bayswater Road at the traffic lights to the east of the college and enter the college door before coming to the door of the proposed brothel. I am satisfied that access to the present proposal is distinguished from the entrance in Martyn , and that there would exist, in the present case, sufficient separation between the proposed brothel and college entrance as to not cause any adverse amenity impacts.
50 Another distinguishing feature in the present case is that the entrance to the proposed brothel would be flanked by retail uses in a commercial strip of shops. I accept the evidence of Mr Betros that there would be sufficient buffering between the entrance to the proposed brothel and neighbouring businesses and the entrance to residential uses at Nos 129 - 131 Bayswater Road.
51 Another distinguishing element is that in the present case, is that there is no residential zone abutting the site and any residential uses in close proximity are in the mixed-use zone. The residential zone is distant and across five lanes of traffic in Bayswater Road.
52 In both cases, no car parking was provided and public transport was near to hand. In the Pennant Hills Road case the rail station was around 4 minutes walk and Kings Cross rail station is around 6 minutes walk. However, the proposed brothel would have very good access to buses in Bayswater Road.
53 I am satisfied on the evidence that the present application is distinguished from the proposed brothel in Martyn . In this regard I have had particular regard for the evidence of Mr Betros. However, as did Messrs Betros and Swan it is worthwhile assessing the present application against the planning principles of Martyn .
54 The planning principles in Martyn 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 should therefore be, to locate brothels where they are least likely to offend. However, criteria for locating brothels should be not so onerous as to exclude them from all areas of the municipality.
· 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.
· There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application this should be supported by evidence.
· Brothels should not adjoin areas that are zoned residential or be clearly visible from them. Visibility is a function of distance, but not always.
· Brothels should not adjoin or be clearly visible from schools, education 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 on which children may walk.
· The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather.
· There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses.
· 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.
· The access to a brothel should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shops and strip clubs predominate, signage should be restricted to the address and telephone number.
Located where they are least likely to offend
55 I am satisfied that the proposed brothel being located in a mixed-use zone would be least likely to offend people including those living in the residential zone opposite. As discussed above, the entrance to the proposed brothel would be about 8m distant from the entrance to the Fuss Beauty College at Nos 137-141 Bayswater Road and flanked by retail shops unrelated to the brothel, which act as a buffer between uses. Mr Swan considered this to be the main weakness of the proposal, as he considered it likely that students of the college would frequently encounter on their way to and from classes, the brothel's clients. I consider the Fuss Beauty College to be not a sensitive land use as was suggested by Mr Swan. Sensitive land uses are defined under the RSSDCP [Sex Service Premises DCP], as a "…day care or child minding centres, primary or secondary schools, churches, parks, playgrounds or any other place regularly frequented by children," [Note: Exhibit 2 Tab 12 para 34]. The Catholic Church of St Candice that could be seen as a sensitive land use is well removed from the proposed brothel.
56 The proposal also would be situated around 8m distant from the entrance to a mixed-use building at Nos 129-131 Bayswater Road, in which there are residential uses. Despite the submissions of Mr Leggat based on his understanding of the premises in Fang Lin & Anor v Sydney City Council [2005] NSWLEC 95, I am satisfied that there would be sufficient buffering by other non-residential uses at the ground floor, to distinguish this present case. I am satisfied that the proposed separation of the ground floor entrance to the brothel and the residential uses to the west would be adequate. At the first floor there would be blank walls facing onto the lightwell of that adjoining residential building.
57 The proposal would be remote from the Rushcutters Bay Pre-school run by KU Children's Services for 3-5 year old children and given that there would be no outward distinguishing signs, not directly exposed to impressionable groups like children and adolescents.
58 The proposed brothel would be situated on an 'island' surrounded by the flanking shops, the eastern suburbs rail line to the south and the five lanes of Bayswater Road to the north. It would be remote from the dwellings of many of the resident objectors.
59 Unlike some earlier brothels in Kings Cross, it would not have any distinguishing features that would alert the casual passer-by to the existence of a brothel. The only indication of a brothel would be a street number. Also, there would be no spruikers and this is confirmed by the conditions of consent. One of the residents at the on-site hearing accepted that clients to the brothel would most likely appear as ordinary members of the public and indistinguishable from others walking along the street. Thus persons entering the proposed brothel would appear as others do entering other doorways in the street.
60 The concern of the residents that if approved the brothel, would lower the 'tone' is not to my mind supported by the facts. However, if some people fear the presence of a brothel that fear might remain. However, there is no evidence that the proposed brothel would attract crime or drug dealing. I am satisfied that the proposal would meet this planning principle, and I consider that it would not significantly lower the 'tone' of the area.
Located to minimise adverse physical impact, such as noise, disturbance and overlooking
61 I am satisfied there would be no adverse physical impact of the proposed brothel as discussed above. There was no evidence of any adverse noise impacts, disturbance or overlooking as a result of the proposal. The proposal would be a logical use of a heavily trafficked and noisy location and I am satisfied that the proposal would meet this planning principle.
Brothels should not adjoin areas that are zoned residential or be clearly visible from them
62 The proposal is within a mixed-use zone and remote from residential zones. It would be visible from residential apartments on the northern side of Bayswater Road, however, as pointed out by Mr Betros, [Note: Exhibit B p 13] the proposed awning would reduce the visibility of the entrance door of the proposed brothel from some dwellings and the new windows on the first floor are to be frosted. Also dwellings on the northern side of Bayswater Road would be at least 25m distant, viewed obliquely, across a busy road.
63 The blank first floor sidewalls of the proposal contribute to the shielding from view of neighbouring residents of the proposed brothel. On the southern side there are no buildings in close proximity given the presence of the railway. I am satisfied that the proposal would meet this planning principle.
Brothels should not adjoin or be clearly visible from schools, education institutions for young people or places where children and adolescents regularly gather
64 As discussed above I am satisfied that the proposal would be sufficiently remote from the Fuss Beauty College and the Rushcutter's Bay Pre-school. I have taken into account that the students attending the beauty college are, on average, aged in their mid-20s. Even if there were some women as young as 16 year old, as was submitted by Mr Leggat, I am satisfied that there would be sufficient separation between the two uses and a greater separation than that in Martyn . The bus seat in front of the proposed brothel might be repositioned closer to the college, to assist in overcoming some of the concerns of the college.
65 The evidence suggests that the proposal is not in a location where children and adolescents regularly gather. I recognise that there are parks and playing fields to the north and east used by schoolchildren but these are sufficiently distant. I am satisfied that the proposal would meet this planning principle.
Brothels are not appropriate next to a bus stop regularly used by school buses
66 There was no evidence that the proposed brothel would be located near a bus stop regularly used by school buses to pick up or set down. I am satisfied that the proposal would meet this planning principle.
A brothel should be discreet and discourage clients gathering or waiting on the street.
67 Shops within the shopping strip, unrelated to the brothel use, would buffer the proposal with its single centrally located entrance door. The street number would be the only indication that a brothel exists. I am satisfied that the proposal would meet this planning principle.
68 When tested against the planning principles in Martyn I am satisfied that there would be no reason to refuse the present application.
69 Similar planning controls are contained in the council's RSSDCP , adopted as an interim policy by the council on 8 December 2003 and consideration must be given to locating brothels near residential 'uses' as opposed to residential 'zones'. As explained above, I consider there to be sufficient separation and non-residential buffering between the entrance of the proposed brothel and the mixed-use building entrance at Nos 129-131 Bayswater Road to the west of the premises in which there are some residential tenancies. There would be no significant privacy impacts across the lightwell that abuts the subject premises, as the first floor blank walls of the proposal would screen the neighbouring mixed-use building. Thus for the above reasons I am satisfied that the proposal would meet the requirements of the council's RSSDCP.
70 Murrell A J in Liu v Fairfield Council [1996] NSWLEC 272 considered that morals should not influence the decision of the Court. If the objections of the nearby residents were based on moral concerns it would be wrong to refuse the application on moral grounds. However, there is widespread community antipathy towards the proposal and its impact on the amenity of the locality.
71 Mr Leggat addressed these concerns and referred to Dixon v Burwood Council [2002] NSWLEC 190 and the decision of her Honour Pain J on 13 August 2002 and 31 October 2002. He submitted in that case that her Honour referred with approval to de Jersey J (Connolly J agreeing) in Broad v Brisbane City Council (1986) 59 LGRA 296 at 305 that:
There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the residents' subjective perception of this locality. Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity.
72 Her Honour also referred to Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62 and Bignold J's statement at 317:
It is clearly established in the decided cases that the concept of "amenity" in a town-planning context (including one that does not include, as a potentially relevant consideration "social impact of the proposal in the locality") is a concept that transcends merely physical content.
73 Her Honour also referred to Perry Properties Pty Limited v Ashfield Council (No 1) wherein Cowdroy J said at 351:
A rational fear, or one having a real basis, is a matter for consideration. However, in view of the factual finding of the Commissioner concerning the absence of anti-social behaviour it is impossible to ascribe any basis to the objectors concerns, which rely upon the very existence of such behaviour. As a result it is an unjustified fear alone which the commissioner determined was adverse to the application and which the Commissioner found was contrary to the public interest. As a consequence the Commissioner's conclusion cannot be supported.
74 Her Honour Pain J concluded at para 44:
In my opinion these two cases (Broad and Perry No 2) stand for the proposition that the concept of amenity itself is wide and flexible and can include the subjective perception of residents in relation to the locality in question (subject to the question of weight). Furthermore, such matters will be relevant to determining the "likely impacts", most relevantly the social impact under s 79C of the Environmental Planning and Assessment Act 1979 .
75 There has been no evidence to suggest that drug dealing, or crime would follow the establishment of the brothel under consideration or that it would 'lower the tone' of the area or bring in 'sleaze'. Although the concept of amenity itself is no doubt "wide and flexible" and can include the subjective perception of residents in relation to the impact of the proposal on the Rushcutters Bay locality, this perception must be weighed along with other matters under consideration. I have given consideration to the residents concerns as expressed in their written objections and orally at the on-site hearing. However, the result of an analysis of the cases referred to by Mr Leggat, is that resident's perception of an impact on the amenity of the area it must have a real basis in fact. I am satisfied that in the present case there is no real basis for the residents concerns and I have given their evidence little weight in my consideration of the present application under s 79C of the Environmental Planning and Assessment Act 1979.
76 The NSW Police responded favourably when notified of the present application, [Note: Exhibit 2 Section 2 p 66]. Ms D Harmer, Crime Prevention Officer, however, pointed out that as car parking is restricted on Bayswater Road for one hour prior to 6.00pm, residents accepted, that the parking situation be monitored once the business starts. She added that she would be interested in contacting the owners concerning the management plan, once, and if, the development application were approved.
Parking
77 Mr Varga the applicant's traffic expert, concluded that the parking issue would not represent adequate or appropriate grounds for refusal of development consent as:
· parking accumulation surveys conducted on Friday and Saturday night confirm that vacant parking spaces are readily available near the site;
· the majority of vacant parking spaces are located in commercial areas of Neild and McLachlan Avenues less than 150m walk from the site;
· the site is exceptionally well served by public transport and is located on a busy arterial route which carries a high volume of taxis; and
· the number of car drivers visiting the proposed massage parlour would be likely to be similar to the number of car drivers which visited the previous uses in the existing building, particularly the 50-seat pizza restaurant.
78 Mr Varga pointed to the fact that the past use of the premises generated a similar car parking demand of seven spaces as the proposal. He has demonstrated that car parking is available to the south of the premises and a few spaces to the north across Bayswater Road. He concluded that there would be "no net increase in …car parking" .
79 Despite some resident concerns in this regard, I am satisfied that car parking would not be a reason to refuse the application.
80 For the above reasons, the appeal is upheld.
Conditions
81 The conditions are those in Exhibit 4 and there was no objection taken to these by the applicant.
Orders
82 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.