Pont v Hurstville City Council

Yada Martyn v Hornsby Shire Council [2004] NSWLEC 614 ; CASES CITED: Zhang v Ashfield Municipal Council [2004] NSWLEC 259; Perry Properties v Ashfield Council (No 2)[2001] NSWLEC 62

DATES OF HEARING: 22 & 23/11/2004 & 28/01/2005 EX TEMPORE JUDGMENT DATE : 01/28/2005

APPLICANT Mr M Campbell, barrister instructed by Mr J Sheehan

RESPONDENT Ms J Hewitt, solicitor of Michell Sillar

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This appeal relates to development application No 878/2003, which is for the use of the first floor premises at 184B Belmore Road, Riverwood, as a brothel. The brothel is to operate between 10am and 12 midnight Monday to Saturday, and this period is to be divided into two shifts. There are to be three employees and one manager on the premises at any time. Parking for one vehicle is available in a ground floor garage with access off a rear lane. Pedestrian access to the premises is via a stairway off Cairns Street. The applicant has prepared a management plan which is sought to be included in the conditions of consent.

2 The building in which the subject premises is located is situated on the corner of Belmore Road and Cairns Street in the Riverwood commercial centre. It is strata subdivided, comprising five ground floor shops with dwellings above. The existing brothel utilises one of these dwellings. Adjoining the site to the east of the rear lane is a residential area comprising attached dwelling houses and residential flat building.

3 The premises is situated in the 3(c) Business Centre Zone under Hurstville Local Environmental Plan 1994, and in this zone the proposal, being business premises, is permissible with development consent. The objectives of the 3(c) zone are to maintain a commercial and retail focus for larger scale commercial precincts, to allow for residential development in mixed use buildings with non-residential uses on at least the ground level and residential uses above so as to promote the vitality of business centres and to provide opportunities for associated development such as parking, service industries, and the like. I am satisfied that there is no fundamental conflict with these objectives.

4 Also applicable are Development Control Plan No 2 - Car Parking; Development Control Plan No 13 - Riverwood; Development Control Plan No 18 - Crime Prevention through Environmental Design; Development Control Plan No 19 - Access and Mobility; Draft Local Environmental Plan amendment No 7 (2004).

5 The application was advertised and two letters of objection plus a petition containing some 60 signatures were received by the council. Matters of concern raised in the letters and the petition include likely illegal parking of brothel clients' vehicles and traffic adding to existing street congestion; inappropriate behaviour of brothel clients in surrounding streets; opportunities for overlooking from the brothel on to residential areas; residential amenity disturbances resulting from clients trying to find the brothel; a brothel is an inappropriate type of business in this shopping area and would be out of character; exposure of children and young people to a questionable business practice; the Riverwood shopping centre would become a sex industry area.

6 The application was refused by the council, for various reasons including, unsatisfactory access for disabled people; insufficient car parking; social and amenity impacts on the locality and proximity to schools and a church.

7 Whilst on the site, resident objector evidence was provided to the Court by the following: o Nicole Burt of 1 Jindabyne Crescent; o Alana Weir of Chedstone Road; o Lily Stryminikovski of Unit 5, 224 Cairns Road; o Salma Dannaoui, an employee of the hairdressing salon at 184 Belmore Road; o Alan Edwards of 12 Elden Street; o Christine North of 20 Clarendon Road; o Marcia Heayden of 27 Johnson Street.

8 Matters of concern raised by these objectors relate to effect on children, especially when walking to school; inappropriate behaviour of brothel clients and sex workers on the premises and in the street; unlawful parking; adverse impacts on the character and amenity of the locality and a consequential devaluation of the name of the community.

9 Expert evidence was given by: - Mr P Grech, the Court appointed consultant town planner, - Mr P North, the applicant's architect, and - Mr S Reid, the applicant's building regulation consultant; and - Mr B Styman, an Environmental Health and Building Surveyor employed by the council.

10 In addition, evidence, was given by the applicant, Ms L Pont. She explained that she has been operating the premises for about four and a half years, employing three sex workers. The brothel is a small, low-key establishment employing mature ladies, and that the clientele predominantly comprises mature aged men. Ms Pont accepts the proposed management plan and intends to comply with it.

11 Having taken a view of the site and its environs and having considered all of the evidence I have concluded that the following are the critical issues in the case: 1 Whether the proposal meets the requirements of the Building Code of Australia, especially in relation to fire safety matters. 2 Whether the proposal should comply with council's draft Local Environmental Plan amendment No 7 ("the draft LEP"). 3 Whether being at first floor level and accessible only via a stairway, the proposal would be accessible by disabled persons.

4 Whether the premises are suitable for the proposal in terms of location and whether the proposal would have any adverse social impacts in the locality.

5 Whether sufficient off-street car parking has been provided. 12 I determined the car parking issue during the course of the proceedings, by concluding that in accordance with council's DCP requirements for car parking and its s 94 plan, a monetary contribution in lieu of the car parking deficiency would be a satisfactory and appropriate response to this.

13 Dealing with the BCA requirements I note that the two building experts have now consulted and agreed on conditions, which will result in the premises being brought to a satisfactory condition. I have reviewed their reports and agree with the conclusions now reached, especially in relation to fire safety and the access stair. The conditions, which they have agreed upon are now incorporated into the draft conditions of consent.

14 As for the draft LEP, which would have the effect of prohibiting this proposal, I accept the evidence of Mr Grech that this plan is neither imminent nor certain and should not be given determinative weight sufficient to warrant refusal of the application. The application should therefore be dealt with on its merits.

15 The third issue involves accessibility by disabled persons and it is clear that given that access to the premises is via an existing stairway, such persons having a mobility disability would be unable to access the premises. Mr North's evidence, which was largely unchallenged, considered this matter in the light of the Disability Discrimination Act 1992 and DCP 19. He considered the possibilities of providing a stair lift, a vertical lift and various other alterations to the premises including alterations to a bathroom. Whilst he did not undertake a detailed cost study of various options, he did make estimations of these costs. He expected that the overall cost of construction would be very high and that such construction could be made impossible by the denial of approval from the building owner's corporation because such works would necessarily involve other lots within the strata subdivision. It was his opinion that these circumstances would justify an exemption to the requirements of the Disability Discrimination Act on the grounds of unjustifiable hardship. The requirements of DCP 19 are similar in effect to those of the Disability Discrimination Act.

16 The objectives of the Disability Discrimination Act involve the elimination as far as possible of discrimination against persons on the grounds of disability, relevantly here, in relation to access to premises. Clause 23(1)(c) makes it unlawful for a person to discriminate against another person in relation to the provision of means of access to such premises. Clause 23(2) excuses premises from this requirement where necessary alterations to the premises to provide such access would impose unjustifiable hardship on the person who would provide that access. Section 11 provides details of what can be taken into account when determining unjustifiable hardship. Such matters include the nature of the benefit or detriment, financial circumstances and the estimated amount of expenditure.

17 As I have indicated, Mr North has provided estimated amounts of expenditure but no evidence was provided as to the financial circumstances of the applicant who would be required to carry out the works discussed by Mr North. Little, if any, information is available as to the likely detriment that would arise as a result of the restricted access to these premises, absent the works described by Mr North.

18 This is to be a small-scale, low-key brothel, and I expect that very few persons with an access disability would be disadvantaged by the lack of access to this facility. Taking this into account, together with the expenditure analysis carried out by Mr North, I accept that this is a case of unjustifiable hardship for the purposes of the Disability Discrimination Act and DCP 19, and that refusal of the application on this basis is not warranted.

19 The principal issue in this case, according to Miss Hewitt, involves the unsuitable location of the premises and, in the light of the significant resident objection, the social and amenity impacts associated with the brothel.

20 Mr Grech examined this issue in detail and concluded that social impacts would be minimal, but given that the amelioration of social impacts is in part dependent on the successful implementation of the plan of management, it may be appropriate to issue a time-limited consent. I expect that he is now be satisfied with the plan of management, which incorporates the matters, which he raised. Mr Grech is also satisfied that the location of the brothel at first floor level in a commercial zone, notwithstanding its proximity to residential premises, would be appropriate.

21 The location of brothels was a matter considered at length by Senior Commissioner Roseth in Yada Martyn v Hornsby Shire Council [2004] NSWLEC 614 where he enunciated a number of applicable criteria. These criteria relevantly include the following: "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 not be so onerous as to exclude them from all areas of a 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.

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." 22 Dealing firstly with the criteria associated with adverse physical impact, particularly noise and overlooking, I accept that with the changes to the proposal there will be no opportunities for overlooking from or into the premises from nearby residential areas. Similarly, I accept that there would be no noise disturbance emanating from the brothel itself.

23 As for the behaviour of brothel patrons in the locality, as I accepted in Zhang v Ashfield Municipal Council [2004] NSWLEC 259, brothel patrons are ordinary members of the community and there is no reason to imagine that they behave in public any differently than other members of the community. People entering or leaving this brothel will be indistinguishable from anyone else entering or leaving doorways to upper level commercial premises in the locality. This will be a small low key operation and disturbances relating from the behaviour of patrons is unlikely to be seriously problematical. Whilst concerns were expressed in relation to car parking, again, I expect that the vast majority of brothel patrons who will park in the locality will do so lawfully. Any unlawful vehicular activity or unlawful patron behaviour, I accept, would be so minimal if it did occur, that it would not warrant refusal of the application.

24 The proposal clearly does not meet the criteria that brothels should not adjoin areas that are zoned residential or be visible from them. The site is separated from the adjoining residentially zoned land by a laneway but the premises are, and will continue to be, visible from a number of dwellings within that residential zone. However I do not accept that this criteria should, in this instance, be determinative. Persons who may observe the premises from the residential zone will simply see a building, which will be modified so that no activities in the building or on its rear terrace will be observable. All that will be seen to anyone who takes the trouble to observe the premises will be persons coming and going from a business premises in a business zone, much like other businesses in the zone. This is not a reason warranting refusal of the application.

25 The final question to be determined in terms of the Senior Commissioner's criteria is whether this brothel is in a location where it is likely to offend residents who might live in its vicinity or pass by it from time to time. In this context it is important to note that brothels are a legal land use and that moral aspects of such land use are not in issue. It is clear from the residents' objections that some are offended by this brothel and are especially concerned as to the impacts that it might have on children and adolescents. As Mr Grech noted, this brothel is not located in the immediate vicinity of any schools, churches or the like. However, a number of children and adolescents, and indeed adults, pass by the premises en route to schools, shops, et cetera. The premises will display no external indications of the activities, which will occur within, and unless told, passers-by would be none the wiser. Indeed, reiterating what I have already said, I expect that brothel patrons will not behave in a manner unlike other passers-by. I certainly heard no evidence to suggest that passers-by would be at risk. In the circumstances I do not accept that the extent of any offence that could be generated by this proposal would be such as to warrant refusal.

26 This brings me to the more general issue of social impact, a matter not specifically identified by the Senior Commissioner in his criteria, but raised by Ms Hewitt. Here she referred to the decision of Bignold J in Perry Properties v Ashfield Council (No 2)[2001] NSWLEC 62 where the concept of amenity was accepted as being very wide and flexible, going beyond measurable characteristics such as noise and traffic, transcending mere physical content. In this context she submitted that the residents' fears in relation to the proposed brothel comprise a social impact warranting refusal of the application. She also referred to the particular objection of Mr Edwards who said that the proposal will devalue the name of the community. 27 I agree that there will be some social impact as a result of this proposal but I do not accept that the residents' fears have a sound foundation, which would point to a social impact of such significance to warrant refusal of the application, particularly taking into account the small-scale nature of this brothel. Whilst the applicant gets no credit for this, the brothel has been in existence for about seven years and the extent of complaint to the council over those years has not been of such significance to support a serious impact in this context.

28 In the circumstances I have therefore decided that the appeal should be upheld and development consent granted subject to the conditions, which, apart from one condition, have been agreed. The disputed condition, is that the consent be limited to a period of 12 months. In her submissions, Ms Hewitt accepted that a longer period of 24 months might be more appropriate and taking into account the evidence of Mr Grech in this regard, I agree that the condition should be imposed for the suggested period of twenty-four months.

2. Development application No. 878/2003 for the use of the first floor premises at 184B Belmore Road, Riverwood as a brothel is determined by the granting of development consent subject to the conditions in Annexure A hereto.

T A Bly Commissioner of the Court ljr

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