Prosperity Leisure v Hurstville City Council

Applicant: LEGAL REPRESENTATIVES: Ms J Jagot, barrister instructed by Mr M Staunton of Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10993 of 2005 Prosperity Leisure Pty Ltd v Hurstville City Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Hurstville City Council (the council) of a development application for a change of use from "muscular therapy centre" to brothel of the first-floor premises on lot A DP 414265, known as 325 (also known as 327A) Belmore Road, Riverwood.

The site 2 The site is on the western side of Belmore Road, about 12m from its intersection with Coleridge Street. It has frontage to Belmore Road and to a public lane and car park at the rear. There is stair access to the first floor from both front and rear. Adjacent to the car park is a residential area at Killara Avenue and Coleridge Street. The buildings on either side are shops.

The proposal and its history 3 The applicant proposes to use the first floor of the building as a brothel. There is a valid consent, issued by the council in 1994 and made permanent by the Court in 1998, for use as a muscular therapy clinic. Following complaints that more than muscular therapy took place on the premises, the council investigated it and found that it was used as a brothel. The council issued a Notice of Intention to Issue an Order to cease the unauthorised use. In April 2005 the applicant lodged a development application for the lawful use of the premises as a brothel. Following notification the council received 16 letters of objection and three petitions. An undated report to the council by development assessment officer, Ms N Brown recommended refusal of the application. There is no evidence before the Court of the council's resolution in response to the report. The applicant filed the appeal in August 2005.

Relevant planning controls 4 The Hurstville Local Environmental Plan 1994 zones the site 3(c), Business Centre Zone. The LEP does not include a defined use "brothels"; hence the premises are to be considered a commercial use, which is permissible with consent. 5 Draft Local Environmental Plan 7 (draft LEP 7) will, if made in its present form, prohibit brothels in business centres. The draft LEP is the main issue in the proceedings. 6 Development Control Plan 13- Riverwood (DCP 13) controls the development of the Riverwood Town Centre. Ms Brown's report states that the proposal does not contravene the provisions of DCP 13, and the DCP is not an issue identified in the council's Statement of Issues. The proposal does not comply with Development Control Plan 19 - Access and Mobility since it does not provide disabled access to first-floor premises; however, Ms Brown's report states that, in view of the application being for a change of use, this is not an issue. The matter is not identified in the council's Statement of Issues. 7 The council has published a Policy on Extended Trading Hours, which is discussed under "Trading hours" below.

The issues 8 The council submitted a Statement of Issues containing six issues, ie + The proposal does not comply with the objectives and controls of draft LEP 7. + The proposal does not comply with the planning principles established by the Court in Martyn v Hornsby Shire Council [2004] NSWLEC 614. + The proposed operating hours are excessive. + The rear entrance is unsafe and insecure. + The NSW Police expect increased crime if the application is approved. + Matters outlined by the objectors.

The Court-appointed expert 9 The Court-appointed expert was Mr W Gawne, a consultant planner. In addition to the usual assessment of the application in response to the council's issues, Mr Gawne interviewed three planners at the council, Senior Sergeant R Simpson of the Hurstville Area command of the NSW Police, seven shopkeepers in the vicinity of the premises, the spokesperson of the Riverwood Montessori Pre and Primary School and a curator and a parishioner of the Coleridge Uniting Church. As a result of the assiduity with which Mr Gawne applied himself to his task, I have relied on his findings and have accepted them fully in this judgment.

Objectors' concerns 10 The Court heard the evidence of eight objectors, all of them during the visit to the site. 11 Mr M and Mrs J Fitzgerald, who live at 16 Collaroy Street, Peakhurst, well removed from the site, objected mainly on moral grounds. The sign at the rear entrance particularly offended them. The conditions of consent require the rear entrance to be closed and the sign to be removed. 12 Mr K Saleh of the Riverwood Australian Arabic Association said that a brothel is wrong in a shopping centre. Ms K Cole of 1 Florida Crescent Riverwood, removed from the site, objected on the basis that children use the Riverwood centre. Ms H Breakspear of 404 Roosevelt Avenue Riverwood, removed from the site, had similar concerns. Mr G Merheb, who runs a health food shop at No 303, did not support a brothel though he said that it did not affect his business. Mr A Noun, who runs a baker shop at No 327, said that children eating cakes at his bakery tended to look towards the entrance of the brothel. Mr F Elkak, who runs the hairdressers at No 329, complained about the Riverwood Centre not doing well, though he did not directly relate this to the existence of the brothel. 13 I note that all the objectors live far from the site and are not personally impacted. While they believe either that a brothel was inappropriate anywhere, or that the brothel was in the wrong location, they were unable to point out any specific impact on the centre. Moreover, it appeared that part of the objections related to the rear access with a sign, which is close to a public car park and some houses. The rear access and the sign will be removed.

Draft LEP 7 14 Between 21 July and 19 August 2005 the council exhibited draft LEP 7. The draft LEP, if made unchanged, would prohibit brothels in business centre zones. Mr Gawne made enquiries from the Department of Planning concerning the progress of the draft LEP. The Department confirmed that the draft had been referred to the Parliamentary Counsel; however, it could not provide information on when it would be made and whether it would contain a savings clause. The draft LEP is therefore neither certain nor imminent. 15 In addition to prohibiting the proposal, the draft LEP sets down criteria for the location of brothels in the only zone in which it will be permissible, light industrial. In Mr Gawne's opinion, the proposal largely complies with those criteria. As a result, Mr Gawne did not consider the draft LEP to be a reason for refusing the application. I accept his evidence.

The Court's planning principles on the location of brothels 16 In Martyn v Hornsby Shire Council [2004] NSWLEC 259 the Court established the following principles for the location of brothels. + 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. + 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 sometimes a function of distance, but not always. + 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 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 brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shop and strip clubs predominate, signage should be restricted to the address and telephone number. 17 In his report Mr Gawne assessed the proposal against each of the nine criteria above, reaching a finding that it met them all. I note from Ms Brown's report that she came to the opposite conclusion on the grounds that the brothel was visible from a church, residences and was close to a bus stop used by school buses. However, the church has moved and the assumption that the bus stop was used by school buses was incorrect. As for visibility, it is the rear of the premises that is visible and both the rear access and the sign will be removed. For these reasons I accept Mr Gawne's evidence that the proposal meets the criteria established by the Court.

Operating hours 18 The application is to operate until midnight. Mr Gawne suggested that the hours of operation should be reduced to 10 pm. The applicant accepted. The closing hour is now only one hour after 9 pm, the time after which the council's Extended Trading Hours Policy applies. In my opinion, the earlier closing hour resolves the issue.

Rear entrance 19 The issue is resolved by the removal of the rear entrance.

Police expectations 20 Mr Gawne pointed out that the Police have carried out a "Safer by design high risk evaluation" of the proposal. The applicant accepts the recommendations of the evaluation. I note that the Police have not asked that the application be refused. The notation of "significant crime risk" is a function of the area, not of the use. Mr Gawne, who has spoken to the person in charge of crime prevention at the local Police, does not think that the views of the Police stand in the way of approval of the application. 21 The council tendered a Police record of events relating to the premises. There have been 19 events since 1988, though it is not possible to say whether the majority of those events occurred closer to 1988 or to 2005. However, there have been several events during the time that the brothel has operated. Two of those events relate to breaking and entering, a crime that occurs at all kinds of commercial and residential premises. One event related to the arrest of a sex worker whose visa expired. None of the events related to complaints about noise, violence or rowdy behaviour, which would be the most relevant to the assessment of the application. 22 Mr Gawne, who had not seen the record of events until the hearing, did not change his opinion as a result of seeing the new material. I accept his evidence.

Plan of management 23 A Plan of Management accompanied the application, which was lodged in April 2005, ie six months before the hearing. There is no record in Ms Brown's report that she found the Plan of Management unsatisfactory. The council's Statement of Issues does not include a concern about the Plan of Management. Mr Gawne did not comment on the Plan of Management. Despite the above, the council's draft conditions, given to the applicant shortly before the hearing, include a requirement for the applicant to submit to the Court (not to the council) a new Plan of Management that addresses 23 additional matters before the Court issues an approval. 24 The applicant's position was that it would accept the requirement if it was expressed as a condition of consent. In my opinion, the existing Plan of Management is acceptable and there is no need to revise it. On the other hand, I note that the draft conditions do not expressly refer to the Plan of Management, and I have therefore inserted this requirement in Condition 1.

Conclusions 25 The strongest part of the council's case is the existence of the draft LEP, which indicates clearly that the council wishes to prohibit brothels in town centres. It appears that the Department of Planning accepts the council's view and it is therefore likely that, when the draft LEP is gazetted, applications of this kind will no longer be able to be approved. 26 At this time, however, it is uncertain when the gazettal will be or whether the plan as made will contain a savings clause. While the proposal is contrary to the draft LEP, it is a small establishment that is inconspicuous now and will become even more so once the rear entrance and sign are removed. It would be unfair to refuse the application on the basis of a draft instrument whose form and coming into force are uncertain. For this reason the appeal is upheld.

2. Development application for a change of use from "muscular therapy centre" to brothel of the first-floor premises on lot A DP 414265, known as 325 Belmore Road, Riverwood is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibit 11 and A.

      Dr John Roseth
      Senior Commissioner

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