Rosawan Pty Ltd v Council of the City of Sydney

Land and Environment Court (NSW)|2005-10-25|Before: Mr P

CITATION : Rosawan Pty Ltd v Council of the City of Sydney [2005] NSWLEC 630

APPLICANT Rosawan Pty Ltd PARTIES : RESPONDENT Council of the City of Sydney

Development Application :- KEY ISSUES: Use of premises as a brothel .

CASES CITED: Manzie v Willoughby City Council [1996] NSWLEC 26

DATES OF HEARING: 25 October 2005 EX TEMPORE JUDGMENT DATE : 10/25/2005

APPLICANT Mr P Larkin, barrister INSTRUCTED BY Spiegel & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr C Leggatt SC INSTRUCTED BY Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10129 of 2005 Rosawan Pty Ltd v Sydney City Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT 1 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) 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, is in fact entered from Cleveland Street, a busy arterial road. 2 The proposed use is to take place on the first floor of the site, with the brothel operating from 2pm until 4am the following day, seven days per week.

3 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.

4 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. 5 During the period between the lodgement of that application and these proceedings being commenced and heard, the former council has been, relevantly, subsumed into the area of the Council of the City of Sydney. 6 In January 2004, an application for review of that decision was lodged pursuant to s 82A of the Act seeking a review of the determination of development application U01-00502. That review application was considered by the Planning Development and Transport committee of the council (as the transfer of areas had taken place by that time) and determined on 23 August 2004 by the refusal of consent.

7 I had the opportunity to inspect the premises in the company of the legal representatives of the parties and their planning advisers. 8 I heard the evidence of one of the objectors, a Mr Bowman, on-site. Although now an owner with tenants in a nearby property, he had formerly resided at the property he owns. His evidence related to concerns about community safety and various types of anti-social behaviour. 9 The council evidence is that there have been no actual complaints about the operation of the premises during the some 8 years or so that it has been operating. 10 Although there is a provision in the planning instruments that would appear to require me to have regard to perceptions of safety with respect to such premises, I am satisfied that the appropriate process that I should follow is only to have regard to perceptions should there be a reasonable and foreseeable probability of those fears and perceptions materialising and causing a sufficient adverse impact to warrant refusal. 11 I am satisfied in the present circumstances, given the 8 year operation of the premises, that it would be unreasonable for me to draw such a conclusion against the applicant.

12 I asked Mr Leggat, senior counsel for the respondent, to outline to me, in light of the evidence that was given in court and the agreed joint statement between the planning witnesses, what were the matters that either would warrant determination by refusal in their own right or would contribute to such refusal. 13 He nominated that the only matter, which the council submitted warranted refusal in its own right, was the nature of the entrance to the premises. This is a shared entrance with the ground level commercial space on the corner of Cleveland and Abercrombie Street within the same building. 14 He also put that there were two matters which would contribute to the warranting of refusal. These were the clustering provisions of the relevant Development Control Plan or policy and the adverse parking impacts that would be generated by the employees and patrons of the premises.

15 Other matters, which were traversed in the statement of issues and touched upon in the joint oral evidence of the planners, were not pressed as issues which would warrant or contribute to the warranting of refusal.

16 I turn first to the question of clustering. The relevant document which applies is the Sex Industry Policy of the former council. It effectively imposes, as part of 2.1 General Controls for All Types of Sex Industry Premises, a 75 m radial delineation of an area which should be regarded as an exclusion zone around such premises. It creates this zone in order to avoid clustering. 17 The second document to which I was also taken, which is a draft Development Control Plan of the City of Sydney regulating the provision of sexual services, has a similar provision. 18 The only difference between the two documents is a minor difference relating to the point of measurement for ascertaining the 75 m radius. Given that the location of the only relevant premises is at 131 Abercrombie Street which falls within such a zone, however measured from a point on the premises, the difference is immaterial.

19 It was conceded by Mr Morgan, a planner employed by the council, that the 2003 draft policy was in the process of being replaced by a further draft which is on display and is not in evidence in these proceedings. I am therefore satisfied that, under these circumstances the 2003 document has little weight in these proceedings. 20 However that is not the position with respect to the document of the former council. It provides on p 9: "in assisting a development application for sex industry premises, the council shall consider the proximity of other sex industry premises, both within and outside the local government area, including existing unauthorised premises formally made known to the council. Notwithstanding any other assessment issues, the council may refuse consent to a sex industry premises if there is another sex industry premises other than a private sex worker home business brothels located within a radius of 75 m"

It then goes on to dealing with the point from which the measurement is to be taken.

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.

27 The second matter that is put as contributing to refusal, is the lack of provision of parking. 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.

35 The fundamental issue, which is of concern to me (and, in the end, is the basis upon which the appeal must fail), is the inappropriateness of the design of access to the premises. 36 The plans clearly show that the foyer for which access is to be achieved for the premises is shared as a subsidiary access to the commercial premises located on the corner of Abercrombie and Cleveland Street. They are, for those ground floor premises, not the primary commercial entrance, that being close to the corner and facing Abercrombie Street. 37 However, they are nonetheless the essential entrance to the foyer from those commercial premises for the purposes of accessing the only staff amenities that would be available to both tenants and customers of tenants to those ground floor premises.

38 I accept, in the context of the present tenancy of the ground floor, that they are not used for active, commercial purposes and appear to be used for storage only. 39 It is, therefore, unlikely that there would be significant conflicts with the present use. 40 Dealing with a consent of this nature, however, is not confined to dealing solely with the present ground floor use. I am required to deal, in addition (and, indeed, in my view predominantly), with the abstract acceptability or otherwise of the design in the longer term. 41 The conflict between patrons or staff of an enterprise on the ground floor having to share access their only patron or staff facilities with a very small and limited entrance foyer a brothel is, in my view, unacceptably bad planning and design.

42 The second issue that is put in contention is that the commercial premises on the corner have to traverse the entrance foyer to enter the garbage disposal room (which is shared between the ground and first floor premises) and which, although accessible from the street, would appear commonly to be accessed through a door in the south-eastern corner of the foyer. 43 There is no suggestion that for example, the use of the premises on the corner could not be for commercial retail or food premises, and that the garbage disposal room would not be accessed for those purposes. 44 It is entirely unreasonable to assume that the nature of the present use of the ground floor would be the likely future pattern of use of the ground floor. It is in my view, also fundamentally bad design to have access to a brothel in conflict with movements across a foyer for the purposes of waste disposal from the commercial premises on the ground floor.

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. 46 It was put by Mr Larkin, counsel behalf of the applicant, that at some future time, the proprietor of the building might provide separate staff facilities for the commercial tenancy on the ground floor. 47 That is not provided for as part of this application. This application is to be assessed on the present design and layout of the ground floor premises and the proposed layout of the first floor premises. 48 Whether or not an application, which included a redesign of the ground floor would meet some different fate is not an appropriate matter upon which I should speculate. Indeed I should, given that I am refusing the appeal, abide by the stricture of Bignold J in Manzie v Willoughby City Council [1996] NSWLEC 26 and not make comment on or offer speculation about what might be in some future application. 49 The orders of the Court therefore are: 1. The appeal is dismissed; 2. Development application U01-00502 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. Tim Moore Commissioner of the Court

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