Simmons v Marrickville Council

The site and its locality 4The site is located on the eastern corner of Sydenham Road, Victoria Lane and an unnamed lane. It has an area of 192 sq m with a primary frontage of 6.1 m to Sydenham Road and a secondary frontage of 31.5 m to Victoria Lane. 5A two storey industrial building occupies the site, which has at grade parking at the rear accessed off Victoria Lane and the unnamed lane. The building is occupied by a printing business but no approval has been granted for this use. 6Sydenham Road, in the vicinity of the site, is generally characterised by a mixture of residential and industrial development. To the south east, the site adjoins a two storey industrial building which is used for the production of milk products. To the northwest, on the opposite side of Victoria Lane, the site adjoins a car repair station (220-222 Victoria Street) and residential dwellings (224, 226, 228 and 230 Victoria Street). The frontage and pedestrian access to the dwellings is from Victoria Street and their garages are accessed off Victoria Lane. To the southwest, on the opposite side of the unnamed lane, is a residential dwelling (1 Meeks Road). Wicks Park is located to the north west of the site on the opposite side of Sydenham Road. It contains a children's play ground and tennis courts.

Planning framework 7The site is zoned Light Industrial 4(B) under Marrickville Local Environmental Plan 2001 (LEP 2001) . Brothels are not included as a prohibited use and are therefore permissible with consent within the zone as an innominate use. 8Clause 44 of LEP 2001 has the heading 'Premises used for prostitution'. It provides that development for the purpose of a brothel may be carried out but only with development consent and requires that: (4) Before granting consent for the use of premises for prostitution, the consent authority must take into consideration such of the following matters as are of relevance to the application: (a) the location of the brothel or dwelling house and its proximity to any child care centre, community facility, educational establishment, hospital, place of public worship, recreation area or residential building, or any place regularly frequented by children, (b) whether the operation of the brothel or dwelling house would cause a disturbance in the neighbourhood because of its size or operating hours, or the number of people working in it, (c) the number of brothels operating in the near vicinity of the premises the subject of the application, (d) whether the operation of the brothel or dwelling house would interfere with the amenity of the neighbourhood, (e) whether suitable access is available, or proposed to be provided, to the brothel or dwelling house, (f) whether a suitable waiting area is provided in the brothel or dwelling house so as to prevent clients loitering outside the premises, (g) whether sufficient off-street parking is available or proposed to be provided, if appropriate in the circumstances, (h) the design and external appearance of the building and any associated structures and their impact on the character of the surrounding built environment, (i) the content, illumination, size and shape of any advertisement and distinctive external lighting, and (j) whether the operation of the brothel or dwelling house would cause a disturbance in the neighbourhood when taking into account any other brothels operating in the neighbourhood. (5) Consent must not be granted to the carrying out of development for the purpose of a brothel on land zoned General Business 3 (A) where any part of the brothel (excluding access) is located at street level. (6) State Environmental Planning Policy No 1-Development Standards does not apply to development to which this clause applies. 9The objectives of the Light Industrial 4(B) zone are: (a) to identify areas suitable for light industrial and warehousing activities, and (b) to permit a range of support and ancillary uses. 10The parties did not raise any issues that the proposal is not consistent with the objectives of the zone. The key dispute centred on whether, in considering the matters in cl 44(4) of LEP 2001, consent should be granted to the application. 11Marrickville Development Control Plan No 37 - Brothels and other Sex Service Premises (DCP 37) provides controls for brothels including Location (s3.1), Car parking (s3.3) and Amenity (s3.4). 12Marrickville Development Control Plan No 19 - Parking Strategy and Marrickville Development Control Plan No 5 - Community Safety are also relevant. 13The development application was made on 10 May 2011, which was before the commencement of Marrickville Local Environmental Plan 2011 (LEP 2011) on 12 December 2011. Clause 1.8A includes savings provisions relating to development applications. It provides: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 14The parties agree that the plan is imminent and certain and they agree that the decision of Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 establishes the weight to be given to LEP 2011. His Honour at [30] states: Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 15The parties disagree on whether the proposed development is consistent with the aims and objectives of LEP 2011. 16Under LEP 2011, the site is within IN2 Light Industrial Zone. 'Sex service premises' are permissible as an innominate use within this zone. The objectives of the zone are: · To provide a wide range of light industrial, warehouse and related land uses. · To encourage employment opportunities and to support the viability of centres. · To minimise any adverse effect of industry on other land uses. · To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. · To support and protect industrial land for industrial uses. · To provide business and office premises for the purposes of certain art, technology, production and design sectors. · To enable a purpose-built dwelling house to be used in certain circumstances as a dwelling house. 17Clause 6.14 of LEP 2011 has the heading 'Location of sex services premises'. It provides: (1) The objective of this clause is to control the impact of sex services premises on the community. (2) Development consent must not be granted for development for the purpose of sex services premises if the sex services premises will be located on land that adjoins, or that is separated only by a road from, land: (a) in Zone R1 General Residential, Zone R2 Low Density Residential, Zone R3 Medium Density Residential, Zone R4 High Density Residential or Zone RE1 Public Recreation, or (b) used for a child care centre, community facility, educational establishment or place of public worship. (3) Development consent must not be granted for development for the purpose of sex services premises: (a) on land in Zone B6 Enterprise Corridor if any part of the sex services premises (excluding access, car parking and waste storage) is located at street level, or (b) if the development will be located within 200 metres of existing or proposed sex services premises. (4) In deciding whether to grant consent to development for the purpose of sex services premises, the consent authority must consider the impact that the proposed development will have on children who use the surrounding land. 18Part 7.3 - Sex Industry and Adult Business Premises of Marrickville Development Control Plan 2011 (DCP 2011) commenced on 15 December 2011. It provides controls for sex service premises that support those in LEP 2011.

Evidence 19The Court inspected the site and surrounding area. No objectors provided evidence at the inspection but the occupiers of five adjoining dwellings lodged written objections in response to the notification of the application. The objectors considered the proposed use to be incompatible with the use of Wicks Park which is 'a community facility often frequented by local families'. They stated that children use the playground and the tennis courts in the park, referring to a roster of children's tennis lessons. They were also concerned with the proximity of the proposed brothel to their residences and the likely impact on their amenity. They raised concerns about the hours of operation (10am to 3am seven days a week) and the potential impacts from anti-social behaviour of patrons, security lighting and noise. They were also concerned about the lack of parking and loading facilities in an area which is already deficient in parking. In their opinion, the proposal was inconsistent with the planning controls for the area. 20The Court heard expert town planning evidence from Mr E Sarich for the applicant and Mr J Pagan, for the council. The experts held different opinions as to whether the proposed location was suitable for a brothel given its proximity to residential uses and Wicks Park. 21Mr Sarich considered that the location of the brothel was acceptable as it was separated from the residences by the lanes and the houses have their frontages to either Victoria Street or Meeks Road. The garages at the rear of the dwellings in Victoria Street provide visual separation between the brothel and restrict pedestrian access to the houses from the lane. The entry to the brothel for patrons is from Sydenham Road which, in Mr Sarich's opinion, will minimise the potential for conflict between the two uses. 22Mr Sarich considered that the play area and tennis courts in Wicks Park are not in close proximity to the brothel as they are separated by Sydenham Road and located within the park approximately 60 m from the site. Further, based on his observations, Mr Sarich did not find that children frequent the park and that adults accompanied the children he had observed. 23Mr Sarich noted that the Plan of Management (PoM) and the proposed conditions would control the operation of the brothel. In his opinion, the brothel is small, with only five rooms, and it would not generate adverse amenity impacts such as noise, traffic generation or light spill. He considered the brothel did not result in social impacts as the presence or knowledge of the brothel itself is not an impact. 24Mr Sarich concluded that the proposal satisfied the requirements of cl 44(4) of LEP 2001 and s 3.2 of DCP 37. He considered that LEP 2011 should not be given weight, but if it were, the proposal met the objectives of cl 6.14, even if it did not meet the locational requirements. 25Mr Pagan held the contrary view that the location of the brothel was inappropriate and could result in unacceptable impacts on the amenity of residents. He was principally concerned about the potential for disturbance late at night. He acknowledged that the physical impacts of the brothel may be minimised through limited hours of operation and management. However, he considered there is a degree of sensitivity to brothel uses, which is recognised in the planning controls. In his opinion, the brothel's location in close proximity to residences and a park did not meet the requirements or the objectives of the planning controls. 26Both Mr Sarich and Mr Pagan agreed that the proposed brothel provided adequate parking and loading facilities and that this would not be a reason to refuse the application. They further agreed that community safety issues could be addressed through the PoM, although they disagreed whether a security guard should be provided after hours, as recommended by the NSW Police. Mr Sarich considered such a measure was unnecessary given the size of the brothel and the presence of a security guard would be foreign to the area. Whereas, Mr Pagan considered a security guard would deter anti social behaviour and crime which has the potential to occur with a brothel use.

Findings 27Mr Strati, for the council submitted that the decision of Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 where the Senior Commissioner commented on criteria for locating brothels, was relevant to this case. 28Mr Staunton, for the applicant, submits that Martyn dealt with a brothel proposal in circumstances where the planning controls did not include criteria for brothels. In the circumstances of this case, the planning controls provide locational criteria, which must be considered in the assessment of the application. He submits that there is little difference between the controls in LEP 2001 and LEP 2011 other than the requirement in cl 6.14 of LEP 2011 that ' Development consent must not be granted' unless certain criteria are met, whereas cl 44 of LEP 2001 requires only that similar criteria be considered. Mr Staunton submits that the locational criteria are not met but the objectives are. 29The objective of cl 6.14 of LEP 2011 seeks to control the impact of sex services premises on the community. While the objective of cl 44 of LEP 2001 is not explicitly stated, the same objective would apply. 30The likely physical impacts of the proposal can be minimised through conditions and the implementation of a PoM. Although, the hours of operation until 3 am and the number of patrons and staff during peak periods has the potential to impact on residential amenity, unless managed appropriately. This potential for adverse amenity impacts can more easily be minimised when a brothel is within an industrial area, but is heightened when it adjoins residential uses. 31However, the 'impact' is not limited to physical impacts, but would also include the social impacts of the proposal. The underlying purpose of the locational requirements in both LEPs is to locate sex services premises where they are least likely to have adverse impacts, both physical and social. This is achieved by separating the use from other sensitive uses to avoid the potential for contact, conflict and offence. It recognises that sex services premises are a permissible use but one on which the community has divided opinions. Roseth SC in Martyn clearly articulates the rationale for the location of brothels as follows: 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. 32Brothels are a permissible use only within certain zones in Marrickville LGA, including the subject zone. However, a consideration of certain criteria is also required and, as specified in cl 6.14 of LEP 2011, consent cannot be granted unless the criteria are met. The parties agree that LEP 2011 is imminent and certain and should be given considerable weight. Within this context the proposal must be consistent with the aims and objectives of this plan. 33I am satisfied that the proposal does not meet the locational requirements in cl 44 of LEP 2001 and cl 6.14 of LEP 2011 as the site is separated only by a road from land in the R1 General Residential Zone and the RE1 Public Recreation. The proposal is in close proximity to a residential buildings and a recreation area, which is frequented by children. The residents' submissions refer to the park as being a place frequented by children and that children live in at least two of the 'adjoining' houses. 34The key question before the Court is whether, despite the non compliance with the locational requirements, the proposal is consistent with the objectives of the control to control the impact of sex services premises on the community . I do not accept that because the play ground and tennis courts are within Wicks Park and are separated from the brothel entrance by Sydenham Road that this satisfies the intent of the control. Nor do I accept Mr Sarich's evidence that the park is unlikely to be used by children and that that they are supervised, as being a reason why this locational requirement is not reasonable and should not be met. 35Further, dwellings are located in close proximity to the brothel on the opposite side of Victoria Lane and the unnamed lane. I do not accept that because the brothel entrance for patrons and the entry to the dwellings is not from Victoria Lane that this justifies the non compliance of the proposal with this criteria. Garages are located at the rear of the dwellings which will be used by residents and there is the potential for direct contact and conflict. Given the planning controls, it is not unreasonable for the occupants of these dwelling to expect that a brothel would not be located on the 'adjoining' industrial land. 36Clearly, brothels are a legitimate land use which is permissible within certain zones. However, the regime that is established by the planning controls recognises that the use is 'sensitive' and provides criteria to balance the competing expectations within a community. These criteria include locating brothels in areas where they are likely to have the least impact by separating brothels from other 'sensitive' uses. While it is not unreasonable for a brothel to be located within a zone in which it is permissible, it is also not unreasonable for members of the community to expect that in granting consent to a brothel, the locational requirements in planning instruments will be met. As discussed above, in the circumstances of this case there is not justification to vary these locational requirements and on this basis the application must fail.

Orders

1. The appeal is dismissed.
2. The development application for alterations to an existing building at 100 Sydenham Road, Marrickville, for use as a brothel is refused.
3. The exhibits may be returned. Annelise Tuor Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2012