Simmons v Marrickville Council

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.

At a glance

Court

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Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (2)