HIS HONOUR: Mr So (the Applicant) has applied to the Council of the City of Sydney (the Council) for development consent for internal and external alterations to a warehouse site at 8 Cunningham Street, Haymarket (8 Cunningham Street). The Applicant proposes, if the internal and external alterations are approved, to use 8 Cunningham Street as a "sex services premises (brothel)" with 13 sex services rooms and staff amenities. The use of the premises for that purpose forms part of the development application.
8 Cunningham Street has an area of a little less than 170 square metres and is presently occupied by a three-storey building formerly used as a commercial warehouse. The application proposes to add an additional storey, so that the building would become a four-storey one but it would not result, if approved, in any alteration to the external building envelope dimensions.
Access to the premises is to be via pedestrian entrance from Cunningham Street and, although there is an existing right of way over the rear of 6 Cunningham Street, that is not proposed to be used for the purposes of the brothel. 8 Cunningham Street has a frontage of a little less than seven metres to Cunningham Street.
Immediately adjoining the premises are premises that are the subject of an approved development application for a restaurant. In the vicinity, including immediately opposite across Cunningham Street, are premises that are residential in function, being, in part, for permanent residences and, in part, for serviced apartments.
There is, critically for the purposes of these proceedings, an existing approved "sex services premises (brothel)" located on the first floor of 429‑429A Pitt Street, being on the southern side of the intersection of Cunningham Street and Pitt Street with its entrance from Cunningham Street. That sex services premises is located at a direct distance of 45 metres from 8 Cunningham Street. These are the only relevant factual matters requiring consideration, apart from, as I will deal with later, the physical nature of the trafficable surfaces of Cunningham Street and its kerb area.
The Council has refused the development application and Mr So appeals to this Court against the refusal. It is in the context of assessing, standing in the shoes of the consent authority and undertaking a fresh assessment of the proposed development, that I turn to the relevant provisions, firstly, of the Sydney Local Environmental Plan 2012 (the SLEP 2012), that being the relevant Environmental Planning Instrument engaged for the purposes of these proceedings.
There are but a short number of its provisions that require consideration. The first is contained in cl 2.3, which sets out how I am to have regard to that which is contained in the Land Use Table element that applies to 8 Cunningham Street. Relevantly, Ms Carpenter, counsel for the Council, points me to subcl 2.3(2), which requires that I must have regard to the objectives for development in the relevant zone when determining this development application. It is clearly a mandatory provision with no exceptions relevant for present purposes.
The site is in the B8 - Metropolitan Centre zone (the B8 zone) under the SLEP 2012. There are five zone objectives there set out, only one of which is prayed in aid by the Council. It is one that sets the objective as being:
To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and the wider community".
The Council says that the present proposed development is not compatible with land uses in the vicinity of 8 Cunningham Street. It is to be observed that restricted premises, of which the present "sex services premises (brothel)" falls, are permitted with development consent in the B8 zone.
There is, in the SLEP 2012, specific provision concerning the location of sex services premises. This is contained in cl 7.21 of the SLEP. There are two matters, specifically, to which I am taken in that provision. They are subcl 7.21(1), which is that:
The objective of this clause is to minimise land use conflicts and adverse amenity impacts relating to sex services premises,
and subcl 7.21(2):
In deciding whether to grant development consent to development for the purposes of sex services premises, the consent authority must consider whether the operation of the sex services premises is likely to cause a disturbance in the neighbourhood:
(a) …
(b) taking into account the cumulative impact of the sex services premises along with other sex services premises operating in the neighbourhood during similar hours.
It is now appropriate to observe, as was discussed by Preston CJ in a paper given to the Institute for Sustainable Futures at the University of Technology, Sydney on 30 April 2012, that there is, in Class 1 merit proceedings such as this, no formal burden of proof. As his Honour observed:
There is no doubt a persuasive burden. The applicant needs to persuade the approval authority to exercise the power to grant the approval, but this falls short of a legal burden.
I observe that, nonetheless, there is that persuasive burden falling on the Applicant in these proceedings, that being, in my view, a matter which will require subsequent consideration when I turn to the provisions of the fourth paragraph of s 1, at subs 1.1, the purposes of the Sydney Development Control Plan 2012 (the SDCP) later engaged.
As I have observed, the SDCP is also engaged for my consideration. The way that a development control plan (DCP) is to be approached was dealt with by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 (Zhang). The leading judgment was delivered by the then Chief Justice of New South Wales, Spigelman CJ, where, at [75] of his Honour's decision, three propositions emerge:
1. The first is that although this Court has a wide-ranging discretion in dealing with development applications, the discretion is not at large and is not unfettered;
2. Second, the provisions of a DCP are to be considered as a fundamental element in, or focal point to, my decision-making process, particularly when there are no countervailing issues relating to compliance with the local environmental plan. I interpolate that there is no conflict raised with respect to the SLEP, merely the extent to which the DCP can apply restrictions that go beyond the provisions of a local environment plan, a matter to which I will return;
3. The third proposition is that the provisions of the DCP directly pertinent to the application are to be given significant weight but are not to be regarded as determinative.
As I had occasion to remind Mr Campbell, the solicitor for the Applicant, during the course of the hearing, it is not appropriate to attack the appropriateness in an abstract sense of the provisions of a DCP. The reason for that is that the Court of Appeal determined in Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 that such an approach was inappropriate.
It is possible for me to conclude that, in the facts and circumstances of this particular case, it is not appropriate to apply the provisions of the DCP, but that does not in any way involve me reaching a conclusion that any of the relevant provisions in the DCP are, in any abstract sense, inappropriate.
Mr Campbell also relied on s 79C(3A) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and particularly with respect to subs (3A)(b) of that provision, a provision inserted in the EP&A Act in response to, in part, the decision of the Court of Appeal in Zhang. It contains what might be regarded as a modestly more permissive position than that which is to be derived from what the former the Chief Justice said in Zhang as I have earlier observed. The provision reads:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) …
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
It will be necessary to return later to that in the context of Exhibit F, a document prepared by Mr Boers, the town planner for the Applicant in these proceedings, seeking to take advantage of the exception contained in s 1.1 of the SDCP.
Finally, as to the role of the SDCP, it is to be observed that, in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, McClellan CJ, the then Chief Judge of the Court, set out, at [87], a number of matters that are pertinent to considering the provisions of development control plans. First, his Honour observed:
The provisions of a DCP must be consistent with the provisions of any relevant local environmental plan. However, a DCP may operate to confine the intensity of development otherwise permitted by a local environmental plan.
His observations in that regard are reflective of that which is contained in the relevant provisions of the SDCP, where it imposes more restrictive approaches than would arise simply from the application of cl 7.21 of the SLEP.
Contrary to Mr Campbell's submission that an inconsistency of that nature might render the more restrictive element of the SDCP inappropriate, as his Honour observed, it is expressly appropriate to be permitted if applicable and subject to the attitude and approach to be taken to the development control plan provided for in Zhang.
Second, in [87] of his Honour's judgment, he dealt with the development of development control plans through a public consultation process. It was the evidence given by Mr David Zabell, town planner for the Council, that the SDCP had been through the to-be-expected public consultation, public submission, council consideration and other development processes. There is no evidence that could cause me to conclude that the SDCP was not properly developed.
There is also no suggestion that any of the provisions were adopted purely for the purposes of defeating this development application, nor is there any suggestion that the Council has not consistently applied the relevant provisions of the SDCP.
In that regard, his Honour observed, also in [87]:
A development control plan which has been consistently applied by a Council will be given significantly greater weight than one which has only been selectively applied.
Mr Campbell also drew my attention to the question of whether or not I should have regard to the fears expressed by the objectors who have lodged written objections to the Council, those objections requiring to be considered as part of the mandatory matters called up by s 79C of the EP&A Act.
To the extent that those fears require my consideration, the comments of Lloyd J in New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154, at [62], are relevant. They are to the effect that if there is:
A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the Environment Planning and Assessment Act.
That is undoubtedly a correct statement of the law and is something that has been applied by me and other members of the Court on a consistent basis over the years. However, those matters that are pressed in the objections to which Ms Carpenter has taken me, being those that are submissions in support of the Council's anti-clustering provision contained in the SDCP, are ones which do not express irrational fears - they simply state the factual position that, at a separation of 45 metres, the relevant anti-clustering provision, to which I will return, is not satisfied (and in the eyes of the submitters ought to be satisfied).
Next, Mr Campbell sought to rely on the provisions of the planning principle in Martyn v Hornsby Shire Council [2004] NSWLEC 614 (Martyn). The planning principle in Martyn was, as observed by Brown C, in Yao v Liverpool City Council [2017] NSWLEC 1167 (Yao) at [25], considered by the Commissioners of the Court as part of the ongoing review of planning principles which was commenced towards the end of 2014.
The learned Commissioner observed, at [25], that the Commissioners had determined that the planning principle that addressed sex services premises was still necessary but that the content and format as set out in Martyn needed revision based on additional knowledge gained since the inception of Martyn. The Commissioner then set out the revised planning principle following the Commissioners' consideration of its modification.
Essentially, the difference between Martyn and Yao is that Martyn contained elements of a prescriptive nature, whereas Yao contains elements that are entirely of a process nature.
The Commissioners have taken the view, consistently, as part of the revision process, that prescriptive planning principles are undesirable and that process-driven planning principles are appropriate. The difference being a prescriptive planning principle endeavours to set out what the answer should be, whereas a process-driven planning principle encourages those who are assessing a development application either to ask themselves a series of questions set out in the planning principle or to have regard to a series of matters potentially arising for consideration in the context of that application.
That which is set out in [25] of the learned Commissioner's decision in Yao sets out 12 matters that are appropriate to be considered in assessing an application for a sex services premises proposal.
That brings me to the question of the relevant provisions of the SDCP that potentially arise for these premises. The objectives of s 4 of the SDCP dealing with sex services premises are set out, and there are four of them set out in (a)(i) to (iii) and (b). The two that are raised by the Council in these proceedings include (a)(i), which is:
(a) Provide criteria for the location, design and ongoing management of premises used for the purpose of adult entertainment and sex industry uses to:
(i) address the health and safety of staff and visitors.
I observe, in that regard, to which I will return, that the Council had originally pleaded that the configuration of Cunningham Street was inappropriate for a limited range of reasons set out. The Amended Statement of Facts and Contentions (ASFC), filed on 31 July 2017, under the heading of "Contention 2 Access", set out in greater detail, at (25) to (38), a range of matters dealing with accessibility.
Many of those matters related to accessibility within the premises and have been resolved as a result of an agreement between the Council's access consultant, Mr Relf, and the Applicant's access consultant, Mr Finn.
However, matters of improvement of access and safety in the public domain for persons who have mobility disadvantages remains a matter in contention between the parties. I will return to that later.
The second of the objectives that is relevant is (b):
Ensure sex service premises do not interfere with the amenity of the neighbourhood.
To address those various objectives, the Council sets out a variety of controls. Relevant to this application is s 4.4.6.1 "Location of Premises". Whilst there is, it is to be observed, an infelicitous formatting error so that s (1)(c)(iii) is set out in that fashion, it is clearly obvious that s (1)(c)(iii) should in fact be s (1)(d), and the fact that there is a formatting error in a document which is not to be regarded in its interpretation as having the same precision of drafting as if it had been prepared by parliamentary counsel, is not something that plays any way in acting as an impediment to my consideration of, and obligation pursuant to Zhang to have regard to, that provision of the SDCP.
As a consequence, reading it as if it were s 4.4.6.1(1)(d), the relevant provision is:
Adult entertainment and sex industry premises must not be located:
(iii) within a radius of 75 metres of an existing, approved adult entertainment or sex industry premise as measured from the centre of the primary access to the proposed and existing premises.
There is no dispute in these proceedings that the 75-metre distance is not satisfied and that the actual distance, for the purposes of the clause, is 45 metres.
To address that, Mr Boers prepared a document entitled "Variation to SDCP 2012 Control", a document that became Exhibit F. It is a document prepared in response to an exception provision contained in cl 1.1, "Purpose of this Development Control Plan". Clause 1.1, in its fourth paragraph, reads:
If there are circumstances when it is not relevant to comply with the controls in this DCP, applicants must provide a written submission clearly demonstrating compliance with the objectives of this DCP, and detailing the reasons the control/s should be varied. The proposed variation must result in a better outcome and meet all objectives of this DCP, and demonstrate that it will result in better outcomes. The submission must also clearly demonstrate the variation sought will not adversely impact on the local amenity.
I have carefully read Exhibit F, the variation prepared by Mr Boers. Mr Boers, in that document, seeks to address the issues of compliance with the objectives of the SDCP.
That is but one of two fundamental requirements of the provision providing for exceptions to the SDCP.
Taking the document at its highest, the document does not provide any basis for concluding that there would be a better outcome if the 75-metre rule (the anti-clustering provision as it might be entitled colloquially) is satisfied. On that basis I conclude that Exhibit F provides no basis to set aside the requirements of the SDCP.
As I have earlier indicated, there is no evidence that the SDCP has been applied in any fundamentally inconsistent fashion, particularly if one were to have regard to paths of pedestrian travel between sex services premises rather than necessarily having regard to the "as the crow flies" interpretation, one which has been taken to be inappropriate in a number of decisions in Class 1 proceedings in the past.
As part of the Council's tender bundle, Exhibit 1, at folio 85, I have been provided with a map of the zones within the City of Sydney local government area where sex services premises are permitted, a plan which is annotated with the locations of approved sex services premises. There is nothing to be taken from that plan, nor has there been any submission founded on that plan, that the Council has applied its controls inconsistently in that regard.
It is also to be observed that the provisions of the SDCP also mandate in 4.4.6.1(1)(b) that sex services premises should not be, "immediately adjacent or directly opposite land developed for residential purposes." Directly opposite 8 Cunningham Street is residential development. Whether that is in whole or in part actually used as serviced apartments is an irrelevance as it is clear that it is, at least in part, for permanent residential use, and in any event, there is no distinction drawn in the DCP between temporary residential occupation and permanent residential occupation.
As a consequence of all of that, I can see no reason why the application should be permitted in the face of those provisions of the SDCP relevantly contained in cl 4.4.6.1 of the SDCP.
I now turn to the question of safety of pedestrians in Cunningham Street. This is a separate ground of objection pressed by the Council.
During the course of the site inspection, it was obvious that Cunningham Street is one which:
1. is, first, of one-way vehicle movement delineation;
2. second, on either side of the road, does not have a pedestrian footpath capable of being used comfortably for single-person travel in either direction because of the presence of a number of road signs; and
3. third, certainly has no possibility of two pedestrians passing using those pedestrian walkways.
For pedestrians traversing the section of Cunningham Street from Pitt Street to the west, it is necessary for them, particularly if there are two or more of them, as was the case during the course of our site inspection, to walk on the roadway. There is, particularly relevant to these proceedings, simply no way that any mobility-disadvantaged person in a wheelchair or with a walking frame would be able to access the premises other than along the made portion of the vehicle-trafficable roadway. That is a matter that is pressed by the Council as demonstrating that it is not possible for visitors to the site to access the site safely.
I have earlier observed that Mr Relf and Mr Finn were access consultants who gave evidence in these proceedings. Mr Relf provided, as part of the Joint Report of the access consultants, a Joint Report which became Exhibit 5 in the proceedings, a plan showing what he considered were the appropriate additional pedestrian safety facilities necessary to be installed, not just for the purposes of general pedestrian safety but, as he confirmed in his oral evidence, also for the purposes of safety of those persons with mobility disadvantages. The plan that was handed up to me in A3 form as an aide memoire was part of that which was admitted as the expert evidence dealing with accessibility.
In the joint report dealing with Contention 2 Access, Mr Relf observed that there was a necessity for five types of particular external indicators or warnings required for safety purposes. They were set out on the first page of the table comparing Mr Relf's position and Mr Finn's position in Exhibit 5. They were, and I list them:
1. first, tactile ground surface indicators installed at the driveway approach to 59 Goulburn Street;
2. second, two convex mirrors which include warning signage and audio‑visual alerts that are activated when a vehicle is entering the laneway or exiting a car park. Mr Relf has marked where he says those warning facilities should be provided;
3. third, a pedestrian warning sign opposite the 4 Cunningham Street driveway;
4. fourth, lighting at 8 Cunningham Street; and
5. finally, ramp modification for wheelchair access as discussed below.
It is appropriate to observe that the improved wheelchair access is not within the site but is at a location in what might be described as the right-angle elbow of Cunningham Street, where it turns to travel north towards Goulburn Street, a point that we observed during the course of the site inspection. That would require the grinding of an element of the present kerb crossing ramp outside those premises.
Of the matters that Mr Relf raised, and which he confirmed in his expert oral evidence in the proceedings he considered warranted refusal of the application if they were not provided, only one of them, namely, that relating to lighting at 8 Cunningham Street, is capable of being achieved on or within the site. Each of the other elements would require works to be undertaken, either in Cunningham Street proper or on buildings not owned by or under the control of the Applicant in these proceedings.
To the extent that works are required in the road, as I understand it, there has been no application made to the Council under the Roads Act 1993 for consent to undertake those works.
With respect to works that are proposed to be undertaken on or attaching to other premises, there is no suggestion that there is owner's consent from any of the owners of those premises, even if the Applicant were to have indicated a preparedness to undertake those works, a position which did not apply.
Although I have some reservations about whether or not to conclude that these access safety issues warrant refusal in their own account, they are, nonetheless, significant, at the very least, in contributing to warranting refusal of the application.
The combination of:
1. the anti-clustering rule;
2. the location of the premises directly opposite residential premises; and
3. the inability to provide safe access for those persons who have a mobility disadvantage,
cumulatively, whatever might be the position with respect to individual defects of the application, warrant its refusal.
I am, however, satisfied that the breach of the anti-clustering provision, under the circumstances I have outlined, in itself is sufficient for this purpose.
The consequence of that is that the orders of the Court are:
1. The appeal is dismissed;
2. Development application D/2016/1846 for consent to internal fitout, external alterations to and use of premises at 8 Cunningham Street in the City of Sydney as "sex services premises (brothel)" is determined by refusal; and
3. The exhibits, other than Exhibits C, E, G and 2, are returned.
[2]
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Decision last updated: 01 May 2018