Sun & Anor v Campbelltown City Council

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; CASES CITED: Hang v Strathfield Municipal Council [2005] NSWLEC 99; .

DATES OF HEARING: 15 September 2005 EX TEMPORE JUDGMENT DATE : 09/15/2005

APPLICANT Mr J Hones, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/10598 Shu Sun & Dajun Zhang v Campbelltown 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 on 5 April 2005, by Campbelltown City Council (the council) of an application to use an existing industrial Unit located at Unit 2/10 Essex Street, Minto (the site) - being Lot 2 in Strata Plan 42776 as a brothel.

2 The site is located at the northern extremity of an area within the 4A General Industry Zone and has a rear boundary to an area zoned for the public purpose of stormwater drainage. The precinct within which it is located is bounded to the west by a drainage corridor and to the east by the main north/south railway line. The nearest residence is in the suburb to the east separated in a straight line from the site at a distance of approximately 217 m but it is common ground between the parties that for a person to travel from that residential location to the proposed brothel would require a journey of 600 m to 700 m to the south across the railway line and then 600 m to 700 m back to the north to access the brothel.

3 Similarly, the nearest residences to the northwest are across the drainage reserve and there is, in my assessment, no immediacy of interaction between the site and that suburb.

4 Similarly, there are a number of uses within the industrial precinct that are put by the council as being sensitive and to which I should have particular regard. They are, primarily, two churches which are located at an intersection ~ 220 m to the south of the site and which would have, if one were minded to seek to obtain them, glimpses from their front boundaries of the entrance to the site. None of these separation distances conflict with any of the separation distance provisions contained in the council's Sex Industry Development Control Plan.

5 Whilst I have received, in the council's bundle of documents, a wide range of public submissions, many of them object to the proposal on bases of public morality. The Court is obliged to deal with applications for premises such as these in light of the planning and other laws of the State at the time. It is not permitted for me to consider those matters of public morality which are raised by the objectors.

6 It is conceded by the council, in its Statement of Basic Facts, that the use of the site for a brothel is permissible within the current council zoning and there is no other legal inhibition on its siting.

7 I am satisfied therefore that on the basis of interaction with surrounding sensitive locations as put to me by Mr Seton, solicitor for the council, there would be no basis either to refuse the application nor indeed to make any contribution to a refusal on other grounds.

8 Similarly, it was put on behalf of the council that the application was contrary to the first of the objectives of the zone, that is, to encourage activities that will contribute to the economic and employment growth of the city of Campbelltown. That objective being found in cl. 12(2)(a) of the Campbelltown Local Area Environment Plan.

9 It is clear from the application that the proposal will, itself, employ one person full-time as manager and 11 sex workers (on a rotating roster) at the site. It is, therefore, in itself, one which will contribute to the economic and employment growth of the city of Campbelltown.

10 Mr Seton, however, puts the proposition that there may be a countervailing and outweighing negative impact particularly on the business of Mr Warren which operates from Units 3 and 4 of the complex within which the proposed brothel is proposed to be located.

11 Mr Warren gave evidence that his printing business had a number of school and religious organisations, as clients and he feared that they would not place their custom with him if the brothel were permitted on the site.

12 There is however, no evidence that those fears would be materialised and as a matter of appropriate consideration to such matters, fears of consequences are not relevant in planning appeals unless there is a reasonably foreseeable likelihood that those fears will be realised and that those fears will have a sufficiently adverse impact (if realised) to warrant refusal or contribution to refusal.

13 I am satisfied that, although Mr Warren's fears are honestly held, I am not provided with any evidence, such as letters from his customers, that would support me concluding that those fears are likely to be realised.

14 The Act, however, in s 5(a)(ii) requires me to have regard to the orderly economic use and development of the land and, in s 5(a)(i) (including other things), the social and economic impacts of development. 15 It is quite clear from the statutory provisions and the decision of the High Court in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 that it is not appropriate for me to have regard to the economic impact that the proposed brothel would have on any other similar commercial competing enterprise. For that reason, the concerns expressed by the proprietor of the existing approval brothel at 13 Lincoln Street are also irrelevant.

16 It is, however, appropriate that I have regard to any possible economic impact that might be visited on the occupants of other units within the complex if there were evidence to support the likelihood of such fear being materialised.

17 In this regard, the only matter that goes to such a position in my view, is a letter which I have from the present insurers, CHU Insurance, to the strata plan manager of Strata Plan 42776. That letter which is dated 13 April 2005 reads as follows:

"When our surveyor was conducting his annual pre-renewal survey he was informed that Unit 2 is going to be occupied as a brothel. Unfortunately if the information about Unit 2 is correct then the risk will fall outside our underwriter's guidelines."

18 The letter then continued to indicate that renewal of the policy would not be offered and makes the suggestion that the Strata Plan manager should seek alternative insurance cover.

19 I have no evidence that that refusal of cover in fact arose. However, during the course of the view on site, I heard evidence informally from a number of the objectors to the proposal and from the two planning experts who have given evidence in this case.

20 One of the witnesses who gave evidence was Mrs Cooley, who is the owner of units 3 and 4 in the complex. It was Mrs Cooley who drew my attention initially to the letter from CHU Insurance. In the course of her evidence on site, she indicated that the question of finding alternative insurance had not been pursued because of the council's refusal of the application. Therefore at that time, as I understood her evidence, there was no need to continued to pursue alternative insurance.

21 I am satisfied that that letter does in fact constitute evidence of a reasonably foreseeable and probable adverse economic impact on those persons who are the proprietors of the other units within the complex.

22 I am not satisfied that in itself however, that would warrant refusal of the application.

23 There are two other matters which are of importance in the proceedings. The first is the calculation of what is the parking requirement that would be necessary to be followed from consideration of the layout and activities on the premises. There are a number of potential ways for calculating the parking requirements.

24 The starting point in considering the parking requirement in my view is that the application lodged with the council expressly, from the face of the application form, applies to the totality of the premises in Unit 2. That is not disavowed by Mr Hones, solicitor for applicants.

25 As a consequence, at least as a starting point, it is appropriate for me to consider the totality of what is contained within Unit 2. Unit 2 comprises a ground floor and a mezzanine floor. The mezzanine floor has all the indications of not presently being used for any purpose and it is fair to say that, in the plan submitted by the applicants, there was no intention envisaged by them to use the mezzanine floor as part of the proposed brothel.

26 Nonetheless, even though, as conceded by the applicants (nay, perhaps even positively advanced by the applicants as a matter of relevance), the mezzanine floor may itself be illegally constructed. It is nonetheless there and requires my consideration.

27 It is therefore appropriate, when I consider the parking controls, to have regard to the totality of the floor space of the building including the mezzanine floor. Such consideration gives a total floor area for the building of approximately 269 sq m excluding the area behind the roller door which is used for parking purposes, or is available for that purpose.

28 There are 4 possible ways, it seems to me, that I can I can undertake a numerical calculation to work out what would be the required number of parking spaces. There is, on my understanding of the evidence of Mr Brown, a court appointed town planner, and Mr Buchanan, the applicant's planner, no dispute as to what the numbers are for each of those four options.

29 There is, however, considerable difference between them as to the appropriateness of application of any of those numbers. For the purposes of this decision I should set out precisely what those numbers are. The most disadvantageous calculation for the applicant comes from an application of the calculations based on cl. 4.3 of the Sex Industry Development Control Plan being a development control plan adopted in 2003. That would require a little over 8 car parking spaces to be provided.

30 The next most restrictive requirement would be that, it seems to me, that Mr Buchanan conceded would arise if one applied first principles of planning, as it were, to a brothel that had a three work room set up. That derives a requirement for a car parking space for the manager; a car parking space for each of the persons who would work in those workrooms; and a car parking space for one client for each of them. That would lead to a total demand of 7 car parking spaces. It also ignores any provision for waiting clients.

31 If the provisions of the Car Parking Development Control Plan were applied, based on the general numerical calculations in schedule 2 of that DCP, it would reinforce a requirement for 8 car parking spaces. 32 However, there is, in schedule 1, a specific requirement for brothels, which at least impliedly overrides the more general provision and that would provide 2 car parking spaces per bedroom (in this case, including the work rooms for the brothel), leading to the provision of 6 car parking spaces.

33 Those alternatives provide the four possible bases for calculation of the car parking spaces required.

34 I am left with a choice as to which of those I might adopt - all of them being non-compliant with the number of spaces which should be regarded as available from a consideration of the original number of the car parking spaces that would be notionally allocated to Unit 2, as a consequence of the original development consent issued on 4 September 1987. 35 This consent required, in cl. 2.3, the provision of 13 off-street car parking spaces. 36 It is, as I understand it, not contested that the way that that was calculated was by having regard to a minimum of 3 car parking spaces per Unit and then a topping up calculation based on 80 sq m per Unit. That topping up necessitated the provision of the 13th car parking space as a result of Unit 1 being significantly larger than the other three units.

37 Therefore, for the development to continue to comply with the 1987 consent, Units 3,4 and 1 must remain to have available to them the number of car parking spaces required to be provided for them for compliance with the 1987 standards. That means there is a notional allocation of 3 car parking spaces within the common property of the Strata Plan to Unit 2. There is also provided, within the internal space of Unit 2, a car parking space behind the roller door and I am satisfied that that should contribute to the car parking satisfaction of the Unit.

38 It is also put by Mr Hones that, although not permitted on the Strata Plan, an additional car parking space could be provided by stacking car parking in front of the roller door. 39 Given that on the most advantageous calculation to the applicant, that is, 2 car parking spaces per bedroom, by necessary implication, one of those is for the person providing the service and the other being the customer for that service for each work room, I am satisfied that it would not be inappropriate to count a stacked car parking space in front of the roller door because there would be at least 2 persons and (by implication from the proposed working arrangements of the applicant), 4 persons on site at any one time who were not likely to be part of a regular turn-over of parking demand on site.

40 I have also concluded, given there is an element of uncertainty in the Development Control Plan provisions, that the appropriate calculation to have regard to is that which comes from first principles of planning rather than having regard to the strict calculation of floor space by inclusion of the mezzanine floor. 41 It would be unreasonable under all the circumstances given what I inspected on the site this morning, to require the applicant to provide parking having regard to that space which is clearly practically unutilised by the proposal.

42 However, I do not consider it appropriate to move to the less restrictive provision that is provided in Development Control Plan 52. In my view it would not be appropriate to do so as the Sex Industry Development Control Plan having superseded it, first principles would be appropriate.

43 I am therefore satisfied that there is in total a short fall of the parking on site of 2 car parking spaces.

44 I was asked to have regard to Mr Brown's agreement with conclusions expressed by a Court-appointed expert in another case known as Hang v Strathfield Municipal Council 2005 NSWLEC 99 that persons who patronise premises for the purposes of prostitution are likely to, in at least some instances, park their cars at some distance from the premises and that that should be regarded as an appropriate off-set for the number of spaces which the application is deficient on first principles.

45 Mr Brown accepted that proposition and, in the present context, I consider it appropriate that I do so - but only in the context of what would be the total operations of the premises and, indeed, their location. It is therefore, as will become clear later, somewhat of two-edged sword for the applicants

46 It is conceded that after hours there will be available more than sufficient off-street parking to satisfy any unsatisfied on-site parking demand. Indeed, it is the uncontested evidence given by Ms Helen Madaford the office manager of a company known as Durotech Industries, located two allotments to the west of the site, that, after approximately 7.30pm on weekday evenings, there is virtually no human activity in the vicinity of the premises.

47 I have therefore concluded that there is a deficiency of two car parking spaces as the Sex Industry Development Control Plan is not probably not the appropriate plan to have regard to and on first planning principles 7 spaces should be regarded as providing the benchmark for the deficiency. Whether this is correct or not, however, on the best case for the applicant, there is a shortfall of at least one space.

48 I am also satisfied that, taken by itself, that deficiency also would probably not warrant refusal of the application and not be determinative in and as of itself. 49 However, when considered in conjunction with the economic impact and the security impacts to which I am about to turn, I am satisfied that the parking impact adds sufficient weight to the scales to tip the scales in favour of dismissal of the appeal.

50 I have considered the security impacts in the following context: 51 The strata plan is site comprised two buildings. One faces the street immediately and is separated from it by both a small parking area which would contain one or two cars, together with a truck backing bay - that is the building which contains Unit 1, the premises of Mr Duffy's plumbing company. 52 Behind that is located the building containing the other 3 units. 53 Unit 2 is located at the western end of the second building and Unit 2 is located directly facing the entrance gate. Its view to the street overlaps and extends beyond the end of the building that contains Unit 1. Between the two buildings is an area of space which is used for access to the two roller doors serving Unit 1 and the roller doors serving 3 and 4 and for the bulk, but not the totality of the on-site car parking required by the 1987 consent.

54 To the west of the site is an undeveloped vacant allotment of land which Mr Buchanan conceded I should reasonably regard as likely to be developed in a fashion that would, at least to a significant extent, limit the visibility of the internal parking area on 10 Essex Street from being viewed from Essex Street.

55 It is therefore reasonable, in my view, to treat that internal area as being one which will require its security to come virtually entirely from within the premises. There will be no (or negligible) natural overlooking of that element of the site in future.

56 The applicant proposes two measures to deal with that. The measures must be considered in the context of the evidence given by Mr Duffy that, in the recent past (approximately a fortnight ago) his premises had been burgled and that despite the presence of a security system, which he considers was malfunctioning at the time, a burglary had been effected and some considerable quantity of goods removed from his premises.

57 The present burglar alarm provisions rely on a series of infrared beams that act as motion detectors across all the public areas of the site. Their operation is incompatible with the operation of the premises proposed as a brothel for the hours of its operation that are proposed. Therefore, except to the extent that Mr Buchanan postulates that those detectors could be used to provide security for the car parking and truck-backing bay in the front of Unit 1, they are of no utility in providing after hours security for Units 3 or 4 or to the rear of Unit 1 if the application were approved.

58 I have no evidence as to whether they could be utilised to provide security to the front of Unit 1. I have no evidence of the willingness of the body corporate to permit them to be so used and I certainly have no evidence of any offer by the applicant to pay for the modifications necessary even if it were possible to permit that to happen. I therefore have no regard to the possibility of this happening.

59 However, that in itself is a lesser matter of concern given that there is public supervision of that area from the street (to the extent that it might, in fact, occur after hours).

60 The applicants propose to provide security for its patrons, its workers and protection of the other units within the centre of the complex by three measures.

61 The first is a closed circuit TV camera which would be located in the vicinity of the entrance to Unit 2 and which would traverse the parking area and be monitored by the duty manager of the proposed brothel. The security operational measures are contained in the plan of management Mr Buchanan prepared which is in evidence.

62 When I expressly asked Mr Buchanan whether they were the totality of the measures that he proposed and was he satisfied with them, he agreed that they were and he was. However, the applicants have also offered two supplementary measures which should be considered in this regard.

63 The first is an offer to employ a security guard (but only should I consider it appropriate) at all relevant after-hours periods post the operational hours of the remainder of the complex. They also offered to install, at unspecified locations, movement sensing and operated lighting to the public areas - again to be operated after-hours.

64 Had the deficiencies in these proposals been the only matters that stood between the applicants and a consent, I would have been prepared to at least consider an application for an adjournment to address the deficiencies in the security plan. However, I am satisfied that, when taken with the other two matters of deficiency, it is not appropriate to do so.

65 There is no suggestion, common though it is in other plans of management, that the security cameras will be linked to a recording device that records the images that are otherwise displayed on the monitors. There is no suggestion that the images would be retained and made available to the police in event of an incident occurring. This aspect of the applicants' security plans relies entirely on the diligence of the duty manager and, to be effective, assumes constant, diligent and uninterrupted viewing of the CCTV screens to the exclusion of all other activities. To state the need in these terms demonstrates the absurdity of the proposition - given the other duties of the manager, this could never be an effective security measure.

66 That defect, in my view, is a fundamental weakness and demonstrates a fundamental weakness both of the applicants and the applicants' advisers in understanding the nature of security that is required for such premises.

67 The second aspect of security that is of concern to me arises from the fact that a number of patrons might well park (for reasons of anonymity) away from the site outside hours. 68 The location is, it is not contested on Ms Madaford's evidence, an area where there will be no other likely surveillance out of hours of patrons who park some distance from the premises and walk towards them. There is therefore, in my view an appreciable (perhaps not determinative in itself) additional security risk posed to those persons because of the isolation of the premises; lack of other human activity at those hours of the day; and the fact, on Mr Buchanan's evidence, that the nearest police station is some 15 minutes or so away by vehicle at Campbelltown.

69 I have therefore reached the conclusion, based on the totality of those three matters, that, whilst none of them would be determinative and fatal in themselves, taken together they warrant refusal. As a consequence, I do not need to set aside for further consideration the question of future amendment to the plans nor the question of whether or not owner's consent of the Strata Plan Corporation is required for the proposal to succeed.

70 The orders of the Court therefore will be: 1. That the appeal is dismissed; 2. Development application DA5151/2004/DA-U for the operation of Unit 2/10 Essex Street, Minto (being Lot 2 in Strata Plan 42776) as a brothel is determined by the refusal of development consent; and 3. The exhibits are returned.

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.