The 1997 consent
31 Mr Winnacott places some, but not total reliance on the 1997 consent and specifically condition 1 that limits the number of sex workers employed on the site to 10 at any one time. Ms Leong bases her evidence on the plans accompanying the development application that provides for 7 working rooms. While the council's records did not contain plans that were specifically marked as being the plans referred to in the 1997 consent, there was general agreement between Mr Winnacott and Ms Leong that the plans used by both experts in the preparation of their evidence were those submitted with the development application.
32 The details of the 1997 consent are contained within the council's bundle of documents. From these documents it can be established that the development application lodged in March 1997 followed the council's observation that the premises were being used for a brothel without approval. The development application sought, through the accompanying Statement of Environmental Effects (the SEE), to use the premises for a brothel. The SEE states the building "has seven bedrooms". It further states that "there are reported to be about 26 sex workers based at the premises to cover shift work and working "in-house" and as well as being available for clients at major city hotels"
33 The council officers report on the development application recommended refusal of the application however following further advice, the council approved the development application on 7 July 1997 subject to conditions.
34 On a reasonable reading of the documentation available to the Court, we are more inclined to accept the conclusions reached by Ms Leong that the 1997 consent limits the operation to 7 working rooms (despite the ability to have 10 sex workers on site) for a number of reasons.
35 Firstly, the plans referred to in condition 4 of the 1997 consent show only 7 working rooms. The plans do not show the location of any beds within the rooms and in the absence of any specific details, it would be reasonable to assume that each room would contain one bed. Secondly, there is no mention of the concurrent multiple use of any rooms in any documentation supplied with the development application, the SEE or the council officers report. Thirdly, the original development application sought approval for a number of sex workers well beyond the number of rooms available. This was based on the need to accommodate shift work and clients outside the building and as well as clients on-site. For this reason, the number of sex workers referred to in the 1997 consent do not relate directly to the activities on the site. Fourthly, the limit of Mr Winnacott's instructions that the concurrent multiple use of rooms occurs on a "regular" basis is vague at best and provides insufficient evidence to support the applicants proposition that there will be no intensification of the use, notwithstanding the existence of the multiple beds in some rooms. Fifthly, the evidence provided by Mr Winnacott on the client frequency does not support the argument that 10 sex workers are used in on a regular basis. He states that the busiest times are Friday and Saturday nights after midnight when generally rooms are used concurrently. The average client frequency at other times does not exceed 7 client visits per hour.
36 For these reasons, we accept Ms Leong's evidence that the additional rooms have the potential to increase patronage to the brothel.
37 We note that condition 22 of the councils draft condition relates to the number of staff and is in the same terms as condition 1 of the 1997 consent. Because of the uncertainty that the existing condition has created and based on the findings in the preceding paragraphs we propose to amend condition 22 by adding the following words "with no more than 1 sex worker operating in each of the 7 rooms".
The Plan of Management
38 Mr Winnacott's support of the development application is based, in part, on the applicant's compliance with the Plan of Management. The Plan of Management addresses a significant number of issues associated with the operation of the brothel such as safety, security conduct, health, education, information and training. We generally agree with Mr Winnacott's and Ms Leong's support of the Plan of Management on the areas that it addresses however it does not and cannot address many of the issues raised by local residents in their evidence.
39 Apart from concerns relating to observations within the brothel from Tusculum Street (and which can be controlled by the Plan of Management) the evidence from local residents, the College and Superintendent Murdoch related almost exclusively to the activities of persons attending the brothel and their companions outside the brothel in Tusculum Street rather than any activities within the confines of the building.
40 Clause 3.3 of The Plan of Management sets out the Conduct Policy. It states, in part, that "all personnel, clients and other visitors are made aware of noise restrictions and are instructed to enter and exit the premises in a quiet and orderly manner".
41 Clause 3.5 of the Plan of Management addresses Control of Anti - Social Behaviour. It states, in part, "any client or visitor that is aggressive, severely affected by alcohol, under the effects of drugs or otherwise suspicious will be politely refused entry and requested to leave the premises. The manager and/or the receptionist are to attend to the matter in as diplomatic a manner as possible. In the event a person refuses to leave the premises, the police will be called immediately and security personnel alerted if on duty".
42 The requirements in cll 3.3 and 3.5 are generally unremarkable and adopt a sensible approach however they do not and cannot address the unacceptable anti - social behaviour of persons attending the brothel and their companions outside the brothel in Tusculum Street. We note from the evidence of Mr Winnacott that the busiest times for the brothel occur after midnight on Friday and Saturday nights. This unfortunately coincides with times when it would be reasonably expected that a residential area would enjoy the some peace and quiet, even considering the location close to Darlinghurst Road.
43 In our opinion, a Plan of Management simply cannot be relied upon to address the concerns expressed by the local residents and the College. We do not accept that some boisterous or overly enthusiastic patrons will be constrained by a direction to "enter and leave in a quiet and orderly manner". Additionally, it would be difficult to imagine that all persons denied access and escorted to the street would leave in a quiet and manner respectful of the residential environment.
44 The Plan of Management also cannot address spontaneous and disruptive outbursts that can disturb local residents and students in the College from persons attending the brothel and their companions in Tusculum Street. Even though a security guard has been employed in recent times, the evidence suggests that the presence of a security guard can, in itself create unacceptable disturbances in the neighbourhood through the security guard directing persons attending the brothel away from the site. In public places, the security guard is limited in his ability to control anti - social behaviour and in the event of any dispute must rely on the police to ultimately address any problems. Despite the comprehensive range of incidents identified by local residents, Superintendent Murdoch stated that the applicant to date had not called the police to attend any incidents.
45 For these reasons, and largely due to the proximity of sensitive land uses, we do not accept that a Plan of Management can address the potential impacts on the adjoining and nearby properties. If the site was a greater distance from sensitive land uses, the activities in Tusculum Street may not be so problematic.