Suzelle Antic v Waverley Council

Land and Environment Court (NSW)|2005-03-24

The applicant's evidence Mr Betros states that compliance with the Plan of Management is likely to result in an acceptable level of amenity for all occupants within the building. He also relies on numerous inspections of the premises, at various times of the day and night, that have indicated no anti - social behaviour of any kind. The assessment approach 27 In considering the current operation, Ms Duggan urged the Court to consider the content of the development application, including the Plan of Management rather than the evidence on past activities at the building. She submits that the council has not identified any amenity impacts that cannot be addressed in the Plan of Management. The contents of the Plan of Management are enforceable by the council and it must be assumed that the operator will comply with its provisions. For this reason, little, if any weight should be given to the previous activities carried out on the site. 28 Ms Duggan also submits that the amenity impacts expressed by the owners and occupiers cannot be shown to relate to the clients patronising the applicant's establishment. The Courts attention was drawn to the existence of other similar operations within the building. 29 The submission of Ms Duggan is valid. It cannot be assumed that even if it was established that the concerns expressed by the owners and occupiers was the direct result of the operation of the applicant's operation (and this is not the case) that it would continue in direct contravention of any conditions of approval, including the contents of the Plan of Management. 30 For this reason, the application should be considered firstly on whether the location is appropriate, considering its relationship with adjoining and nearby land uses. In essence, this requires the Court to consider the application as if the proposed use has not commenced operation. Secondly, and contrary to Ms Duggan's submission, the evidence of the owners and occupiers should be considered as it may, in part, provide some insight into the proposed operation. The relevant evidence of the owners and occupiers can be tested against the findings in the consideration of whether the location is appropriate. An appropriate location? 31 The 3(a2) General Business zone provides for retail and commercial activities and residential development in the form of mixed use development. The relevant aim and objective of the plan is: d) to provide for an appropriate balance and distribution of land for commercial, retail, residential and tourist development and recreation, entertainment and community facilities; (cl 2(1)(d)) 32 The relevant specific aim and objective of the plan in relation to retailing and commerce is: c) in relation to residential development and density - i to provide opportunities for residential development at various density in inappropriate areas; and ii to ensure that a residential development is carried out to a scale and with a character suitable for the centre (cl 2(2)(c). 33 The objectives of the zone are: 1. to establish a core business zone which provides for a wide range of retail and commercial uses, and ancillary light industrial uses, entertainment, social and recreational uses and residential development mixed with those uses;

to provide the opportunity for major redevelopment to occur in the core area in order to control the overall physical form of the centre and minimise impact on adjoining residential areas;

to limit the amount of residential development and encourage employment generating uses in the interests of maintaining a strong retail and commercial core and promoting a more efficient use of the public transport infrastructure; and

to promote the retail function and vitality of the centre by supporting the retention and establishment of shops and other shopper orientated uses on ground floor frontages on certain streets. 34 There are no other relevant council planning controls or specific development control plans that provide guidance on the appropriate location for a massage establishment or brothel. 35 The planning principles set out in Martyn v Hornsby Shire Council [2004] NSWLEC 614 provide guidance for assessing the appropriateness of the location of a brothel. WhiIe the planning principles are not matters to be addressed under s 79C of the EPA Act, they helpfully particularise the more general considerations of "the likely impacts of a development, including…social impacts…in the locality." (S 79C(1)(b)), and "the suitability of the site for the development" (S 79C(1)(c)). I note Mr Layman and Mr Betros refer to the planning principles in their statements of evidence. 36 On this issue, the relevant principles are: - 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.

37 Accepting that the massage establishment is likely to offend some sections of the community, I agree with the evidence of Mr Layman that the layout of the building is fundamentally unsuitable for the proposed use. No opportunity exists for the segregation of the residential component of the building from the proposed use. Common areas such as the foyer, the lift and access corridors must be shared by the residential occupants and as well as the workers and clients from the massage establishment. The need to escort clients between floors also provides greater exposure to residents and their guests. Signage on the unit doors reinforces the proposed use from the access corridors. The building contains only a single lift, a common foyer and with a mix of residential and massage establishment uses on both Levels 4 and 5 and combined with the potential high level of patronage, the potential for residents and their guests to be offended is unacceptably high. 38 For these reasons, the only logical conclusion that can be reached is that the proposed use is not located where it is least likely to offend. In my view, it could be comfortably concluded that the opposite exists. o 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.

39 In considering this planing principle, Ms Duggan submits that the plan and zone objectives establish the primacy of the retail and commercial uses over residential uses in the zone. Mr Betros supports this submission and states that residential occupants within a mixed use building cannot expect the same level of amenity as could be expected in a zone that allows only residential development. 40 While accepting, in principle, the submission of Ms Duggan (and this is accepted by Mr Layman) it does not necessarily follow that potential amenity impacts on residential uses from commercial uses should be largely ignored. Residential development is still a permissible use within the zone in the form of mixed use development. While it could be argued that residents in a mixed use is zone could not expect the same level of amenity as would occur in a residential zone, I do not accept that the level of amenity likely to occur from the proposed use is acceptable even in a mixed use context. To adopt the approach submitted by Mr Betros would be to ignore the requirements of s 79C of the EPA Act requiring the Court to consider "the likely impacts of a development …" (s 79C(1)(b)) and "the suitability of the site for the development" (s 79C(1)(c)). 41 The use of common areas, the mix of residential and massage uses on specific floors, the hours of operation and the potential for high levels of patronage provide for a very high likelihood of disturbance to residents. Any commercial or retail uses that propose to operate with the same or similar hours of operation and potential patronage as the subject application are likely to create similar unacceptable impacts. Even if extreme care is taken in the movement of clients (and I am not convinced that this can be guaranteed), simple matters such as the opening and closing the doors and normal conversations are still likely to create unacceptable disturbances because of the proximity of the residential occupations and the massage uses, particularly late at night and early in the morning. 42 I have little trouble in concluding that the proposed location does not minimise any physical impact, particularly noise on the residential uses within the building. - 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

43 Ms Duggan submits that the areas zoned for residential are located on the opposite side of Ebley Street. As there is sufficient separation between the residential properties and the site area is likely to be no impact on the residential properties. 44 Ms Duggan's submission is correct if the planning principle is read literally. This interpretation however ignores the intent of the planning principal in considering the relationship of a brothel with any nearby residential development. I do not accept that the principle should be read in such a restrictive manner as to make the relationship with residential uses and the massage use in this application largely irrelevant simply because the residential uses are not zoned residential. The fact that the residential uses are within the building and on the same floors as the massage establishment makes a proper consideration of this relationship more important. 45 In my view, the close proximity ensures there is an unacceptably close relationship between the residential uses and the massage use. The proposal is in direct conflict with the planning policy, in that it adjoins areas used for residential purposes and is clearly visible from them. - 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.

46 The building has a single access from Newland Street and as such, the massage parlour shares its access with the residential units in building. While accepting that the proposed entrance does not contain any overt signage to identify the massage establishment, the shared use with the residential occupiers of the building is clearly in conflict this principle. The entrance could be described as discreet if it needs to share the entrance with the residential occupiers of the building. The basis for a discreet access is to avoid potential conflict between clients of the massage establishment and more sensitive uses, such as residential uses. 47 In my opinion, the unacceptability of the access arrangement is further exacerbated by the presence of security guards at the entrance after 10 pm at night and the inability to legally address clients that may gather or wait on the public street outside the site. 48 When considered against the relevant planning principles in Martyn, the location of the proposed development is clearly unacceptable and would support the refusal of the development application for this reason. 49 For completeness, I will address the other issues. The existing operation 50 In considering the current operation, Mr Duggan urged the Court not to rely on the evidence of the owners and occupiers as it is based on a fear and an irrational concern over the proposed use. She submits that her cross-examination of the owners and occupiers of units within the building revealed that none had witnessed or could identify any clients from the subject premises vandalising, urinating in the stairwell or behaving in unacceptable matter. 51 She further submits that the problems in building is linked to the building itself and not the commercial uses. The changing character of the building was due to the lack of maintenance by the Owners Corporation and the change in occupants from couples to single persons, squatters and backpackers. 52 In New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154, Lloyd J reviews the relevant authorities on amenity and social impact. He concludes (at par 63) that: "in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a Court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development". 53 In this case, I am not prepared to dismiss all the concerns of the owners and occupiers of units within the building as a fear and an irrational concern. Those who provided evidence at the hearing have had the opportunity to observe the building at different frequencies over a considerable period of time. Mr Shammay has owned at least one unit since 1985, Mr Rubin since 1986, Ms Liggiera since 1990, Ms Rubin since 1992 and Ms Gray since 1995. 54 While there was no evidence to suggest that clients from the subject premises were the source of vandalism and damage to the building, conversely there was no evidence to suggest the opposite. More relevantly, the consistent evidence from the owners and occupiers of the building was that the vandalism and damage to the building increased proportionally with the increased use of the building for brothel or similar activities. 55 I also do not accept the submission that the changing character of the building was due to the lack of maintenance by the Owners Corporation. There was no evidence to support this submission and it was not a reason accepted by the owners and occupiers of the building. Some weight must be given to their assessment based on their ability to properly assess this changing character over a considerable period of time. 56 I also accept that the concerns expressed by the owners and occupiers over the congregation of males in the common areas. In my view, it is a rational and genuine concern. As a resident, it is not unreasonable to expect a reasonable level of comfort and security when they are within the building. Taking into account the ready access to the building, the potential number of patrons and hours of operation, it is unreasonable that the residential occupants of the building should be confronted with unknown males in common areas, in excess of what would normally be expected in a residential building. Examples of unsolicited and unwarranted comments from unknown males in the common areas were provided to the Court in the evidence of the owners and occupiers. 57 Concern was also expressed at the touting for business between the competing operators in the common areas outside the lifts. It was a matter that Mr Layman experienced firsthand and is a matter that is clearly offensive to the residential occupiers of the building. It is also a matter that is not addressed in the Plan of Management or conditions so presumably it is a practice that is to continue. 58 Even if much of the evidence of the owners and occupiers is put aside, the remaining evidence on the operation of the massage establishment confirms the assessment of the unsuitability of the site for the proposed use. The Plan of Management 59 In addressing the concerns raised by the owners and occupiers of the building, the applicant relies heavily on the Plan of Management. For a number of reasons I am not convinced that a Plan of Management, in this case, can be relied on to properly address all the amenity concerns of the owners and occupiers. 60 The ability to enforce any breaches of the Plan of Management is limited with the proposed use. The hours of operation, particularly late at night and early in the morning, would make the identification of the source of any breach difficult at best. For example, the previous numerous acts of vandalism and graffiti have gone largely unnoticed by owners and occupiers. 61 In addressing patron management, the Plan of Management simply states "patrons are to be advised to have consideration from neighbours within the premises upon arrival and departure". I do not accept that such a direction to patrons is sufficient to protect the amenity of the residential occupiers of building. Boisterous or enthusiastic patrons are not likely to curtailed by such an ineffective requirement. 62 It could also be asked rhetorically, who is going to enforce the requirement? Prior to 10 pm when the security guard is not on duty, patrons will have unfettered access to the building after gaining entry through the security door. 63 Even after 10 pm, and considering the potential patron levels, one security guard is unlikely to be able to properly fulfil the duties of facilitating the entry of patrons, escorting patrons to the appropriate room, screening patrons in conjunction with reception staff, discouraging the congregation or waiting in any common area and carrying out general security duties. While it could argued that additional security staff could be employed (although this was not offered), I accept the position put by a number of the owners that the presence of security staff is already an unacceptable imposition on the residential occupiers. Clearly, further security staff will create a further and a more unacceptable imposition. 64 As it is not part of the proposal that all patrons will be escorted within the building, I do not see how the Plan of Management can address spontaneous, accidental or just the normal operations of the massage establishment. The existence a Plan of Management that provides only for patrons "to have consideration for neighbours within the premises upon arrival and departure" and with little means of satisfying this requirement, is likely to be of little comfort to residential occupiers if disturbed, particularly late at night or early in the morning. 65 The Plan of Management also requires that massage workers arrive and depart the building and move within premises wearing "an acceptable standard of attire". Clearly, the definition of what institutes "an acceptable standard of attire" is potentially a source of future dispute. 66 The layout of the building, the operation of the massage establishment combined with the levels of patronage, the hours of operation and the relationship between the massage units and residential units create an environment where there can be no guarantee that the residential amenity will be protected through a Plan of Management Precedent and concentration of similar uses 67 The relevant planning principle is: - 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. 68 Mr Layman states that the proposed development is one of three similar establishments presently seeking development consent from the council to legitimise their current operations within the building. Appeals are currently before the Court for these operations. One operation is the subject of nine separate applications located on Level 5 while the other operation seeks to use five units on Level 2. Mr Layman states that these two establishments have similar operating procedures and likely impacts to the subject application. 69 Mr Layman also states that if the subject application is approved, it is entirely likely that other brothel operators in the building will see the decision as one that could be used to support the approval of their applications. It is also likely that the approval would encourage further applications. In his opinion, this would change the current balance of residential to brothel uses and would likely see further residents leave their units because of the unacceptable impacts. 70 Mr Betros states that there are a number of units within building that have been used for the same use as that proposed in this application. Many have been used as brothels or erotic massage establishments for at least 10 years. Consequently, a concentration of similar uses has existed within the subject premises for the same period of time. 71 Mr Betros notes that the proposed use is currently permissible in the zone and in planing terms, is entirely suited to such a zone. Persons residing in a commercial zone must have an expectation that commercial uses will occur and may occur on the same level as their own residential unit. Given that there is no external signage, he considers that the character of Newland Street and the broader area is not compromised, particularly considering the discreet nature of entry that further reduces the awareness of the proposal in the locality. 72 In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, it was held that if the Court, in considering an application for development which was both objectionable in itself and where there was sufficient probability that there would be further applications of a like kind, the fact that consent would operate as a precedent might be taken into consideration. 73 In this case, there is little to distinguish the subject application from further applications that may be made in the future. While further applications may vary in the manner in which they operate to some degree, the layout of the building is fundamentally inconsistent with the operation of massage establishments or brothels and residential uses. It is not physically possible to segregate the uses because of the common entry and foyer, the single lift and the need to use common corridors. Even if complete floors are used for massage parlour or brothel purposes, the impacts on residential uses will still be unacceptable because of the need for joint use of the entry foyer and lift. 74 There is also some merit in the argument of Mr Layman that residential users will be forced from the building because of the incompatibility with the operation of the massage parlours and the unacceptable amenity impacts, thereby providing the opportunity for further massage or brothel uses. It is a logical consequence that if residential uses are forced from the building because of the unacceptable amenity impacts, it is unlikely that they will be replaced with a similar residential use. In my view, there is a high probability that further applications of a like kind will be made. 75 In the likely event that this does occur, I accept Mr Layman's evidence that it has a potential to impact on the character of the Bondi Junction commercial area. The concentration of massage parlours, brothels and the like is not a matter that should occur in a haphazard fashion. If proposed, it should occur in a planned and coordinated manner that addresses the characteristics of an area with controls to minimise impacts on nearby and surrounding areas. Impact on premises surrounding the site 76 The relevant planning principles are; - 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

77 Mr Layman identifies that the site is within close proximity to a range of uses that are likely to have a high sensitivity to brothel operations and other developments. In the absence of any specific distance standards, Mr Layman draws on the principles in Martyn to conclude that the ability to sight a brothel at one of the sensitive uses, or any residential area, was sufficient to determine that it was inappropriately located. 78 In this case Mr Layman states there is clear overlooking from the brothel southwards to Clemenson Park and the range of childcare and community uses present. The block bounded by Ebley Street, Spring Street, Newland Street and Denison Street contains the Mill Hill Centre, Waverley Job Futures and the Waverley District Library. These facilities provide a range of community facilities and rooms where members of the community meet on a regular basis. The Church in the Market Place is located on the corner of Newland Street and Oxford Mall. 79 In considering the location of the facilities, Mr Layman concludes that the concentration of brothel activities (considering the current application and the additional proposals before the Court) raises the prospect of patrons and sex workers from the establishment being in very close proximity to people using the library, seniors services and other community other facilities, including the Church in the Market Place. 80 Mr Betros states that on the basis of his numerous inspections of the site and surrounding areas, he is unaware area of any anti-social behaviour or conflict with other uses. If patrons to the subject premises were passing the sensitive land uses, there is no evidence to suggest that prospective patrons would have any negative impact on these uses. In general planing terms, the massage rooms are discreetly located within the building where the proposed uses cannot be identified externally. In the opinion of Mr Betros, the location provides acceptable buffers from the community facilities, library, places public worship and shopping mall. 81 In considering the evidence of Mr Layman and Mr Betros and having regard to only the application before the Court in these proceedings, I am more inclined to agree with the conclusions of Mr Betros but with some qualifications. 82 Based on the measurements taken by Mr Layman, the nearest sensitive land use is Clemenson Park. It is located at 50 metres in a line on-site from the windows in the southern side of the building. The children's playground in Clemenson Park is located 55 metres, presumably from the entrance to the site. The Waverley/Bondi Junction Early Childhood Centre located in Newland Street is 85 metres from the site and the Waverley Child Care Centre in Clemenson Park is located at 90 metres in a line of sight. The remaining identified sensitive land uses are located at distances between 100 metres and 230 metres from the site. 83 The plans of the proposed development reveal that six units (Units 402, 403, 502, 503, 504, and 507) are located on the southern side of the building. Of these units, four units have east and west facing windows and no south facing windows (Units 402, 403, 502 and 503). Of the two remaining units, one unit is a store room (Unit 507) and one unit has a south facing window (Unit 504). On this basis, the potential for overlooking Clemenson Park and the facilities within the park is limited and could be addressed through opaque glazing or similar. 84 The children's playground in Clemenson Park is located 55 m from the entrance to the site. The location of the massage establishment within an existing building also has the effect of diluting the potential effect because of the mixed use nature of the building and the predominance of residential use. Without some detailed knowledge of the particular units used for the massage parlour, it is unlikely that any person standing in Clemenson Park could identify the particular units associated with the massage establishment. 85 While Mr Layman took the view that the principles in Martyn made the location of a brothel inappropriate if it could be sighted from a sensitive land use, the wording of the principles states that the brothel should not be "clearly visible" from the identified land uses. For the reasons in the preceding paragraphs, I am not convinced that the proposed development is "clearly visible" from Clemenson Park and the facilities within the park. 86 As the other identified sensitive land uses are in excess of 85 metres from the site and in the absence of any specific evidence on the unsuitability of their separation, I accept that their relationship with the proposed use is acceptable. 87 In considering the potential cumulative effect of similar applications within the building l do not accept the conclusions of Mr Betros. Clearly, increased activity within the building for massage or brothel uses will draw additional workers and clients to the general area. The potential for conflict with the sensitive land uses will proportionally increase, particularly considering the uses and their proximity identified by Mr Layman. Car parking 88 DCP 14 does not specifically address massage establishments or brothels so Mr Layman adopts the non residential parking rate for offices, commercial premises and professional consulting rooms. This requires the provision of car parking at the rate of 1 space per 100 square metres of gross floor area. Based on his calculations, 4 car parking spaces are required. In his assessment he notes that the calculation does not incorporate the circulation spaces which are integral part of the proposal. In adjusting his calculations to include the circulation space, 1 additional parking space is required. 89 Mr Betros states that on numerous inspections at various times of day and night he found an adequate supply of parking in close proximity to the site. Additionally, numerous public car parks are also located in close proximity to the site, the nearest being directly opposite in the Eastgate Shopping Centre. This carpark contains 930 car spaces and is open from 6 am to 1 am daily. He further states that he has been instructed by the operator of the massage parlour that a large proportion of patrons arrived on foot or by public transport. 90 On the question of car parking, I accept that the deficiency of 4 or 5 spaces is not a sufficient reason to warrant the refusal of the development application. The Bondi Junction area is well serviced with the public transport and public car parks. At times when the car park at the Eastgate Shopping Centre is closed, adequate on street car parking is likely to be available close to the site. Owners Corporation consent 91 The council argued that the proposed use will intensify the use of the common areas within the building and as such the approval of the Owners Corporation is required. This approval has not been obtained and the application should be rejected. The applicant disagrees and states that there is no barrier to the Court approval of the application. 92 For the reasons set out in the preceding paragraph, the consideration of the merits has found the proposed development to be unsuitable so it is unnecessary for the Court to make any findings on this issue. Plan and zone objectives 93 Clause 12(3) requires that consent must not be granted unless the proposed development is consistent with the aims and objectives of the plan and the objectives of the zone. 94 Taking into account that the proposed development seeks to use units within an existing building for a commercial use, and the primary objective of the 3(a2) General Business zone is to establish a core business zone, then the proposal is not inconsistent with the plan or zone objectives. Trial period 95 The applicant proposed that if the Court were to approve the application, a condition providing for a 12 month trial period would be acceptable to the application. 96 Having found a fundamental incompatibility with the location of the proposed use, a trial period is inappropriate. Orders 97 For the foregoing reasons, the Orders of the Court are: 1) The appeal is dismissed. 2) DA 585/04 for the use of 13 units for an erotic massage establishment and ancillary facilities with an existing building at 29 Newland Street, Bondi Junction, is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

08/04/2005 - Hearing Date change from April to March - Paragraph(s) Cover Sheet

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.

Suzelle Antic v Waverley Council [2005] NSWLEC 125 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

Martyn v Hornsby Shire Council [2004] NSWLEC 614 ; CASES CITED: New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

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