TL & TL Tradings Pty Ltd v Parramatta City Council - [2016] NSWLEC 150 - NSWLEC 2016 case summary — Zoe

NSWNSWLEC

TL & TL Tradings Pty Ltd v Parramatta City Council

[2016] NSWLEC 150

Land and Environment Court (NSW)|2016-10-27|Before: Moore J, Dr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-10-27

Before

Moore J, Dr J

Catchwords

[1979] HCA 20 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163
[2005] NSWCA 310 Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195

Source

Original judgment source is linked above.

Catchwords

[1979] HCA 20 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163[2005] NSWCA 310 Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195

Judgment (52 paragraphs)

[1]

TABLE OF CONTENTS Introduction The related proceedings The evidence at the first phase of the hearing Objections to this evidence The need for a site inspection Planning the second phase The site inspection Introduction The site Matters observed during the walk Lighting The proposed trading hours The role of the Plan of Management Bringing the hearings together Planning controls Introduction The LEP controls The DCP controls Zoning and the land use table. Applicability of the controls. Conclusion on applicability. Public interest considerations The issues in dispute The evidence in the second phase The lay objector evidence. The only written objection The Council's contentions General observation on the power to modify Ground 1 - unacceptable location and site constraints Mr Williams' evidence. Ground 2 - the Plan of Management The broad role of plans of management The draft Plan of Management. Ground 3 - The planning controls Introduction Consideration of the DCP's provisions The present character of the area The desired future character of the area Ground 4 - the impact on surrounding businesses The relevance of past conduct Ground 5 - the 2010 consent trial period The 2010 development consent The scope of the present application Ground 6 - the precautionary principle Conclusion on recommencement of trading Determination of the residual issues Duration of the trial period Employment of the security guard Translation of and extracts from the new Plan of Management Conclusion Directions - Matter No 2016/151482 Orders - Matter No 2016/147936 Annexure 1

[3]

The related proceedings

The Applicant has commenced three proceedings in the Court concerning the site, Unit 7 at 1-3 Sutherland Street (the site). All of them are Class 1 proceedings and all concern activities or proposed activities to be carried out on the site as a result of its fitout for use as a brothel. The three proceedings all arise as a consequence of development consent being granted by Brown C, in 2010, for use of the site as a brothel (see I V Trading Pty Limited v Parramatta City Council [2010] NSWLEC 1170 (I V Trading)).
The development consent that was granted in those proceedings was one which was subject to a three-year trial period after commencement of trading, a period which expired on 6 December 2014. This development consent was granted to the owner of the site, with the owner of the site also acting as the operator of the brothel during its trial period until it was transferred, on 27 October 2014, to the Applicant.
The development consent contained a limited holding-over provision that permitted the brothel to continue trading beyond the expiry of the trial period, if a modification application been lodged with Parramatta City Council (the Council) (this being the Council within whose local government area the site remains after the coming into effect of the Local Government (City of Parramatta and Cumberland) Proclamation 2016).
However, the holding-over provision only continued to operate until the modification application had been determined and, if, as is here the case, the modification application were to be refused, there was no continuing holding over whilstever an appeal to the Court remains undetermined.
The consequence of this was that, after the holding-over period expired with the Council's refusal of the modification application on 7 December 2015, continuing operation of the site as a working brothel no longer had approval for that use.
However, despite the expiry of the active consent as described above, the brothel continued to operate under the management of the Applicant. The Council served a Brothel Closure Order on the Applicant pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act).
As a consequence, the Applicant commenced these three related proceedings. These proceedings may be described as follows: 1. The first of the proceedings were an appeal against the Brothel Closure Order; 2. The second of the proceedings seeks modification of the original development consent for a sufficient period of time to permit the brothel to trade until after the third proceedings have been heard and determined by the Court; and 3. The third of the proceedings seeks a substantive modification to the original development consent so that, from the time of those determinations of the proceedings, the brothel would be permitted to trade for a further three-year trial period.
The first and second proceedings were listed for hearing before me on 24 May 2016, during the course of which hearing I was advised that the third proceedings had been set down for a conciliation conference before a Commissioner on 28 July 2016.
I was also advised that, as the premises had ceased to trade as a brothel in March 2016, the Council had resolved to revoke the Brothel Closure Order. As there was no utility in continuing the Brothel Closure Order appeal proceedings, these proceedings were dismissed by consent but with any issues of costs reserved.

[5]

Objections to this evidence

Much of the first portion of the proceedings on 24 May 2016 comprised consideration of objections by Mr Gadiel to the proposed evidence for the Council. It is unnecessary, for discussion of the first phase of the proceedings, to deal with those objections at length but it is necessary to provide a brief outline of them.
Although, in Class 1 proceedings, the rules of evidence are expressly set aside as a consequence of s 38(1) of the Land and Environment Court Act 1979 (the Court Act), nonetheless there remains an obligation to provide procedural fairness and natural justice in the conduct of such proceedings. In giving fulfilment to these broad obligations, it may be appropriate to have regard to the rules of evidence, although not be bound, strictly, by them.
This latter position arose with respect to two elements contained in Mr Fryar's Statement of Evidence where he commented on matters that can only have come to his attention as firsthand (or possibly second-hand) hearsay concerning criminal activities and the attitude of New South Wales Police (including results of covert police operations).
In this context, particularly given that the Council proposed to rely on evidence from Leading Senior Constable Ashton on police-related manners, I considered it appropriate to have regard to whether or not the probative value of permitting those elements of Mr Fryar's statement to be admitted would be outweighed by the prejudice to the Applicant if I were to do so (having regard to but not being bound by s 135 of the Evidence Act 1995). In the circumstances that there was proposed to be evidence for the Council from a sworn police officer, I rejected those elements of Mr Fryar's statement.
Mr Gadiel also objected to Mr Williams' statement on the basis that it had been provided to the Applicant's legal representatives on the Friday evening prior to the hearing (the hearing commencing on the following Tuesday morning), with this being a week later that the deadline set in the directions made by the Registrar, by consent, for preparation for the hearing. Mr Gadiel submitted that this late provision of the material, well outside the timetable set by consent, amounted to ambush of the Applicant and its legal advisers and that this should result in the rejection of the material. Mr Gadiel also had a range of specific objections to material that was contained in Mr Williams' statement.
Mr Gadiel also foreshadowed objections to elements of the Leading Senior Constable's statement (a statement that had been provided to the Court by e-mail on the morning of the hearing).
I observed to Mr Gadiel that, with the limited exception of a few sentences in Mr Williams' statement, the document otherwise appeared to be a comparatively conventional vehicle to provide admissibility for the wide range of documents that had been annexed to it. However, I did indicate to him that I would, at that time, defer ruling on the specific sentences until a later point in the proceedings. For reasons that are dealt with later, this evidence was further expanded at a subsequent stage of the proceedings.

[7]

Planning the second phase

An examination of the Court diary revealed that I would not be available to undertake a continuation of the interim hearing until early August 2016. It was also obvious from the Court diary that, if dates were not set for a substantive hearing of the longer term application (against the possibility that the conciliation conference on 28 July 2016 would fail to facilitate an agreement), there might well be a significant delay in it being set down for hearing if such hearing was made necessary.
The outcome of these two considerations was that the resumption of the second application was set down for a resumed hearing in court on 2 August 2016, whilst the longer term proceedings were set down for hearing on 26 and 27 September 2016 before a Commissioner (commencing on site at 9.30 am in the event that the conciliating Commissioner was not agreed to by the parties or the purposes of determining that matter).
As a consequence, I indicated to Dr Smith that the delay would afford the Council an opportunity to revise its present proposed evidence in light of the matters that had been raised by Mr Gadiel and me concerning matters dealt with by Mr Williams or Leading Senior Constable Ashton in their statements that had been filed at that stage. Dr Smith indicated that the Council would revise the statements and file and serve them at a later date.
As a further consequence, I set a mention of the matter for 16 June 2016, after the filing and serving of revised statements, to permit Mr Gadiel to press any objections that might remain and for me to deal with them prior to the second phase of the hearing.
I also directed the parties to settle Short Minutes of Order to establish a timetable leading up to the second-phase hearing, including provision for town planning evidence on behalf of the Applicant (if this remained desired - as foreshadowed by Mr Gadiel) and, if so, joint conferencing and joint reporting of the two town planning experts. The in-court proceedings that day then adjourned for the site inspection.

[9]

The site

Before dealing with matters looked at during the course of the walk-around inspection, it is appropriate to set out a brief description of the site itself.
As earlier noted, the site comprises a unit within a small complex on the southern side of Sutherland Street. With the exception of the fast-food/convenience store on the south-western corner of Sutherland Street and Berry Street (premises that form part of the building within which the industrial units are located but which addresses, by its entrance, the intersection of the two streets), the remaining units were located in an elongated U-shape around a series of forecourt parking spaces. These parking spaces were separated from the Sutherland Street footpath by vegetation that appeared to be approximately one metre or so high along the frontage of the whole of the complex.
The site of the brothel, at the western end of the complex closest to the road, has a side wall addressing the street with the primary orientation of the site being to the east into the forecourt. The vegetation continues along that side wall to the end of the allotment upon which the complex is constructed. The complex is two-storey with the site having a grill-gated entrance to an undercroft parking area that appeared to have space for approximately six vehicles.
Although used, at the time of the site inspection, for some elements of casual storage of bedding and other items, Mr Gadiel pointed out that this storage use was purely temporary and would cease when the brothel recommenced trading, if it were permitted to do so.
The upper level of the site is L-shaped, with the east-west-running element of the "L" providing, at its eastern end, an entrance portico to the ground-floor doorway.
When entering the premises through a security door monitored by closed-circuit television (a topic discussed in more detail below), there was a workroom for a sex worker on that level, with this room be designed to be able to cater for disabled clients. Such disabled clients would have access to that workroom through a ramp and door where that door was behind the metal grill securing the car-parking area.
Upstairs, there was a complex of a number of further workrooms for the sex workers to be engaged at the brothel, together with a number of waiting spaces. At the point of the elbow in the "L" at this level, there is a reception space where a staff member can operate, receiving money and observing a computer monitor receiving feeds from a number of closed-circuit cameras located inside and outside the premises.
The closed-circuit cameras were demonstrated, showing that, in maximum split-screen mode, images were able to be displayed by live feed from all 12 cameras monitoring external and internal aspects of the brothel. Mr Lin also demonstrated that it was possible to rearrange the display by selecting a different operating model within the data-feed software so as to create a single, larger image in the centre of the screen by limiting the number of locations from which the feed was taken.
Doing so still permitted smaller images to be displayed around the perimeter of that larger image. The larger image was the equivalent in size to four of the smaller images when the maximum number of cameras were feeding to the monitor. In response to an enquiry from me, Mr Lin advised that data was recorded and stored, when a continuous live feed was being harvested, for a period of nine days but that a longer period of data storage was possible if some or all of the cameras were sent to a mode where the feed only became activated if the cameras detected movement within their field of vision capture.
There was a small safe on the receptionist's counter, with that safe appearing to be firmly fixed to that counter, whilst, in an inner office accessible from the reception area and only able to be entered after keying a code into an electronic keypad, we observed a somewhat larger safe in the corner of that inner room, a safe that appeared to be less securely fixed (but nonetheless fixed) and located in the corner of that room.

[10]

Matters observed during the walk

I have earlier set out the route that was walked during the course of the site inspection. The matters that were pointed out to me in streets other than Sutherland Street were: 1. Two other operating brothels in Berry Street, one on the eastern side at approximately 100 metres from the site and one on the western side, approximately 90 metres from the site; 2. At the corner of Berry Street and Parramatta Road, the location of a brothel, some 140 metres to the north-east, across Parramatta Road. This brothel was described as having 20 workrooms. It is approximately 350 metres from the site (including utilising pedestrian signals to cross Parramatta Road); 3. At the intersection of George Street and Parramatta Road, I was pointed to the location of another brothel to the north across Parramatta Road. These premises were approximately 310 metres from the site, with this estimated distance incorporating the detour necessary to cross Parramatta Road at the pedestrian signals; 4. Whilst walking down George Street, the location of a church and its adjacent brothel to the south was pointed out, with it being acknowledged on behalf of the Council that this brothel had been operating at the time that the church had moved into its premises. This brothel is approximately 120 metres from the site; 5. At the elbow at the western end of Sutherland Street where it turns north and becomes Marsh Street, the location of a further brothel was pointed out. This final brothel location observed during the course of the site inspection was approximately 150 metres from the site; and 6. Leading Senior Constable Ashton pointed out the location on the southern side of Sutherland Street in close proximity to this elbow where he had recently recovered a used syringe from the gutter, an item that he had been required to dispose of safely.
In addition to these locations being observed during the walk around this enclave, the Leading Senior Constable also pointed out a number of locations where he considered, during the hours of darkness, there were features in the streetscape where it would be possible for a person to hide if they were contemplating some unlawful act.
These included a number of locations behind the vegetation across the frontage of the industrial complex within which the site is located; a number of recessed doorways along the southern side of Sutherland Street or within the complex itself and the setback entrance area of the fast-food/convenience store on the corner of Sutherland and Berry Streets. During our observation of this latter location, it was pointed out that this outlet provided a service to industrial premises in this enclave, closing in the late afternoon and not trading during the proposed temporary and longer term trading hours of the brothel as earlier described.

[17]

The DCP controls

The relevant provisions of the DCP are contained in Exhibit 5, folios 199 to 213. This portion of the DCP contains extensive introductory material to provide context to the various provisions that follow. For the purposes of consideration of this application, it is appropriate to note that the DCP provides broad guidance on these aspects and includes a specific element under the heading "Sex Service and Restricted Premises". That explanatory material is in the following terms: 5.6 Sex Services and Restricted Premises The purpose of this section is to provide detailed provisions to guide the preparation and assessment of development applications for sex services premises, restricted premises and business and entertainment premises providing adult entertainment. The planning controls in this section are designed to ensure that sex services and restricted premises are operated in appropriate locations so that they do not give offence to the community or result in a loss of amenity for residents. Objectives O.1 Regulate and control sex services premises, restricted premises and business and entertainment premises providing adult entertainment in appropriate locations so as to minimise amenity impacts upon adjoining land uses in the zone. O.2 Discourage a concentration of sex services premises, restricted premises and business and entertainment premises providing adult entertainment in close proximity to each other. O.3 Ensure high levels of both internal and external amenity are provided for sex services premises and restricted premises to ensure the amenity and security of staff, and users or occupiers of the respective premises as well as neighbouring properties. O.4 Ensure that restricted premises and similar establishments such as massage parlours are designed in such a way as to prevent either the easy conversion or use as sex services premises without obtaining development consent or operating outside their development consents. O.5 Provide an appropriate framework to effectively regulate the operation of sex service premises and restricted premises, through detailed provisions of development consent in the provision of plans of management and coordination with other relevant government agencies. O.6 Support the health and safety initiatives of NSW Health and WorkCover NSW in regard to sex workers and their clients. O.7 In accordance with Section 5.6.2, prescribe the information to be submitted with a development application for sex services premises and restricted premises.
The DCP then turns to setting out a series of provisions under a range of headings. The headings are:

Development to which this section of the DCP applies
Submitting a Development Application
Guide to Plans of Management
Planning Controls

Of particular potential relevance in these proceedings are the matters set out under the heading "Location". That element of the DCP is in the following terms: Location The locations where sex services premises restricted premises and adult entertainment premises are permitted are generally prescribed by land use zones in the Parramatta LEP 2011 and Parramatta City Centre LEP 2007. This section provides additional provisions associated with the location of sex services restricted premises and adult entertainment premises in relation to existing residential and sensitive land uses and to existing approved sex services premises, restricted premises and adult entertainment premises.
It will be later necessary to return to consider the extent to which the Council's reliance upon them could found a proper basis for refusal of this modification application.

[18]

Zoning and the land use table.

The enclave within which the premises are located is zoned IN1 - General Industrial in the Land Use Table of the LEP. The Land Use Table is set out in the conventional framework adopted by local environmental plans that follow the framework of the Standard Instrument Template. The IN1 zone, therefore, has provisions setting out the zone objectives; development permitted without consent (relevantly, in this instance, there is none); development permitted with consent (an extensive list is included, with that list concluding with the notation that, effectively, any development not nominated as prohibited is permissible with development consent); and a list of development that is prohibited within the zone.
Before setting out the zone objectives, it is appropriate to note that sex service premises, the defined use within which a brothel falls, are not included in either list of uses in the third and fourth elements of the IN1 portion of the Land Use Table. The consequence of this is that the concluding element of the provisions dealing with development permitted with consent are called up and use of premises in the zone as a brothel is to be regarded as an innominate permitted use.
Although the objectives for the IN1 zone play a limited role in these proceedings, nonetheless, they are relevant as cl 2.3(3) of the LEP requires that the Council (and in this instance, the Court standing in the shoes of the Council) must be satisfied that any proposed development is consistent with the objectives of the zone within which it is sought to be located. The zone objectives for the IN1 zone are in the following terms: 1 Objectives of zone � To provide a wide range of industrial and warehouse land uses. � To encourage employment opportunities. � To minimise any adverse effect of industry on other land uses. � To support and protect industrial land for industrial uses. � To facilitate a range of non-industrial land uses that serve the needs of workers and visitors.

[29]

Mr Williams' evidence.

Mr Williams commenced his evidence on 10 October 2016. Three affidavits which he had sworn had earlier been read only subject to some minor deletions upon objections raised by Mr Gadiel. I rejected a number of other objections to material in Mr Williams' affidavits but noted that its admission was subject to my assessment of what weight should be given to various matters about which he gave evidence.
Mr Williams commenced his oral evidence, but it was not concluded by the adjournment of the hearing on 10 October 2016. His giving of evidence was, therefore, carried over to continue on the hearing on 24 October 2016.
During the course of his evidence on 10 October 2016, I had expressed concern about the nature of some of that to which he referred in circumstances where Mr Williams was unable to provide detail of the material providing a foundation for his evidence. For example, in his affidavit of 17 June 2016, he said: For the purpose of this statement, I have reviewed the following nine criminal incidents that have occurred in or near the subject premises at 7/3 Sutherland Street Clyde.
Thereafter followed a list of nine police reference numbers and the dates of the nine incidents relied upon by Mr Williams, with the earliest date being 10 December 2012, and the latest being 1 November 2014. Mr Williams then said: I base my comments on each on my 28 years of policing experience, particularly my experience in the investigation of crime; together with my six years of experience concentrating on crime prevention.
The first of the incidents in the nine listed by Mr Williams is one described as "person search". His affidavit concerning this incident reads: At 4.41 am on 10 December 2012 police observed a male person in a motor vehicle parked outside the brothel and conducted a search of the vehicle and the person. No items were found. Police were specifically patrolling that area due to the incidence of crimes associated with brothels in that area. It is clear from the narrative that the clustering of brothels in the area was the major contributor to crime in the vicinity. The concentration of brothels, therefore, requires policed to direct resources to proactively patrol the vicinity. (Annexure 1).
When asked by me what the nature of the incidents were to which he referred and where I found the evidence to enable me to obtain an understanding of the nature of those incidents, Mr Williams advised me that the source material was not readily available on that occasion and that the descriptive information had been drawn by him from his reading of the relevant COPS reports. I had indicated my concern about the lack of detail about the incidents upon which he relied as, in his affidavit of 17 June 2016, he had set out the detail of one such incident in the following terms: Steal from motor vehicle 28. On 1 November 2014 an unlocked vehicle was entered into outside the brothel and a wallet containing cash and credit cards were stolen. While the fact that the vehicle was unlocked was a primary contributor to this offence, the physical characteristics of the location did assist offenders to remain undetected. By physical characteristics I refer specifically to the topography of the surrounding area, poor lighting and lack of natural surveillance. (ANNEXURE 12)
A copy of the COPS report upon which the first of the above extracts from Mr Williams' affidavit is drawn is at Appendix 1 to this decision. A reading of the extract from Mr Williams' affidavit reproduced above, and the COPS material upon which it is based, makes it crystal clear that there would be absolutely no foundation whatsoever to draw any inference, let alone an adverse inference, concerning the operation of the brothel then operating at the premises for which this further trial period is sought.
The person whose activities are discussed in the report was entirely innocent and his connection with the brothel merely that of a customer. In addition, the police search of his vehicle discovered absolutely nothing of an untoward nature.
Indeed, even had anything adverse been discovered during the course of the search of this vehicle, it is extremely problematic to contemplate postulating that any adverse inference might be drawn against the operators of the brothel (a matter, given the complete absence of any incriminating discovery or adverse admission arising from this incident that does not arise).
For the "steal from motor vehicle" incident, the only commonality between the incident and the brothel is that of location. The COPS report makes no reference (actual or implied) of any connection with the brothel other than location.
The sixth incident relied upon by Mr Williams occurred at 12.40 am on 20 March 2014. It is described as a "vehicle search". The relevant portion of Mr Williams' affidavit is in the following terms: About 12.40 am on 20 March 2014, police were patrolling in the vicinity of the brothel due to armed robbery attempts at that location where offenders are parked in front of the brothel. Police observed a vehicle parked there and spoke to the occupant. While they were doing so, one of the staff came down to the vehicle with $80 to pay the occupant for $25 worth of McDonald's food. Police spoke to the worker who stated she owed the occupant the money. Police made observations of the occupant consistent with intravenous drug use and search the vehicle but did not find any illegal drugs. It is important to note the reason the police were in this area was stated to be the incidence of armed robberies and the area being well-known for drug activity. In other words, the location around this brothel is known to police to be a hotspot for drug and violent crime. The location of this brothel as well as the cluster of other brothels was clearly viewed by the police as attracting drug in violent crime.
In disaggregating this incident, there are two observations to be made. First, with respect to the particular vehicle search, the police found nothing of any incriminating nature involving either the person employed by the brothel or the occupant of the vehicle. In that regard, absolutely nothing adverse is able to be drawn from this incident concerning the brothel.
Second, to the extent that there were drug-dealing activities undertaken from the premises of the brothel, under the previous operators of the brothel (who are, as noted elsewhere, currently in custody), arise as a consequence of the criminality of that activity and not from any permitted trading activities of the brothel as a brothel.
In his affidavit of 22 August 2016, Mr Williams dealt with the police intelligence and incident reports covering a period between November 2011 and November 2014. In particular, in [23] of this affidavit, Mr Williams said: A review of the recorded incidents relating to this premises corroborate the intelligence reports. A police event report can consist of one or multiple incidents. Thirty-three incidents were recorded between January 2012 and September 2014. A breakdown of the incidents show nine business inspections by police, eight person or vehicle searches and two "move on" directions were given; two robberies, two goods in custody/receiving, two stolen property incidents, one personal violence incident, one located vehicle and other miscellaneous matters. Three drug matters were recorded at these premises; including one drug detection and the execution of a search warrant on the 3 July 2014.
The final mention of the search warrant on 3 July 2014 was part of the major police operation addressing the criminal drug-supply activities being undertaken at the brothel by the former proprietors.
The details of the 33 incidents at the site noted in the above extract from the main body of Mr Williams' August 2016 affidavit are further dissected in figure 2 appended to that affidavit. It makes it clear that the 33 incidents to which he refers comprise the following (adopting his categorisation in his table): Drug 3 Person searches 8 "Move on" directions 2 Robbery 2 Business inspection 9 Goods in custody 2 Personal violence 1 Stolen property (inc vehicles) 2 Located property (inc vehicles) 1 Others 3

[30]

At this point, it should be noted that the Council had been afforded the opportunity to put on any further detailed evidence that it wished to provide that would assist in the understanding of the propositions sought to be advanced as said to be derived from Mr Williams' evidence. In this regard, no further detail was provided that would give me any ability to understand why I should draw any adverse inference against the use of this site as a brothel from the fact that the police undertook a significant number of person searches (with no detail provided save for that extracted earlier in this section from Mr Williams' affidavit of 17 June 2016 - an extract which demonstrates that the search of the person disclosed nothing adverse to either the person or to the brothel). I also observe that, in the earlier set out material, the sixth incident (on 20 March 2014) is described as a "vehicle search" by Mr Williams, yet his table of incidents at the site set out above does not show any vehicle searches to have taken place during the relevant period.
Further, the reliance on "move on directions", "business inspections" and "others" (of an entirely unspecified nature) provides no assistance whatsoever in support of the propositions advanced by the Council, suggesting that policing matters specific to this brothel (disregarding, entirely, matters of criminality associated with drug dealing) can provide any support for an adverse finding against the now proposed recommencement of trading of the brothel (particularly in light of the deficiencies in Mr Williams' evidence on this point).
However, there are other matters of more substance arising under this ground that also require consideration. As Dr Smith observed, in his written submissions, the experts agreed: The locality has many attributes which make it relatively unsafe at night. This includes poor street lighting, lack of pedestrian footpaths, high numbers of vehicles parked on street at night reducing visibility, very little passive surveillance and a high number of escape routes.
Amongst the matters raised by Dr Smith were those arising from specified and nominated criminal activity of drug supply (irrelevant for reasons dealt with elsewhere) and armed robbery (where, on 5 September 2014, the brothel was robbed by two males who gained entry posing as customers). Mr Williams noted that: The offenders claim to be armed but no weapon was sighted.
The COPS report (Annexure 11 to Mr Williams' affidavit) makes it clear that these offenders had not only performed this robbery at the site but had also committed four robberies at other brothels in the enclave during a period of approximately a fortnight, being a week on each side of the robbery at the site.
Mr Williams observed, in this regard: It is clear that the two offenders were targeting brothels in the area and, in fact, robbed one nearby brothel on two occasions within that period. The clustering of brothels, the location within industrial areas offering poor natural surveillance, multiple escape routes and predominantly cash business, provides an attractive target for criminals. The presence of trained and licensed security personnel can act as a deterrent to some extent but the risk of being a target of armed robbery is high for most brothels due to the hours they operate in the factors I have articulated.
It is appropriate to note, at this point, that the reason that this brothel (and the other brothels) are located in industrial areas is as a consequence of the specific determination by the Council, in structuring the permitted uses in the various zones within the Land Use Table, confining sex service premises to such industrial areas.
During the course of his questioning of Mr Williams, Mr Gadiel asked Mr Williams several questions concerning the circumstances under which police might give an individual what is known as a "move on" order. In light of Mr Williams' responses, Mr Gadiel handed up a copy of ss 197 and 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 in his closing submissions. These sections deal with circumstances under which police officers are permitted to make "move on" orders. The terms of these sections demonstrate that, in several respects, Mr Williams did not accurately understand the nature of the powers available to the police (one example being the power pursuant to s 198(1) setting out the circumstances under which a police officer could give such an order to an intoxicated person - Mr Williams, having indicated that his understanding was that no such power existed).
Dr Smith proposed that there were six particular aspects of the site's location that warranted consideration in assessing the locational acceptability or otherwise of the site as a brothel. These were: 1. Regular parking of vehicles on the street overnight; 2. Surrounding hedges being 1.5 metres in height; 3. Lack of passive surveillance; 4. Very poor street lighting on Sutherland Street and at the southern end of Berry Street; 5. Unlit doorways and recessed entrances to buildings within the subject unit complex and surrounding businesses; and 6. Multiple streets leading off Sutherland Street which provide multiple escape routes.
These matters of detail pressed in these proceedings do not appear to have been raised in the hearing before Brown C. In the Commissioner's decision concerning the acceptability of the location, he dealt with several specific matters that do not arise in these proceedings under this heading. Although some are matters relevant to be considered in the context of the matters arising from the LEP and the DCP, as neither of these applied at the time of the Commissioner's decision, he did not need to consider them. As a consequence, no issues, with respect to this ground, arise in any sense of being a principal contested issue that had been dealt with in the Commissioner's decision (Segal & Anor v Waverley Council 64 NSWLR 177; [2005] NSWCA 310). Dr Smith submitted that these risk factors (including, as observed during the course of the site inspection), in conjunction with the evidence concerning incidents in the vicinity, should lead to rejection of this modification application on this ground. His written submissions on this point were in the following terms: 8. Council submits that the impacts which occurred during the Trial Period are direct and sufficient evidence connecting crime to the Premises (regardless of the operator). The Council further submits that these impacts would be considered unacceptable by the Court (see Town planners Joint Report Exhibit 14 at [2.2.4]). These impacts are a product of the immediate area and location of the Premises and are relevant considerations under section 79C(1)(c) of the EP&A Act. 9. The Applicant has attempted to provide a new POM to address the above impacts. Consistent with Exhibit 13 the evidence of Constable Ashton at [30] and Exhibit 9 Mr Williams at [29], compliance with the POM is unlikely to mitigate the impacts to an acceptable level. Consistent with Jonah, past use would therefore be of relevance for proper planning reasons. 10. In light of this evidence the Court would be satisfied that ongoing use of the Premises as a Brothel would not be able to be cured by the conditions of the development consent as it would require works to be carried out in the surrounding area. 11. This is also consistent with the application of the Planning Principles established by the Court in Martyn v Hornsby Shire Council [2004] NSWLEC 614 for the location of brothels (see Exhibit 12 Mr Mead Statement filed 25 August 2016 at [2.2.13]). In particular, at [18] (dot point 3), in relation to crime or drug use, the Principle provides: "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.' 12. The evidence provided by Mr Williams and Mr Ashton, as accepted by both Mr Daintry and Ms Ryan in cross-examination, clearly establishes that the subject brothel has been associated with crime and drug use. 13. Accordingly, where the evidence of crime and drug use is established, it would appear that the Principle requires a second step, namely to identify whether locality has contributed to that crime and drug use. Again, this is clearly the case here as agree by the experts (Town planners Joint Report Exhibit 14 at [2.2.3]).
I am unable to accept that I should reach the conclusion advocated by Dr Smith. I do so for the following reasons: 1. First, as I have set out at some length, I consider that the evidence of Mr Williams was significantly unsatisfactory in a number of aspects and that the various matters he relied upon were either irrelevant as not disclosing any proper basis for adverse inference or, to the extent that the past drug dealing by the former operators of the brothel could found adverse inferences, those inferences were to be derived from the criminal activity of drug dealing, rather than from the brothel activities permitted pursuant to the consent granted by Brown C; 2. Second, although Mr Williams devoted a good deal of attention to a comparison between brothel activity in this enclave and brothel activity in other enclaves within the Council's area where multiple brothels were located, I am required to deal with the facts and circumstances of this brothel at this location. There was no suggestion made, for example, that it would be appropriate to undertake some excursion for evidence gathering and inspection to those other locations in order to found some basis for the comparative material provided by Mr Williams. I am satisfied that this material provides no assistance to the Council's case in these proceedings; 3. Third, to the extent that it might be understood that, inferentially, despite the acknowledgement by Dr Smith that there was no such test, material concerning the operation of brothels at other locations by Mr Lin provided some foundation for me concluding that he was not a fit and proper person to conduct this brothel would take me into territory not permitted by the EP&A Act. This is entirely inappropriate and irrelevant. Development consents operate in rem and not in personam. The established presumption is that when a development consent is granted subject to conditions whatever individual or entity has the benefit of that consent, from time to time, will observe the conditions that are attached to it. When this does not occur, enforcement can be undertaken through other legislative processes, not those relating to assessment of modification applications; 4. To the extent that past conduct is to be taken into account where the impacts of that conduct have been unacceptable, the appropriate planning response is to consider whether or not those impacts can be addressed appropriately by alterations or additions to conditions of consent (Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 (Jonah)). If they cannot, only at that time do those impacts provide a basis for refusal; and 5. Finally, as the power to modify is to be regarded as beneficial and facultative, it is appropriate for the Court, in seeking to assess and determine a modification application, to explore what remedial measures might be able to be imposed (either by agreement between the experts; agreement between the parties; or imposition by the Court utilising the undoubted "amber light" approach powers available to it).
I am satisfied that the matters that are pressed by the Council in this ground are sufficiently capable of being dealt with by a new (and to be) revised Plan of Management as emerging from the concurrent evidence of Mr Mead, Mr Williams and Mr Daintry and the addition of the matters I have imposed, dealt with later in this decision, concerning the presence of, and patrolling activities for, a security guard at the site.
To the extent that Leading Senior Constable Ashton's evidence canvasses the same ground as Mr Williams covers, I do not need to deal with it further. To the extent that the Leading Senior Constable's evidence dealt with physical matters of layout, lighting and the like, I am satisfied that they are appropriately dealt with by the combination of a new Plan of Management and the security guard provisions I have determined are appropriate.
This ground fails.

[31]

The broad role of plans of management

The court has published two planning principles dealing, in general terms, with the roles that plans of management play in the granting of development consents. The first planning principle was set out by Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 and was in the following terms (at [54]): 54) In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?
This planning principle was subsequently revised in a decision given by Pearson C in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72], a decision which modified the decision in Renaldo Plus 3 as follows: …. The sixth question in Renaldo asks whether there is a condition of consent requiring compliance with the Plan of Management. Such a condition assists in enforceability of the provisions of the Plan of Management. The analysis required by Renaldo assumes that the terms of the Plan of Management are known at the time of assessing whether a Plan of Management is appropriate for a particular use and situation. Requiring that the Plan of Management be annexed to the conditions of consent would also achieve certainty as to its terms, and accessibility to any member of the public. The sixth question in Renaldo should be re-worded to read: Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent?
Those propositions are equally applicable, by analogy, in circumstances such as these where there is an existing Plan of Management that is applicable as a consequence of the 2010 decision of Brown C and where, as is now acknowledged by the Applicant: 1. that 2010 Plan of Management is inadequate; and 2. that a proposed new Plan of Management should be adopted to replace it after further refinement as discussed in this decision.
The adequacy or otherwise of the present proposed new Plan of Management and what might be done to address its shortcomings is discussed below.

[32]

The draft Plan of Management.

Mr Daintry had prepared a draft new Plan of Management, a plan that had undergone a deal of revision after Mr Daintry's consideration of material contained in the expert witness statements of Mr Mead and Mr Williams and as a consequence of his joint expert conferencing with them.
As is customarily the position in merit proceedings in the Court when issues of the adequacy of a Plan of Management are involved, a deal of the time of the concurrent evidence of Mr Mead and Mr Williams, on one hand, and Mr Daintry, on the other, was devoted to the question of what improvements might be required to be made to the proposed Plan of Management. This course was followed, not in anticipation that an improved Plan of Management would cause the Council to agree to my approval of the proposal, but on the basis that, if a further trial period were to be the result of these proceedings, the proposed Plan of Management should be the best possible to address such shortcomings of the proposal as were able to be covered by its terms.
During the course of the concurrent evidence given by Mr Mead, Mr Williams and Mr Daintry, there was extensive questioning and discussion of matters that were identified as deficiencies in the proposed Plan of Management.
First, amongst those criticisms was that made by both Mr Mead and Mr Williams that the proposed appending to the Plan of Management of a range of technical documents produced by external bodies would render the Plan of Management virtually incomprehensible. This was particularly the position in their opinion, given that, because of the ethnicity of those persons anticipated to be employed as sex workers at the premises, it was agreed by Mr Daintry that it would be necessary to translate the Plan of Management into both Mandarin and Cantonese. As a consequence, the inclusion of a range of technically-based appendices was completely inappropriate.
A single example is sufficient to understand the inappropriateness of the approach originally advocated by Mr Daintry. One of the documents proposed to be appended was a document that had been prepared, primarily for licensed premises, on preventative measures appropriate to be taken to avoid or deal with incidents of armed robbery at such premises. The document had been prepared by a group of interested organisations, including NSW Police, and ran to 13 pages.
The totality of the matters from this document, said by Mr Daintry to be relevant to this proposed brothel's trading, comprised a little over one page of text (spread across two facing pages), dealing with money-handling in the premises and during transit to a bank or other external secure location.
It would be clearly inappropriate to translate the whole of that document into the two mandated languages, as the vast majority of it would be irrelevant and would not assist anybody who needed to read the confined elements that were relevant.
Further, the relevant portion of Mr Daintry's Plan of Management proposed that there be a cash-handling policy developed that was consistent with that set out in the document entitled "Armed Robbery Prevention", but a policy that was not to be disclosed to the Council because of the risk that it might become public.
Mr Daintry conceded, when pressed on this point, that incorporating a number of the cash-handling provisions (the requirement for a time-lock safe, the combination of which was not to be known by any person employed on the premises on a regular basis, being but one example of this) and advertising the fact that such a safe had been installed might, in itself, act as a deterrent (as well as the prophylactic effect of the safe, itself, doing so).
The concurrent evidence by Mr Mead, Mr Williams and Mr Daintry (primarily the contributions by Mr Mead and Mr Daintry) led to agreements on a range of matters which, if incorporated in a revised Plan of Management, would significantly improve the nature of an operating regime that would be imposed if the brothel were to recommence trading under the terms of such a new Plan of Management. It is unnecessary, at this time, to note all the matters that were subject to agreement, but it is appropriate to record that, if I were to reach the conclusion (as I have) that recommencement of trading for a further trial period was appropriate, a revised, settled Plan of Management should be developed (including incorporating any matters determined by me in this decision relating to its terms or structure) and that that document should be translated into Mandarin and Cantonese.
The experts also agreed that, for individual classes of employee of the brothel, the relevant parts of the Plan of Management should also be extracted into simple instruction sheets applicable to their duties and responsibilities (with these to be made available to any new employee at the time they commence employment at the brothel). Those, too, would need to be translated into Mandarin and Cantonese.
I have also concluded that the necessary translations into Mandarin and Cantonese should be completed prior to any recommencement of trading of the brothel. In order to ensure that such translation is accurate, I propose to require that the translations that are to be provided shall be accompanied by an affidavit from a NATI-accredited translator as to their accuracy.
Although Mr Mead and Mr Williams accepted that such a Plan of Management would be well-founded and robust, it nonetheless remained their position that, even with such a plan, it could not provide appropriate support for permitting the brothel to recommence trading. I will return to this proposition after dealing with further matters raised by Dr Smith in his written submissions. In addition to the matters already traversed under this heading, several other matters were raised in Dr Smith's written submissions. These were: 17. In light of the evidence arising from the trial period and the significant reliance placed on the POM by Mr Daintry to mitigate impacts, Council submits that a single breach or small number of breaches of, for example, the POM's access protocols, attendance of the security guard, or the cash handling procedures would create seriously unacceptable impacts. The Court would not be persuaded that those potential impacts can be appropriately managed by the PoM as strict compliance with the PoM would be required to minimise the impacts of the site constraints (see FOR EXAMPLE IN Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC 1272 at [82]) Accordingly the application should be refused. 18. A further relevant principle from Renaldo is at [54]: Point (2) "Do the requirements of the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?". In this regard consistent with the oral evidence of Mr Willimans it would be unlikely that the Manager would be able to successfully attend to monitoring of the CCTV as well as all the other roles prescribed by the POM. In addition Council submits that in would be unreasonable to expect the receptionist to undertake the access protocols (which would otherwise be performed by the security guard when on duty). Point (5) that "Can the people the subject of the Management Plan be reasonably expected to know if its requirements>" Both Mr Mead and Mr Williams are of the view that the volume and complexity of the POM is such that it is unlikely to be properly implement (see Exhibit 15 Second Joint Report at [1.15]). 19, Finally, Council submits that the POM is significantly deficient in limiting the employment of a security guard to Friday-Saturday. As identified by Exhibit 10 the Second Supplementary Statement of Mr Williams at [26] crime is not limited to Friday-Saturday. The Applicant's expert Ms Ryan concedes at page 4, fourth bullet point of Exhibit 17 the Joint Expert Report, that "Due to variability of patronage, it is not feasible to restrict the operation of a security guard to specific hours or days". Accordingly, the Court would find that compliance with the POM proposed by the Applicant will not result in a sufficient reduction in impact to warrant approval of the application.
I turn, first, to the matters contained in [17] and [19] as they are linked. They raise common matters of generality and specificity.
Dr Smith refers to the decision of Pearson C in Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC 1272 as providing a foundation for a general rejection of this proposed Plan of Management. It is, however, for my analysis, appropriate to commence at an earlier point in the Commissioner's decision where, at [76], she noted that an expert witness questioned whether the proposed Plan of Management in that case was reasonable; enforceable; practical; or workable. It was in that context that the learned Commissioner then turned, having accepted that a holder of consent would comply with the conditions of that consent, to note that: The critical issue in the context of this appeal is whether absolute compliance with the POM is required to achieve an acceptable outcome (Renaldo [4]).
The Commissioner's conclusion, at [82], was that, with respect to several matters, strict compliance with the POM would be required and that she was not persuaded that the relevant potential impacts could be appropriately managed by the POM. There are two observations to be made in that regard. The first is that the detailed prescriptive nature of the Plan of Management that will be mandated for this brothel when it recommences trading will require compliance, as is the legal presumption, by the operator of the brothel. However, failure to observe provisions of the Plan of Management may be minor or technical (and potentially warranting either a warning or the issuing of a penalty notice) or may warrant more substantive enforcement measures. Several aspects of the Plan of Management, if breached, are far more likely to fall within the second category rather than the first. However, matters such as the employment and method of operation of a security guard (being of a more serious nature and of the specific complaint in [19] in Dr Smith's submissions) can be sufficiently detailed in their prescription in the Plan of Management (and will be, as later set out in this decision) that there can be sufficient confidence that, on the presumption that the provisions of the Plan of Management will be complied with, that the potential impacts will be appropriately mitigated. I am satisfied that, contra Prajna as earlier noted, the Plan of Management that will apply to these premises will be reasonable; enforceable; practical; and workable.
With respect to the two specific matters raised by Dr Smith, in [18], I note that the first element is adequately addressed by my determination of issues, as later set out, as to the hours and days of employment of a security guard at the premises, whilst the second matter was addressed during the course of the joint expert evidence and has been expressly addressed and its resolution set out earlier in this portion of my decision.
This ground fails.

[33]

Introduction

At the time of the 2010 determination by Brown C, the planning controls earlier set out, contained in the LEP and the DCP, were not in force. Although changes to the DCP controls were in contemplation at that time, the Commissioner expressly stated that he was not having regard to them in his determination of that development application (I V Trading at [11]).
I have earlier set out why it is appropriate to have regard to the current controls, for the purposes of consideration of this modification application, as they arise for consideration under the rubric of the public interest (assuming that Mr Gadiel's submission that they are not strictly applicable, as this is a modification application and not a development application, was to be accepted).
It is, therefore, necessary to turn, first, to consider whether the proposed recommencement of trading of the brothel would not be consistent with any of the objectives of the IN1 zone before, then, turning to consider specific provisions in the LEP that are applicable to sex-service premises such as these. I have earlier set out the zone objectives for the IN1 zone, and it is unnecessary to repeat them.
The LEP provides, in cl 2.3(2), that: The consent authority must have regard to the objectives for development in the zone when determining a development application in respect of land within the zone.
Having regard to that provision (but not being bound by it), I turn to the five objectives for the IN1 zone. The first of the objectives, concerning the provision of industrial and warehouse land uses, is not relevant. The encouragement of employment opportunities, however, is, to the limited extent that this brothel will provide employment opportunities for a manager, a receptionist, a security guard and a number of sex workers. There is no suggestion that, given the hours for which the brothel is proposed to trade, amongst other things, that it will have any adverse impact on other land uses (this notation being made despite the fact that that which is proposed is not an industry in this objective is, therefore, not strictly applicable). As the brothel constitutes a permitted use in a complex of small-scale industrial units, it does not conflict with the fourth of the zone objectives. Finally, it can certainly be regarded as providing a non-industrial land use that serves the needs of workers and visitors to this enclave at Clyde.
Although there is no mandated requirement that development in the zone be consistent with the objectives for development in the zone, I am nonetheless satisfied that this development is so consistent.
The objectives of the zone provide little assistance in contemplating this application. Apart from the fact that it is a modification to an existing consent, it might be said that the existence and operation of a brothel at the site assists with the fulfilment of the second and fifth of the zone objectives and that the remaining zone objectives are either irrelevant, in this context, and/or the operation of a brothel at the site is not inconsistent with them.
However, the mandatory distance separations in cl 6.9 of the LEP (also not relevant because this is not an application for development consent, but is an application to modify an existing consent), to the extent that they might need to be considered in a broad public interest sense (and, thus, more flexibly than if literal compliance were to be required), they do not stand as an inhibition to permitting recommencement of trading of the brothel.
However, to the extent that this provision gives a deal of functional guidance (as opposed to providing applicable mandated proscriptions in these circumstances) of the seven nominated other land uses in cl 6.9(1)(a) and (b), only two of them are called up for consideration with respect to the site.
With respect to the separation distance from residential premises, any such residential premises that might fall within the scope of this separation distance are separated from the site by either the main western railway line or the Carlingford line, both of which act as a functional barrier to any direct movement between any such residential location and the site.
With respect to the question of separation distances from any of the uses nominated in cl 6.9(b), the only relevant use is that of a place of public worship. The sole premises to which such descriptor applies has:

To the extent that a brothel might be regarded as being akin to a common-law nuisance, chosen to come to the nuisance (not only of this brothel but also a position applicable to each of the other lawfully operating brothels in the enclave, including one in very close proximity to the church premises), thus leading to the conclusion that the church had come to the nuisance rather than vice versa; and
Not raised any objection to the proposed recommencement of trading of this brothel.

Finally, with respect to cl 6.9 of the LEP, the four matters raised by cl 6.9(3), to the extent that they might be relevant in a merit evaluation of the recommencement of trading of this brothel, are, effectively, subsumed in other matters of consideration dealt with elsewhere in this decision.

[34]

Consideration of the DCP's provisions

I now turn to consider the relevant provisions of the DCP. I do so for the reasons I have earlier outlined, even though I am satisfied that they are not strictly applicable, as that with which I am dealing is not a development application but is an application to modify an existing development consent (albeit a development consent with no sufficient basis, presently, to permit the functioning of the premises for the purpose approved by the consent).
As to the emphasis that should ordinarily be given to a DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision‑making process but it is not in itself determinative.
Mr Gadiel also submitted that I should have regard to what was said by the Court of Appeal in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 on how the terms of development control plans should be approached in assessing applications for approval. He relied on that which was said by Bathurst CJ, Beazley P and Tobias AJA at [213] to [215], a passage in the following terms: The DCP could not be ignored. At the practical level, the decision-maker was required, at the least, to ask the question: what does the DCP provide insofar as the location of brothels is concerned? The Commissioner was not required to refuse the application because the standard specified in the DCP had not been observed. However, unless that question was asked, or unless the answer was already known, it would logically follow that consideration would not have been given to the DCP standard on the location of brothels, namely, a distance of 200 m from a place of worship. Something more would usually be required than merely ascertaining what the mandatory considerations are that must be taken into account. A decision-maker may need to consider why it may be appropriate to not apply the subject matter of the mandatory consideration, such as a specified standard, or whether, in the particular application under consideration, the standard might be ameliorated by the imposition of conditions. Reasons may be advanced by an applicant as to why the subject matter of the mandatory consideration ought not to apply at all. These will also have to be considered. Much will depend upon the subject matter of the mandatory consideration and the nature and extent of the application under consideration. Both Sean Investments Pty Ltd and Zhang v Canterbury City Council are properly understood as involving the failure of a decision-maker to consider the mandatory consideration specified by the legislation. The relevant legislation in each case prescribed a particular standard or discrete matter that had to be considered. It was not open to the decision-maker to ignore the prescribed standard or matter or to subvert those mandatory considerations, for example, by the application of some other standard, or no standard at all, unless consideration had been given to the statutory prescription. Nor would a mere perfunctory acknowledgement of the existence of the mandatory consideration suffice. However, other considerations, on the facts of the particular case, may be relevant and may result in a different outcome than if the standard had been applied independently. It is for that reason that Spigelman CJ said that the mandatory consideration was not determinative of the outcome.
It was Mr Gadiel's submission that this passage provided further guidance on the appropriate approach to consideration of development control plans, in the broad context that followed from the decision in Zhang and that given by the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226. Given the conclusion that I have reached in my consideration of the relevant provisions of the DCP when approached in a fashion consistent with Zhang in circumstances where the DCP does not strictly apply, it is unnecessary, for the purposes of the present proceedings, for me to explore further what might be the consequences of adopting Mr Gadiel's submissions on this point as, regarding Zhang as what might be considered the highpoint in the restrictive effect of development control plans, this DCP does not raise any sufficient barrier to warrant refusal of this modification application.
To do so in an appropriate and broad fashion requires me to have regard to the present and deemed future character of the enclave within which the site is located. I do not consider it requires a prescription by prescription analysis of the DCP's provisions.

[36]

The desired future character of the area

As to the desired future character of the enclave (absent commitment of significant Council funds to improvement of the public domain, an entirely improbable occurrence), there is no significant prospect that, except on an opportunistic and site by site basis, that there will be any foreseeable change to the overall character of either the presentation of the physical development within the enclave or of the nature, scale or operating times of enterprises within the enclave.
Whilst the Council's DCP controls can be construed as envisaging a desired future character for the enclave where no further brothel development would be permitted as a consequence of the anti-clustering provisions set out in the LEP and the DCP, there are no controls in either of those documents that, over time, would effect any other change of significance in the future character of the enclave.
For the reasons set out below, there is no proper basis upon which it would be appropriate to conclude that there would be any possibility of any transformative development in the vicinity based on a proper consideration of the present planning regime and the known long-term strategic approach advocated for the enclave or its Parramatta Road frontage vicinity in evidence as at the date of the hearings of this matter.
As part of Mr Mead's evidence as to matters that might inform me concerning the desired future character of the area, he instanced a number of development applications for residential or mixed use development proposals in areas to the west of this enclave, in the Cowper Street area, across the railway corridor. In this context, Mr Mead conceded, in his oral evidence, that, for planning purposes, the locality/area relevant for my consideration is confined to this enclave to the south of Parramatta Road.
Mr Mead also, in this context of the desired future character, referred to the existence of a developer-initiated draft planning proposal lodged with the Council and currently subject to Council's assessment (with no determination yet having been made concerning it). This proposal, for a large site to the east of the enclave having a Parramatta Road frontage, is sought by the developer to be rezoned to permit residential development at a modestly high development yield.
The schematic in Mr Mead's evidence for a possible development option for this site depicts what appears to be a vehicle access/egress point in Berry Street, at its elbow with Sutherland Street and adjacent to the access to the Clyde Railway Station. This, it is suggested on behalf of the Council, should be taken into account as an element of the public interest informing my understanding of the desired future character of the enclave.
Whilst it is true that I am not confined merely to statutory or official documents in considering this matter (as earlier discussed - see Terrace Tower Holdings), the information that I have concerning this developer-driven rezoning proposal does not go beyond a document prepared on behalf of the putative proponent.
Indeed, to the extent that I have any material in evidence concerning the Parramatta Road corridor (within which this site and the enclave fall), it is material provided by Mr Mead concerning the Granville Station Precinct, an area to the west of this enclave and which is separated from this rezoning proposal site, not only by the enclave itself, but also by the railway line and corridor.
As consequence, I am satisfied that this rezoning proposal, being purely speculative to the limited extent I have any evidence of it, should play no part in my consideration of what the Council might consider to be the desired future character of this area.
The brothel is consistent, therefore, with both the present and expected future character of this enclave.
This ground fails.

[38]

The relevance of past conduct

To the extent that there may have been impacts from the operation of the brothel in the past (whether those impacts were caused by conduct, consistent with the conditions of the development consent granted by Brown C in 2010 or conduct in breach of the conditions attaching to that consent), to the extent that the conduct related to brothel activities, it is appropriate to have regard to such impacts when considering, if the brothel were to be permitted to recommence trading, whether those impacts could be sufficiently ameliorated by any operational outcome which might arise from these proceedings.
If such a conclusion was to be appropriate to be drawn, the approach to take is to require implementation of such ameliorative measures (including, on an ongoing basis, through a new Plan of Management).
If such impacts are unable to be ameliorated, then those impacts can provide a basis for refusing to permit the recommencement of trading.
However, the mere occurrence of impacts, in the past, from unlawful activities associated with the operation of the brothel cannot provide a basis to refuse an application for recommencement of trading of the brothel for a further trial period (see Jonah per Preston CJ at [19] to [38]).
The question of past criminal activity (drug-dealing) at the premises conducted by a former operator of the brothel is not a matter relevant to these proceedings in my consideration of whether or not to approve recommencement of brothel-trading activities at the site. Although, perhaps, this should be a self-evident proposition, it requires further consideration in the context of the submission by Dr Smith that impacts on the legitimate business activities of other approved brothels in the enclave have been impacted by the operation of the brothel at the site in the past.
Although trite to say it, matters of commercial competition are not matters to be considered, in a conventional land-use planning sense, when assessing an application (Kentucky Fried Chicken v Gantidis (1975) 140 CLR 675; [1979] HCA 20).
However, as earlier set out in my description of the evidence given by the lay objectors, their complaint is that persons who had expected to be able to purchase drugs at the site (as a consequence of the criminal drug-dealing activities known to have occurred in the past under the operators subject to the police action in mid-2014) have been attending the other brothels in the enclave seeking to purchase drugs from them. This unmet drug-purchasing expectation has caused disruption to the trading activities of those other brothels.
Accepting, unreservedly, this lay objector evidence, it is clear that, in a Jonah sense, these impacts do not arise from the operation of a brothel on the site, but arise as a consequence of the approved brothel also being used for an entirely criminal drug-dealing enterprise. Although the permitted brothel use on the site might have provided a vehicle for the premises to be open and trading at hours attractive for the purposes of drug-dealing, the impacts arose from the past drug-dealing and were not impacts of the permitted brothel use in any relevant planning sense.
Any approval to permit recommencement of trading of the brothel at the site is, self-evidently, simply an approval for that purpose and for no other purpose of any nature. It would be risible to suggest (and this has not been suggested by the Council) that there be a condition of development consent attaching to an approval to recommence trading as a brothel that the brothel not be used for the purpose of dealing in drugs. As I indicated, facetiously, during the course of the hearing, any prosecution for dealing drugs in breach of a development consent might result in a few minutes being added to what might ordinarily be expected to be a potentially substantial jail sentence for the criminal conduct of drug-dealing itself.
In the context of an application seeking approval to recommence trading for a permissible use as a brothel, the impacts of past criminal activity, entirely unrelated to the past brothel use, per se, cannot provide any basis, whatsoever, to refuse permission to recommence trading as a brothel, nor can it contribute to such a refusal.
This ground fails.

[39]

The 2010 development consent

The application to permit the premises to be used as a brothel was approved by the decision of Brown C in 2010. The Commissioner approved the development application subject to conditions. One of the conditions attaching to that consent was that the approval was confined to being for a three-year trial period with a right to apply, during the currency of that trial period, for some further extension of operation. The condition imposed by the Commissioner was in the following terms: Condition 2 The use of Lot 7/3 Sutherland Street as a brothel is limited to a 3 year trial period from the date of issue of an occupation certificate or the commencement of the brothel use, whichever occurs later. The brothel operator must notify the Council in writing of the date that the Occupation Certificate is issued and the date that the brothel use actually commences on the land. A section 96 application may be submitted to Council prior to expiration of the 3 year trial period seeking the continuation of the brothel use. This consent shall continue to operate until such time as that application is determined by the Council. Such application, should consider, but not exclusively, the impact of the use of the amenity of the occupants in the locality having regard to the manner in which the operator manages the brothel use, including compliance with the Plan of Management referred to in condition 13. Reason: To limit operation of the brothel to a 3 year trial period.
It was conceded by Mr Williams, during the course of his oral evidence, that the Council accepted (as shown in the assessing officer's report for the present application) that this application for a further three-year trial period was lodged with the Council in a sufficiently timely fashion to be permitted by virtue of the condition cited above.
The consequence of this is that this application remains a modification application rather than a fresh development application, despite the fact that the premises are not currently trading as a brothel (having ceased doing so in about February or March of 2016 - the precise date being irrelevant for the purposes of these proceedings).
Dr Smith's written submissions on the past trading after the 2010 consent commenced to operate were in the following terms: 5. The Requirements of Trial Period. 32. Commissioner Brown, when granting the original development consent, identified that "the issues of impact on the amenity of the neighbourhood and the operation of the brothel were important considerations". Accordingly, consent was granted subject to a three year trial, to demonstrate that those impacts would not arise. 33. It is agreed between the parties' experts that "the history of operations on the site is unacceptable in terms of the degree of non-compliance with its development consent and failure to properly implement a POM". 34. Where that trial has failed, simply "trialling the use again" is an inappropriate planning outcome as there can be very little confidence that, in light of the specific site constraints, impacts of any future operator can be made acceptable. 35. Condition 2 of the DA provides as follows: Trial Period 2. The use lot 7/3 Sutherland Street as a brothel is limited to a 3 year trial period from the date of issue of an Occupation Certificate or the commencement of the brothel use, whichever occurs later. The brothel operator must notify the Council in writing of the date that the Occupation Certificate is issued and the date that the brothel use actually commences on the site. A section 96 application may be submitted to Council prior to the expiration of the 3 year trial period seeking the continuation of the brothel use. This consent shall continue to operate until such time as that application is determined by the Council. Such application, should consider, but not exclusively, the impact of the use on the amenity of the occupants in the locality having regard to the manner in which the operator manages the brothel use, including compliance with the Plan of Management referred to in condition 13. [Emphasis added] Reason: To limit the operation of the brothel to a 3 year trial period. [Emphasis added] 36. The imposition of this Condition and its terms was given significant and specific consideration by the Court. As held by Brown C in I V Trading Pty Limited v Parramatta City Council [2010] NSWLEC 1170 at [39]-[40] "There was general agreement on the council's conditions of consent with the exception of the wording of condition 2. There was agreement that the approval should be subject to a three-year trial period however there was disagreement on the basis for any extension of the trial period. The council was silent on the basis of any extension whereas the applicant sought the consideration to be based on "the impact of the use on the amenity of the occupants in the locality having regard to the manner in which the operator manages the brothel use and the effectiveness of the Plan of Management referred to in conditions 13". On this disagreement, I agree generally with the wording proposed by the applicant. In my view, it is helpful to have some parameters to consider the application for an extension of the three-year trial period. Based on the evidence in these proceedings, the issues of impact on the amenity of the neighbourhood and the operation of the brothel were important considerations and should be fundamental considerations in any application to extend the use. I do not accept that these matters should be the only considerations and I have made small amendments to the condition to ensure that the option is available for the council to consider other matters, if considered appropriate". 37. Condition 2 requires the consent authority to have "regard to the manner in which the operator manages the brothel use". Such a condition requires significant weight to be placed on evidence of past operations consistent with Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 at [38]. 38. The purpose of Condition 2 was to grant a trial consent for this use (see Exhibit 12 Mr Mead Statement filed 25 August 2016 at [2.25-2.27]). That was because there was not enough certainty about the acceptability of the use to grant a consent "in perpetuity". The condition allowed "testing" of whether the site was suitable and whether management would be effective in minimising impacts before allowing continued use. 39. The management of the Premises during the trial can only be described as unacceptable (see Town planners Joint Report Exhibit 14 at [2.2.4]). The operator has shown an inability to comply with the Plan of Management (POM) that was in place, which is in fact a much simpler document than the proposed POM. The breaches of the POM were wide and varied (see Exhibit 8 Mr Williams Statement file 23 May 2016 at [8]-[12]) and Council submits that the Court would have little, if any, confidence that the continued trial would yield different results (see Exhibit 13 Statement of Ashton at [42]): "In my opinion there is very little that has changed form the previous operator in the layout of the premises and the surrounds. Should all the preceding measure be adopted this will reduce the risk factors although there is nothing at this time which suggests the change of operator alone would negate or stop any of the incidents that have previously occurred or would reduce the risk factors to an acceptable level" 40. The Applicant's case appears to be that the Court should disregard the impacts which have occurred during the Trial Period. Such a proposition would not be accepted by the Court as it fundamentally undermines the purpose of the trial. 41. To the extent that the Applicant suggested [Exhibit A Applicant's SF&C Contention 8 Particulars (b) and (c)] that the Court would be confident that a new operator could simply manage the Premises in such a way as to mitigate the impacts demonstrated during the Trial Period, this would not be accepted for primary reason that regardless of compliance with the POM, the site constraints are beyond the manager's control (see Town planners Joint Report Exhibit 14 at [2.1.8]). Accordingly, the POM cannot mitigate the Premises being inheritably more opportunistic for, and susceptible to, criminal activity (in particular armed robbery and drugs) than a site without the identified constraints. 42. In light of the above, Council submits that the Court would not be satisfied that the extension of the Trial Period would protect the amenity of the area, the safety and security of the brothel workers and other staff, clients or the general public. 43. This has also been demonstrated by the Trial Period and there is not sufficient evidence from the Applicant to ensure those impacts will not continue. The fact that there is a "change of operator" will not in itself deter criminals from taking advantage of the site constraints (discussed below) and continuing criminal activities. Consequently, the Application should be refused.

[40]

The scope of the present application

I have earlier set out the broad nature of the two proceedings with which I am now dealing and how they have come to be being dealt with in a single process. It is unnecessary to repeat that description.
However, it is appropriate to observe that the term of the trial period now sought was initially proposed (by Mr Gadiel in the earliest version of the conditions tendered on behalf of the Applicant) to be a trial period that would run for three years from the date the brothel recommenced trading. As I indicated to him during the course of the hearing, such an approach would, in my view, be sufficiently uncertain in its outcome as to offend against Mison v Randwick Municipal Council (1991) 23 NSWLR 734.
I indicated to Mr Gadiel that, if there were to be a further trial period, it was appropriate to nominate an identified terminating date by nominating a commencing date. As I have determined that it is appropriate to permit a further trial period, I have specified the commencing date in the directions at the conclusion of this decision, that being a sufficient period of time, in my view, within which the Applicant can do those things that are necessary to prepare the premises to operate in accordance with the proposed Plan of Management.
It is also appropriate that the conditions that attach to this trial period also contain the built-in opportunity for a further application to be made, either to the Council or to the Court, to extend the period of operation to be permitted to the brothel (whether that would be proposed as a further extension of the trial period or as an inuring and indefinite consent to be a choice lying with such person as might be making that application at that time).
I have earlier explained why the drug-dealing impacts during the trial period provide no foundation to refuse a further trial. Indeed, there has only been an effective "brothel only" trial for a much shorter time than the three permitted years. There have been some positives out of the limited trial of "brothel only" trading. As well, as my earlier analysis of Mr Williams shows, much of what is relied upon as "brothel related" impacts have no valid foundation. The mere fact of the earlier approval being a first trial places no barrier to a second one in the circumstances.
This ground fails.

[41]

Ground 6 - the precautionary principle

As the argument advanced by Dr Smith under this heading is one of some novelty in a case such as this, I consider it appropriate, before addressing it, to set out in full the relevant seven paragraphs from Dr Smith's written submissions. In doing so, it is clear that, in the concluding paragraph, either the word "not" has been inadvertently omitted before the word "acceptable" or, in the alternative, the word "acceptable" should have been "unacceptable". Dr Smith's submissions under this heading were in the following terms: 44. In light of the expert evidence of Mr Williams and Ms Ryan and the outcome of the Trial Period, the Council submits that the application before the Court would enliven consideration of the precautionary principle. 45. Preston CJ set out the steps required for application of the precautionary principle in Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [125]-[183]. 46. The first threshold question is whether there is a "threat of serious or irreversible environmental damage". Section 4 of the EP&A Act defines "environment" to include "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings" which would encompass the threats of damage arising from criminal activity. 47. As can be seen from Annexure 5 of Exhibit 10 Mr Williams Second Statement, between 2011 - 2016 the average number of recorded NSW Police incidents per brothel in the Clyde/Granville study area was 35.5. This compares with 3.2 incidents per "Non-brothel business" in that area. This trend is consistent with the Rydalmere (8.3 :1.8) and Pendle Hill (29.5: 2.1) study areas. 48. Council submits that the police recorded incidents present sufficient evidence that the use of land as a brothel in this particular area and this Premises (33 recorded incidents) presents a threat of serious environmental damage. Council submits that some of those threats, namely those involving fire arms, would constitute a threat of irreversible environmental harm (see Exhibit 9 Mr Williams Supplementary Statement filed 21 June 2016 at [26]-[27]). As identified in Telstra at [129] "it is not necessary that serious or irreversible environmental damage has actually occurred- it is the threat of such damage that is required." 49. The second threshold step is whether there is a "lack of full scientific certainty", as to the nature and scope of the threat of environmental damage. The Council submits that the evidence of Mr Williams and Mr Ashton demonstrate that there is sufficient certainty that, due to particular site constraints of the Premises and immediate surrounding area, as demonstrated by the Trial Period, that crime will occur. However, to the extent that Ms Ryan asserts that there is uncertainty whether crime will occur at the brothel if approved then the second of the conditions precedent of the principle is satisfied. Accordingly, the burden shifting discussed in Telstra at [150] is triggered. 50. The Council submits that the Applicant has not, in the evidence of Ms Ryan or otherwise, demonstrated with a level of scientific certainty that the site will not have an acceptable impact. The Trial Period could have potentially provided the Applicant with the opportunity to demonstrate this but, as discussed above, the result has produced evidence to the contrary. The proposed POM cannot mitigate the occurrence of crime which is exacerbated by the site constraints particular to the Premises and its immediate locality. Accordingly, the Council submits that the Court would take a precautionary approach and refuse the Application.
The above extract sufficiently explains the basis upon which Dr Smith advances the proposition that, on a proper precautionary basis, the application to permit a further trial period for operation of the brothel should be rejected. I am unable to accept this proposition.
There are three interconnected reasons why I have so concluded.
First, in considerable respect, this basis advanced for rejecting the application is merely a different way of putting the submissions founded on Mr Williams' and Leading Senior Constable Ashton's evidence that I have already dealt with in my consideration of the first ground advanced on behalf of the Council. As I have already set out the reasons for my reservations about this evidence, it is unnecessary to repeat them.
As I have not accepted what might, in shorthand terms, be described as the criminal antisocial behaviour ground for the reasons earlier set out, it is unnecessary to repeat that earlier discussion. However, for the reasons earlier set out, there is no sufficient basis to be derived from the evidence given by Mr Williams and Leading Senior Constable Ashton to suggest that a precautionary basis should found rejection of the application.
Second, although not specifically described as such, the acceptance by the Applicant that the most that should be permitted for the brothel (if recommencement of trading is to be allowed) is a further trial period for a maximum of three years, rather than proposing that an enuring consent should be granted, constitutes an acknowledgement that it is appropriate to conduct a further operational test of whether this brothel, under the new conditional regime to be applied to it, can operate in a fashion that is socially acceptable. To that limited extent, the application, itself, constitutes a precautionary approach across the totality of the aspects of the operating regime to apply to the brothel if recommencement of trading is to be permitted on a trial-period basis.
Third, for the reasons earlier set out in my consideration of the Council's Ground 3, the proposed Plan of Management (incorporating the revisions agreed to during the course of the concurrent expert evidence plus those additionally imposed by this decision) will provide a different and mandated operating regime incorporating significant additional measures designed to deter future occurrences of antisocial behaviour. Specifically, on this point, the matters later discussed setting out my determination on what should be the appropriate security guard regime for the brothel after it recommences trading does contain a precautionary element as there discussed.
This final ground is rejected.

[43]

Duration of the trial period

The applicant seeks a further trial period of three years. Whilst the Council suggests that, if I propose to permit the brothel to recommence trading contrary to its primary position, any further trial period should be limited to two years. The Council submits that this two-year period is consistent with the two-year limit specified in the DCP as being the appropriate operative period if a new brothel were to be approved within the Council's local government area.
The position advanced by Mr Gadiel, on this point, was, as I understood him, that a three year trial had been considered appropriate by Brown C and that any trial period that I might be disposed to permit should be in similar terms. Dr Smith, on the other hand, points towards the policy position in the DCP and submits that that, as a general proposition should be adopted consistently for brothel operating periods in this local government area.
The obvious long-term objective of the Applicant is to seek, at the end of a further trial period, an enuring consent to permit the brothel to operate on an ongoing basis without limit. By implication, the longer the trial period, on the assumption that the Plan of Management arising out of these proceedings operates effectively in the fashion anticipated by Mr Daintry (particularly with the agreed and imposed revisions), the operation during the trial period will provide a sufficiently substantial basis for the Council (or if not the Council, the Court, whether on appeal or direct application) to be satisfied that the granting of such an enuring consent was appropriate.
There are three matters which, on fine balance, lead me to conclude that a two-year trial period would be appropriate rather than a three-year one. 1. First, on this point, some weight should be given to the terms of the DCP, even though, strictly, it applies only to development applications and proposes a two-year termination point for such new approvals. This guidance, in the current version of the Council's planning controls, was not available to be taken into account by Brown C when he determined that a three-year trial period was appropriate when he dealt with these premises. 2. Second, to some extent, the applicant has had the advantage of portion of the trial period granted by Brown C. Even though, as is now conceded (by implication, if not expressly) the Plan of Management that operated during the trial period following Brown C's determination was significantly inadequate, nonetheless, there was, even on Mr Williams evidence, some modest improvement in outcomes after the police intervention that led to the Applicant becoming the operator. Such improvement is not only a factor relevant to my consideration in these proceedings but will also be a factor (at least to some extent) should some further operating period for the brothel require to be considered in the future. 3. Finally, given the comparatively limited and modest capital investment that will be necessary to give effect to matters arising from the Plan of Management that will be the outcome of these proceedings, I do not consider that there is any cost imposed unreasonableness in limiting the further trial period to 2 years from the date when the brothel recommences trading.

[44]

Introduction

As I have earlier noted, the dispute between the parties is as to whether a security guard should be required to be employed at the premises whilstever the brothel is trading or whether security guard should only be required to be present on a more limited basis. The "limited basis" contended by the Applicant to be appropriate is that the security guard should be employed during the late evening and early hours of the morning (for a maximum of an eight-hour shift) on the peak business nights anticipated when the brothel recommences trading (those nights being Friday and Saturday nights between 8pm and 5am).
In this regard, it is to be noted that there is no relevant express provision in either the LEP or the DCP dealing with this issue. As a consequence, the matter falls to be determined after having regard to what can be gleaned from the available evidence. In this regard, I consider it appropriate to have regard to:

the limited extent of the evidence given by Mr Williams that I have accepted is relevant in these proceedings;
those matters in the vicinity of the premises that were pointed out to me during the course of the site inspection and are relevant on this issue;
the necessity to provide a safe work environment for the sex workers engaged at the brothel in circumstances where, to the maximum extent possible, risk to those women should be eliminated;
the role designated for the security guard, when on duty, set out in the draft Plan of Management for the premises prepared by Mr Daintry (in circumstances where that portion of the Plan of Management was not needed to be revised, significantly, as a consequence of the concurrent evidence given by Mr Mead, Mr Williams and Mr Daintry);
balancing economic costs of provision of security services with the risks sought to be addressed by the provision of such services; and
the extent to which the current operative development consents for the other brothels within or near the enclave mandate any provision of security guard services, the requirements in that regard (if any).

At this point, I should observe that, although there was not extensive discussion of the role to be performed by a security guard, it remains open to me to consider to what extent (if any) I might wish to impose additional specificity with respect to the role of the security guard, whilstever such a guard is present at the premises. Although I will return to this point later in this section in more detail, I note that the draft Plan of Management prepared by Mr Daintry does not mandate any external patrolling, let alone frequency for it, nor does it specify what should be the route of any external patrolling that might be required.

[46]

It is self-evident from the above table that there is a wide disparity in the requirements that have been imposed by the Council in development consent conditions for brothel approvals in the enclave. It is clear that the broader policy position adopted by the Council (at least for this enclave) has been to tighten the security requirements over time.
It is also settled, as a consequence of 1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685, that if there were to be some future modification application to any of the development consents for these existing approved brothels, the Council could revisit the question of security at such premises should it choose to do so at that time.
Whilst I do not accept the submissions made by Mr Gadiel as to the economic costs that would be occasioned if the brothel were required to have a security guard present throughout its actual trading hours (whatever those hours might be within the permitted span of 6.00 pm until 7.00 am the following morning, seven days a week), I do accept his submission that it is appropriate to regard a standard security guard shift as being one of eight hours' duration.
This fact, taken in conjunction with the limited acceptable evidence from Mr Williams and Leading Senior Constable Ashton on what might be the relevant risk profile during those operating hours, leads me to conclude that that risk period, doing as best I can on the limited evidence, should be regarded as being an eight-hour period between 9.00 pm and 5.00 am on any evening when the brothel is trading. This, coincidently, happens also to reflect the period of a standard security guard shift. It also coincides with the time period for security at the only other brothel where this is mandated. As a consequence, I am satisfied that the period for which a security guard should be present would appropriately be 9.00 pm until 5.00 am the following morning.
I now turn to the question of the frequency with which the presence of a security guard should be mandated for these premises.
Whilst I acknowledge, in this context, that there may well be a higher patron frequency at the brothel on the nights accepted as appropriate for a security presence by the Applicant (Friday and Saturday nights), it is appropriate to have regard to the vulnerability of the sex workers who will be employed at the premises, vulnerability inherent by the nature of their occupation.
Whilst I have earlier rejected the submission by Dr Smith that I should adopt a precautionary approach as a basis for refusal to permit recommencement of trading of the brothel, I do consider that such an approach is appropriate to be applied in order to eliminate, as much as is possible, the risk exposure to those sex workers employed at the premises. Whilst, in all likelihood such a security presence will not entirely eliminate those risks, it is reasonable to assume that such a security presence during the potentially heightened risk periods of 9.00 pm to 5.00 am will provide a visible deterrent.
As consequence, I have concluded that it would be appropriate to require the employment of a security guard (holding a Class 1 C security guard's licence as envisaged by Mr Daintry's draft Plan of Management) at all times between 9.00 pm and 5.00 am when the brothel is trading. Such a precautionary approach mandates that such requirements are appropriate to be imposed on a risk assessment and avoidance basis.

[47]

Patrolling by the security guard

I now turn to consider whether there should be an external patrolling requirement mandated for the security guard and, if so, what should be that patrolling requirement.
It is well-established from cases which have come before the Court, where there have been requirements for employment of security guards, that such security guards should be visible (including wearing a fluoro vest identifying the fact that the person is a security guard) and undertake a degree of external patrolling of the premises involved (and sometimes on a wider basis).
In this case, in light of the matters pointed out during the course of the site inspection, it is appropriate to require that there be active external security patrolling by walking the length of the frontage of the industrial unit complex within which the premises are located (from the access doors to the fast-food/convenience store at the eastern end of the complex along the southern footpath of Sutherland Street to the western boundary of the industrial unit complex within which the site is located).
The patrolling path should commence with the security guard leaving the door of the premises, turning to the right and following the façade of the complex within the car park and, at the north-eastern corner of the car park, turning to the east along Sutherland Street to the access doors to the fast-food/convenience store; turning to walk along the southern footpath of Sutherland Street to the western boundary of the complex within which the site is located; and then turning to walk along that footpath until the eastern façade of the undercroft area is reached, to return to the entrance door of the brothel.
Such patrolling is to be mandated in the conditions of consent and set out in the Plan of Management, and is to be required to occur at 20-minute intervals during the period when the security guard will be on duty. The guard is to wear a fluoro vest saying "Security" whilst on duty.
The security guard is to be provided, by the brothel, with a sufficiently powerful, rechargeable torch to enable the security guard to provide adequate surveillance of vehicles and doorway recesses during the course of the guard's patrolling. It is to be the responsibility of the manager to ensure that the charging unit is to be kept in the reception area and that the torch is to be provided to the security guard in a fully charged state at the commencement of each shift. It is also to be the responsibility of the manager to ensure that the torch is put in its charging cradle between each security guard patrolling session to ensure that the torch remains fully charged for each patrol.

[49]

Conclusion

For the reasons I have set out, I am satisfied that there was sufficient improvement in the operation of the brothel under the management of the Applicant during the period since late 2014 until brothel operations were suspended in early 2016 that, when coupled with the physical and operational improvements that will flow from the implementation of a new Plan of Management based on that prepared by Mr Daintry but to be revised and tightened, extensively, based on the agreements during the oral evidence of Mr Mead, Mr Williams and Mr Daintry and matters required by this decision, it is appropriate to permit the brothel to reopen for a further trial period.
As I have explained, none of the matters pressed by the Council in opposition to such a further trial period provide, either individually or cumulatively, any sufficient basis to found absolute rejection of such a trial period. As also earlier explained, however, there is no magic in a three-year trial and, in circumstances where it is appropriate to have regard to the terms of the DCP, generally, in my assessment of this application, the provision in the DCP proposing that the maximum consent and, hence, here trial, period should be two years is entitled to appropriate weight.
Absent any compelling reason why a three-year trial should be permitted rather than the more limited period proposed by the DCP, I am satisfied that it is appropriate to adopt two years for the purposes of a further trial.
As a consequence, the appropriate approach to adopt is to modify the existing consent in a fashion that permits a further modification application to be made by an Applicant within the permitted further trial period, so that, at the election of the then Applicant, consent could be sought from the Council or the Court for either a further trial period or for an ongoing and enuring consent.
That condition should contain, as also earlier discussed, a transitionary provision so that if such an application is made, but not determined by the Council, or, if refused by the Council, an appeal is finally determined by the Court, the brothel can continue to trade during that prefinalisation period.
Such a provision, when coupled with the ability of the Council to use Order 15 in the Table of Orders contained in s 121B of the EP&A Act and/or enforcement proceedings, provides an appropriate basis for permitting the ongoing trading of the brothel at the conclusion of any trial period whilst any further application remained to be determined, whether by the Council or by the Court on appeal.
To progress the matter further, it is necessary to provide a period of time within which further revision of the proposed Plan of Management can be effected. Such revision will need, as earlier discussed, to address not only the addition of the various further measures agreed as appropriate to be incorporated but will also need to summarise the relevant parts of the various documents originally proposed by Mr Daintry to form appendices to the Plan of Management and which, it was also agreed, were more appropriate to have the relevant elements extracted and incorporated in the Plan of Management, rather than importing a very large volume of irrelevant verbiage into the Plan of Management and, hence, into the conditions of development consent.
The changes mandated by this decision will also need to be incorporated.
The additional short summary documents identified for the information of persons performing the specific functions identified during the course of the expert evidence will also need to be prepared.
I have also considered the second of the operational matters in contention, that being on what days and for how long should the modified conditions of consent require the presence of a security guard at the site after the brothel recommences trading. As part of that consideration, I have also turned my mind to whether there should be mandated external patrolling by such security guard when present and, if so, where and at what frequency that patrolling should take place.
On these security guard issues, I have reached the following conclusions, conclusions to be incorporated, relevantly, in the modified conditions of consent and/or Plan of Management for the brothel (as appropriate):

a security guard is to be present at the site on each day when the brothel is trading and is to be identifiable, readily, whilst on duty;
the hours during which that security guard is to be present are 9.00 pm until 5.00 am the following morning; and
the security guard should undertake a short, external patrol every 20 minutes along a defined route covering the Sutherland Street frontage and external elements of the complex where the brothel is located.

The external patrolling is to be conducted in order to provide both a limited method of addressing some of the external issues pressed by Mr Williams and Leading Senior Constable Ashton and also to provide a visible demonstration of the presence of the security guard as a deterrence element.
I have reached these conclusions concerning the necessity for, and the manner of operation of, a security guard for a variety of reasons, the principal two of which are:
First, the deterrent potential concerning external, antisocial behaviour in the vicinity of the site; and
Second, the necessity to eliminate, as much as is possible, any risk to the vulnerable women who will be employed as sex workers at the brothel.
Finally, with respect to the Plan of Management and the shorter documents, these will also need to be translated into Cantonese and Mandarin prior to the recommencement of trading. All translations are to be certified by a NATI-accredited translator.
It is, therefore, appropriate to allow a period of time for those drafting matters to be attended to, as well as for the various physical adjustments, both internal and external, to be undertaken at the premises. The further trial period should not commence to run until those matters have been dealt with to the satisfaction of the Council, or, if the Council is not satisfied, to my satisfaction.

[50]

Directions - Matter No 2016/151482

It is, therefore, appropriate to give directions to enable Matter No 2016/151482 to be progressed. Those directions are as follows: 1. The Applicant is to file and serve: 1. A revised settled Plan of Management reflective of this decision and matters agreed to during the expert evidence of Mr Mead, Mr Williams and Mr Daintry; 2. Settled documents based on the Plan of Management setting out the responsibilities arising under the Plan of Management for each of the following: 1. the manager who will be on site during any hours of operation of the brothel; 2. the receptionist who will be on-site during any hours of operation of the brothel; 3. the security guard who will be present during the hours specified as appropriate whilst the brothel is operating; and 4. sex workers providing services at the brothel during its hours of operation by 4.30 pm on Tuesday 13 December 2016. 1. The Respondent is to file revised settled orders and conditions of consent in a form consistent with the requirements of the Court for the approval of development consent modification applications (including the revised consolidated conditions of consent mandated by those requirements), with that filing to be accompanied by the provision of an electronic copy of these documents, in Microsoft Word format, by e-mail to my Associate; 2. The Applicant is to file and serve copies of the documents required by (1) translated into Mandarin and Cantonese with an affidavit from an NATI-accredited translator confirming that the Mandarin and Cantonese translations are accurate; 3. The documents required by (2) and (3) are to be provided by 4.30 pm on 13 December 2016; 4. Matter No 2016/151482 is listed for mention before me at 9.00 am on 15 December 2016; 5. If Directions (1), (2), (3) and (4) are complied with, I will make orders in chambers to finalise the matter and will vacate the mention in (5); 6. In the event of any dispute between the parties as to the terms of the documents provided for in (1) and/or (2), the parties are to relist the matter before me at 8.30 am on two days' notice for a short hearing of no more than 1.5 hours' duration.

TL & TL Tradings Pty Ltd v Parramatta City Council

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (52 paragraphs)

Parties

Cases Cited (21)

Cited By (6)