Uky Huang v Parramatta City Council

Uky Huang v Parramatta City Council - [2009] NSWLEC 1331 - NSWLEC 2009 case summary — Zoe

[9]

Site and its locality 3 The site is occupied by a two storey commercial building set back from Nirvana Street with at grade parking. It is located in a cul-de-sac, which contains light industrial uses including smash repairers and a meat distributor. 4 The surrounding area is light industrial with the closest residential use located approximately 140 m from the site. Other uses in the area include Pendle Hill Primary School and High School, an Anglican Church and another brothel located near the corner of Nirvana Street and Ballandella Road (1/112 Ballandella Road). 5 Pendle Hill railway station is within walking distance and the Pendle Hill Tavern is located nearby. Statutory Controls 6 The site is zoned Employment 4 under LEP 2001. Brothels are permissible with consent in the zone. Council contends that proposal is prohibited under cl 24(1)(a), as it is located within 200m of residences and this is not a development standard and cannot be varied. The applicant has submitted an objection under State Environmental Planning Policy No 1- Development Standards on the basis that cl 24(1)(a) is a development standard and that compliance is unreasonable and unnecessary in the circumstances of the case. The different submissions are discussed further. 7 Parramatta Development Control Plan 2005 (the DCP) is also relevant. Evidence 8 The hearing commenced on site and the Court heard from residents who objected to the proposed brothel as being inappropriate for the area. They stated that Ballandella Road was used by school children walking to and from Pendle Hill Public School and that children also used the businesses in Nirvana Street. They were also concerned about the increase in traffic and inadequate parking arrangements that currently exist in the street, which will be exacerbated by the proposal. The adjoining owner was particularly concerned about the impacts as his business including loss of customers, increased insurance premiums, impact on staff (including their children who visited on occassion) and young apprentices. 9 The Court heard expert evidence: For the Council: * Mr Mamouzelos, crime and security * Ms D Fernandez, planning * Mr R Searle, traffic For the Applicant: * Ms P Crofts, crime and security * Mr L Winnacott, planning * Ms E Marshall-McClelland, traffic 10 Senior Constable G Neal provided evidence on behalf of the NSW Police. He gave concurrent evidence with Ms Crofts and Mr Mamouzelos. 11 Ms Fernandez and Mr Winnacott agreed that the brothel is not within view of the residential area, Toongabbie Hill High School, Toongabbie Primary school and the church (located at the corner of Binnalong Street and Burrabogee Road). They also agreed that the brothel was not "near" any church, hospital, community facility or public open space or from any other place regularly frequented by children for recreational or cultural activities. Toongabbie Hill High School and the church being located more than 500m from the brothel. 12 However, Ms Fernandez considered the brothel to be "near" Toongabbie Primary school, which is located 497.1m, measured in a straight line from the northern rear boundary of the brothel. Mr Winnacott held the contrary view and considered that the separation distance between the school and the brothel would limit any interaction between these uses and not result in any adverse amenity impacts. Further, he did not consider school children passing along Ballandella Road would result in conflict, particularly as the brothel is not visible from this street. I accept Mr Winnicott's evidence, so the proposal therefore complies with cl 24(1)(b) of LEP 2001.

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24 Brothels (1) Regardless of any other provision of this plan, premises shall not be erected or used for the purpose of a brothel where they are located: (a) on any land zoned residential or within 200 metres (measured from the boundary of the allotment upon which the brothel is proposed) of residences or any land zoned residential, or (b) near or within view from any church, hospital, school, community facility or public open space or from any other place regularly frequented by children for recreational or cultural activities, or (c) within 50 metres (measured from the boundary of the allotment upon which the brothel is proposed) of a public transport facility, being a railway station entrance, bus stop, taxi rank, ferry terminal or the like, or (d) in the following areas of the 4 Employment Zone, as shown marked with diagonal hatching on the zoning map: (i) Wellington Road, South Granville, (ii) Everley Road, South Granville, (iii) Factory Street, Clyde, (iv) Edgar Buggy Street, Guildford, (v) Ruby Street, Guildford, (vi) Cowper Street, Granville, (vii) Ferndell Street, South Granville. (2) In determining an application to carry out development for the purpose of a brothel, the consent authority must consider the following matters: (a) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it, (b) whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood, (c) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood involving similar hours of operation, (d) any other environmental planning instruments that the consent authority considers relevant, (e) whether any signage related to the premises will be of a size, shape and content that interferes with the amenity of the locality, (f) whether part of the brothel, other than an access corridor to the brothel, is visible from a public place or shopping centre. 14 Ms Fernandez and Mr Winnacott agreed that the brothel is 140.8m when measured from the northern rear boundary of the site to the southern boundary of the residential zone of Burrabogee Road measured in a straight line. The proposal therefore does not comply with cl 24(1)(a). The experts disagreed whether this is a prohibition or a standard. The experts also disagreed, if cl 24(1)(a) is a standard, whether the SEPP 1 objection is well founded. 15 Before moving to the merits of the SEPP 1 objection to cl 24(1)(a) it is first necessary to address the question of whether cl 24(1)(a) is a prohibition or a standard. If it is the latter then SEPP 1 enables consent to be granted if compliance with the development standard is unreasonable or unnecessary given the circumstances of the case. Mr Doyle, for the applicant, submits that cl 24(1)(a) is a development standard and Mr Marincowitz, for the council, submits that it is not a development standard but a prohibition. 16 Clause 4 of SEPP 1 provides that "development standard" has the same meaning as in s 4(1) of the Act which states:

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79 if an LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. Self-evidently, the drafter of an LEP may be able to achieve the desired result either by a zoning provision, or by a development standard: the way in which it is done will be important, because of the need to distinguish a development standard from other forms of prohibition. A legitimate concern about substance and form should not be allowed to blur the distinction between result and means. 80 The approach required by the definition, so understood, places considerable weight on the degree of specificity with which the proposed development is defined. If the proposed development is very broadly defined, even its essential elements will become external standards. On the other hand, to include within the identification of the proposed development all aspects of the proposed use of the land is likely to incorporate what should properly be seen as aspects regulated by development standards, because external to the essential elements of the development. The correct approach depends on the terms of the planning instrument in the particular case. Thus, if an LEP distinguishes by zoning between residential flats and dwelling houses, an application to erect a block of flats should not be treated simply as an application to erect a building, or an essential distinction between a dwelling house and a block of flats will be obscured. The reason why that distinction is important (on the present hypothesis) is that the relevant LEP distinguishes between a dwelling house and residential flats for zoning purposes. 81 The appropriate course is said to depend on what are the essential elements of a development. The use of the (non-statutory) phrase "essential element" seems to have gained acceptance as a reflection of the principle set out above: see Poynting at [36] (Giles JA). So understood, it is a convenient label. It is not disputed that classifications required for the purposes of zoning define essential elements of the development. However, it does not follow that only those elements which are included in the zoning table and map which form part of the usual LEP, are to be included as essential elements of the development. There may be other elements in a particular LEP which should properly be treated in the same way as the zoning table. Whether a particular requirement will so qualify in a particular case will depend not only on the nature of the requirement, but also on the drafting of the LEP. 24 Mr Marincowitz submits that cl 24 deals specifically with Brothels and cl 24(1) states that Regardless of any other provisions of this plan, premises shall not be erected or used for the purpose of a brothel where they are located :…. He submits that this permits only brothels of a particular kind. Therefore, as the proposal does not meet the zoning criterion in cl 24(1)(a), it acts as a prohibition not as a standard. 25 Mr Marincowitz supports this submission by reference to LEP 2001 (Amendment No 13) which was gazetted on 1 June 2007 and introduced the current wording of cl 24(1)(a) as well as cl 24(1)(c) and (d) and cl 24(2)(e) and (f). 26 The aims of Amendment 13 are relevantly:

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Having regard to all these matters, I have formed the opinion that cl 42A(1)(d) is a development standard. It sets, as a standard against which the development is to be measured, a requirement that the development be located, sited or distanced not less than 100 m from an arterial road or a local road. It does not prohibit the use of identified land for a purpose which would otherwise be permissible under the zoning table (cf Clarke JA in North Sydney Council v Mayoh at p 235), that is, it is not a provision relating to whether development may be carried out at all. Rather, it operates to set a standard in relation to the siting, or location, or distance from a specified point of the proposed development. These particular matters relate, not to whether the development may be carried out at all, but to an aspect of the development when it is being carried out. 40 While reference to different provisions in other cases can be of limited assistance, I am satisfied that there is no reason not to follow the reasoning of Pearlman CJ in Vassallo or that I should reach a different conclusion. 41 In reaching this conclusion I have also taken a common sense approach to the interpretation of cl 24(1)(a). Exhibit F illustrates the area in this part of the 4 Employment Zone which meets the 200m requirement in cl 24(1)(a). It is a very small area and would effectively prohibit brothels within this part of the zone. The 4 Employment Zone is the only zone in which brothels are permitted. I do not consider that it was the purpose of the drafters of cl 24 to prohibit brothels but rather to ensure that potential conflict between residential and brothel uses are minimised through locational criteria. 42 The northern side of Nirvana Street does not meet the 200m requirement in cl 24(1)(a). However, the southern side of Nirvana Street does. There is no material difference between the connection or likely impacts of a brothel located on northern side of the street as opposed to a brothel located on the southern side of the street. 43 Based on the finding that cl 24(1)(a) provides locational criterion for brothels, a variation to the standard is possible through SEPP 1. SEPP 1 44 SEPP 1 applies with the stated aim of providing flexibility in the application of planning controls arising out of development standards in circumstances where strict compliance with those standards would "in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in Section 5(a)(i) and (ii) of the Act".

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to require a suitable level of separation from residential land so as to protect the amenity of the residents of the area. 49 Mr Winnacott stated that the proposal met the underlying objectives of the standard and that compliance with the standard was unreasonable or unnecessary because: + The subject premises are not located near or within view of any school, church, hospital or place frequented by children + A literal interpretation of Clause 24(1)(a) of the LEP requires the distance of separation from residential zoned land to be measured as the shortest distance in a direct line. If such a measurement is taken from the rear northern boundary of the subject property to the residential zoned land on the northern side of Burrabogee Road the distance is approximately 141 metres. However located between Burrabogee Road and the subject property is a large industrial property developed with factory buildings. Having regard to this development is not possible to view the subject property from residential properties in Burrabogee Road. + If the measurement of separation is taken as walking distance west along Nirvana Street and along north along Ballandella Road the distance of separation from the subject property to the closest residential zoned land is approximately 233 metres. The distance measured in this manner exceeds the separation development standards contained in the Clause 24(1)(a) of the LEP. + The subject property is located approximately 50 metres from Ballandella Road and within a dead-end cul de sac. + The proposed development satisfies the planning principles for the location of brothels as referred to in Martyn v Hornsby Shire Council which refers to brothels not adjoining areas zoned residential or clearly visible from such zones. The subject premises are located in an industrial area and surrounded by properties developed for industrial and non-residential purposes. + The operation of the brothel will be conducted entirely within the building on the subject property. Adequate car parking will be available for staff and clients within the property and the surrounding street system. The business will be conducted in a discreet, orderly and inconspicuous manner and there is no indication that there will be any adverse impact on the amenity of the residential area to the north of Burrabogee Road. 50 Ms Fernandez did not consider cl 24(1)(a) to be a development standard. On the assumption that it was a standard she considered that:

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Findings 52 I accept Mr Winnacott's evidence that the underlying purpose of cl 24(1)(a) is to provide adequate separation between brothels and residential uses to protect the amenity of residents in the area. There is no evidence that the use of the site for a brothel will result in any adverse amenity impacts such as noise, overlooking, privacy or that patrons using the brothel would also utilise the residential area to park or walk through. I accept that compliance with the standard is unreasonable and unnecessary and the SEPP 1 objection is well founded. Safety and security 53 Senior Constable Neal's principle concern in relation to the brothel location is that it is in a light industrial zone, which is generally not used at night and is isolated from other activities. He also expressed concern about the distance from the railway station and its proximity to the other brothel in Ballandella Road. He was also concerned that the area is already a "crime hot spot" and in not near a police station. 54 Senior Constable Neal stated that the proximity to residential areas was of concern because it did not meet the requirements in LEP but in his opinion the principle impacts on residential zones related to parking and, due to the separation distance, there were unlikely to be other amenity impacts resulting from the brothel use. 55 Mr Mamouzelos shared these concerns. In particular he was concerned about the brothel being a target for armed robbery, which had occurred at the brothel at Ballandalla Road. Both his and Senior Constable Neal's principal safety concern was that the car parking arrangement facilitated entry into the premises where people, guns etc could be concealed within a car and where contact with staff could occur without adequate safety arrangements. 56 Ms Crofts recognised that brothels, as with other uses such as petrol stations and jewellery shops, may be targets for armed robbery due to the large amounts of cash or valuable items on the premises. Although she stated that there is no statistical research to support this proposition. She considered that brothels were a permissible land use and it was important that controls were not so restrictive that the use would be forced "underground" and to operate illegally without approval and without regulation. She stated that there are greater profits to be made by illegal brothels, which encourages links to organised crime. Issues such as exploitation of sex workers also increased if brothels were an illicit activity. She recognised the need for safety but considered that this needed to be realistic. 57 The experts all agreed that the proposed Plan of Management was adequate.

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Findings 58 The issues raised by Mr Mamouzelos and Senior Constable Neal relate largely to the location of the brothel within an industrial area rather than to any particular characteristics of the brothel for which approval is sought. Their concern centred on the isolated nature of the area and its limited usage at night. However, these are characteristics why industrial zones are identified a being area where brothels can be located to avoid potential conflict with other land uses, particularly residential uses. The general concerns raised by these experts are matters more appropriately dealt with through strategic planning than through an individual development application. They are issues that would apply to any application for a brothel within this part of the 4 Employment Zone. 59 I note the specific concern of Mr Mamouzelos and Senior Constable Neal in relation to the car park providing a concealed access to the premises that could pose a safety risk. However, given the safety arrangements proposed including; CCTV, a security guard, and secure entry, I do not consider that this potential risk would, of itself, warrant refusal of the application. Given the limited areas that are available for brothels and the permissibility of the use, it would seem that the views of Mr Mamouzelos and Senior Constable Neal should be addressed through the Plan of Management where all possible measures are taken to minimise potential safety risks. 60 It is not unusual for parking to be provided in an internal car park arrangement. The initial comments of the Police in response to the application did not raise this as an issue, however, I accept the concerns about staff entering the car park and have included a condition that the access door to the worker's lounge area be deleted. I have also included a condition that the Plan of Management and the Parking Plan of Management should be amended to ensure that staff and patrons are not in the car park at the same time. The Plan of Management should also include requirements that the train timetable be displayed and that the Manager order a taxi if required by patrons to address concerns about patrons walking to the station at night and there being no trains.

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Parking 61 Ms Marshall-McClelland and Mr Searle agreed that 8 car spaces were provided on site, which complied with the requirements of the commercial rate in s 4.5.1 of the DCP of 1 space per 50sqm of gross floor area (GFA). They agreed that the GFA of the proposal was 366.7sqm, being the area used for the brothel, excluding the internal carpark. 62 The proposed parking arrangement provides internal parking for 4 visitors and external parking for 2 visitors, 1 staff and one disabled space. The internal arrangement proposes parallel parking and it is intended that parking be assisted by the on site manager to ensure that the vehicles enter and leave the premises in a forward direction. An on site parking Plan of Management has been prepared which reflects this arrangement. 63 Ms Fernandes considered that GFA to be greater based on the definition of "floor space area" in LEP 2001, which excludes only "basement car parking". Ms Marshall-McClelland stated that neither LEP 2001 nor the DCP include a definition of GFA. The DCP does not include specific parking requirements for brothel uses. In her opinion the industrial rate of 1 space per 70 sqm of GFA was appropriate which would require 5 spaces. However, as 8 spaces could be provided she had agreed to apply the commercial rate. 64 Ms Marshall-McClelland noted that Moore C in Zhang v Parramatta City Council [2004] NSWLEC 199 applied the industrial rate to the approval of the nearby brothel at Ballandella Road. 65 Further, Ms Marshall-McClelland stated that the Roads and Traffic Authority Guide to Traffic Generating Developments refers to the Environmental Planning and Assessment Model Provisions 1980 which include a definition of GFA that excludes car parking needed to meet the requirements of council. She also stated that, based on other brothels, a rate of 1 space/two workers was generally applied and she considered this to be appropriate. This would result in a demand for 4 spaces based on the maximum of 8 workers proposed. Mr Searle considered that during peak times 6 spaces for patrons should be provided which is met by the proposed arrangement. 66 Both Ms Marshall-McClelland and Mr Searle agreed that there was available on street parking at night, which corresponds with the peak operating time of the brothel. During the day there is limited on street parking in Nirvana Street due to the operation of the other businesses, including the car repairers.

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)

Parties

Cases Cited (7)

Cited By (1)