Wei v Parramatta City Council

Land and Environment Court (NSW)|2010-02-19|Before: Mr P

CITATION : Wei v Parramatta City Council [2010] NSWLEC 1046

APPLICANT Xing Xing Wei PARTIES : RESPONDENT Parramatta City Council

KEY ISSUES: DEVELOPMENT APPLICATION :- Brothel

Newbury District Council v Secretary of State for the Environment [1911] AC 578 CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Wei v Parramatta City Council [2008] NSWLEC 1157

APPLICANT Mr M Baird, barrister instructed by Mr B Barrak LEGAL REPRESENTATIVES: of Barrak Lawyers

RESPONDENT Mr P Marincowitz, solicitor of Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10826 of 2009 Xing Xing Wei v Parramatta City Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of development application DA/512/2009 seeking approval for the intensification of an approved brothel at Lot 180 DP 14244, 19 Brodie Street Rydalmere. 2 The premises have operated as a brothel with two service rooms and two sex workers pursuant to a development consent granted in consent orders by the Court in 2008: Wei v Parramatta City Council [2008] NSWLEC 1157. That consent included provision of one car space on site. In this application the applicant sought approval for three service rooms, three sex workers, and alterations to the first floor layout to divide the waiting area into two separate waiting rooms. The proposed third service room is currently used as a change room, and the application will require the installation of a shower in that room. It was apparent on the site view that the work to divide the waiting area into two separate waiting rooms has already been carried out, and leave was granted during the hearing to amend the application.

3 The issues between the parties concern the Plan of Management and traffic and parking. The Council contends that if the application is approved the Plan of Management for the premises should include provisions for business identification and contact requirements, record keeping procedures for employees, and the number and role of security personnel. The applicant submits that the amended plan of Management provided is adequate. In relation to traffic and parking the Council contends that if the application is approved there should be a condition restricting the number of employees on site during the hours of 6.00am to 5.00pm Monday to Friday to 2 sex workers, 1 receptionist and 1 cleaner. The applicant opposes that limitation, and proposes in the alternative a condition that on site staff be limited to 3 sex workers and 1 receptionist during the hours of 6.00am to 5.00pm Monday to Friday. The applicant also disputes a condition proposed by the Council relating to payment of a fee for monitoring the premises. 4 The Council initially contended that the proposal should be refused because of social impact and in the public interest, however this contention was not pressed. The Council's position is that the traffic and parking contention would not be a basis for refusal of the application, and that the application should only be refused if the Plan of Management is not amended. The site and its location 5 The premises are on the first floor of a commercial building which is located in a row of shops and commercial premises on the eastern side of Brodie Street close to Rydalmere Station. Brodie Street runs from a service road off the southern side of Victoria Road. To the west of the site on the other side of the railway line is the University of Western Sydney. To the north of Victoria Road there are residential uses. The area to the south of Victoria Road close to the site includes a number of commercial and industrial premises. There are five approved brothels in the area. There is a fast food outlet on the ground floor of the site. Access to the brothel, which is identified as No 19A, is by a staircase from Brodie Street. There is parking for three vehicles at the rear of the site, one in a garage and two car spaces. One of the car spaces is allocated to the brothel as a condition of the consent granted in 2008.

Planning controls 6 The site is zoned Business and Transport Centre under the Sydney Regional Environmental Plan No 28 - Parramatta (the SREP). Brothels are permissible with consent. 7 The objectives of the Business and Transport Centre zone are: 40C Business and Transport Centre zone

(1) Objectives of the Business and Transport Centre zone The objectives of the Business and Transport Centre zone are as follows: (a) to provide opportunities for mutually supportive retail, commercial, residential, light industrial, transport and community facility development, (b) to integrate the zone with, and to encourage usage of, public transport and pedestrian networks, (c) to comply with any controls for Special Areas as set out in this Part. 8 Clause 79 of the SREP applies to brothels: 79 Brothels

In determining an application to carry out development for the purpose of a brothel, the consent authority must consider the following: (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 or 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. 9 On 23 November 2009 the Council adopted Parramatta Development Control Plan for Sex Services and Restricted Premises (the Sex Services DCP), which came into effect on 9 December 2009. Clause 1.2 provides: 1.2 Where this Development Control Plan Applies This Plan applies to all land within the Parramatta Local Government Area (LGA) with the exception of the Government Centre, Harris Park, Camellia and Rydalmere areas covered by Sydney Regional Environmental Plan No. 28 - Parramatta. 10 Clause 1.5 provides: 1.5 Savings provision Any application not determined at the time that this DCP came into force, will be subject to the provisions of this DCP. 11 The Sex Services DCP contains in Part 4 a Guide to Plans of Management and in Part 5 Planning Controls. On 23 November 2009 the Council passed a resolution adopting the Sex Services DCP as Council policy for land zoned by the SREP. A notation to that effect was made on the Council's website on 17 February 2010. The weight to be given to this document was a matter in dispute, and is discussed below. Evidence 12 The hearing commenced with a site view, including a view of surrounding streets. Expert evidence was given on planning issues on behalf of the applicant by Mr Danny Jones, and for the Council by Mr Bradley Delapierre. Expert evidence was given on traffic issues on behalf of the applicant by Mr Jones and on behalf of the Council by Ms Rosemarie Baretto. 13 The Council notified the development application and received three written submissions raising concerns as to moral issues, location, and traffic. The Council contends that to the extent that these submissions relate to traffic concerns they are relevant to the issues to be determined in these proceedings. Plan of Management 14 The Council contends that the Plan of Management fails to address all the requirements of the Council's policy for sex services and restricted premises in the form of the Sex Services DCP and that a revised plan is required that incorporates the relevant provisions relating to business identification and contact requirements; record keeping procedures for employees; and the number and role of security personnel. The Council did not press the additional matters identified in its Statement of Facts and Contentions concerning risk management procedures, procedures for safe handling of money, and access arrangements for attendance of health service providers. 15 The Council's draft Conditions of Consent include a deferred commencement condition requiring preparation of an amended Plan of Management to include the provisions of the existing Plan of Management and the three additional matters. The applicant opposes such a deferred commencement condition, on the basis that the requirement for record keeping is not a valid planning purpose and all the other matters are addressed in the Plan of Management. 16 The expert planners recommended in their joint report a number of amendments to the Plan of Management to address the issues raised in the Council's contention. The parties accepted that the amendments proposed should be included, subject to three issues which remained in dispute. The oral evidence of the expert planners focussed on those issues, being business identification and contact requirements, employee record keeping, and security. 17 In relation to the issue of business identification and contact requirements, the applicant submits that the following provision in the amended Plan of Management is adequate: This Plan of Management forms part of the approved development and its provisions are to be satisfied by the owner/operator of the business at No 19 Brodie Street Rydalmere. In the event there is a change in the ownership of the brothel business Parramatta City Council is to be notified in writing within 6 weeks. The letter of notification if to provide Council the details of the new operator (name, address and contact phone number). 18 Mr Delapierre was of the opinion that the Plan of Management should include additional information based on the provisions of the Sex Services DCP. Part 4.1 of the Sex Services DCP states that a plan of management should include the following: Business Details (i) Name and contact details of the operator(s) and manager(s). (ii) ABN, registered business name, trading name and insurance. (iii) Record keeping procedures for employees. (iv) The procedure for recording and dealing with complaints regarding the operation of the premises or the behaviour of visitors arriving or leaving the premises. (v) All of the above information, approvals for the establishment of the premises, the Plan of Management are to be made available to the public and be kept on the premises at all times. Confidential information on employee details is not expected to be released to the public. NOTE: The consent authority must be advised of any changes in ownership, management, registered business on trading name during the period of consent. 19 Mr Delapierre's evidence was that the additional information including ABN and manager's contact details is needed so that the Council knows who to contact, and that this would assist in monitoring the premises and dealing with complaints. Mr Jones was of the opinion that it is sufficient for the Council to have contact details of the owner or operator, and that the additional information specified in 4.1(ii) was not needed. 20 In relation to record keeping, the applicant proposes the inclusion in the Plan of Management of the following provision: In the event Council wishes to inspect the employment records then the operator will be given 48 hours written notice to enable an appointment (and time allowance) to be made that is mutually suitable to both Council and the business owner for viewing of the employment records. 21 Mr Delapierre's evidence was that this is unreasonable as it would allow for records potentially to be altered, and that it is reasonable that a roster or sign on/sign off payroll sheet be on the premises; review of these documents would allow the Council to ascertain whether the conditions of consent are being complied with. Mr Jones was of the opinion that this provision is reasonable as it would ensure that the manager was on the premises at time of inspection, would avoid unnecessary interruption of the business during peak operating times, and would ensure that the records were available at inspection time. 22 In relation to security, the Council submits that the Plan of Management should include a provision that an on-call security service be engaged. The current plan relies on the NSW Police to respond to incidents at the premises, and some incidents require the presence of trained security personnel. Mr Delapierre was of the opinion that given the surrounding land uses in the wider precinct it would be likely that security personnel would be conducting patrols in the area and being able to access these resources on demand would be in the public interest. Mr Jones was of the opinion that such a requirement would be unreasonable because the change in intensity of use is minor and the current brothel has been operating without on call private security without adverse consequence; police can respond quickly to a request for assistance; and having the option of phoning the police or a private security firm may result in confusion for staff. Consideration 23 The first issue to consider is the weight to be given to the Sex Services DCP. The Council submits that the Sex Services DCP is entitled to be given weight as a statement of Council policy as adopted by the resolution of 23 November 2009.

24 Clause 1.2 of the Sex Services DCP states that it does not apply to the area covered by the SREP. Accordingly, it is not a consideration required to be taken into account by s79C(1)(a)(iii) of the EPA Act. The Sex Services DCP may relevant, however, as a matter relevant to the public interest pursuant to s79C(1)(e): Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195. The Council's resolution of 23 November 2009 states that the Sex Services DCP applies as policy to land zoned by the SREP. The weight to be given to it as policy is to be considered in accordance with the principles outlined by McClellan J in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472: 90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act . It was similarly acknowledged in s 91 of the EPA Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan. 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. . 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: · the extent, if any, of research and public consultation undertaken when creating the policy; · the time during which the policy has been in force and the extent of any review of its effectiveness; · the extent to which the policy has been departed from in prior decisions; · the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 25 The evidence in these proceedings supports a conclusion that the Sex Services DCP should be given some, but not significant, weight. The background to the adoption of the Sex Services DCP is set out in the joint report of the expert planners (Exhibit 10), and indicates that the decision to prepare a draft DCP to replace the former Parramatta Regulation of Brothels Development Control Plan (the Brothels DCP) was made relatively recently. Draft provisions for regulating sex services premises and restricted premises were reported to Council on 27 July 2009 and the decision to prepare a draft DCP was made on 14 September 2009. It is not apparent from the evidence whether there was any research, or public consultation before the exhibition of the draft DCP. The notation that the Sex Services DCP applies as policy to the areas specifically excluded was made on the Council website on 17 February 2010. Whether or not any member of the public might have been aware through other means that Council had adopted the DCP as policy in November 2009, the policy has been in force for a relatively limited period. In oral evidence Ms Baretto stated that she, as a Council officer, regarded it as adopted Council policy; however, she also stated that the Sex Services DCP was a recent document and that applications are assessed based on the SREP and the former Brothels DCP. Given the short period of time that the policy has been in force, and its limited application within Council assessment processes, I am of the view that it should be given limited weight in assessing the application before the Court. 26 It was common ground that a Plan of Management for the premises is required. The parties' submissions as to the content of the Plan of Management were put in the context of the general approach to the imposition of conditions as formulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578, namely that a condition must have a planning purpose; it must fairly and reasonably relate to the permitted development; and it must be reasonable. 27 The power conferred by the EPA Act to impose conditions includes power to impose a condition "if it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent" (s80A(1)(a)). Clause 79 of the SREP specifies the matters that are to be taken into account, including whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood, or cause a disturbance in the neighbourhood because of its size, location, hours of operation or clients or the number of employees. While the present proposal represents a 50% increase in the number of service rooms and sex workers, the premises are small in comparison with other approved brothels in the locality, which includes an approved brothel to be operated at 22 Brodie Street with up to 10 sex workers on-site. The evidence before me does not include any evidence that there have been problems with management or impacts on amenity of the neighbourhood since the approval for the premises was granted in 2008. 28 The amendment to the Plan of Management proposed by the experts requires that the Council be notified of name, address and contact phone number of the owner/operator. I accept the evidence of Mr Delapierre that the Council needs information about and contact details of those operating the premises to assist in monitoring and dealing with complaints, and to that end I am satisfied that it would be useful to have the name and contact details of the manager in addition to those of the operator. Mr Jones accepted that the provision of the additional information as requested by the Council under part 4.1(ii) of the Sex Services DCP might be of assistance to the Council in monitoring the premises, but was of the opinion that it was unnecessary. Mr Delapierre based his evidence that the additional information detailed in 4.1(ii) is similar to requirements in the relevant City of Sydney and Auburn Development Control Plans; Mr Delapierre considered that it is likely that those requirements have formed part of Management Plans approved in those local government areas. In the context of a small brothel that has, on the evidence, operated since 2008 without management issues, I am not persuaded of the need to include such a provision in this Plan of Management. 29 The second issue under the Plan of Management concerns employee records. For the reasons outlined below, I consider it appropriate to impose a condition limiting the number of employees on-site at particular times. In that context, I agree with Mr Delapierre that it is reasonable that a roster or sign on/sign off payroll sheet be available to allow the Council to ascertain how many employees are actually on site at any time, and thus whether the conditions of consent are being complied with. The applicant accepts that it would be reasonable to have employee records available at the premises for a three month period. In the absence of evidence as to past issues in ensuring compliance, I am not persuaded that there should not be a requirement for the Council to give reasonable notice before inspecting the records, for the reasons identified by Mr Jones and summarised in paragraph 21 above. Clause 2.4 of the Plan of Management should be included in the form identified in the experts' joint report with an amendment to clarify that the records are to be available at the premises for a period of three months. 30 The third issue concerning the Plan of Management relates to security. In the context where there is no evidence before me of management problems or security incidents, I agree with Mr Jones that the potential for confusion among staff responding to an incident outweighs any benefit that might come with the availability of private security, and it is not necessary to impose a requirement that private security be available. Traffic and parking 31 The Council contends that if the application is approved, the consent should include Condition 13A in the following terms: The maximum number of employees permitted on-site is restricted to the following: - 2 sex workers, 1 receptionist and 1 cleaner permitted on-site between 6.00am and 5.00pm, Monday to Friday (Inclusive); and - 3 sex workers, 1 receptionist and 1 cleaner permitted on-site at all times other than between 6.00am and 5.00pm, Monday to Friday (inclusive). Reason: To minimise the impact of the development on the availability of on street parking. 32 The Council submits that the consideration of whether the operation of the brothel is likely to cause a disturbance to the neighbourhood required by cl79(a) and (c) of the SREP includes the impacts of traffic and parking through an increase in the number of staff on the premises. 33 The applicant's position is that the provisions of the SREP for car parking are complied with, and that if a condition is to be imposed restricting the number of workers, the condition should be as follows: The maximum number of employees permitted on-site is restricted to the following: - 3 sex workers and 1 receptionist permitted on-site between 6.00am and 5.00pm, Monday to Friday (Inclusive); and - 3 sex workers, 1 receptionist and 1 cleaner permitted on-site at all times other than between 6.00am and 5.00pm, Monday to Friday (inclusive). 34 The applicant submits that as the sex workers perform normal cleaning duties including change of bed linen after each service, the functions of the cleaner, being to perform vacuuming services and laundry services, are suited to be performed at night at hours other than between 6.00am and 5.00pm. 35 It was common ground that cl 57 of the SREP specifies a maximum number of car spaces for different types of buildings, and that in determining that, any fraction of a parking space is to be disregarded; that on that basis the maximum on site parking for the premises as a commercial premises is one, and that the premises comply with the SREP control. The Council relies on a parking survey conducted on four separate occasions by Ms Baretto of parking spaces available at 6 locations, including the Victoria Road service road, Brodie Street, Alan Street, Mary Parade and Muriel Avenue. That survey shows a total approximate capacity in that area of 132. In oral evidence Ms Baretto clarified that this figure was arrived at disregarding commuter parking provided at the station, and off street parking; it includes the one hour restricted parking spaces on Brodie Street (including that part of Brodie Street fronting the site). The available spaces ranged from 6 (at 11.40am 11 February 2010) to 38 (2.40pm 3 June 2009). In percentage terms, about 12% of spaces were vacant on 29 May 2009 and 5% on 11 February 2010 in the morning, and 28% on 3 June 2009 and 8% on 11 February 2010 in the afternoon. 36 Based on the traffic survey evidence, and the written objections noting existing parking problems, I am satisfied that the on street parking available in the vicinity of the premises is restricted and heavily utilised. Ms Baretto acknowledged that there would be some turnover of parking in the one hour restricted area on Brodie Street, however the survey on 11 February 2010 showed limited spaces available both in the morning and afternoon. The site has the maximum permitted on site parking and any increase in parking demand generated by the increase from 2 to 3 service rooms would have to be met by on street parking. To the extent that this increases competition for limited parking spaces in the vicinity, there could be an impact on the other commercial and other uses. That is a relevant consideration pursuant to cl79(a) of the SREP. I agree with the Council that this can be ameliorated to some extent by consideration of the number of employees working at the brothel. I am satisfied, given the specification in the Plan of Management of the cleaning tasks that are to be performed on a regular basis by the sex workers, that those that are to be performed by the part time cleaner can be performed at other times that do not coincide with standard business times. There was no evidence before me to suggest that the part-time cleaner should be on the premises during those times. I am satisfied that it is appropriate to impose a restriction in the number of employees who can be on-site during the hours 6.00am to 5.00pm Monday to Friday, and that this can be done in the form of the condition proposed by the applicant. Condition 13 37 The Council's draft Conditions of Consent include as condition 13: An Annual Monitoring Fee for Restricted Premises and Sex Services Premises must be paid to Council. The Annual Monitoring Fee will be the amount stated from time to time in Council's adopted Fees and Charges. The first payment of the Annual Monitoring Fee must be made to Council prior to: -A Construction certificate being issued if this consent authorises the conduct of works for which a construction certificate is required; or -the premises being used in accordance with this consent if this consent does not authorise the conduct of works for which a construction certificate is required, And each subsequent annual payment must be made on each anniversary of the date on which the first payment was due to be paid. Reason: To comply with Council's adopted Fees and Charges document and how to ensure compliance with conditions of consent.

38 The Council relies on s608 of the Local Government Act 1993 (the LG Act), which provides: 608 Council fees for services

(1) A council may charge and recover an approved fee for any service it provides, other than a service provided, or proposed to be provided, on an annual basis for which it is authorised or required to make an annual charge under section 496 or 501. (2) The services for which an approved fee may be charged include the following services provided under this Act or any other Act or the regulations by the council: • supplying a service, product or commodity • giving information • providing a service in connection with the exercise of the council's regulatory functions - including receiving an application for approval, granting an approval, making an inspection and issuing a certificate • allowing admission to any building or enclosure. (3) In particular, a council may charge an approved fee for inspecting premises that are reasonably required to be inspected in the exercise of the council's functions, whether or not the inspection is requested or agreed to by the owner or occupier of the premises. (4) However, a council may not charge an approved fee for the inspection of premises that are not used for a commercial activity, except where it is necessary to inspect the premises in connection with an application for an approval concerning the premises or in connection with any inspection that is reasonably necessary to determine if an approval has been complied with. (5) (Repealed) (6) If inspections of premises are reasonably necessary to determine if an approval has been complied with: (a) an approved fee may be charged for such an inspection only if the charging of the fee has been included as a condition of the approval, and (b) an approved fee may not be charged for such an inspection before the approval is granted, and (c) an approved fee may not be charged for the inspection of any thing for which the council relies on a certificate under section 93 that the thing has been done in compliance with the approval. (7) An approved fee charged for inspecting premises must be repaid to the person who paid it if the inspection is not carried out. (8) An approved fee charged in connection with a service provided at an airport established and maintained by the council may be recovered from the holder of the certificate of registration issued under the Civil Aviation Regulations of the Commonwealth for the aircraft in respect of which the service was provided. This subsection applies whether or not the holder is the person to whom the service is actually provided. 39 The Council submits that s608(6) requires that the monitoring fee be included as a condition of any development consent granted for the premises. The Council submits that the word "approval" in s608 should be interpreted to include development consents under the EPA Act, a construction that promotes the purpose of the LG Act, in particular that set out in s7(d) of the LG Act; and that the condition satisfies the Newbury test. The applicant opposes the imposition of the condition, on the basis that there is no power to impose the condition and it is not relevant to the application. 40 An extract from the Council's Schedule of Fees and Charges 1 July 2009-30 June 2010 was in evidence (Exhibit 13), and includes under the heading Regulatory Services the following: Monitoring compliance of restricted premises including Brothels Massage Parlours and other regulated or similar premises $420.00 for first hour or part thereof and Additional time charged at $420.00 per hour in 15 minute increments - $420.00 (incl GST) Regulation Service Fee/Approved room/Annual - $1,100.00 (incl GST) 41 There is no explanation in the Schedule of Fees and Charges as to when the hourly rate of $420 is payable, and whether it is imposed in addition to the annual fee based on an amount per room. Draft Condition 13 imposes an obligation to pay the Annual Monitoring Fee. 42 Section 608(2) of the LG Act includes as a service for which an approved fee can be charged "providing a service in connection with the exercise of the council's regulatory functions", which includes "making an inspection". The services for which the fee can be charged include services provided under the LG Act "or any other Act". Section 608(3) makes specific provision for the charging of an approved fee for inspecting premises that are reasonably required to be inspected in the exercise of the council's functions. Section 610 addresses the relationship between fees determined under the LG Act and fees determined under other legislation. 43 Whether or not the charging of an annual monitoring fee for inspection of premises such as a brothel is authorised under the LG Act or under other legislation, I am not persuaded that s608(6) operates in the way contended for by the Council. Section 608(6) is concerned with the charging of a fee "if inspections are reasonably necessary to determine if an approval has been complied with". The term "approval" is defined in the Dictionary to the LG Act to mean "an approval that is in force under this Act". This does not include in terms a development consent granted under Part 4 of the EPA Act. Section 608(2) states that a council may charge a fee for a service provided under legislation other than the LG Act. The applicant submits that the annual monitoring fee does not fall within s608(2); the Council submits that it does. The parties' written submissions on s608 did not provide assistance as to whether, if s608(2) does confer power to charge a fee for monitoring compliance with a development consent, this would be the sole source of power to charge such a fee. It is not necessary to reach a conclusion on either question, however, as in my view s608(6) has a more limited operation than contended by the Council. Subsections 608(4) and (6) refer to "an approval", and both operate to restrict the council's ability to charge a fee for inspection if that is reasonably necessary to determine if an approval has been complied with (or, in the case of s608(4), for non-commercial premises in connection with an application for an approval). There is no indication in the context or subject matter that would enable a broader meaning to be given to the term "approval" than that given to it by the LG Act, such that it could include a development consent granted under the EPA Act. The purposes listed in s7 of the LG Act do, as submitted by the Council, include in s7(d) giving councils "the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public"; that does not in my view necessitate an interpretation of s608(6) otherwise than in accordance with its terms. If an annual fee for monitoring can properly be charged by the Council, s608(6) does not provide a basis for concluding that condition 13 must be imposed on a development consent granted in these proceedings for the fee to be recoverable. If I am wrong on this interpretation of s608(6), a condition in the form of condition 13 would still have to be a condition that could properly be imposed on a development consent. 44 On the assumption that there is power to impose an annual charge for monitoring the premises, the issue is whether a condition can or should be imposed requiring the applicant to pay it. The Council submits that the condition satisfies the Newbury test in that it is for a planning purpose, fairly and reasonably relates to the development, and is not so unreasonable that no consent authority would have imposed it. The applicant submits that the Court has no power to impose the condition, and it is not relevant to the application under consideration. 45 Clause 79 of the SREP requires consideration of whether the operation of the brothel is likely to interfere with the amenity of the neighbourhood or cause a disturbance in the neighbourhood. The conditions of consent, including in particular that requiring compliance with the Plan of Management, are intended to ensure that impact on amenity or disturbance to the neighbourhood do not occur, or are addressed appropriately. It was not in dispute that there is a planning purpose in ensuring compliance with conditions of development consent. There was no evidence before me that condition 13 is required to enable the Council to inspect or monitor the premises to ensure compliance, or if it is, how it would assist. I am not persuaded that condition 13 fairly and reasonably relates to the development the subject of this application, and it should not be imposed. Conclusion 46 For the reasons outlined above, I conclude that the application can be approved, subject to the amendment of the Plan of Management as recommended by the experts in their joint report and in accordance with my findings; the inclusion of the amended Plan of Management in the Schedule identifying the plans and documents with which the development must comply; and subject to the imposition of condition 13A in the form proposed by the applicant. It is preferable in the interests of certainty that the amendments to the Plan of Management not be by way of a deferred commencement condition. Directions will be made in consultation with the parties to set a timetable for the provision of an amended Plan of Management and amended conditions to reflect these findings. Subject to these matters being satisfactorily addressed I will then be in a position to issue formal orders. Linda Pearson Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2003) 129 LGERA 195

At a glance

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Judgment (18 paragraphs)

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Cases Cited (3)

Cited By (6)