Wendy Wei v Holroyd City Council

Land and Environment Court (NSW)|2007-03-29

Background. 1 This appeal concerns council's deemed refusal of a development application for internal alterations and additions to an existing industrial unit, which is situated at 1/181 McCredie Road, Guildford West, to enable its use as a brothel.

2 A number of issues were identified for the appeal, which can be summarised as follows: o economic and social impacts, including the cost and difficulty of obtaining public liability insurance for the strata plan, o possible adverse amenity impacts, due to the street frontage location of the subject property, o matters raised by the objectors.

The site. 3 The subject land is described as Lot 3 in DP 733866 and is known has 181 McCredie Road, Guildford West. It has a street frontage of 29.8 m and total area of 2845 sq m.

4 Currently located on the site is a 2 storey industrial unit complex containing 4 units, ranging in floor area from 478 sq m to 483 sq m. The proposed development is to be located within Unit 1, which is located closest to McCredie Road. The existing operations within the complex include a cabinetmaker in Unit 2, an engineering company in Unit 3 and a software development company in Unit 4.

5 The unit complex is setback approximately 15 m from McCredie Road. Access to the property is via a 6 m concrete driveway aligning the eastern boundary. The portion of the site between the unit complex and the eastern boundary is paved for vehicular access, parking and manoeuvring.

6 The locality is predominantly industrial in character, and the surrounding development comprises factory unit complexes and industrial activities to the north, south, east and west. The nearest residential property is located approximately 450 m to the east of the site in Iris Street.

The proposal. 7 This proposal involves internal alterations to the ground floor of Unit 1, to create 3 workrooms with associated showers, exam room, waiting room and laundry room. No internal works are proposed for the first floor. The main features of the proposal are as follows: o a maximum of 3 sex workers and 2 managers are to be employed and remain on the site during working hours, o the hours of operation to be Monday to Friday, 10 a.m. - 10 p.m., 8 a.m. - 10 p.m. Saturday, with no work on Sundays or public holidays, o provision of 8 parking spaces, o provision of a single facade sign (0.6 m x 1.1 m) , with the wording "Ying Yang Health Centre" in black lettering on an illuminated white background.

8 Holroyd Local Environmental Plan 1991; under which the site is zoned General Industrial 4(A) and the proposal is permissible in the subject zone with development consent. Clause 9 details the following objectives of the 4(A) zone: (a) to encourage the development and expansion of a wide range of industrial activities which will contribute to the economic growth of, and create employment opportunities within, the City of Holroyd, (b) to ensure that industrial development creates areas which are pleasant to work in, and safe and efficient in terms of transportation, land utilisation and services distribution, and (c) to allow commercial or retail uses only where they are associated with, ancillary to or supportive of, industrial development

9 Even though development for the purposes of a "brothel" is a prohibited purpose in the development control table under cl 9 of the LEP, nevertheless, cl 38 of the LEP permits Council to grant consent to a brothel on land identified on the map marked "Holroyd Local Environmental Plan 1991 (Amendment No 20). The subject land is included on the map.

10 Holroyd Development Control Plan No 1 - Guidelines for Parking.

11 Holroyd Development Control Plan No. 25 -Planning Controls for Brothels.

12 The principal objective of this DCP is to provide detailed planning controls to ensure that location, operation and design of brothels do not adversely affect the amenity of the area. Section 7 deals with the assessment process, wherein s 7.1 contains the assessment criteria.

13 Section 7.2 deals with time limited consents as follows: Development consent granted to brothel applications may be initially limited to a period of twelve (12) months. At the completion of this period, Council will re-evaluate the proposal in terms of any complaints received regarding the approved operations, and compliance with any conditions of development consent.

If Council is satisfied that the brothel has operated in an orderly manner and with limited impact upon surrounding and nearby land uses, it shall then grant permanent development consent.

Council may also impose conditions of consent relating to the hours of operation. This will also be the subject of review after 12 months. If, after the 12 months trial period, the approved hours of operation are causing disturbance in the neighbourhood, the Council may further restrict operating hours…

14 Clause 10 contains the controls for hours of operation as follows: 10.1 Objective

Ensure that brothels operate at times where they will have least impact on the community, the environment and nearby land uses.

No specific standards are proposed in relation to hours of operation. However, Council will exercise its discretion in relation to permitted hours of operation of brothels in the circumstances or case taking into consideration the nature of the adjoining land uses, hours of operation/use of those premises and possible conflicts with such uses. 15 Holroyd Development Control Plan No 31 - Guidelines for a Public Participation.

16 Holroyd Development Control Plan No 35 - Guidelines for Planning for Less Waste.

The Evidence. 17 Detailed planning evidence was presented by Mr P Hurley (applicants consulting planner) and Mr M Shanahan (respondents consulting town planner). They conferred and prepared joint report Exhibit 5, wherein they expressed different opinions about the merits of the proposal in terms of the identified issues.

18 A number of objections to the proposal were lodged (Exhibit 3) and they were considered in conjunction with the oral evidence given by owners and tenants the other industrial units as follows: Mr A Kennedy (tenant Unit 3), Mr Herle (owner Unit 3), and Ms R Bond (owner Unit 4).

19 The objections can be summarised as follows: o concerns about the suitability and compatibility of the proposed brothel to operate in proximity to the other established industrial uses, o safety and security considerations in terms of late night trading and the introduction of more visitors to the site, o proximity to children.

20 With regard to the primary issue concerning the suitability of the site and associated impacts, the planners agree that the Council has specifically identified the site in the LEP (Amendment No 20) as being one where a brothel is a permissible land use. However, the planners disagree on the degree of any social and economic impacts. Although, they generally agree that if the brothel is managed in an orderly and professional manner then it is unlikely to create any adverse social or economic impacts for the other unit owners.

21 One aspect of the economic impact issue concerns the ability of the Body Corporate to obtain Public Liability insurance. Apparently, the current insurer would not continue insurance if the brothel was approved. However, after further inquiries the applicant has made submissions that appropriate insurance, which complies with the provisions of the Strata Schemes Management Act 1996, can be obtained. Furthermore, the applicant is prepared to accept a deferred commencement condition, which requires it to obtain appropriate insurance and pay any additional premium loading, due to the brothels operations.

22 In the consideration of this matter, I note the submissions made regarding the findings in Yang v Blacktown City Council [2005] NSWLEC 282. However it seems to me that there are distinguishing facts in that case where evidence was presented that the brothel would lead to an economic reduction of business turnover and a difficulty in obtaining and likely increase in insurance costs. No substantive evidence was presented in the current case regarding adverse economic impacts and the applicant has determined that public liability insurance is available and accepts a condition of consent to pay an increased loading. I therefore consider this can be reasonably covered by a deferred commencement condition in the subject matter. 23 Another aspect of the social impacts concerns the employees remaining on the site out of normal business hours, due to a perception that brothels will create safety issues for employees. This issue was raised by the objectors. It is apparent from Mr Kennedy's evidence that the common property area is currently subject to unauthorised entry, which has resulted in antisocial behaviour and damage to some of the properties. Consequently, the body corporate is now considering the installation of a security gate at the entry to the industrial complex, which would likely be closed to the public sometime between 5 p.m. and 6 p.m. and thereby provide a reasonable level of security.

24 Insofar as, some concerns were expressed that the brothel operations and users would exacerbate antisocial behaviour and possible damage to the complex, no substantive evidence was presented in this regard. Instead, the brothel operation is of a relatively modest scale having 3 workrooms and 2 managers/support staff. According to the Plan of Management, these managers are to provide supervision and security of the premises and site. On this basis, it seems to me that it is likely that the proposal will result in increased security for users of the complex, particularly at the entrance to the complex.

25 Apart from this, the applicant has indicated its willingness to contribute its share of the cost of the proposed security gate (currently under consideration), together with any reasonable increment required due to the realignment of the gate between Units 1 & 2. Under these circumstances, it appears to me that security would be improved to a level currently considered appropriate by the Body Corporate, and therefore not a sufficient reason to refuse the application.

26 Another objection concerns that DCP's preference that brothels not have a street front location. Whilst Unit 1 is the front unit, nevertheless it presents a blank wall to the street, it is set back some 15 m behind a landscaped area and the footpath does not be seem to have any significant usage, in the industrial area. The planners agree that there are no adverse impacts of the amenity of the external or surrounding neighbourhood. I accept this conclusion.

Conclusions. 27 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this proposal merits conditional consent. Firstly, reference to the LEP indicates that there are limited localities where brothels are allowed and Amendment No 20 specifically identifies the subject site as a permitted site.

28 In this regard, I accept Mr Goughs submissions that due regard should be given to the following comments of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399: 1 17. In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No2) 1971 28 LGRA 374 at 397), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater weight which must be attributed to achieving the objects of planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR (NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR (NSW) 167 . Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

In most cases it can be expected that the Court will approve an application to use the site for purpose for which is zoned, provided of course the design of the project results in acceptable environmental impacts. 29 In this case, I am satisfied that the proposed development is consistent with stated the zone objectives (a), (b) and (c). Also, Mr Hurley undertook a detailed assessment relative to the DCP controls and found compliance with those controls. Accordingly, I give significant weight to this proposals overall compliance with the zoning and other relevant planning controls in granting conditional development consent.

30 Mr Gough also referred to in the planning principles for location and brothel identified in Martyn v Hornsby Shire Council [2004] NSWLEC 614. I am satisfied from the evidence that this proposal demonstrates reasonable compliance with these principles.

31 I do however accept that this is a sensitive development, which requires careful attention to the conditions of consent. Notwithstanding this, I also accept that the conditions should be reasonable and associated with the subject development and I assume that the developer will comply with conditions of consent.

32 In first instance, I accept the parties agreement that the development consent should be for a period of 5 years as provided in the Environmental Planning and Assessment Act 1979 (the EP & A Act).

33 The next condition challenged concerns the Councils requirement for either a 12 month or 24 month trial period. This condition arises by a way of the provisions of cl 7.2 of DCP 25, whereby Mr McKee submits that a trial period would provide the opportunity to assess any complaints, review the applicant's compliance with the conditions of consent and subsequently reassess the brothels operations.

34 In my assessment, it is not reasonable to exercise the discretion provided for in this cl 7.2, as detailed conditions of consent have been considered by the parties and accepted by the Court. These conditions include the requirement for the brothel will operate in accordance with provisions of the Plan of Management, which requires the maintenance of a complaints/action taken register, which may be periodically reviewed and subject to council's approval.

35 If there are breaches of the conditions of development consent, then there are number of actions Council can take to ensure compliance with the conditions of consent. It seems to me, that no particular circumstances of this case were presented which would justify a trial period. Mr McKee submitted that circumstances when Council may exercise this discretion could be if a known and experienced brothel operator applied for another brothel consent, then the trial period can be dispensed with. However, in this case the planners have agreed that a well-managed brothel should result in satisfactory amenity impacts, which I consider can be achieved by compliance with the conditions of consent, including the Plan of Management. Providing this occurs, I am satisfied the environmental impacts will be acceptable.

36 In response to some of the objections, Council prefer that the hours of operation provide for a shift break of 2 hours between 4 p.m. - 6 p.m. and therefore the draft conditions would allow the operation Monday to Friday from 10 a.m. - 4 p.m. and then 6 p.m. - 10 p.m.. From the evidence presented to Court, it seems that the main reason for this requirement is that some children may access the other industrial units during this period, after school hours.

37 In my assessment, the location of the brothel in the industrial area is relatively remote from areas regularly frequented by children and the entry is also relatively discreet. I therefore do not consider it reasonable to limit the hours of operation because some children may occasionally pass by front of this "secured" entry to the brothel, even though some unit owners may have strong moral objections to the presence of a brothel. Such objections are outside the planning merit determination required to be undertaken the Court.

38 Previous reference was made to the improvement of security by the installation of the security gate. I accept that the level of security required is predominantly a matter for the body corporate, however the applicant's agreement to pay its share of any security gate, together with the additional cost of its relocation between Units 1 & 2 is reasonable and apparently consistent with the body corporates current approach. Accordingly, I consider this issue can reasonably be addressed by the imposition of conditions of consent.

39 The concerns raised by the objectors have been dealt with in the forgoing merit assessment and the Court intends to make the following orders subject then to the finalisation of the appropriate conditions.

Court Orders 1. The appeal is upheld. 2. Development consent is granted to DA 2007/105, for alterations to Unit 1, 181 McCredie Road, Guildford West to enable each use as a brothel, subject to the conditions in Annexure A. 3. The exhibits be returned except for 5, 6, 7, A, B and C.

      R Hussey
      Commissioner of the Court
      ljr

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.

CITATION : Wendy Wei v Holroyd City Council [2007] NSWLEC 163

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614; Yang v Blacktown City Council [2005] NSWLEC 282

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