Weynton v Rockdale City Council

State Environmental Planning Policy No 1 LEGISLATION CITED: Rockdale Local Environmental Plan No 138 Rockdale Draft Local Environmental Plan 1998 Rockdale Planning Scheme Ordinance

DATE OF JUDGMENT DELIVERY: 12/22/1999

APPLICANT Ms M Fraser (Barrister)

SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr G Newport (Barrister)

SOLICITORS Abbott Tout

IN THE LAND AND 10456 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 22 December 1999

WATCHARIN WEYNTON Applicant v ROCKDALE CITY COUNCIL Respondent

This is a class 1 appeal by the applicant, Ms W Weynton, against the refusal of Rockdale City Council to grant development consent for a therapeutic massage parlour and brothel.

I record that I had the benefit of a site inspection.

The proposed therapeutic massage parlour and brothel ("the brothel") is to be located on the first floor of premises known as No 459 Princes Highway, Rockdale. I will refer to the first floor location as "the site" and to the whole of the building at No 459 as "the premises".

Access to the site is from a single door entrance which fronts on to the Princes Highway and thence by means of a staircase to the first floor. That access is exclusive to the site, and is not shared by the occupants of other parts of the premises.

The other occupants of the premises are a photograph shop and a hair and nail shop, both of which front the Princes Highway, but also have rear lane access.

It is intended that the site will be divided into three massage rooms (one with a spa bath), a reception area, an office, a waiting room, a staff room, a store room, and male and female toilets. The site is presently vacant, and minor alterations only will be necessary to achieve the layout I have described.

The surrounding area is an important factor in the consideration of the potential impacts of use of the site as a brothel, and it may briefly be described as follows:

(1) The premises are at the northern end of a shopping strip along the Princes Highway. (2) There is a public library at the corner of the Princes Highway and Bryant Street, and St Johns Anglican Church is located at No 431 Princes Highway. (3) There are two nearby residential flats, one at No 447 Princes Highway, and the other at No 456 Princes Highway. (4) At the rear of the premises is a laneway which backs on to an SRA commuter parking area. Further to the south in Geeves Avenue is the Rockdale train station and the associated bus/rail interchange.

The site is within zone 3(a) Business General under the Rockdale Planning Scheme Ordinance ("the PSO"). The zoning table provides that specified uses are prohibited, and all other uses are permissible with consent. Use of the site for the purpose of a brothel falls within the innominate uses, and is thus permissible with consent.

As I will presently explain, the provisions of Rockdale Local Environmental Plan No 138 ("LEP 138"), the Rockdale Draft Local Environmental Plan 1998 ("draft LEP 1998") and Development Control Plan No 36 ("DCP 36") are all relevant to the proposed development.

This appeal raises both a legal issue and merit issues.

The legal issue (and factual issues related to it) are as follows:

(1) Whether the brothel meets the criteria specified in subcl (i) and subcl (ii) of cl 46B(1)(b) of the PSO? (2) Whether, if it does not meet those criteria, cl 46B(1)(b) is a prohibition or a development standard? (3) Whether, if cl 46B(1)(b) is a development standard, the applicant's objection under State Environmental planning Policy No 1 ("SEPP 1") should be upheld?

Rockdale City Council ("the council") abandoned one of the issues (relating to access) which it had raised in its statement of issues, but the remaining merit issues are as follows:

(1) Matters for consideration under cl 46B(2) of the PSO:

(a) The location of the brothel is unsatisfactory having regard to its proximity to the Rockdale railway station and bus interchange; (b) The location of the brothel is unsatisfactory having regard to its proximity to sensitive land uses and pedestrian routes frequented by children; (c) The site location is not consistent with the requirements contained within DCP 36 (except so far is access is required).

(2) The brothel will have an adverse impact on the amenity of the Rockdale Town Centre; (3) Parking; (4) Adverse impact on surrounding businesses both within and in the vicinity of the building. (5) The site location is not consistent with the requirements contained within LEP 138. (6) The development is not consistent with the requirements contained within draft LEP 1998.

14. By way of introduction, I note that cl 46B of the PSO is specifically directed to brothels, and it was inserted in the PSO by LEP 138. A consideration of cl 46B deals not only with the legal issue which has been raised, but also with issue 5, which is whether the location of the site is consistent with the requirements of LEP 138. That consideration also raises matters arising from draft LEP 1998 because cl 22(1) and cl 22(2) of LEP 1988 are identical in terms to cl 46B(1) and cl 46B(2) of the PSO.

15. Clause 46B(1) provides as follows: 46B(1) Despite any other provision of this Ordinance, a building may be erected or used for the purposes of a brothel only if: (a) it is located within the land shown edged heavy black on the map marked "Rockdale Local Environmental Plan No 138"; and

(b) is not located: (i) within 50 metres' walking distance from land zoned Residential, Special Uses "A" -School, Church or Hospital, or within 50 metres of land used for residential purposes; or

(ii) near or within view from any church, hospital or school or from any other place regularly frequented by children for recreational or cultural activities; or

(iii) abutting or within a property used or partly used for residential purposes; or

(iv) within 50 metres' walking distance of a railway station entrance or exit that is adjacent to a public footpath; or

(v) on land owned by or under the care, control and management of the Council. 16. There is no issue that the site is located within the land described in subcl (a). The dispute between the parties centres on the first two paragraphs of subcl (b).

Three issues arise. The first is whether or not the brothel will comply with the criteria specified in subcl (b)(i) and (ii). If it will not comply, then the second issue arises, which is whether the provisions of cl 46B(1)(b) are a development standard and therefore amenable to variation under SEPP 1, or whether those provisions are a prohibition. If the provisions of cl 46B(1)(b) are a development standard, then the third issue is whether the applicant's SEPP 1 objection is well founded. I deal with each of these issues in turn.

Does the development comply with the criteria in subcl (b)(i) and (ii)?

The only relevant criterion in subcl (b)(i) is that the site must not be located "within 50 metres of land used for residential purposes". As I have earlier pointed out, there are two relevant residential uses, namely, a residential flat at No 447 located above a bakery, and a residential flat at No 456 located above a restaurant. The residential flat at No 447 can be accessed either through the front of the bakery shop along a corridor to the stairs at the rear, or from the rear lane which leads to the stairs at the rear. It is presently occupied by a person connected with the bakery operation. The residential flat at No 456 is also located on the first floor, and it is presently tenanted. It is located directly across the Prince Highway from the brothel, and a window looks out on to the Princes Highway. Access, however, is only from a rear lane.

The only evidence as to the respective distances of No 447 and No 456 from the site is that of Mr P Grech, town planner, who gave evidence on behalf of the council. Mr Grech's measurements were as follows: Between the front door of the brothel and the entrance to the bakery at No 447: 29.1 m

From the front door of the brothel to the residential component of No 447: 46.8 m

A line of sight from the centre of the front facade of the site to the centre of the front facade of No 456: 36.3 m

Walking distance between the front door of the brothel and the rear access to the residential flat above No 456: 131 m

To these estimates, two other estimates must be added. Mr Grech estimated that the distance between the front door of No 447 and through the bakery to the stairs leading to the residential flat was about 22 m. Mr J B Sheehan, the applicant's town planner, estimated that the distance between the front door of the brothel to the top the stairs, where the reception is to be located, was about 9 m.

Ms Fraser submitted, based on these estimates, that the site satisfies the distance criterion of 50 m. She relied for this submission on s 38 (a) of the Interpretation Act 1987 which relevantly provides that, for the purposes of any instrument made under an Act passed before the commencement of the Interpretation Act, any distance shall be measured "according to the nearest route ordinarily used in travelling …". Therefore, in her submission, the nearest route ordinarily used in travelling from the site to No 447 is a distance of 9 m from the top of the stairs to the front door of the site, thence 29.1 m to the door of the bakery, and thence 22 m to the stairs to the residential flat, a total of 60.1m. Similarly, the nearest route ordinarily used in travelling from the site to No 456 is a distance of 131 m, as Mr Grech noted.

Assuming, but without deciding, that the PSO is an "instrument" made under an Act passed before the commencement of the Interpretation Act, and therefore that s 38(a) applies, I nevertheless reject Ms Fraser's calculations for two reasons. First, the draftsman of subcl (b)(i) specified "walking distance" in relation to the 50 m distance requirement in respect of land zoned for the purposes there stipulated, yet, in the same subclause, omitted the reference to " walking distance" in relation to the distance requirement in respect of land used for residential purposes. I take that to be a strong indication of the intent of the draftsman that the latter requirement is a straight line calculation. Secondly, what subcl (b)(i) contemplates is the distance from the location of the brothel to "land used for residential purposes", not to the entrance of that part of the land used for those purposes. Accordingly, the straight line distance from the location of the brothel to the land used for residential purposes at No 447, which is the first floor of the building at that address, is 29.1 m, and in this connection, the distance of 9 m from the front door of the brothel to the top of the stairs near the reception area should be ignored. Similarly, the straight line distance from the location of the brothel to the land used for residential purposes at No 456 is 36.3 m. These distances are therefore within 50 m.

However, that is not the end of the matter, because Ms Fraser submitted that, in any event, the residential uses at No 447 and 456 should both be ignored. She made this submission on two grounds. Firstly, she said, No 447 and No 456 should be looked at in their entirety and in each case the residential use is ancillary to the dominant use of, in the one case, a bakery, and in the other case, a restaurant. Such an approach, she pointed out, was followed in by Commissioner Roseth in Ananda and Anor v Rockdale City Council (21 July 1999, unreported) where, at par 17, it was held that a hotel was not a residential use of land, the dominant use being a bottle shop and a bar. That was consistent with authority, Ms Fraser submitted, citing Eaton & Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270 at 282 and Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26 at 27 where, in each case, reference was made to the concept of land as one parcel or one unit.

Secondly, she submitted, there is no evidence to establish that the residential use of No 447 and No 456 is lawful, and the council should not be permitted to rely on the residential use of No 447 and No 456 as being "land used for residential purposes" within subcl (b)(i) unless it establishes the legality of the use. Her argument in this connection, as I understood it, was that prima facie the residential uses were unlawful, since they fall within purposes specified in column V of the zoning table, which specify purposes for which buildings may not be used, including "dwellings, dwelling-houses medium density housing or residential flat buildings other than those with a mixed use development". For this proposition she cited Apollo Shower Screens Pty Ltd and Anor v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 at 564 - 565, where it was held that, where a plaintiff carries the onus of proving a negative (in this case, as distinct from that case, where the applicant carries the onus of proving that the residential use has no lawful status) and where the defendant (in this case, the council) has the greater means to produce evidence which contradicts that negative proposition, the defendant (in this case, the council) carries an evidential burden to advance in evidence any particular matters with which the plaintiff would have to deal to discharge their overall burden of proof.

I cannot accept these propositions. Reference to subcl (b)(i) makes it plain that the criterion in the second limb of the subclause is based on land use not land zoning , because zoning is an element of the first limb, and, once again, it must be presumed that the draftsman intended that there be a distinction. Therefore, what is relevant is whether or not a parcel of land is being used for residential purposes, not whether it is a use subservient to the dominant use of the whole, nor whether it is a lawful or unlawful use. Such an interpretation accords, in my opinion, with the legislative intent of cl 46B(1) as a whole. It is intended, as reference to residential, church, school, hospital and children throughout the clause makes plain, to preserve the amenity of sensitive uses from the potential impact of a brothel.

Moreover, so far as lawfulness is concerned, the residential uses are as equally likely to be prima facie lawful as they are to be prima facie unlawful. That is because residential flat buildings with a "mixed use development" are not prohibited under column V of the zoning table, and therefore fall within the innominate uses in column IV which are permissible with consent. The expression "mixed use development" is defined in cl 4 of the PSO as follows: "Mixed use development" means one or more dwelling (sic) attached to or on the same parcel of land as a building used or intended to be used for a non-residential purpose permissible on the land, whether or not that dwelling or dwellings will be used in conjunction with that non-residential use.

For these reasons, I have concluded that the brothel fails to comply with the criterion set out in subcl (b)(i). However, subcl (b)(ii) is also relevant. St Johns Anglican Church is located on the same side of the Princes Highway as the brothel. Mr Grech measured the distance from the door of the brothel to the land on which the church is located as 85.8m, and to the church gate, as 97.4 m. Furthermore, the site is opposite the public library at the corner of Bryant Street and the Princes Highway. Mr Grech's unchallenged evidence was that he had seen children in the library on more than one occasion. I accept, therefore, that the library is a place "… regularly frequented by children for recreational or cultural activities".

The issue, then, is whether the site is "near or within view from" the church or the library. Mr Grech's evidence was that it would be possible to see the church fence from the site, but I accept that the site is not "within view" from the church, because it is located on the same side of the Princes Highway as the church, and the church is slightly set back from the roadway. As to whether or not the site is "near" the church, Mr Sheehan's opinion was that it was not, because it was about 90 m away. Mr Grech's opinion was that the site was "near" the church, because, apart from its distance from the site, the church was in the same block of buildings fronting the Princes Highway. I accept Mr Grech's opinion. Applying the criterion of "near" in the context of preserving a sensitive use from the potential impact of a brothel, which is the purpose of subcl (b)(ii), I think that, because it is located on the same side of the street about 90 m away, the church is "near" the site.

The position of the library is slightly different. From inside the library, there is, according to Mr Grech, no view of the site. The only view of the site from the library is from its entrance podium on the Princes Highway, and the line of sight, in Mr Grech's estimation, is about 70 m. As Mr Sheehan emphasised, and I accept, it is an oblique view, across an eight-lane highway separated by a fence on the median strip. Nevertheless, I consider that the site is "near" the library, and "within view" from it. I reject the notion that "view" can only be considered from inside the library; the site is "within view" even if that view takes place from the main entrance to the library building. The library is also located, in my opinion, "near" the site, taking into account its location across on the opposite side of Princes Highway, and its line of sight being about 70 m.

I have concluded, therefore, that the site does not comply with the relevant criteria specified in cl 46B(1)(b)(i) and (ii).

The conclusion I have reached raises the question of whether cl 46B(1)(b) is a development standard, and thus amenable to variation under SEPP 1, or whether it is a prohibition.

The test to be applied is whether cl 46B(1)(b) is a provision relating to whether development may be carried out at all, or whether it relates to what occurs in the carrying out of the development ( North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222 and see my discussion of the proper approach authorised by that decision in Vassallo v Blacktown City Council [1999] NSWLEC 267).

I am of the opinion that cl 46B(1)(b) is a development standard. Its opening words, although not determinative of its proper construction, do indicate that development for the purpose of a brothel may be carried out, rather than not be carried out at all. Furthermore, cl 46B(1)(b) sets a location, siting or distance standard against which development for the purposes of a brothel is to be measured, that is, it provides that a brothel must not be located or sited "within 50 m of land used for residential purposes" , or "near or within view from any church or … place regularly frequented by children for recreational or cultural activities". These matters relate, not to whether the development of a brothel on the site may be carried out at all, but to an aspect of that development when it is being carried out. It is therefore a development standard.

The next issue is the application of SEPP 1. This policy provides that a person intending to carry out development may make a written objection that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case (cl6), and the council (and the Court on appeal) may grant development consent despite the development standard if the objection is well founded and the grant of development consent is consistent with the aims and objectives of SEPP 1 (cl 7).

A SEPP 1 objection was lodged by Mr Sheehan on behalf of the applicant. In relation to the requirement that the site not be located within 50 m of land used for residential purposes, Mr Sheehan set out the grounds of objection as follows:

(a) there is no relevant interface between the site and any residential use; (b) the residential use is ancillary to a commercial use; (c) the residential use is itself prohibited and prima facie unlawful; (d) the amenity of the area is compromised by noise and traffic to such a degree that the area is unsuitable for many sorts of uses, including residential uses; (e) the actual walking distance to be traversed between the site and any residential use is well in excess of 50 m.

It can be seen at once that some of these grounds were raised by Ms Fraser as a basis for the site's compliance with the development standard. For the reasons I set out above, walking distance as referred to in par (e) above is not the proper approach; and, in terms of par (c) above, the residential use is at least as likely to be lawful as unlawful. As to par (a), I am unsure as to what is meant by the expression "relevant interface", but I take it to mean, as Ms Fraser described it, "interaction", or, adopting the Macquarie Dictionary definition, as having "a common boundary" . But, in any event, I find that none of the matters set out in par (a) to par (e) above are well founded, because they ignore the purpose of the development standard. That purpose is, as I have earlier said, to protect sensitive uses from the potential impact of a brothel. Accordingly, it does not matter that the residential use may not be interfaced (in the sense I have construed that expression above), or that it is ancillary to the commercial use, or that it may be unlawful, or that it is a use unsuitable for the area by reason of noise and traffic.

In relation to the requirement of the site not being located "near or within view" of the church, Mr Sheehan set out the grounds of objection as follows:

(a) a relationship of proximity is necessarily a relative matter. The church is located approximately 100 m from the site, and there is no relevant interface or association between the site and any church use; (b) the church use is minimal, and does not include many of the facilities and service associated with church use such as Sunday schools; (c) the brothel is not within view of the church.

Once again, I have dealt with these matters earlier. I think that the location of the site, about 90 m from the church, is "near" , as that word must be construed in the context of the purpose of the development standard. I repeat that having no relevant interface is, in my opinion, an irrelevant consideration in the context of the purpose of the development standard. As to the use of the church as a church, I accept the evidence of its rector, Reverend J L Bales, that its use as a church is not minimal. Although the church is amalgamated with St Marks Church at Brighton-Le-Sands (Reverend Bales being rector of both), there is a regular Sunday service at the church, and other religious activities take place there from time to time, such as Bible study and Sunday school, and community activities take place in the church hall. As to par (c), I have already found that the brothel is not "within view" from the church, but that alone does not, in my opinion, make this objection a well-founded one.

As to the requirement that the site not be located "near or within view" of the library, Mr Sheehan again relied on there being no relevant interface between the site and the library use as a ground of objection, and he also stated as a further ground the fact that the library is located about 100 m from the site, and is separated by an eight-lane fenced highway carrying in excess of 60,000 vehicle movements per day. Once again, I do not consider these grounds amount to a well founded objection, as I have previously explained. Mr Sheehan raised three other grounds, namely:

(a) The library use is screened from the Princes Highway behind trees and blinds; (b) The view is oblique, that is, on an acute angle, and so the site would not be discernible; (c) The council has purchased a property (a considerable distance from the site) in which it intends to construct a new library. As to (a) and (b), as I earlier pointed out, there is a view of the site from the entrance podium to the library which, although oblique, is not screened by trees or blinds.

Item (c) is irrelevant. There is no doubt that the library is currently in use, and there is no evidence that its use is temporary. 40. For all these reasons, I do not consider that the SEPP 1 objection is well founded, and I do not consider that compliance with the provisions of cl 46B(1)(b) is unnecessary or unreasonable in the circumstances of the case. As it happens, the site is located in a commercial area, and it is a use permissible with consent, but the fact that the residential uses at No 447 and No 456, the church and the library are located in the vicinity renders the site inappropriate for development as a brothel.

41. The consequence of my findings is that development for the purpose of a brothel is prohibited on the site, and development consent must be refused. However, since other issues were raised and were the subject of evidence and argument, it is appropriate that I deal with them.

42. Clause 46B(2) is in the following terms: 46B(2) When determining an application to carry out development for the purposes of a brothel, the Council must consider the following matters: (a) 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; (b) 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; (c) whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood; (d) whether suitable access will be provided to the brothel.
43. The parties are agreed that subcl (d) is not an issue, and therefore suitable access may be taken to be provided to the brothel.

As to the other matters in cl 46B(2) the relevant facts are these. The site has pedestrian linkages to Rockdale Railway Station in Geeves Avenue, as well as to the bus/rail interchange, and the adjacent SRA carpark. Furthermore, as Mr Grech pointed out in his evidence, the site is near commercial activities, such as food outlets and the bakery, which bring pedestrian activity past the site. Finally, there are three other brothels located in the general area, at No 485 Princes Highway, No 17 - 19 The Seven Ways, and No 555 - 559 Princes Highway.

Mr Grech's opinion was that the location of the site in reasonable proximity to the station, the bus/rail interchange and the SRA parking area was unsatisfactory, because of the pedestrian activity, including children, in those areas. In Mr Grech's opinion, the SRA parking area would be likely to be used by patrons of the brothel, and it is an area, in his opinion, where security would be difficult.

So far as cl 46B(2) is concerned, I am not satisfied that the operation of the brothel (which is rather small scale) would not be likely to cause a disturbance in the neighbourhood either when taking into account the other brothels, or because of its size, hours of operation, clients or the number of employees and other people working. But I think the critical issue is that which is encompassed by cl 46B(2)(c), that is, the amenity of the neighbourhood. The fact is that its location is in an area where there are uses which may be sensitive to its operation, and there is a strong likelihood, in my opinion, that the operation of the brothel will interfere with that amenity. It is in an area in which there is a railway station, a bus/rail interchange, a car park, a church, a library and two residential uses. Those uses inevitably generate activity, especially pedestrian activity, and most of them are likely to involve children. The site is simply an inappropriate location for a brothel.

Impact on the Rockdale Town Centre and surrounding business

Issue 2 raises the question as to whether the brothel will have an adverse impact on the amenity of the Rockdale Town Centre, and issue 4 raises the question as to whether the brothel will have an adverse impact on surrounding businesses within and in the vicinity of the building.

There is no dispute that the site is within the large area which has been identified for planning and strategic purposes as the Rockdale Town Centre in the strategy for the area entitled "Vision for Rockdale". One of its strategies is to create a town park, as a community focal point, at the end of Bryant Street where it intersects with the Princes Highway, with a strengthening of linkages back to the main shopping centre, the station and the bus/rail interchange. In Mr Grech's opinion, this reinforces the inappropriateness of the site for a brothel.

On the other hand, Mr Sheehan's opinion was that the brothel would result in increased economic activity in the area and would contribute to the commercial area.

I am inclined to the view that the brothel would not have an adverse impact on the amenity of the Rockdale Town Centre as a town centre. It is likely, for the reasons I have earlier outlined, to have an adverse impact on sensitive land uses within the area, but that is not the same thing as saying that it would have an adverse impact on the town centre as a whole. It is located at first floor level above shops, and is intended to be a small scale operation. I am unable to see how it would have an adverse impact on the amenity of the town centre, and therefore issue 2 would not warrant refusal of consent.

Nor am I able to see how the brothel would have an adverse impact on surrounding businesses. It is, as I said, a small scale operation, located above shops, but with its own separate entrance. Mr Sheehan pointed out that its busiest hours of business are likely to be outside of normal business hours. Mr Grech said that its potential impact on surrounding businesses would be likely to arise from the fact that the site would become known as a brothel. In his opinion this may lead to avoidance of the area by potential business customers, both adults and children. He was not able, however, to quantify this impact, and could not say whether it would be minor or significant. I do not think issue 4 would warrant refusal of consent.

This is issue (3), but it is not a critical issue. The site cannot itself provide any parking, and there is some issue as to whether the brothel will increase parking demand at all, and what number of car parking spaces is required to be provided under DCP 36. But, since the proposed development is small scale, and since a s 94 contribution could be imposed by way of a condition of consent, I agree with Mr Grech that this issue would not warrant refusal of consent.

For the foregoing reasons, I have concluded that development consent should be refused.

(1) The appeal is dismissed. (2) Development application No 468/99 for a therapeutic massage parlour and brothel at No 459 Princes Highway, Rockdale is determined by the refusal of consent. (3) The exhibits may be returned.

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