Xiang Hua Zhao & Han Wen Ruan v Burwood Council

CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614

APPLICANT Mr G Newport, barrister SOLICITORS McGrath Dicembre & Co LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10329 of 2008, 10330 of 2008 Xiang Hua Zhao & Han Wen Ruan v Burwood Council

JUDGMENT 1 COMMISSIONER: The two appeals relate to the refusal by Burwood Council (the council) of two separate development applications on two separate but adjoining properties seeking each property be used as a brothel and therapeutic massage clinic. The applicants in both appeals are the same, although there are some minor differences in the operation of the proposed uses because of the different site characteristics and building designs.

2 Appeal No. 10330 of 2008 relates to the property at 1A Belmore Street, Burwood. Appeal No. 10329 relates to the property at 3 Belmore, Street, Burwood. 1A Belmore Street 3 It is proposed to utilise the ground floor and first floor area of the building for the purposes of a brothel and therapeutic massage clinic. The proposed floor plans of the brothel indicate 9 workrooms, a reception area, waiting room, staff amenity rooms, bathrooms, kitchen, laundry and storage area.

4 It is proposed to have a maximum 9 staff on site, although the maximum staff will only apply to some peak periods and when bookings require. At normal times there will be 5 staff on the site. At all times there would be 2 management staff on site, being a door manager and a floor manager. These two management staff are included in the 9 maximum staff, therefore at peak work period there will be 2 management staff and 7 sex therapeutic massage workers on site.

5 The proposed hours of operation are 9.30am to midnight 7 days per week. Access to the brothel and massage clinic is to be via the rear entrance off the car park. The front entrance is to be used only for emergencies, tradesmen and for people with disabilities. Eight car-parking spaces are provided at the rear of the site with access from Belmore Street. 6 The premises have previously been used as a brothel. 3 Belmore Street 7 It is proposed to utilise the lower ground floor and ground floor space of the building for the purposes of a brothel and therapeutic massage clinic. The proposed floor plans of the brothel indicate 7 workrooms, reception areas, waiting room, staff amenity rooms, bathroom, kitchen, laundry and storage items.

8 It is proposed to have a maximum 9 staff on site, although the maximum staff will only apply to some peak periods and when bookings require. At normal times there will be 5 staff on the site. At all times there would be 2 management staff on site, being a door manager and a floor manager. These two management staff are included in the 9 maximum staff, therefore at peak work period there will be 2 management staff and 7 sex therapeutic massage workers on site.

9 The proposed hours of operation are 9.30am to midnight seven days a week. Access to the brothel, as in the adjoining property will be via the rear entrance off the car park. Nine car-parking spaces are provided at the rear of the site with access adjoining the building from Belmore Street. 10 It was submitted that the use of the buildings is for a limited time only as a development application has been submitted to the council, but not determined for the redevelopment of both sites and some adjoining properties. The applicant seeks a 5-year time limited consent, however, would accept a 2-year limited consent (as suggested by the council) if approval was to be granted. Relevant planning controls 11 Both sites are within the Business Special 3(c2) - District Centre Zone under Burwood Planning Scheme Ordinance 1979. Brothels and therapeutic massage establishments fall within the definition of commercial premises and are a permissible use within this zone.

12 The site is also subject to Draft Burwood Local Environment Plan 38 (DLEP 38) which seeks to amend the Burwood Planning Scheme Ordinance through the insertion of cl 78(O). The clause provides specific location controls for brothels by prohibiting brothels at street level (cl 78(O)(a)), an entrance within 50 metres line of sight of any sensitive land uses frequented by children (cl 78(O)(b)(i)), 50 metres of line of sight of any residentially zoned land (cl 78(O)(b)(ii)), within 50 metres of line of site of any other brothel (cl 78(O)(b) (iii)) and with 100 metres as measured by the most direct pedestrian route to any educational establishment or place of public worship (cl 78(O)(b)(iv)). 13 DLEP 38 has been in existence from around 1997 and while it has been exhibited in 2001, the council has not adopted the document. As explained to the Court, DLEP 38 has been effectively overtaken by the preparation of Draft Burwood Local Environment Plan 2007 (DLEP 2007). DLEP 2007 is a council-wide LEP based on the Department of Planning's model template. DLEP 2007 is being undertaken in stages, with the first stage being the Burwood Town Centre precinct (and includes both 1A and 3 Belmore Streets).

14 A s 65 certificate has been issued by the Department of Planning and advertising has been undertaken. Following the advertising period DLEP 2007 has essentially evolved into Draft Burwood Local Environment Plan 2008 (DLEP 2008). 15 Under DLEP 2008, both 1A and 3 Belmore Streets are within Zone B4 Mixed Use. Brothels and sex services premises are prohibited within this zone. At the time of the hearing, no s 65 certificate had been issued for the advertising of DLEP 2008.

16 Draft Development Control Plan 13 - Regulation of Brothels (DDCP 13), provides further controls on the location and operation of brothels. Draft DCP 13 is a document that has been designed to act in concert with DLEP 38. According to the council, DDCP 13 is used regularly by the council to assess development applications for brothels. The evidence 17 Evidence for the applicant was provided by Mr Glen Falson, a town planner, and Mr Mark Ranieri, a town planner employed by the council. Additional evidence was provided by a number of local residents on site. The Court also had the benefit of a copy of the submissions provided to the council when the development application for 3 Belmore Street was advertised. The development application for 1A Belmore Street was not advertised because of insufficient information provided by the applicant according to the council, although both applications were refused. DLEP 38, DLEP 2007 and DLEP 2008 18 In terms of the weight to be given to DLEP 38, I am satisfied that while not formally abandoned by the council, it has been effectively consumed into DLEP 2007 and consequently DLEP 2008. For all intents and purposes, DLEP 2008 reflects the current thinking of the council and while DLEP 2008 has not received a s 65 certificate for advertising, I accept that it is a document that should be given some weight as it has effectively evolved from the preparation, advertising and consideration by the council of DLEP 38 and DLEP 2007. In other words, DLEP 2008 is simply the evolution of the councils approach to the location of brothels, but with a change to its name to reflect the passing of time in its preparation. While DLEP 38 did not prohibit brothels (as does DLEP 2008), the proposed uses would not satisfy some of the specific location controls for brothels required by cl 78(O).

19 The intent of DLEP 2008 is to prohibit brothels and sex service premises from Zone B4 Mixed Use. While the exclusion of this form of development was questioned by the Department of Planning, Mr Ranieri's evidence was that the Department of Planning had accepted the prohibition of brothels in this zone on the basis that brothels will be made a permissible use in other commercial zones within the local government area. For this reason, some weight must be given to the provisions of DLEP 2008. DDCP 13 20 The weight to be given to DDCP 13 must be limited, in my view. It has been in existence since 1997 and not formally adopted by the council. It was a companion document to DLEP 38 that has since been effectively replaced by DLEP 2008. At best it could be seen as a public exhibited document, but the time since it's exhibition must cast some doubt on its relevance. Findings 21 Accepting that the range of draft planning documents provide no definitive controls for the location of brothels, I am satisfied that s 79C(1)(b) and (c) of the Environmental Planning and Assessment Act 1979 can be used to address the likely impacts of a development and the suitability of the site for that development and provide sufficient scope to consider the merit issues raised by the council and the local residents, particularly when combined with the planning principles in Martyn v Hornsby Shire Council [2004] NSWLEC 614.

22 The site at 1A Belmore Street adjoins land zoned Residential 2(c1) to the east and north and on the opposite side of Belmore Street. The property at 3 Belmore Street also adjoins similarly zoned land on the opposite side of Belmore Street. These sites are developed with residential flat buildings of different sizes and ages. To the east are older style residential flat buildings of up to 2 storeys in height, while newer style residential flat buildings between 2 and 9 storeys are located directly opposite in Belmore Street. The Salvation Army manages one of these buildings for aged persons accommodation. 23 In considering whether the use of 1A and 3 Belmore Street are suitable for a brothel and therapeutic massage establishment, I am satisfied that their location is fundamentally unsuitable given the proximity of nearby residential development.

24 The use of 1A Belmore Street requires access to the car park at the rear of the site adjoining the residentially zoned properties in Shaftsbury Road. While these properties form part of the potential redevelopment of the subject site and no objections were received to the proposed development, the relationship is still unacceptable given the proposed hours of operation of midnight closing, 7 days per week and the location of the driveway to the car park adjoining the common boundary. It was unclear whether the rooms at the rear of the building at 73 Shaftsbury Road were bedrooms or rooms that may be affected by noise from the site. In this case, the onus rests on the applicant to show that any adverse impacts are suitably addressed by the proposed development. In my view, this has not been done. 25 I accept that the issue of privacy for people using the stairs to gain access to 1A Belmore Street could be addressed through conditions, however, I am not satisfied that potential noise impacts can be so easily addressed.

26 The impacts of the proposed developments, in my view, are more significant on the residential flat buildings located opposite the two sites in Belmore Street. The Court heard on site of unacceptable behaviour from patrons of the proposed development including rock throwing, smashing bottles, vandalism, trespassing, fighting, urinating in the street and general loitering. One resident indicated that she was disturbed on six nights of the week by patrons using the site. The residents directly associated unacceptable behaviour to patrons using the proposed development. In my view, the evidence is clear on the unacceptable impact that the use of the premises has had on the nearby residential development and it is not necessary to address numerical requirements for separation between a brothel and residentially zoned land (as provided in DLEP 38). Clearly, the relationship between the sites and the adjoining residential flat buildings is unacceptable. 27 I do not accept that the applicant's response to the impacts on the residential properties can be addressed through a Plan of Management. Importantly, once patrons leave the property, little can be done to control unacceptable behaviour beyond calling the police. This simply highlights the importance of a suitable buffer between brothels and residential properties. The behaviour may not in all instances be sufficient to call the police, but may be sufficient to disturb residents at unacceptable times of the night.

28 I also agree with Mr Ranieri's concerns that the type of use, including the proposed hours of operation, is totally different to that which would be expected if a commercial use operated from either or both of the sites. This finding is consistent with the planning principle in Martyn where it states that: 4. Brothels should not adjoin areas that are zoned residential or be clearly visible from them. Visibility is sometimes a function of distance but not always. 29 I do not accept the evidence of Mr Falson that the noise generated by the proposed development would not be out of character with that expected in the area. Similarly, I do not accept that any noise generated in the car park of the sites would not be distinguishable from other uses in the area.

30 I have also given little weight to the applicant's suggestion that the proposed use should be seen as interim uses until the sites are redeveloped. Based on the evidence of the local residents, the unacceptable behaviour should not be tolerated for any period of time by residential dwellings in the vicinity of the sites. The relationship of the sites with residential uses is simply unacceptable given the hours of operation and the difficulty in addressing likely unacceptable impacts generated from the patrons using the premises, even as an interim use. 31 The proposed development of both sites, in my view, is inconsistent with s 79C in that the likely impacts of the development will adversely affect the amenity of nearby residential properties. It follows that the sites are unsuitable for the proposed development. Orders 32 For Appeal No 10329 of 2008, the Orders of the Court are: 1) The appeal is dismissed. 2) Development Application 28/2008 for the use of an existing building at 3 Belmore Street, Burwood for a brothel and therapeutic massage clinic is refused. 3) The exhibits are returned. 33 For Appeal No 10330 of 2008, the Orders of the Court are: 1) The appeal is dismissed. 2) Development Application 29/2008 for the use of an existing building at 1A Belmore Street, Burwood for a brothel and therapeutic massage clinic is refused. 3) The exhibits are returned.

          G T Brown
          Commissioner of the Court

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