Xiang v Canterbury City Council

Mr A Seton (Respondent) Solicitors

Marsdens Law Group (Respondent) File Number(s): 10257 of 2011

Judgment 1This is an appeal under the Land and Environment Court Act 1979 against the refusal by Canterbury City Council for a brothel in the premises known as 165 Canterbury Road, Canterbury. The brothel was described in the development application as: three working rooms in ground floor premises of a shop frontage along Canterbury Road. 2The three working rooms of the brothel shown in the original plans are the first working room is to be 2.4 m by 2.2 m, the second working room -2.4 m by 2.4 m, and the third working room - 2.8 by 1.8. The third working room has access via the combined laundry and bathroom facility, and the bathroom is to be shared facilities for both the staff and the clients to the brothel. Also shown in the plan is a staff room at the front of the shop with an entry door to the side of approximately 2 m in width, that this has a waiting area behind. It is proposed that the door to the premises remain locked. 3Originally, the application showed an entry door from the rear laneway, however, the applicant has agreed that the rear laneway access to the brothel be denied. The applicant has also agreed during these proceedings that the third working room, which only has access off the combined bathroom and laundry, would be deleted from use as a working room. It is proposed that there be two sex workers for the subject premises and a receptionist. 4The Court had the opportunity of doing an extensive site inspection in the presence of the parties. It is noted in the locality of the area at the rear is the Aldi supermarket store which is a more recent development than the old commercial development along Canterbury Road which fronts both sides of Canterbury Road, and is zoned commercial. 5This portion of the shopping centre with frontage to Canterbury Road is somewhat rather economically depressed in that there were seen to be numerous shop vacancies along this strip of Canterbury Road, in particular within this block and the adjoining block on the western side. 6The Court also has the benefit of hearing expert evidence from Mr Kerry Nash, a consultant planner on behalf of the applicant, and Mr Bernard Sutton for the respondent, a development control assessment planner with the council. 7The Court was taken to the relevant controls contained within the council's bundle. In summary, the contentions are that the location of the proposal is unacceptable as it is not located in a discreet way, or sensitively located in a position having regard to the proposed use and the location requirements of the development control plan. The particulars related to the separation distances between various sensitive land uses, and also, the brothel is in the vicinity of a licensed premise being the hotel club. 8The other particulars/contentions that the council raised is that the access makes the development unacceptable as it does not comply with the access requirements of the development control plan. That is to encourage the location of brothels above ground level to ensure safe access for workers, and the preferred locations are above ground level as articulated in the Development Control Plan of the location of this brothel on the ground floor of an existing commercial premises with shopfront location with access from Canterbury Road and Pierson Lane at the rear is not consistent with the council's guidelines. The rear entrance to the brothel also serves the first floor residential tenancy, contrary to discreet and separate access. As I stated, the applicant agreed that the rear access which also serves the upper residential shop top flat, would not operate for the brothel and only serve the residential flat. 9In terms of car parking, council contends the brothel is deficient by one car parking space. The issue of crime prevention was also raised and the objectives of the zone, as well as the public interest in that the brothel is not in a discreet or sensitively located position. 10The statutory planning controls include the Canterbury Local Environmental Plan 138, and the subject use as a brothel falls under the category of office premises. This means " a building or place used for the purpose of administration or professional purpose or the like " The proposal is within the zone known as the 3A Business Zone, and the objective is " to achieve a hierarchy of shopping centres for retail/office related uses which contribute to employment and economic growth of the area ". Clause 11 requires that I have regard to the zone objectives in determining a development application. 11The car parking DCP provides for brothels one space per two workers and for the premises a credit results in a deficiency of one car parking space. 12The Canterbury Council adopted a DCP for brothels in 1996, and this is DCP No 23. The general objective is that brothels be discreet, sensitively located and not prominent within the community. The DCP also provides for guidelines as to where people live and other sensitive land uses. "Brothel" in the DCP is defined as " a premises habitually used for the purposes of prostitution or that is being used for that purpose, and are likely to be used again for that purpose ". Premises may constitute a brothel even though it is used only by one prostitute for the purposes of prostitution, and prostitution includes acts of prostitution between persons of different sexes or the same sex and includes (a), sexual intercourse, and (b), masturbation committed by one on another for payment. 13For access and location requirements, the DCP objectives include: to encourage the location of brothels above ground floor level; and to ensure safe access to brothels. The standards are that the brothel must not be located adjoining or within 100 m walking distance of any residentially zoned site, and a brothel should not be located within 200 m of a place of worship, school, community facility, child care facility, hospital, railway station, bus stop, taxi stand, or places regularly frequented by children for recreation or cultural pursuits. 14It is noted that the subject brothel is located some 150 m from the railway station, 90 m from a bus stop, however, it is further than required of educational establishments, there being a primary and a high school within the area, but not located in close proximity. 15The car parking requirement in the Brothel DCP is the same as in the DCP for car parking. Other standards/conditions of brothels include: in the public interest; and approval be limited for a period of twelve months after which the council may review same. 16I note although it is a matter I give little weight to, that the brothel has been operating in an unauthorised way, and the development application is in response to the council issuing an order for the unauthorised use of the brothel. I say, this merely as a matter of background as this development application must be considered on its merits. 17The other relevant document is the council's recent Development Control Plan No 55, which seeks to revitalise certain areas of the precinct. That is the Canterbury Town Centre and the river front precinct. I note that in terms of the subject site, it is included within this town centre precinct, and the development control plan is to provide a clear vision and identify opportunities, and to establish principles for the guidance of development. It is also noted that there is a vision provided within this document, and the " town centre structure plan " determines the location, type and level of development for the area. The structure plan shows that for development within this particular block, including the subject site, that it is to have an active frontage to Canterbury Road and an active frontage to Pierson Lane. As such it may be envisaged that development would also orient to Pierson Lane in view of the Aldi centre development to provide for a focus and clustering of uses in this location. The subject site may be developed in isolation or it may be amalgamated under the DCP as there is no provision for amalgamation of the subject site in the DCP. 18The Court has had regard to all the evidence to the Court including the evidence given orally from the planners in these proceedings. It would be fair to say that the council's prime concern is that the proposal is located within a shopfront, and this is against the guidelines articulated in the Development Control Plan for Brothels . The Development Control Plan clearly specifies that " the preference is for brothels to be located above ground level and not in shopfronts. While the preferred location for a brothel is above ground floor, access may be provided from the street ". The DCP states: If the brothel is at street level, it should not be in a shopfront location or at the front of premises, and access to brothels is to be discreet, particularly if provided from street level, and council would not approve a brothel where there is access common to other commercial uses or a dwelling within the premises. 19The Court must have regard to the development control plan, and as required by the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167 , the provisions of the DCP must be a central focus and consideration in assessment of the development application. Zhang also states that development control plans are discretionary, and clearly, the circumstances of cases are to be considered in the application of the development control plan provisions. 20The other case cited is the Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 which in essence states that one may not substitute other standards for those contained within DCPs, and once again reiterates the principles of Zhang in terms of a focus or central consideration in the assessment of applications. 21The Court in its assessment has considered the provisions of the DCP and while the brothel it may not comply with some of the separation distances, this would not warrant refusal of the application in the circumstances of this case. However, in terms of the shopfront location of the brothel, I am not persuaded by the applicant's evidence that the circumstances of this case warrant a variation to the DCP for brothels not to be located within shopfronts, and the preferred location should be above ground level. 22The objective for the location requirement is to encourage the location of brothels above ground floor level. I am not persuaded by the applicant's evidence that the shopfront location for this brothel is appropriate. The evidence of Mr Nash " is for the door to be locked, and this would prevent, for example, schoolchildren wandering into the premises ". However, locked premises of shopfronts is unusual, and as could be seen on site, the shops operating have public access, even though many others are vacant. Mr Nash gave evidence that the reception would answer the door, and that enquiries would be made of a potential client on the footpath, and for this interaction to be on the footpath before the client would then be allowed into the premises. 23I agree with Mr Sutton that it is inappropriate that the operations of the brothel are not contained fully within the premises given the nature of the business and that the interaction on the footpath does not provide for a discreet location a primary principle objective of the development control plan for brothel premises. 24Whilst no management plan has been provided, this is not a reason as to why I refuse the development application or the lack of detail of how the premises are to be managed, in the written documentation. The Court has the oral evidence of Mr Nash that the door would be locked and that the receptionist would meet people at the entry doorway and the client would not be allowed in until after a discussion on the footpath. 25In my assessment, one of the primary tenets of the Brothel DCP is for brothels to be located in a discreet way, and I am not satisfied in the circumstances of this case that a shopfront location for the brothel can be accommodated in an appropriate discreet manner on the basis of the evidence to the Court. 26While precedent itself may be a reason to refuse a development application as provided in the authority of Goldin & Anor v the Minister for Transport Administering the Ports Corporatisation Waterways Management Act 1995 [2002] NSWLEC 75, in the circumstances of this case, the merits of the matter are such that it would not warrant approval and I do not rely on precedent. However, this would be another reason as to why the brothel should not be allowed. Clearly the development control plan has a preference for brothels to be located not at a shopfront location, and in a discreet manner. 27The approval of a brothel at a shopfront location as proposed would also in my view, provide an inappropriate precedent that others would seek to invoke. The fact that the area is economically depressed and there is a high level of vacant shops does not persuade me or does not justify a brothel being located in the subject premises. The same would be argued for all of the other vacant premises along this strip. In this regard Council has a clear vision in its recent development control plan for the revitalisation of the area, and in the circumstances a shop front brothel is not an appropriate land use, both on its individual merits for the subject premises, having regard to the issue of precedent and in the context of strategic planning for the area. 28Having determined consent should be refused it is not necessary for me to assess the issue of whether a twelve month or a two year period is appropriate. The applicant argued that there should be no limit on the length of time of the consent, as the brothel has already operated and there have been no complaints. 29The authority of Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 is clear in that the issue of the relevance of past unlawful use to determine whether a consent should be granted or modified has been considered by courts in the past. While the courts have consistently held that past unlawful use is not a relevant factor, His Honour Preston CJ, states that: Having regard to these authorities, the mere fact that the applicant may have operated its restaurant facility in breach of conditions is neither a bar to the power to the Court to modify, nor a relevant factor by itself in determining whether to exercise that power. That mere unlawfulness of past use is not a relevant fact. It does not mean however that past use without any consideration of its unlawfulness cannot ever be relevant... For instance, past conduct may have given rise to unacceptable impacts such as acoustic impacts in that case. The experience of impacts of the past use could be relevant in evaluating first the likely impacts of a prospective use for which consent is sought, of the same or similar character extent intensity" et cetera "past use would therefore be of relevance but it is for proper planning reasons not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 30The fact the brothel had operated without complaint, while it may be a relevant consideration in the circumstances of the case, it certainly does not warrant or justify a development approval. Furthermore, a consent runs with the land which would allow the brothel in this shopfront location to be operated by another owner. 31The Court, can see and understands that the area is in need of economic revitalisation, however, as I said, I do not consider the location of a brothel in this shopfront is justification or reason for approval. It may have negative impacts or ongoing impacts as well as a precedential effect for the location of brothels within shopfronts. 32There was no evidence provided by the applicant that the council has not consistently applied the development control provision of shopfronts not being the preferred location for brothels and the DCP provision must be given central focus and I am not persuaded in the circumstances of this case that it should be varied. 33Accordingly, on the basis of my assessment above, the formal orders of the Court are: (1)The appeal in respect of the premises known as 165 Canterbury Road, Canterbury, is dismissed. (2)The development application submitted to Canterbury Council and as amended, is determined by the refusal of consent. (3)The exhibits are returned to the parties. J S Murrell 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. Decision last updated: 15 August 2011