Yao v Liverpool City Council

Land and Environment Court (NSW)|2017-02-24

Judgment

COMMISSIONER: This is an appeal against the refusal of Modification application 130/1998/B to modify a development consent "to use the first floor of No. 24 Railway Street, Liverpool as a brothel" (Wendy Connolly v Liverpool City Council (10785 of 1997, unreported) granted on 9 April 1998. The modification application seeks to modify the current condition 11 of the development consent and add a further condition. The current condition 11 is the result of a modification granted by the council on 19 May 2004.
Condition 11 currently states: 11. Hours of operation are limited to the following, seven days per week, with operation outside of these hours being prohibited: (a) 11am to 3pm; (b) 3pm to 4pm provided that access and egress from the premises between those hours for clients and staff is only via he rear laneway at the southern end of the premises and not via the door at the ground floor level in Railway Street. (c) 8pm to 1am.
The applicant proposes to amend condition 11 to read: 11. Hours of operation are limited to the following, seven days per week, with operation outside of these hours being prohibited: (a) 10am to 2pm; (b) 2pm to 6pm provided that access and egress from the premises between those hours for clients and staff is only via he rear laneway at the southern end of the premises and not via the door at the ground floor level in Railway Street. (c) 6pm to 10:30am.
The additional condition 23 is to read: 23. The Plan of Management prepared by Michael Brown Planning Strategies dated 24 February 2017 and stamped approved by the Land and Environment Court is to be complied with at all times. No amendments to the Plan of Management may be made without the Council's prior written consent.
The council maintains that the modification application should be refused because: 1. the extended hours are not compatible with surrounding land uses, 2. the extended hours would give rise to unacceptable social impacts in the immediate locality, and 3. the applicant has not demonstrated a satisfactory justification for the proposed extended hours.

The site

The property is 2/24 Railway Street, Liverpool and is located on the first floor in the Liverpool Central Business District and within walking distance from Liverpool railway station. It is Lot 2 in SP 52064 and has a total area of 122 sq m. The local area is dominated by commercial/ retail premises however directly across from the premises on Railway Street is Liverpool Public School. A rear service lane provides access at the rear of the premises.

Relevant planning controls

The site is within the B3 Commercial Core zone under the provisions of the Liverpool Local Environmental Plan 2008 (LEP 2008). The proposed development is characterised as a "sex services premises" under LEP 2008 and is prohibited under the B3 zone however the site benefits from existing use rights from the approval granted on 9 April 1998.
The council and the applicant agree that the use has existing use rights under s 106(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). Section 107 allows the continuation of that existing use. Section 108 provides the opportunity for regulations to made in relation to an existing use, relevantly for "the enlargement or expansion or intensification of an existing use" (s 108(1)(c)). Section 42(1) of the Environmental Planning and Assessment Regulation 2000 (the Regulations) requires that development consent is required for "any enlargement, expansion or intensification of an existing use". The parties accepted that a development application was required and consequently an assessment under s 79C(1) of the EPA Act is needed.
As the proposed development is a prohibited use in the B3 zone, there no relevant development control requirements for "sex services premises" in this zone although the planning principle in Martyn v Hornsby Shire Council [2004] NSWLEC 614 was addressed by the expert town planners.

Are the extended hours compatible with surrounding land uses?

Expert town planning evidence was provided by Mr Gerard Turrisi for the council and Mr Michael Brown for the applicant. Dr Judith Stubbs provided evidence for the council on social impacts and Professor Roberta Ryan provided evince for the applicant on this topic.
Mr Turrisi notes that the original approval prohibited the use of the premises between the hours of 4pm to 8pm. The hours of operation, between 3pm to 6pm are more critical given the existence of the school directly opposite the site, with a higher level of pedestrian activity/movements from children and parents in the area, according to Mr Turrisi.
Mr Turissi notes that the current owners purchased the operation in the knowledge of the conditions of approval that were imposed. Therefore, it is his opinion that the operator should have been aware of the sensitivity of the surrounding land uses, particularly the school. To seek justification on the basis of commercial viability is not reasonable given the close proximity of the school. While other brothels may operate during the proposed times, these brothels are not located in areas that have sensitive uses around them. Mr Turissi also notes that the existing approval is not sufficient justification for the extended hours.
Mr Brown notes that the original Court approved hours of operation in 1998 were 7 days per week between 10.30am and 9pm. The amendment essentially seeks to operate between 4pm and 8pm; which is currently prohibited. During these times under the current trading hours, the premises is required to be closed and staff essentially are required to vacate the premises, including any clients and wait until 8pm for the premises to reopen. This also occurs on a Saturday and Sunday, and during school holiday periods, when the school opposite is closed.
In the Social Impact Assessment (SIA) prepared by Professor Ryan, Mr Brown notes a pedestrian survey indicated that during the period of 3pm and 3.30pm, 105 school students and parents were observed in Railway Street. In the period between 3.30pm and 4.30pm the number dropped to 35 and between 4.30pm and 5.30pm, there were no students. Therefore, during the critical hours between 4pm and 6pm, school children were observed for only 30 minutes (4.30pm to 5pm) and not 3 hours; noting that between 3pm and 4pm, ingress and egress from the premises is from the rear lane. During the above times, there are a number of passers-by, but this relates mainly to persons either going to or leaving the Liverpool Railway Station or bus interchange, as detailed in the SIA.
In regard to the hours between 6pm and 8pm, Mr Brown states that this is not substantially different to the approved hours as the premises reopens at 8pm to 1am, in accordance with the Court approval, noting that it is proposed to reduce the time to 12midnight.
Mr Brown further states that it is assumed that the current owners of the premises were aware of the conditions of consent by the Court in 2004, but this does not prevent the owner applying for an amendment to the consent, as proposed by this application. While there is a sensitive land use opposite, it is clear from the SIA that after 4.30pm, there are no school students in the street.
Dr Stubbs and Professor Ryan agree that the area is frequented by sensitive groups, including parents and children. They further agree that heightened sensitivities relate to the cultural and demographic context of the brothel and community concerns may exist from extending trading hours from 4.00pm to 8.00pm although they accept that the brothel has already been operating during the proposed hours for a number of years. It is accepted that there is a high level of pedestrian activity to and from the school around 2.45-3.45pm where large numbers of parents, carers and young children congregate at the entrance to the school, immediately near the brothel.
Dr Stubbs and Professor Ryan also agree that children from the school engage in after school activities until around 4.30-5.00pm on some days/times of the year. Other sporting, cultural and recreational activities are also conducted in school facilities in the late afternoon and evening and involve a range of community members including children, with these varying during the school term/year. Dr Stubbs and Professor Ryan note other sensitive land uses include two facilities used as places of worship in close proximity to the site - the Liverpool Immanuel Christian Fellowship that meet for weekly services and other activities in the Liverpool Public School Hall; and the Pentecostal Missionary Church of Christ, which meets at 19 Scott St, with its main entrance and car park directly across the rear lane within view of the rear entrance of the site. Mid-week Bible Study and Prayer Meetings directly overlap with extended hours proposed (6.30-8.30pm).
Where Dr Stubbs and Professor Ryan disagree is on the tangible and intangible social impacts. Dr Stubbs states that there is evidence of tangible impacts from submissions, interviews and focus groups in the locality that raised matters such as nuisance and annoyance from existing brothel patrons, the need to increase security, engagement in protective behaviors, significant cultural conflicts that carry the risk of adverse impacts on the school's image and enrolments, and on the behavior of children, parents and carers. Intangible amenity impacts relate to the way in which the community experiences their physical environment including adverse impacts on their way of life, the atmosphere of their locality, or discomfort arising from conflicts with reasonable community values. Evidence for these types of social impacts has also been expressed by the community in consultations and submissions. Dr Stubbs maintains that each of these types of impacts is reasonable and valid in the context of this application.
Professor Ryan states, in relation to tangible social impacts that the evidence from council's complaints data and Liverpool Local Area Command crime data indicates problematic or anti-social behavior has not been associated with this brothel in the past. Professor Ryan notes that there are differing community and cultural values regarding brothels. The brothel has been operating during the proposed hours for a number of years and there is no evidence the suggested behaviour change has occurred. She questions whether the mere existence of a door (that leads to the brothel) with no obvious indication of the activities within the building is a valid basis for objection, even as an intangible impact.

Planning principle - Martyn

During the hearing, the planning principle in Martyn v Hornsby Shire Council [2004] NSWLEC 614 was addressed by the expert town planners. This planning principle has been in operation for some 13 years and in many instances has been overtaken by specific controls and requirements in development control plans for individual councils. In this case however, the prohibition of sex services premises in the B3 zone creates an absence of planning controls to assess the modification application. The more prescriptive form of the planning principle in Martyn also needs revision given the more recent approach of creating planning principles that simply raise relevant considerations.
The planning principle in Martyn has been considered by the Commissioners who have concluded that a planning principle that addresses sex services premises is still necessary however the content and format as set out in Martyn needs revision based on additional knowledge gained since the inception of Martyn. The revision has resulted in the following: When considering whether to grant consent for a development application for a "sex services premises" a consent authority should to take into consideration such of the following matters as are relevant to the development application: 1. the proximity to any sensitive land uses, such as, but not exclusively educational establishments, places of public worship, child care centres etc 2. the proximity to any premises used for residential accommodation, 3. paths of travel for different members of the community near the premises, 4. the hours of operation, 5. signage, 6. means of access to the premises, 7. safety of patrons and employees, 8. streetscape appearance, 9. the existing or anticipated character of the area, 10. car parking and public transport access, 11. social impact, and 12. impacts of clustering multiple sex services premises.

The revised planning principle

If the current application is considered against the revised principles then the following areas are relevant in the consideration of the modification application:
the proximity to any sensitive land uses, such as, but not exclusively educational establishments, places of public worship, child care centres etc.
paths of travel for different members of the community near the premises,
means of access to the premises,
The modification application seeks to extend the hours of operation from 10 hours per day to 12.5 hours per day, 7 days per week. The proposal seeks to operate from 10am to 2pm (previously 11am to 3pm) from the Railway Street entrance, 2pm to 6pm from the rear lane entrance (previously 3pm to 4pm) and 6pm to 10.30pm (previously 8pm to 1am) from the Railway Street entrance. The evidence of the experts focused largely on the additional hours between 4pm and 8pm where the potential for interaction with schoolchildren and parents was greater.
The site is opposite Liverpool Public School on Railway Street and was regarded as a sensitive land use by the experts for the purposes of considering the modification application. The entrance to the school is diagonally opposite the entrance to the brothel and is the main entrance used by the 714 students and parents for access to the school. Railway Street also provides a pedestrian link from the railway station to other parts of the Liverpool commercial area.
It was agreed in the social impact evidence from Dr Stubbs and Professor Ryan that, according to the Liverpool Local Area Command, the operation was not "problematic or [had] anti-social behaviour associated with the brothel in the past" although this did not satisfy Dr Stubbs who maintained the tangible and intangible social impacts were still unacceptable. Dr Stubbs and Professor Ryan disagreed on the impacts of the brothel on the children and parents attending the school although they accepted that the juxtaposition of the school and the brothel would heighten sensitivities to the brothel, particularly in relation to the cultural and demographic characteristics of the community associated with the school.
From a general planning perspective, it is now widely accepted that some groups of people are more affected than others in the community over the existence of brothels and that distinguishing or planning for the different groups in the community is not practical or possible. Consequently, most development control plans that provide controls for brothels provide for a physical separation between a brothel and sensitive land uses to address this differing community values.
In this context, I am not satisfied that the extension of the operating hours and the intensification of the use is appropriate, even though the approval for the brothel granted in 1998 has the same relationship with the school at the time of the original approval.
Mr Brown's support relied on the survey of Professor Ryan that indicated that during the period between 3.30pm and 4.30pm, 35 school students and parents were observed in Railway Street and between 4.30pm and 5.30pm, there were no students. While I do not dispute the findings of the survey, I propose to give greater weight to the more general observations of Dr Stubbs and Professor Ryan where they agree that "that children from the school engage in after school activities until around 4.30-5.00pm on some days/times of the year. Other sporting, cultural and recreational activities are also conducted in school facilities in the late afternoon and evening and involve a range of community members including children, with these varying during the school term/year". These comments are supported by the submission from the school, where it states:

Liverpool Public School operates a number of after school clubs. Students and their families are required to use the main access points on Railway Street to enter and exit the school. Clubs often operate until 4:30pm Monday to Friday. Extended operating hours will potentially expose students and their families to adult-orientated activities when leaving the school grounds.

Similar concerns were expressed by some parents who provided evidence on the first morning of the hearing.
The proposal also seeks to increase the hours where access is required from the rear lane. Dr Stubbs and Professor Ryan remain unclear how loitering and lower level annoyance was to be managed in the immediate vicinity of the site, including the rear lane, should it emanate from the brothel. Similarly, they remained unclear how the impact of directing customers to the rear lane entrance, particularly for residents and businesses using the rear lane as a point of access to their premises, would maintain adequate safety and security. While these were matters that may be addressed in a Plan of Management, the specific details were not provided. The rear access remained problematic given that it provides an access away from the direct association with the school (and was supported by the town planners) but potentially created surveillance and anti-social behavior issues (and was not supported by the social planners).
The evidence of Mr Turrisi also suggested that the rear lane may have increased patronage because of the recent development approval, that is under construction, and which provides a direct link from the rear lane to Scott Street.
The Liverpool Immanuel Christian Fellowship that meets in the Liverpool Public School Hall and the Pentecostal Missionary Church of Christ at 19 Scott St, Liverpool were also identified as sensitive land uses although I did not understand that these organisations provided specific objections to the modification application or attended the site to give evidence on any concerns. Without details of the patronage and how these organisations operate, it is difficult to assess any impacts. In any event, the most significant and sensitive land use was seen by the experts as the school and I accept that the impact on the school and its students and parents provides a sufficient basis to assess the modification application.

the existing or anticipated character of the area,
While the EPA Act and the Regulations allow for the intensification of an existing use, I am not satisfied that it is appropriate in the circumstances of this case. The 1998 approval was granted when brothels were a permissible use in the City Centre 3(a) zone under the general land use of "commercial premises" under Liverpool Local Environmental Plan No 251- Liverpool City Centre having gained the benefit of the savings provisions of Liverpool Local Environmental Plan 1997. With the coming into effect of LEP 2008, the council made the conscious strategic decision to prohibit "sex services premises" in the B3 zone. In my view, it would inappropriate to intensify the existing use given the clear strategic direction taken by the council to prohibit this land use in their most recent planning documents.

Orders

The orders of the Court are; 1. The appeal is dismissed. 2. Modification application 130/1998/B to modify the hours of operation for an existing brothel at 2/24 Railway Street, Liverpool is refused. 3. The exhibits are returned with the exception of exhibit 4.

G Brown 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: 31 March 2017

At a glance

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Judgment (8 paragraphs)

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