Zhang v Parramatta City Council

10258 of 2003 Moore C 19 January 2004 John Zhang Applicant v Parramatta City Council Respondent Judgment

1. The matter comes before the Court as an appeal against a refusal by Parramatta City Council (the council) to allow alterations to premises at Unit 1, 110-112 Ballendella Road, Pendle Hill (the premises), and for the use of the premises as a brothel. During the process prior to the matter originally coming to the Court, the council and the applicant settled all outstanding matters other than the rate of provision of the parking on the site.

2. As a result, the matter therefore came to the Court for hearing on matters of proposed consent orders with a contested condition relating to the rate of provision of parking. There were, however, a number of objectors to the proposal. Evidence was taken in Court on 13 October 2003 from Mrs Tunks,a resident at 12 Ballandella Road, some distance to the north.

3. During the course of an on-site view on 10 December 2003, evidence was taken from Mrs Rosemary Ren who is a proprietor of an enterprise known as Southern Cross Sportswear Pty Limited which operates from premises immediately across Ballandella Road to the east of the premises and from Mr Terry Jenkins, the NSW Manager for a youth pre-employment vocational training course known as Handbrake Turn. This operates from 118 Ballandella Road. Mr Jenkins gave oral evidence and also lodged a written submission dated 28 July. During the course of his oral evidence and as a consequence of his written submission, I directed Mr C Gough, the solicitor for the council, to make inquiries of the appropriate Attorney General's Department as to whether they wished to be heard to express any concerns about the proposed activities at the premises.

4. I did this as, in the course of his written submission, Mr Jenkins said the following. "We operate a pre-apprenticeship automotive training facility for disadvantaged young people, mainly boys aged fifteen to nineteen. Many of these young people have been in trouble with the police and have been referred to us by the Department of Juvenile Justice. Others have spent considerable time under the guidance of Centrelink and the primary aim of our training is to give them automotive and life skills in order for them to gain stable employment and to be able to deal with their life issues and move forward positively with their lives. We have a legal duty of care to these young people. They are vulnerable and easily manipulated."

5 . During the course of his oral evidence Mr Jenkins confirmed that a number of the young people were in attendance at his training program as a consequence of orders of a court rather than being there as volunteers. As a consequence of the direction that I gave to Mr Gough, following his inquiring as to the appropriate person to whom to write, he wrote on 12 December 2003 to Ms Diane Heriot, Assistant Secretary, Crime Prevention Branch, Commonwealth Attorney General's Department in Canberra - they being the body who he had ascertained were the body that provided funding to the Handbrake Turn program as part of the overall funding (but not as the sole funding provider). In the course of that letter Mr Gough wrote as follows. "Terry Jenkins gave evidence to the Commissioner of his concerns with specific reference to the type of youth involved in the program and in some cases the compulsory nature of their attendance (by way of court order). Mr Jenkins indicated to the Court that in the past there were rumours that some of the participants in his course had attended the brothel. He expressed concern on this exposure and the interrupting influence that a brothel in close proximity would be."

6 . In response to that letter and a subsequent telephone inquiry of the Commonwealth Attorney General's Department, Mr Gough has informed the Court that he spoke to the relevant officer who acknowledged receipt of the letter. That officer indicated, firstly, that that Department did not wish to make a submission to the Court and, secondly, that that Department did not propose to acknowledge Mr Gough's letter in writing.

7 . I note that as part of the documents tendered to the Court as the council's bundle of correspondence on this matter there includes a letter signed by Constable Romeyn, the Crime Prevention Officer in the Crime Management Unit of the Parramatta Local Area Command of the New South Wales Police Force setting out a number of matters that are of concern to that Unit relating to the proposed operation of the premises. Those areas of concern do not relate to any issue of attendance by young people such as those of concern to Mr Jenkins and relate to other matters such as surveillance identification, parking, security and the like which appear to me to have been dealt with in the proposed conditions of consent.

8 . I directed Mr Gough to seek the response of the relevant government funding department as such department would be the appropriate body to be aware of not merely any issues relating to the specific premises but also any academic, sociological or criminological studies that would have evidenced any more general policy concerns about the comparatively co-location of such premises in proximity to such rehabilitation and young offenders training.

9 . Had the Attorney General's Department provided even modest support for Mr Jenkins' concerns I would have had no inhibition in rejecting the proposed consent orders pursuant to s 79C(1)(e) of the Environmental Planning and Assessment Act as being contrary to the public interest. However in the absence of any response in any detail at all from the Commonwealth Attorney General's Department, I am left with an insufficient basis to provide support to the concerns which Mr Jenkins expressed which were of a largely a anecdotal (but understandable) nature.

10 . I therefore come to the conclusion that there is no basis on the specific aspect of the public interest concerning the Handbrake Turn activities that would cause me to reject the application.

11 . In dealing with this at some length I asked Mr Gough on behalf of the council if he would convey a copy of this decision together with a copy of his letter to the Attorney General's Department to Mr Jenkins for his information.

12 . A number of other objections were raised that were of the comparatively more conventional nature that are offered to the operation of such premises. They related to the location of a primary school some distance to the north of the subject premises; to the concerns of the residents of the residential area some distance to the north of the proposed premises and concerns of surrounding commercial operations.

13 . There is nothing in the planning instruments that would provide any comfort to those objectors, the uses of the premises being appropriately within the permitted range of uses in the Employment Zone, Zone 4 of the Parramatta Local Environment Plan 2001 which permits in such zone development, with consent, for the purposes of brothels. The nature of the concerns that are expressed by the objectors are those that normally arise in such circumstances but do not, it is settled in terms of the proceedings of this Court, provide a valid basis for the rejection of such an application. That conclusion which I have reached is consistent with the conclusion that the council has reached after consideration of the objections of that nature and its own planning instruments.

14 . The remaining issue that had been in contention between the parties related to the provision of parking on site. The relevant provisions are governed by the Parramatta Development Control Plan 2001 (the DCP) which provides in 4.3.5 commencing at p 84 for the provision of car parking in a detailed planning sense and is referred to in the provisions of the DCP under 5.9 Industrial Development , commencing at p 169 which is the detailed provisions relating to the particular zoning.

15 . With respect to parking, at 5.9 at p 174, the DCP requires that car parking is to be provided at a rate that ensures visitors, employees and services vehicles are able to park on site. It then says "see 4.3.5 vehicle access parking and circulation". Reading that paragraph in its entirety and to give coherent meaning to it leads me to the conclusion that I am obliged to turn to 4.3.5 in order to inform myself as to the rate at which parking is to be provided in order to ensure that car parking " ensures visitors, employees and service vehicles are able to park on site ". Clause 4.3.5 contains in its performance criteria under specific requirements what appears to be a codification intending to cover the field for the appropriate rates to require the provision of car parking.

16 . On p 87 of the DCP are set out the relevant car parking alternatives which arise if the premises are classified as either commercial or industrial. Although Mr Boers, a town planner for the applicant, undertook calculations based on the commercial premises parking requirements, it is my view, which is not resisted by Mr Gough, that the appropriate parking rate to be applied is the industrial car parking rate at the foot of p 87 of the DCP. This requires one space per 70 m2 of gross floor area.

17 . The parties, having considered that conclusion, have agreed that it is appropriate to impose, by way of condition, proposed condition 5 which would require five car parking spaces.

18 . Exhibit 5 includes a set of draft consent orders and agreed conditions dated 19 January 2004 which include in them proposed condition six that would require the operation of the premises to be in accordance with the management plan submitted with the application. I proposed to Mr Galpin for the applicant that it would be appropriate to amend that condition to refer to the management plan for the premises dated October 2003 which had been tendered as Exhibit E in the proceedings and he concurred with that proposed amendment to the conditions as did Mr Gough on behalf of the council.

19 . I will therefore issue formal consent orders of the Court in terms of those proposed by the parties and initialled by Mr Gough and Mr Galpin in Exhibit 5 dated 19 January 2004. The exhibits to be retained will be Exhibits 1, 6 and E.

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