A J Associates Pty Ltd v Bankstown City Council
[2011] NSWLEC 1083
•07 April 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: A J Associates Pty Ltd v Bankstown City Council [2011] NSWLEC 1083 Hearing dates: 7 April 2011 Decision date: 07 April 2011 Jurisdiction: Class 1 Before: Morris C Decision: 1.The appeal is upheld.
2.Development application DA591/2010 for the use of the premises at 53 Beresford Avenue, Greenacre for the purposes of an eight room brothel is approved subject to the conditions in Annexure "A".
3.The exhibits, other than exhibits A and 2 are returned.
4.There is no order as to costs.
Catchwords: Consent Orders; brothel. Legislation Cited: Bankstown Local Environmental Plan 2001 Cases Cited: A J Associates Pty Ltd v Bankstown City Council [2008] NSWLEC 1322 Texts Cited: Bankstown Development Control Plan 2005 Category: Principal judgment Parties: A J Associates Pty Ltd (Applicant)
Bankstown City Council (Respondent)Representation: Mr A Gough
Storey & Gough Lawyers (Applicant)
Ms P Hudson
Marsdens Lawyers (Respondent)
File Number(s): 10118 of 2011
Judgment
This determination was given extemporaneously and has been edited prior to publication.
This matter comes before the Court for Consent Orders following the refusal by Bankstown City Council (the council) of development application DA591/2010 (the application) which seeks the continued use of an existing building at No. 53 Beresford Avenue, Greenacre (the site) as a brothel.
In a previous application to this Court, also a consent orders hearing, A J Associates Pty Ltd v Bankstown City Council [2008] NSWLEC 1322, consent was granted for the use of the site as a brothel for a 12 month trial period. In making the orders sought in that case Brown C stated:
It is considered that the proposal is consistent with all relevant objectives and standards. While council has received numerous objections to the use, given the design and setting of the proposed facility it is considered that it has been adequately designed to limit the impact of the development on its surrounding land uses. The development, subject to a 12 month trial period is considered worthy of support with a further development application to be submitted to council at the conclusion of the 12 trial period to assess the suitability and any impacts generated as a consequence of the use.
That trial period has concluded and the applicant is seeking continued use of the site as a brothel.
The locational provisions for the siting of a brothel are found in clause 33 of Bankstown Local Environmental Plan 2001 (the LEP). That clause states:
Development for the purpose of a brothel may be carried out only on certain land within Zone 4 (a) or 4 (b) in Villawood, Greenacre, Milperra and South Bankstown as identified on the map.
The site is located within land identified on the map for the Greenacre area as suitable for a brothel and is within an established industrial area. I note that the council had determined that only part of Beresford Avenue was suited to locate a brothel and the site falls within that area.
Part D14 of Bankstown Development Control Plan 2005 (the DCP) provides further locational requirements including a requirement that brothels should not be within reasonable view of a range of uses considered by the council to be sensitive land uses. These include a school. The DCP clarifies that 'reasonable view' is determined taking into account factors such as topography, vegetation, signage, intervening development and similar factors.
It is agreed that the site satisfies all of the numerical requirements for a brothel. In regard to the issue of 'reasonable view' I refer to the evidence provided in the report to the council's meeting of 12 October 2010 where it states:
The brothel is located approximately 230m to Bankstown North Public School however for address purposes they are both located on Beresford Avenue. The location of the brothel is due north of the school. The existing topography of the area results in the school sitting higher than the proposed brothel and the surrounding industrial areas of Greenacre bounded by Rookwood Road, Hume Highway and Stacey Street. From the school there is a general view to the industrial area including Beresford Avenue across Stacey Street. However the view is partially restricted by the sound wall which runs along the rear of the school along its frontage with Stacey Street. Beresford Avenue is also split into two sections by Stacey Street, with this separation being in the form of a physical road closure. Access is provided between both sections of Beresford Avenue by way of pedestrian access traffic lights.
It is considered that given the restricted views created by the wall, and the physical separation of Beresford Avenue by Stacey Street it would be difficult to identify the brothel from any other industrial sites within the vicinity and as such it is considered that the brothel is not within reasonable view of Bankstown North Public School or any other sensitive land use.
As this is a consent orders hearing, a site inspection was not undertaken however, the site is in an area that I am familiar with and I accept the decision outlined in the council report. It accords to the view taken by Brown C in A J Associates 2008.
The purpose of a trial period is to allow assessment of the implications of a particular land use and to determine whether that use is suitable or has any adverse impacts.
Notification of the application was carried out and no submissions were received. This is despite the original application attracting a number of objections, fifteen objectors providing evidence on site during the original hearing conducted by Brown C and those objectors being notified individually of the application.
The council has referred the matter to the Bankstown Local Area Command and been advised by the Police Crime Prevention Officer that there has been no increase in crime related to the operating of the site and that the police have not received any formal complaints regarding the operations of the brothel. In addition, the council has not received any complaints regarding anti-social behaviour at the site.
It is apparent that the trial period has shown that the site is suited to use as a brothel, the use is in accordance with the council's planning controls and the conditions imposed by the Court have ensured that the use operates in a manner that has not caused any adverse impacts or complaints. It also appears that the initial concerns of residents in relation to perceived problems associated with the brothel have not eventuated.
Despite the evidence available in relation to the satisfactory use of the site and lack of complaints, the council, at its meeting of 8 February, 2011 after consideration of a report from its officers which recommended that the application be approved subject to conditions, refused consent. Only one reason was given and that is the proximity of the site to Bankstown North Public School. The Court has considered this matter previously and I concur with that earlier decision in finding that the location of the site is not within a reasonable view of the school.
I note that the council no longer presses the issue and, for the second time in relation to the same use of the same site, is seeking orders from the Court.
For these reasons the Court orders by consent that:
1. The appeal is upheld.
2. Development application DA591/2010 for the use of the premises at 53 Beresford Avenue, Greenacre for the purposes of an eight room brothel is approved subject to the conditions in Annexure "A".
3. The exhibits, other than exhibits A and 2 are returned.
4. There is no order as to costs.
Sue Morris
Commissioner of the Court
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Decision last updated: 12 April 2011
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