AJA Trading Pty Ltd v Waverley Council

[2005] NSWLEC 253

Land and Environment Court

of New South Wales

CITATION:

AJA Trading Pty Ltd v Waverley Council [2005] NSWLEC 253

PARTIES:

APPLICANT
AJA Trading Pty Ltd

RESPONDENT
Waverley Council

FILE NUMBER(S):

11392 - 11400 of 2004

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- use of existing units as brothel
impact on residential amenity and surrounding area
precedent and cumulative effect
provision of carparking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley and Woollahra Joint Local Environmental Plan 1991

CASES CITED:

Segal & Anor v Waverley Council [2004] NSWLEC 363;
Suzelle Antic v Waverley Council [2005] NSWLEC 125;
Martyn v Hornsby Shire Council [2004] NSWLEC 614 ;
New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154;
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

DATES OF HEARING:

22 - 25/02/05

 
DATE OF JUDGMENT: 

05/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Dr S Berveling, Barrister

Solicitors
Michell Sillar

RESPONDENT
Mr S Brockwell, Barrister

Solicitors
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

19 May 2005

11392 - 11400 of 2004 AJA Trading Pty Ltd v Waverley Council

JUDGMENT

Introduction

1 This is an appeal against the deemed refusal by Waverley Council (the council) of nine development applications for the use of nine existing strata units as a brothel at level 5, 29 Newland St, Bondi Junction (the site). The brothel will operate under the name of "Michelles Natural Therapies" (Michelles).

2 The appeals and development applications for each unit are:

Appeal No.	DA No.	Unit No.	Lot in SP 21280
11392 of 2004	599/2004	508	104
11393 of 2004	592/2004	505	107
11394 of 2004	597/2004	510	102
11395 of 2004	596/2004	511	101
11396 of 2004	598/2004	509	103
11397 of 2004	593/2004	514	98
11398 of 2004	594/2004	513	99
11399 of 2004	595/2004	512	100
11400 of 2004	600/2004	506	106

3 The appeals were heard concurrently and are to be considered collectively.

4 I undertook an inspection of the site and heard evidence from some owners and occupiers of the building on site and from others in Court.

The site and locality

5 The subject units are located at the south eastern end of the fifth floor of an existing seven storey building. The building was previously a hotel and has 115 units that are now used for a mix of commercial and residential purposes. The entrance to the building is off the Newland St frontage. Car parking at ground level is provided on the northern side of the building with access off Newland St. Michelles licences two car spaces.

6 At the time of the hearing, Michelles was operating without development consent and some of the units had done so a number of years. From the evidence it is not clear the number of units or the length of time that each has operated as a brothel. However, it appears that the operation commenced about 17 years ago with a single unit and has progressively increased in size. The current managers have been operating the brothel for about two years.

7 Units 507 and 11 other units on level 5 and some on level 4, also operate as a brothel without development consent. This brothel is known as “Misty’s Relaxation Centre” and was the subject of a separate appeal to the Court that I will discuss further. Unit 515 is the only residential unit on level 5. Level 6 contains five residential units and a communal swimming pool and roof terrace. Access to level 5 is via a common foyer and a single lift. Access to level 6 is only available via stairs from level 5.

8 The locality is characterised by multi-storey commercial and residential buildings and terraced style and detached single and two storey dwellings.

9 The site is located on the periphery of the commercial precinct of Bondi Junction. To the east is the Eastgate Shopping Centre, comprising four levels of car parking with shops and residential towers above. Immediately to the south, with a frontage to Ebley Street, is a two-storey building containing a mix of commercial and residential uses. On the opposite side of Ebley Street is Clemenson Park, which contains childcare centres, play equipment and grassed areas. Further to the south is predominantly low scale residential development. The north of the site is a mix of retail and office/residential buildings and to the west are mixed-use retail and commercial buildings.

10 The block bounded by Ebley Street, Spring Street, Newland Street and Denison Street contains the Mill Hill Centre, Waverley Job Futures and the Waverley District Library. These facilities provide a range of community facilities and rooms where members of the community meet on a regular basis. The Church in the Market Place is located on the corner of Newland Street and Oxford Mall.

The proposal

11 The proposal, as described in the Statement of Environmental Effects, is to use Unit 505 as the reception and registration point for the brothel. I granted leave during the hearing for the application to be amended. The amendment proposed an appointment only system which would eliminate the need for patrons to attend the reception in Unit 505. The amendment is to reduce the number of pedestrian movements on the common areas of level 5 as the unit number will be provided to the client at the time of making the appointment. Clients will not be accepted that have no appointment.

12 Unit 506 and Units 508 to 514 are to be used as single workrooms. Each workroom contains a kitchenette, bathroom and lounge are with a massage table. The services provided are massages, hand manipulation and full body slides, but not sexual intercourse.

13 The hours of operation are 10.00 am to 1.00 am, seven days a week. The contract cleaner would operate from 7am. Staff will consist of a receptionist, a manager and 8 sex workers. The application indicates that the operation caters for around 40 or 50 clients per day with a maximum capacity of about 120 per day (1sex worker/room/hour). Generally, consultations last between 30 minutes and one-hour however longer appointments are available.

14 The applicant accepted a condition of consent that would limit the hours of operation to 12pm and a one year trial period.

15 The operation of the brothel is to be controlled by the applicant’s Operations Manual. The Statement of Environmental Effects states that this document self-regulates the operation to ensure that the amenity of residents and employees of other units within the building are not adversely affected by the proposed development.

16 No works are proposed as part of the application.

Planning framework

17 The site is zoned 3(a2) General Business zone under the Waverley and Woollahra Joint Local Environmental Plan 1991 - Bondi Junction Commercial Centre (the LEP). Brothels are not separately defined in the LEP but fall within the definition of commercial premises. This use is permissible with consent.

18 The 3(a2) General Business zone provides for retail and commercial activities and residential development in the form of mixed-use development.

19 The objectives of the zone are:

(a) to establish a core business zone which provides for a wide range of retail and commercial uses, ancillary light industrial uses, entertainment, social and recreational uses and residential development mixed with those uses;

(b) to provide the opportunity for major redevelopment to occur in the core area in order to control the overall physical form of the centre and minimise impact on adjoining residential areas;

(c) to limit the amount of residential development and encourage employment generating uses in the interests of maintaining a strong retail and commercial core and promoting a more efficient use of the public transport infrastructure; and

(d) to promote the retail function and vitality of the centre by supporting the retention and establishment of shops and other shopper orientated uses on ground floor frontages on certain streets.

20 Clause 12(3) of the LEP provides that consent may not be granted unless the proposed use is consistent with the aims and objectives of the plan and the objectives of the relevant zone.

21 There are no other relevant planning controls that provide guidance on the appropriate location and assessment criteria for a brothel.

22 Development Control Plan No. 14 - Land Use and Transport (DCP 14) is relevant in the consideration of the adequacy of parking for the proposal.

23 Draft Waverley Local Environmental Plan 1991 - Bondi Junction Commercial Centre (Amendment No. 6) (the draft LEP) aims to control brothel development (cl 2(2)(f)) and provide assessment criteria for brothels (cl 32)). Clause 32(3) provides that premises are prohibited for use as a brothel if any part of the premises is used for residential purposes. A certificate under s65 of the Environmental Planning and Assessment Act 1979 (EPA Act) has been issued but at the time of the hearing the draft had not been publicly exhibited and I have given it little weight.

The issues

24 The Amended Statement of Issues contains 15 issues. The issue relating to owners authority for some units (Issue 15) was not pressed by the council. The public interest (Issue 13) and the issues raised by objectors (Issue 14) are addressed as part of the consideration of the other issues which can be catagorised as:

i. Whether the development relates to the common property and owners consent is required (Issues 1, 2 and 3);
ii. whether the proposed development will have an unacceptable impact on the amenity of residents and other users of the building (Issues 4, 10 and 12);
iii. whether the proposed development will have an unacceptable impact on the surrounding area (Issues 5, 6, 7);
iv. whether the proposed development will create an undesirable precedent and could result in an unreasonable concentration of similar developments in the building (Issues 8, 9 and 10); and
v. whether the proposed development provides adequate car parking (Issue 11).
The evidence

25 Mr Steven Layman, town planner and architect, provided expert evidence for the council. Mr Warwick Gosling, town planner, and Mr Chris Hallam, traffic engineer, provided expert evidence for the applicant.

26 The following objectors provided evidence:

· Mr Paul Pearce, the Member for Coogee and occupier of Unit 113,

· Ms Linda Rubin, the owner of Units 108 and 409,

· Mr Simon Rubin, the owner of Units 206, 314, 414 and 415,

· Ms Andrea Murray, the owner and occupier of a unit on level 4,

· Ms Amanda White and Mr Kevin Gibbs, the occupiers of Unit 414,

· Ms Lucia Liggiera, the owner and occupier of Unit 601,

· Ms Inga Gray, the owner of Unit 419,

· Mr Raphael Shammay, the owner of Units 204, 205, 301, 303, 304, 305, 411, 412, 413, 417, 517,

· Mr Manfred Sigmund, the occupier of Unit 416.

The need for consistency

27 In Segal & Anor v Waverley Council [2004] NSWLEC 363, at para 19, Lloyd J found that it was an error of law not to give reasons relating to an issue of consistency in decision-making.

28 In this case, the issue of consistency is relevant following the decision by Commissioner Brown in Suzelle Antic v Waverley Council [2005] NSWLEC 125. In that case an appeal was lodged against the refusal by Waverley Council to approve 13 units for a similar use in the same building as these proceedings. The use, known as Misty’s Relaxation Centre, was to be conducted over levels 4 and 5. While the use was described as an erotic massage establishment, it provided similar services to that proposed in this application.

29 I note that the issues are very similar and similar evidence was provided in both appeals by largely the same owners and occupiers. Mr Steven Layman, the council’s town planner in this case also provided expert evidence for council in Suzelle Antic.

30 The judgement in Suzelle Antic addressed the issues in a two-staged manner. Firstly, as a more strategic exercise by assuming that the brothel was not operating, and secondly through the evidence of the owners and occupiers.

31 I propose to adopt a similar approach in these proceedings.

The proposed location
The applicant’s evidence

32 Mr Gosling relies on the proposed appointments only system and the Operations Manual to ensure that the amenity of residents and employees of other units within the building are not adversely affected by the proposed use.

33 In relation to the potential interaction with sex workers, Mr Gosling states that the appointments only system will minimise the number of patrons using the common area. The Operations Manual requires all workers to be fully clothed at all times while in the common areas. Similarly, a dress code is in force that requires employees to be well groomed at all times.

34 The Operations Manual also requires that staff and customers must not loiter in the common areas of the building. No provocative or violent behaviour will be accepted and will be grounds for instant dismissal. The aim is that employees of the business will be indiscernible from residents and employees of other businesses that operate within the building. The Operations Manual also provides further requirements on noise, a prohibition on drugs and alcohol and security.

The council’s evidence

35 Mr Layman states that the proposed development will have an adverse impact on the amenity of the residents of the building. He states that the use of the building for a brothel and residential occupation are fundamentally incompatible. This arises from the internal layout of the building that provides no opportunity to segregate the uses, as there is a single lift and shared common areas. The operation of the brothel will also have adverse amenity impacts, such as noise.

36 Mr Layman considered the impact from the brothel operation to be much higher than typical commercial operations in the building due to its hours of operation, the likely patronage, particularly late at night, the nature of the brothel operations and the clientele it may attract.

Planning principles

37 In Martyn v Hornsby Shire Council [2004] NSWLEC 614, the Senior Commissioner established planning principles for assessing the appropriateness of the location of a brothel.

38 On this issue, the relevant principles are:

· Brothels are a legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality.

Findings

39 I agree with the evidence of Mr Layman that the internal layout of the building is unsuited to the brothel use, as the residential component of the building cannot be separated from the proposed use. Residents as well as the workers and clients from the brothel must share common areas such as the foyer, the lift and access corridors. The building contains only a single lift, a common foyer and access to the units on level 6 and the communal swimming pool is via Level 5. The building layout and the mix of residential and brothel uses on Level 5 and 6 creates a situation where the brothel operation, no matter how well run, would be apparent and has the potential to offend residents and users of the building.

40 In my view the proposed appointment system will do little to address the inherent inadequacies of the location, as it will not reduce the number of people using the lift or common areas in a meaningful manner. Nor will it reduce the amenity impacts of the brothel use, such as noise generated from slamming doors late at night.

41 A similar conclusion was reached in Suzelle Antic, and while that proposal sought to operate longer hours over two levels and with greater patronage, the potential to offend in this case is still clearly unacceptable.

42 For these reasons, I find that the proposed use is not located where it is least likely to offend.

· Brothels should be located to minimise adverse physical impact, such as noise disturbance and overlooking. In this aspect they are no different from other land uses.

43 The use of common areas, the mix of residential and brothel uses on Level 5 and 6, the hours of operation and the potential for high levels of patronage provide for a very high likelihood of disturbance to residents.

44 This matter was addressed in Suzelle Antic (par 41) where Commissioner Brown states:

Any commercial or retail use that proposes to operate with the hours of operation and potential patronage as the subject application is likely to create unacceptable disturbances. Even if extreme care is taken in the movement of clients (and I am not convinced that this can be guaranteed), simple matters such as the opening and closing the doors and conversations are still likely to create unacceptable disturbances because of the proximity of the residential occupations and the massage uses.

45 Again, even with the appointments system, the more limited hours and patronage compared to Suzelle Antic, I concur with these comments and find that the proposed location does not minimise any physical impact on the residential uses within the building.

· 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

46 While this principle refers to land that is zoned residential it is also applicable to areas where residential uses occur. Although it is not reasonable for a residential use in a mixed use/commercial zone to expect the same level of amenity as in a residential zone.

47 The shared access and close proximity of the brothel and residential uses, particularly Unit 515 and those on level 6, results in the brothel being clearly visible and a situation where residents would be clearly aware of its existence and be affected by any adverse impacts arising from the brothel operation. Because of the sensitivity between these two uses, the relationship is clearly unacceptable.

· The access to brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shop and strip clubs predominate, signage should be restricted to the address and telephone number.

48 This principle requires a discreet access and an access that discourages patrons congregating on the street. In my view, the proposal is inconsistent with this principle, as it requires the brothel to share the entrance with the residential users in the building. As the building only has one entrance, there are no opportunities to provide a more discreet and less obvious entrance away from the other occupiers within the building.

49 The availability of only one entrance would potentially require patrons to congregate at a single point. This point is located on Newland St and forms part of the Bondi Junction commercial centre. Also, Newland St is likely to be used by local residents to gain access to the commercial centre. It would be difficult, if not impossible, to discourage patrons of the brothel from congregating in this area.

50 For this reason, the proposed access to the brothel is clearly inappropriate.

Findings on the proposed location

51 If the proposed development is considered against the relevant planning principles in Martyn, the proposal must be found to be inappropriately located. Mr Layman describes the proposed location as fundamentally incompatible with the residential use of the building. I accept this is a sound and accurate description. The layout of the building does not lend itself to the proposed use.

52 The planning principles in Martyn highlight the need for a location that minimises the impact on residential use. In my assessment, the location of the proposed development does not satisfy this principle.

53 The relationship with the residential uses within the building is so unsatisfactory that it would warrant the refusal of the application for this reason alone.

The existing operation

54 The owners and occupiers that objected to the proposed development raised a number of issues, based on their experiences at the site. These included:

· Noise from conversations (sometimes fights) between sex workers, patrons and other sex workers in common areas, showering at various times throughout the day and night, walking and things dropping on timber floors, commercial cleaning of the rooms from 7am and the continuous use of the lifts throughout the evening,

· Concern for safety due to the number of non resident males that use common areas late into the night.

· inappropriate behaviour of sex workers such as congregating, scantily clad, in corridors and approaching male occupants and visitors. Inappropriate behaviour of non resident males including knocking on residents doors looking for the brothel and aggressive and suggestive behaviour towards women in the lift and common areas, drunkenness and vandalism such as damage to lift and foyer area, removal of lights in corridors, and

· economic impacts particularly high turn over of tenants, difficulty in attracting tenants, reduction in market rent and excessive use of hot water and communal laundry.

55 Dr Berveling, the applicant’s advocate, submitted that it was not possible to directly relate any unacceptable behaviour that was witnessed by the owners or occupiers to the operation of the applicant’s establishment. To address the concerns of the owners and occupiers, Dr Berveling placed significant weight on the evidence of Mr Gosling and the applicant’s Operations Manual. A similar reliance was placed on a Plan of Management in Suzelle Antic but was rejected for a number of reasons. I see little difference in the use of the Operations Manual in this case to the use of the Plan of Management in Suzelle Antic for the following reasons:

· the ability to enforce any breaches is extremely limited due to the inability to identify the source of the breaches,

· the ability to address spontaneous acts of disturbance is not available, and

· security is only provided on a sporadic basis. In Suzelle Antic, a security guard was on the premises from 10pm, however, Commissioner Brown found that this would not protect the amenity of the residents and that the presence of a security guard changed the nature of a residential building.

56 In my view, the mix of residential and brothel uses combined with the expected patronage and hours of operation militate against any reasonable attempts to control the brothel operation to minimise impacts on the amenity of the residential occupiers.

57 In New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154, Lloyd J examined the relevant authorities on amenity and social impact. He concluded at para 63 that:

In forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a Court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development.

58 In Suzelle Antic Commissioner Brown found that some of the concerns of the owners and occupiers of units within the building were not necessarily based on a fear or an irrational concern but were specific, concrete and the likely effects of the proposed development. I concur with this conclusion.

59 Specifically, the congregation of males in the common areas is a rational and genuine concern for females, particularly if they are travelling alone. The evidence of Ms Murray and Ms Liggieri cited incidents of inappropriate behaviour of non resident males in the lift and corridor. While this cannot definitively be linked to the patrons of this brothel or to Misty’s, it is reasonable to conclude that the men were patrons of one or other of the brothels located on level 5 and that this behaviour will occur on some occasions no matter how well managed the brothels are. Even if these occurrences are limited in number it is not what a resident in a mixed use development should expect and cannot be mitigated due to the lack of segregation in the common areas.

60 I find that the existing brothels in the building have resulted in amenity impacts due to their operation, proximity to residential uses and the shared common areas. For the reasons that I have discussed earlier, it is reasonable to expect that this conflict would continue from the brothel use proposed.

Precedent and concentration of similar uses

61 The relevant planning principle is;

· Where a brothel is proposed in proximity to several others, it should be considered in the context that a concentration is likely to change the character of the street or area. In some cases this may be consistent with the desired future character, in others not.

The council’s evidence

62 Mr Layman states that the proposed development is one of three similar establishments presently seeking development consent from the council to legitimise their current operations within the building. Suzelle Antic has been rejected by the Court. The other, which has yet to be heard, seeks to use five units on level 2 as a brothel. Mr Layman states that the other developments have similar operating procedures and likely impacts to the subject application and if the subject application is approved a precedent would be established.

63 In both Suzelle Antic and this case, Mr Layman concluded that if a brothel application is approved it is entirely likely that other brothel operators in the building will see the decision as one that could be used for the approval of their applications. He said it is also likely that the approval would encourage further applications. This would change the current balance of residential to brothel uses and it is likely that further residents would give up their units because of the increasing impacts.

The applicant’s evidence

64 Mr Gosling states that the LEP allows brothels to operate as home occupations without development consent within the 3(a2) General Business zone. The brothel, in its various forms, has operated for a number of years without significant problems. The proposed appointments only system together with the Operations Manual will result in a use that has minimal reliance on the common areas and will be conducted in such a way as to minimise potential impacts on adjoining and surrounding land uses.

65 Mr Gosling concludes that properly managed brothels that comply with the appropriate consent conditions will not result in unsatisfactory cumulative impacts. He stated that as the brothel would operate differently to the other brothels it could not be seen as a precedent for their approval.

Findings

66 A number of residents stated that the earlier operation of the brothel on a much smaller scale had caused limited problems, as it was discrete, with a small number of clients and did not interfere with the amenity of the then predominantly residential floor. However, the increase in size of this brothel, the establishment of other brothels and the resultant increase in patronage and reduction in residential use had changed the nature of the building and resulted in unacceptable amenity impacts.

67 In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, it was held that if the Court was considering an application for development which was both objectionable in itself and where there was sufficient probability that there would be further applications of a like kind, the fact that consent would operate as a precedent might be taken into consideration.

68 This matter was also addressed in Suzelle Antic where it states that:

There is little to distinguish the subject application from further applications that may be made in the future. While further applications may vary into the manner in which they operate to some degree, the layout of the building is fundamentally inconsistent with the operation of massage parlours or brothels and residential uses. It is not physically possible to segregate the uses because of the common entry and foyer, the single lift and the need to use common corridors. Even if complete floors are used for massage parlour or brothel purposes, the impacts on residential uses will still be unacceptable because of the need for joint use of the entry, foyer and lift.

There is also some merit in the argument of Mr Layman that residential users will be forced from the building because of the incompatibility with the operation of the massage parlours and the unacceptable amenity impacts thereby providing the opportunity for further massage or brothel uses. It is a logical consequence that if residential uses are forced from the building because of the unacceptable amenity impacts, it is unlikely that they will be replaced with a similar residential use. In my view, there is a high probability that further applications of a like kind will be made.

In the likely event that this does occur, I accept Mr Layman's evidence that it has a potential to impact on the character of the Bondi Junction commercial area. The concentration of massage parlours, brothels and the like is not a matter that should occur in a haphazard fashion. If proposed it should occur in a planned and coordinated manner that addresses the characteristics of an area with controls to minimise impacts on nearby and surrounding areas.

69 Despite the different operation of Suzelle Antic, these comments are still valid. I do not accept that the proposed operation of the brothel distinguishes it from the other proposed brothels. I adopt the reasoning in the proceeding paragraphs and find that the proposed development is likely to create an acceptable precedent and concentration of similar activities to the detriment of the Bondi Junction commercial centre and nearby residential development.

Impact on premises surrounding the site

70 The relevant planning principles are;

· Brothels should not adjoin, or be clearly visible from schools, educational institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk.

· The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels) is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather

The council’s evidence

71 Mr Layman identifies that the site is within close proximity to a range of uses that are likely to have a high sensitivity to brothel operations and other developments. In the absence of any specific distance standards, Mr Layman draws on the principles in Martyn to conclude that the ability to sight a brothel at one of the sensitive uses, or any residential area, was sufficient to determine that it was inappropriately located even if screened or without signage.

72 In this case there is clear overlooking from the windows of the brothel southwards to Clemenson Park and its childcare centres. It is proposed that the curtains to these rooms will be drawn to prevent overlooking. The building is also in an area with other community facilities.

73 Mr Layman concludes that the concentration of brothel activities, when considering the current application and the additional proposals before the Court, raises the prospect of patrons and sex workers from the establishment being in very close proximity to people using the library, seniors services and other community facilities, including the Church in the Market Place. He also raised concerns about the appearance of the building with almost the entire floor on the southern elevation having curtains permanently drawn and the exhaust from the dryer projecting from the reception window.

The applicant’s evidence

74 Mr Gosling states that due to the high pedestrian levels and the variety of land uses, it will not be possible to distinguish which pedestrians are associated with the site, users of the sensitive land uses are therefore not likely to be offended by the operation of the brothel. There will be no outward features of the operation that will lead users of the sensitive land uses to the conclusion that a brothel is operating from the site. Additionally, there are no windows relating to the site that address Newland Street and the appearance of the windows that face the park are no different to other residential buildings.

Findings

75 I accept Mr Gosling’s evidence. The sensitive land uses are located some distance from the site, with the closest being Clemenson Park Playground, about 55m from the building. The brothel is part of a larger mixed use building with no signage or outward identification and would therefore not be “clearly visible” or at least identifiable form these uses. The building is used by a number of people and therefore the patrons of the brothel would not be distinguishable from the other users, especially during working hours. Late at night their presence may be more obvious, especially if associated with unruly behaviour. The sensitive land uses are unlikely to operate at these time and therefore the potential for conflict is reduced. The existence of the brothel would therefore not be apparent to users of sensitive land uses and is therefore not likely to have an unacceptable impact on the area.

76 There is no evidence that the current operation of the brothel is having a detrimental impact on the area. However, I accept that the cumulative effect of similar applications within the building could cause problems, particularly if massage parlours and brothels displace residential and other uses. This would be exacerbated if the outward appearance of the building were to change through signage. The cumulative impact of additional workers and patrons could also impact on the general area. These factors emphasise the need for proper planning for the provision of uses such as brothels.

Car parking

77 DCP 14 does not specifically address a brothel use. In this absence Mr Hallam adopts the non residential parking rate for offices, commercial premises and professional consulting rooms. This requires the provision of car parking at the rate of 1 space per 100 square metres of gross floor area. Based on his calculations, 3 car parking spaces are required. The proposal licences two spaces and there is therefore a shortfall of one space.

78 Mr Layman states that as the applications are separate and, if assessed individually, 9 spaces are required. He also considers that the licence arrangement should not be included due to its temporary nature.

79 Mr Hallam’s opinion is that even on the basis of 2 or 9 spaces, the proposal would not result in unacceptable traffic or parking impacts. He states that the building as constructed is deficient in parking and that a residential use would cause more problems than commercial. Commercial demand could adequately be met by the Eastgate Shopping Centre car park, but as this is closed over night it would not satisfy the demand for parking generated by a residential use. The area is also adequately serviced by public transport.

80 I accept Mr Hallam’s evidence that the deficiency of spaces, whether 1 or 9, will not have an adverse impact on traffic or parking in the area and I find this is not a sufficient reason to warrant the refusal of the development application.

Owners Consent

81 The parties disagreed on whether the use of the common area was part of the brothel use and required owners consent from the Body Corporate. As the applications fail on their merits it is not necessary for me to adjudicate this issue.

Orders

82 For the foregoing reasons, the Orders of the Court are:

1) The appeals are dismissed.
2) The development applications for the use of 9 units as a brothel at 29 Newland Street, Bondi Junction, are refused.
3) The exhibits may be returned.
4) No order as to costs.
_____________
Annelise Tuor
Commissioner of the Court