Alexander Avenue Centre Pty Ltd v Sutherland Shire Council
[2013] NSWLEC 1188
•09 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Alexander Avenue Centre Pty Ltd v Sutherland Shire Council [2013] NSWLEC 1188 Hearing dates: 25,26 September 2013 Decision date: 09 October 2013 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is upheld.
2. Development Application DA12/0614 for an increase in rooms, staff numbers, and trading hours for a brothel at 64 Alexander Avenue Taren Point, is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits A, E, 1, 8 and 11.
Catchwords: DEVELOPMENT APPLICATION - Brothel - Expansion from 3 to 8 rooms - Extension of hours - Parking - Landscaping Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 - Development Standards
Sutherland Local Environmental Plan 2006Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338
Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308
Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65
Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Relaxing Centre Pty Ltd v Sutherland Shire Council [2007] NSWLEC 487
Wehbe v Pittwater Council [2007] NSWLEC 827
Zhang v Canterbury City Council (2001) 115 LGERA 373Category: Principal judgment Parties: Alexander Avenue Centre Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)Representation: Mr M Fraser (Applicant)
Tomaras Lawyers (Applicant)
Ms J Amy, Sutherland Shire Council (Respondent)
File Number(s): 10480 of 2013
Judgment
This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application DA12/0614 for an increase in rooms, staff numbers, and trading hours for a brothel at 64 Alexander Avenue Taren Point (the site).
The issues in dispute between the parties relate to the provision of car parking spaces on site, and provision of landscaping.
The site and locality
The site is on the eastern side of Alexander Avenue in an industrial area, and contains two separate two storey industrial/commercial buildings. The main building is located approximately 9m from the front boundary and is up to the southern boundary. The main building is occupied at ground floor level by a takeaway café at the front, and a motor mechanic at the rear. The existing brothel is located on the first floor at the front of the building (Suite 1A). The rear part of the first floor (Suite 2) was previously separately tenanted, and the proposed development would extend the brothel to occupy the entire first floor.
There are two staircases providing access to the first floor of the main building, one at the front of the building next to the takeaway café providing access to Suite 1A, and the other on the northern side of the building providing access to Suite 2. That staircase also provides access to a taxi change over area and the mechanical workshop at the rear of the building.
A second building is located on the eastern rear boundary of the site, extending between the northern and southern boundaries. That building is used by the owner of the site as a motor vehicle workshop, and is presently undergoing repair and reconstruction.
The main driveway with parallel parking is located on the northern side of the site between the main building and the northern boundary, an area approximately 6m wide. There are two parking spaces at the front of the main building, and additional spaces at the rear of the ground floor motor mechanic between the main building and the second building.
There is a small strip of landscaping along the southern boundary between the takeaway café and the front boundary, and an elevated area of paving at the front boundary, with tables and chairs.
The immediate area is a mix of industrial and commercial buildings housing a wide variety of uses.
Planning controls
The site is zoned Zone 11- Employment under the Sutherland Local Environmental Plan 2006 (the LEP), and development for the purpose of a brothel is permissible with consent. The objectives of Zone 11 are:
(a) to ensure development supports the role and functioning of employment areas,
(b) to promote appropriate development that will contribute to employment generation and the economic growth of Sutherland Shire,
(c) to provide for a range of related land uses to provide direct services to employees,
(d) to provide for development for the purposes of shops and businesses ancillary to other development carried out on the land concerned,
(e) to provide for bulky goods premises only on selected sites.
Clause 36 of the LEP provides minimum landscaped area requirements for specified development in particular zones, and cl 53 of the LEP identifies mandatory considerations relating to transport accessibility, traffic impacts, and car parking.
The Sutherland Shire Development Control Plan 2006 (the DCP) applies to the site. Chapter 7 contains provisions relating to Vehicular Access, Traffic, Parking and Bicycles. Chapter 9 contains provisions relating to Specific Land Uses.
Under the Draft Sutherland Shire Local Environmental Plan 2013 (the Draft LEP) the site is zoned IN 1 - General Industrial, and development for the purpose of Sex Services Premises, which includes a brothel, is permissible with consent. The Draft LEP is presently on exhibition. The Draft LEP includes cl 6.11 Landscaped Area, which includes a requirement that the minimum landscaped area on any land shall be not less than the required percentage shown on the Landscape Area Map; that percentage is 10% for the site.
Background to the application
Development consent for the brothel was granted by the Court in 2007: Relaxing Centre Pty Ltd v Sutherland Shire Council [2007] NSWLEC 487. That development consent permitted use of two working rooms and required provision of four car parking spaces on site for staff and patrons. The development consent was subject to a deferred commencement condition and became operative on 30 November 2007, and was for a 12 month trial period which ended on 30 November 2008.
A subsequent development application (DA09/0624) lodged in 2009 for the continued use of the brothel and intensification to three working rooms was refused by the Council. An appeal to the Court from that refusal was determined by agreement between the parties pursuant to s34(3) of the Land and Environment Court Act 1979, and the brothel was approved on a permanent basis, subject to conditions, on 9 December 2009 (10618 of 2009). Those conditions restricted operation to 10.00am to 12.00 midnight, seven days a week, and restricted use of the premises to two workers and two workrooms up to 2pm on weekdays, permitting use of three workrooms before 2pm on weekdays and other days only when the takeaway café was closed. The conditions required the provision of four car parking spaces, two to be permanently allocated to Suite 1A, and two to be available from 2pm onwards on a shared basis with the takeaway café.
The proposed development the subject of this appeal is for alterations to the interior of the existing building to enable the expansion of the existing brothel from three to eight work rooms, and an extension of hours of operation to 2.00am seven days a week. The proposed development includes provision of a new reception area at the top of the stairs on the northern side of the building. The proposal, as outlined during the course of the hearing, is that those stairs and a new secure entry will be used by patrons, and the alternative stairs at the front of the building will be locked and used by staff only.
Evidence
The hearing commenced on site with a view. Evidence was given on site by the owner of the site, Mr Michael Skalkos, and agreed notes of that evidence are exhibit F. Mr Skalkos owns the site and conducts his own business of servicing and repair of heavy vehicles mostly from a mobile business. He is redeveloping the second building at the rear of the site, and there will be a new factory building with two high roller doors permitting entrance by prime movers. His observation of the brothel business is that generally there are only two car parks occupied by the owner and one other in relation to the brothel, and from time to time there might be one customer who parks in the parking areas designated for the existing brothel. He is keen to get the brothel expanded so he gets income for the space on the first floor that is presently vacant. If the Court requires lighting, CCTV cameras, or additional landscaping as part of this, he has no problem with the applicant providing guidance in accordance with any conditions of consent, and the required car parking spaces can also be marked on the site if required by conditions of consent. Mr Skalkos would agree with landscaping at the front of the main building only if it does not impact on the operators of the takeaway café or access to the service pit covers.
Expert traffic engineering evidence was provided on behalf of the applicant by Mr Robert Varga and on behalf of the Council by Mr Peter Anderson. Mr Varga and Mr Anderson provided individual reports (exhibits C and 3) and a joint report (exhibit 5) and gave oral evidence. Expert planning evidence was provided on behalf of the applicant by Mr Kim Burrell and on behalf of the Council by Ms Christine Edney. Mr Burrell and Ms Edney provided a joint report (exhibit 7) and gave oral evidence. Expert evidence on issues relating to disabled access was provided on behalf of the applicant by Mr Mark Relf and on behalf of the Council by Mr David Ackroyd. Mr Relf provided an individual statement of evidence (exhibit D) and he and Mr Ackroyd provided a joint report (exhibit 6). Mr Relf and Mr Ackroyd were not required for cross examination.
The Council notified the development application and received one submission, which is included in the Council's bundle of documents (exhibit 3). That submission raised concerns as to on site car parking, fire safety, and the condition of the building.
Consideration
The Council's Statement of Facts and Contentions raised three contentions: first, that the expansion to eight work rooms is unacceptable due to the site's limited parking capacity, so that the intensification of the use combined with other uses does not provide for sufficient on-site parking to accommodate all of the approved parking requirements within the site; secondly, that the proposal fails to provide for an accessible work room, car space, or access; and thirdly, that the proposal fails to comply with the development standard in cl 36 of the LEP requiring a minimum10% landscaped area.
The second contention was not pressed, having regard to the evidence of Mr Relf and Mr Ackroyd. Mr Relf and Mr Ackroyd agreed that the entrance on the northern side of the building provides access for a taxi change over area and the mechanical workshop occupying the rear of the main building, and so that entry and the stairway become common property; on that basis the principal entry for the brothel is the upper level entry on the first floor, and access provision from the ground floor entry is not required. They agreed that the northern entry presents significant technical challenges should an accessible entrance be considered necessary, and that once inside the stairway options to provide access are severely constrained. Any option would require significant reconfiguration of the stairwell and additional infrastructure. Mr Relf and Mr Ackroyd agreed on accessibility measures to upgrade the stairways, which are now provided in proposed condition 7, and on the provision of an accessible parallel parking space line-marked in accordance with AS2890.6 to suit people who are ambulant with less physical disabilities or who may have a vision impairment. Condition 4 as proposed by the parties requires amendment of the Plan of Management (August 2012) to require maintenance of these accessibility measures; to reduce ambiguity, that condition should also refer expressly to condition 7.
The two issues pressed by the Council relate to landscaping, and parking. The development application does not propose any landscaping, and the Council's position is that a condition should be imposed to require the applicant to provide landscaping at the front of the building. The proposed development does not provide the nine on-site car parking spaces required under the DCP, and the Council's position is that conditions should be imposed to limit the number of rooms used, and the number of sex workers permitted, to five before 2pm when the takeaway café closes and additional car parking spaces become available.
Parking spaces and restriction on operation before 2pm
Clause 53 of the LEP provides:
53 Transport accessibility, traffic impacts and car parking
The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:
(a) the extent to which the proposed development maximises opportunities, through design integration, to provide:
(i) efficient links to identified transport nodes and corridors, such as railway stations, bus routes, pedestrian and cycle paths, and
(ii) facilities to cater for bicycle users,
(b) the extent to which the demand for car parking, where there is good access to public transport nodes, will be managed,
(c) the extent to which appropriate levels of car parking will be provided in connection with the development,
(d) the extent to which walking, cycling and the use of public transport have been or will be encouraged,
(e) the design of proposed car parking areas and access to them.
Chapter 7: Vehicular Access, Traffic, Parking and Bicycles of the DCP provides:
1. Number and Dimensions of Parking Spaces Required In Development
Accommodating vehicles can have a significant impact on the design of new development. The location and layout of the parking will influence the layout and design of buildings and landscaping. All development must satisfy the demand for parking that it creates within its own site. The provision of sufficient parking must not compromise the safety of the on street and off street environment for vehicles, pedestrians or cyclists. Parking is required for different types of vehicles according to the proposed use. Vehicles include passenger vehicles, motor bikes, light vehicles and heavy vehicles and pushbikes.
1.a Objectives
1.a.1 Objectives for all Development
1. The objectives of this section are to:
a. ensure all land uses and/or combination of activities provide sufficient parking on site to satisfy the demand for parking by different vehicle types generated by the development, including Traffic Generating Development.
b. ensure all land uses have a described parking provision.
c. minimise reliance on street parking.
d. minimise amenity impacts on neighbouring properties, including streetscape, noise and light spill.
e. ensure appropriate on-site provision and design of parking for older people and people with limited mobility or disability, in accordance with Australian Standards.
f. recognise the need for innovative and site specific parking solutions for development.
g. encourage greater use of more sustainable transport modes such as public transport, motor bikes, walking and cycling.
...
Part 1.b Controls provides controls for specified development, including:
1.b.15 Additional Controls for Brothels
1. A brothel shall provide 1 space per 2 employees (non-sex workers) plus 1 space per 1 sex worker or work room on the premises at any one time, which ever is greater.
Mr Varga and Mr Anderson agreed that for the proposed expansion of the brothel the DCP would require provision of nine carparking spaces, comprising 8 for the 8 working rooms plus 1 space for two employees. They agreed that 17 carparking spaces can be provided on the site while providing a vehicle turning area in the rear carparking area. Under previous development consents for the various uses of the site, four of those spaces are allocated to the takeaway café; four for the motor mechanic's workshop; three for the secondary building at the rear of the site; and there are four spare spaces. Under the existing consent, two of the four spaces allocated to the takeaway café are allocated to the brothel after 2pm on weekdays, when the takeaway café is closed, so that there are four spaces available to the brothel after 2pm on weekdays. Mr Varga and Mr Anderson agreed that with the allocation of the four spare carparking spaces to the brothel, plus the two existing full-time spaces and the two part-time (after 2pm) spaces, there would be a total of eight spaces, resulting in a shortfall of one space. They agreed that the ninth space required for the expanded brothel could be provided on a part-time basis after 2pm, subject to negotiations with the takeaway café operator.
The applicant's representative advised that the takeaway café operator is agreeable to permitting use of this additional car parking space after 2pm.
Based on the evidence of Mr Anderson and Mr Varga, I accept that there are six car parking spaces on the site that can be allocated to the brothel on a full-time basis, and subject to the agreement of the takeaway café operator, an additional three spaces that can be provided after 2pm on weekdays. Condition 10 requires the applicant to provide written evidence from the takeaway food establishment management agreeing to the allocation of three spaces to the brothel after 2pm, before the issue of a Construction Certificate.
The Council submits that a condition should be imposed limiting use of the expanded brothel to five working rooms and five sex workers before 2pm on weekdays.
The applicant opposes such a condition. The applicant submits that there are four circumstances of the case that warrant a departure from the DCP requirements: the site is in a light industrial area, rather than in an area where there is more demand for parking; there is an excess of parking at all times on the site and nearby; the brothel is busier later in the day so there is no concern about a shortage of parking; and the shortfall is for only one space. The applicant submits that the demand for car parking spaces in reality is for three spaces and so the brothel satisfies demand created on its own site, consistent with the statement in the DCP that "all development must satisfy the demand for parking that it creates within its own site", and that restricting the number of staff on the site will not impact on achieving objective (c), of minimising reliance on street parking.
The applicant relies on the evidence of Mr Skalkos, that generally there are only two car parks occupied by the owner and one other in relation to the brothel, and that of Mr Varga, who stated (exhibit C) that the brothel is often without clients for lengthy periods particularly during business hours; that approximately 25% of clients catch a taxi or walk from nearby industrial premises; that approximately 75% of the sex workers are picked up or dropped off by the manager; that due to the nature of the establishment some clients prefer to park off site nearby and walk to the brothel; and that on-street parking in the vicinity of the site is readily available especially after-hours.
Mr Varga provided a survey of parking on Alexander Street from the intersection with Bay Street to an equivalent distance towards Toorak Avenue, conducted between 2pm-10pm on Friday 19 September 2013. That survey (exhibit G) demonstrates that the highest number of vehicles was between 2pm-3pm, and that during that period there were vacant spaces for on-street parking.
Mr Anderson's evidence was that he has been to the site when all the car spaces are full, and at other times when they have not been completely used. He has been there when there have been materials stored on the car parking area, when there have been cars parked on the footpath, as was the case on the morning of the view, and when there have been heavy vehicles reversing on the site. In his opinion people might park in the surrounding streets because of a concern about accessing the site. Mr Anderson's evidence that on occasion all car parking spaces on site are used is supported by the objection received during assessment of the development application (exhibit 3, p 77).
Mr Varga's traffic survey did not include the hours before 2pm, leaving the evidence of Mr Skalkos, and that of Mr Anderson, as to the actual demand for on site parking before that time. In considering the demand for car parking on site or in the street before 2pm, in my view at its highest the available evidence supports the conclusion that the demand for car parking at the site and in its immediate surroundings is variable. Based on Mr Varga's survey, demand for on street parking in the locality is highest during the early afternoon and drops significantly after 5pm.
Clause 53(c) of the LEP requires consideration of the extent to which appropriate levels of car parking will be provided in connection with the development. Based on the numerical requirements at part 1.b.15 of Chapter 7 of the DCP, nine spaces are required. While not determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. While there may be circumstances that make it appropriate to depart from that numerical requirement, it is not appropriate to take the view that this requirement is inappropriate for reasons of general policy: Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338.
The objectives of Chapter 7 of the DCP include that development must satisfy the demand for parking that it creates within its own site, and to minimise reliance on street parking. The applicant relies, however, on availability of on-street parking to support provision of fewer than nine spaces on site. I accept that some brothel patrons may be reluctant to park on site, either, as Mr Varga stated, because of the nature of the establishment, or, as Mr Anderson stated, because at times physical access to the site may be difficult or restricted, and also that it is likely that a proportion of brothel patrons would walk from the surrounding industrial area or catch a taxi. However, given the limited evidence available as to actual demand for car parking between 10.00am and 2pm, I am not persuaded that there is a basis on which it would be appropriate not to require the nine car parking spaces specified at part 1.b.15 of the DCP for the hours proposed for operation of the brothel.
The site can provide nine car parking spaces after 2pm, using the three spaces available after the takeaway café closes. I agree with the Council's submission that use of the spaces allocated to the takeaway café after 2pm is a "site specific parking solution" that would be consistent with objective (f) of part 1.a.1 of the DCP. The site can only provide six spaces before 2pm, which includes a space which on the evidence of Mr Skalkos is used by the manager. I agree with the Council's submission that in order to address the shortfall of three spaces before 2pm, it is appropriate to restrict the use of the brothel to five work rooms and five sex workers before 2pm.
Conditions 6 and 37 should be imposed as proposed by the Council. Condition 11 provides for numbers and allocation of car parking spaces on the site. Condition 4 as proposed by the parties has been amended to require amendment of clause 4 Car Parking in the Plan of Management (August 2012) so as to provide consistency with condition 11. Subject to those conditions, I am satisfied that appropriate levels of car parking will be provided in connection with the proposed development.
Landscaping
The site has no deep soil landscaping other than a planter bed along part of the southern boundary in the front area, approximately 2 sqm in area. It was not in dispute that the development consent granted in 1972 (DA 149/72) for the erection of the two buildings on the site required landscaped area of 6.6% of the site, and the development consent granted in 1992 for the conversion of factory Unit 1 into a takeaway food shop and a factory/warehouse (DA 488/92) required landscaping at 3.99% of the site. Mr Burrell and Ms Edney agreed that, based on aerial photos and history files, the site had some form of landscaping in the front area from 1972 until it was removed some time between 2001 and 2006.
Mr Burrell and Ms Edney agreed that it would not be possible to provide a landscaped area of 10% of site area without the loss of building floor area or on site parking. They agreed that it would be possible to provide an additional landscaped area 2.04m wide on the southern side boundary at the front of the takeaway café, while still providing two car parking spaces that comply with AS 2890.1 and enable access to service pits.
The Council's position is that cl 36(5)(i) of the LEP requires provision of landscaped area in relation to this development application, and it seeks the imposition of a condition which would require the applicant to provide a landscaped area not less than 4% of the site area at the front of the site (proposed condition 8). That area is identified on the agreed plan in exhibit 9, and would extend across the front of the site (driveway excluded) with a minimum depth of 3.5m and along the southern boundary to the front wall of the building (with a minimum depth of 2m), and with a maximum of two tables and six chairs in the area.
Clause 36 of the LEP provides:
36 Landscaped area
(1) Objectives
The objectives of this clause are as follows:
(a) to ensure adequate opportunities for the retention or provision of vegetation that contributes to biodiversity,
(b) to ensure adequate opportunities for tree retention and tree planting so as to preserve and enhance the tree canopy of Sutherland Shire,
(c) to minimise urban run-off by maximising pervious areas on the sites of development,
(d) to ensure that the visual impact of development is minimised by appropriate landscaping and that the landscaping is maintained,
(e) (Repealed)
(f) to ensure that landscaping carried out in connection with development on land in Zone 11-Employment is sufficient to complement the scale of buildings, provide shade, screen parking areas and enhance workforce amenities.
...
(5) The minimum landscaped area of the site of any development is the following percentage of the area of the site specified below for that development:
...
(i) development for the purpose of a building on any land in Zone 11-Employment-10 per cent,
The Council submits that cl 36 of the LEP applies to the development, on the basis that development "for the purpose of a building" as referred to in cl 36(5)(i) makes no distinction between internal and external building work; "building" includes a part of a building; and in any event the applicant is using the car parking spaces which are external to the building. The Council accepts that at most an area of 46-47 sqm, or just under 4% of the site, can be landscaped and still allow two car parking spaces in front of the takeaway café and access to service pit covers. The Council supports upholding the objection made under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) so as to provide landscaping for 4% rather than 10% of the site. The Council submits that such a condition could lawfully be imposed because there is a nexus between the proposed development and the landscaping, as the brothel relies on the parking spaces at the front of the building, and landscaping would screen two of the nine car spaces. The Council submits that there is no evidence as to a lack of control by the applicant of whether landscaping is provided, relying on the evidence of Mr Skalkos.
The applicant opposes this condition. The applicant submits that cl 36(5)(i) of the LEP does not apply to this proposed development, which is not development "for the purpose of a building", as the development application relates to building work to be carried out entirely within the existing building. In the alternative, if cl 36 does apply, the applicant submits that the Court should find that compliance with that development standard would be unreasonable and unnecessary and uphold the SEPP 1 objection; and that a condition requiring the applicant to provide landscaping would not have a sufficient nexus to this development and thus not meet the second test in Newbury District Council v Secretary of State for the Environment [1981] AC 578, and to the extent that the applicant would not have the power to carry out such work, would not meet the third test in Newbury.
Mr Burrell was of the opinion that a requirement to restore landscaping should be resolved in conjunction with the takeaway café that uses the front yard, and that such a requirement is not directly related to this proposed development. Ms Edney was of the opinion that the site and streetscape would benefit visually from having a landscaped street setback similar to other sites in the locality, and from having a street tree located in the nature strip. She considered that the proposed development is an appropriate time for landscaping to be conditioned to be provided equivalent to that which was historically provided on the site, and the current proposal is likely to be the largest change to the premises in terms of the scale and cost of works until such time as the site is fully redeveloped. In her opinion the provision of landscaping would screen the proposed development.
I do not consider that condition 8 should be imposed, for three reasons: first, I am not persuaded that cl 36(5)(i) applies to this development application; secondly, if, contrary to that conclusion, it does apply, in my view it would be appropriate to uphold the SEPP 1 objection to compliance with that development standard; and thirdly, I am not satisfied that a condition requiring the applicant to provide a landscaped area of 4% of the site could, or should, be imposed.
Clause 36(5)(i) of the LEP applies to "development for the purpose of a building" in Zone 11-Employment. Subclauses (3) and (4) also refer to "development for the purpose of a building", in the Zone 1-Environmental Housing (Environmentally Sensitive Land), Zone 2-Environmental Housing (Scenic Quality), and Zone 3-Environmental Housing (Bushland) zones. The other nine paragraphs in sub clause (5) apply to other zones under the LEP, and refer inclusively or exclusively to "development for the purpose of..." a townhouse, villa house, dwelling house, or residential flat building. Those terms are defined in the Dictionary to be specific types of building, respectively as "a building" with one ("dwelling house") or three or more ("residential flat building") dwellings, or as "a dwelling within a two-storey building" ("townhouse"), or "a single storey dwelling on a lot of land containing 3 or more dwellings" ("villa house"). The terms "building" and "development" are defined in the LEP to have the same meaning as in the Act.
If the Council's interpretation were adopted, any internal building work to an existing building, whether minor or not, would trigger a requirement to provide landscaping, even in circumstances such as these where a requirement to provide landscaping had previously been imposed when consent was initially granted to permit the erection of that building. Such an interpretation would be inconsistent with the context, where cll 36(3), (4) and (5) all refer either to "a building" or to buildings of specified and defined scale or configuration, and not to building work more generally. The development proposed in the application the subject of this appeal is for the work required to reconfigure internally the first floor of the building, including the provision of plumbing, walls and doors to enable its use for the expanded brothel, and to permit that use. I do not consider that this proposed development can be regarded as being "for the purpose of a building" (emphasis added), and on that basis I agree with the applicant that cl 36(5)(i) does not apply to this application.
If I am wrong on that conclusion, based on the agreed evidence of Ms Edney and Mr Burrell, which I accept, it is not feasible to provide a landscaped area of 10%. Accordingly, it would be necessary to uphold the SEPP 1 objection for there to be power to grant development consent. The SEPP 1 objection provided in support of the development application (exhibit A) was based on the position that the proposed development is consistent with the objectives of cl 36 notwithstanding non-compliance with the requirement to provide a landscaped area of 10% of the site. The SEPP 1 objection notes that the proposal is limited to internal alterations to the first floor without increasing the footprint of the building, and argues that provision of landscaping would result in a significant reduction in on-site parking and would not result in a significant contribution to the biodiversity of the locality; the proposal does not involve the removal of any trees and opportunities to provide and enhance the tree canopy on the site are limited or almost non-existent; the benefit of providing 116 sqm of landscaped area on a 1160 sqm site in terms of minimising urban run-off is limited; and the visual impact of the development is historical, and a requirement to provide landscaping in the front area would not result in any significant and manifest improvement to the visual amenity of the site or locality.
The Report prepared for the meeting of the Council's Independent Hearing and Assessment Panel on 26 February 2013 concluded that the SEPP 1 objection was well founded, and recommended that a variation to the landscaped area development standard was reasonable in the circumstances of the case. That Report commented (exhibit 3, p14) that the development will have no visual impact upon the amenity or locality; the works are contained within the rear portion of the upper level of the building and cannot be seen from the street; the opportunities for landscaping are outweighed by other needs such as car parking, and any landscaping would have minimal impact upon the visual impact of the existing building or the existing streetscape.
The Council's position at the hearing was that it supports upholding the SEPP 1 objection on the basis of the agreed evidence that it is not possible to provide a landscaped area of 10% of the site without impacting on parking, so as to provide for a landscaped area of 4% of the site.
There are three matters of which the Court must be satisfied before it can uphold the SEPP 1 objection: first that the objection is well founded; secondly, that the granting of consent to the development is consistent with the aims of SEPP 1 as set out in cl 3, which is cumulative on the first matter; and thirdly, that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Wehbe v Pittwater Council [2007] NSWLEC 827 at [37]-[41].
I am satisfied that the SEPP 1 objection is well founded. While I would not agree that the proposed development meets the objectives of the development standard notwithstanding compliance, in particular objective (f), that is but one of the ways in which it can be established that compliance with a development standard is unreasonable or unnecessary: Wehbe at [44]. I agree with the assessment undertaken for the purposes of the recommendation to the IHAP, which supports the arguments raised in the SEPP 1 objection, that in the circumstances of this case, the objectives provided in cl 36(1) are not relevant to the proposed development that is the subject of this application which is confined to internal works at the rear of the first floor of the building. The objectives (d) and (f) would be relevant to the building as originally constructed, and as provided for in the original consent granted in 1972 and the consent for the takeaway café. Having regard to the factors identified in the report to the IHAP, I am satisfied that compliance with the development standard in cl 36(5)(i) would be unreasonable or unnecessary, and that granting consent would be consistent with the aims of SEPP 1 as set out in cl 3. There are no matters of significance for State or regional environmental planning raised by the application. While I agree with Ms Edney that the site and streetscape would benefit visually from having a landscaped street setback, in my view the public benefit of maintaining the planning controls including the requirement in cl 36(5)(i) is not dependent on requiring this applicant to provide the landscaping required under the 1972 development consent. If cl 36(5)(i) of the LEP applies to this application, I would uphold the SEPP 1 objection to compliance with that development standard.
The Council presses for the imposition of a condition in the terms proposed in condition 8, requiring the applicant to provide a landscaped area not less than 4% of the site area at the front of the site. I accept the agreed evidence of Ms Edney and Mr Burrell that this could be achieved while still enabling use of the two car parking spaces and access to the service pit covers. The issue is whether a condition requiring the applicant to provide this landscaping could, or should, be imposed.
Section 80A(1)(a) of the Act permits the imposition of a condition if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent, and s 80A(1)(f) permits the imposition of a condition if it requires the carrying out of works, whether or not on the land to which the application relates, relating to any matter referred to in s 79C(1) applicable to the development the subject of the consent. Identification of the nexus between the development authorised by the consent and the proposed condition is required both by s 80A(1) and by the proper application of the tests in Newbury, namely that a condition can only be imposed for a planning purpose, must reasonably and fairly relate to the development, and must not be so unreasonable that no reasonable authority could have imposed it: Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308. In Saab, Basten JA, with whom Macfarlan JA agreed, noted (at para [9]) that there may be a question as to how distant, remote or indirect the relationship may be between the proposed development and the matters referred to in s 79C(1).
It was not in dispute that condition 8 would have a planning purpose, or that the site and streetscape would benefit visually from having a landscaped street setback. I do not agree, however, that landscaping in the area identified in exhibit 9 would provide much assistance in screening the brothel, as it would only screen the south-western corner of the site, and the proposed new entrance for patrons to the brothel is by the stairs on the northern side of the building.
The proposed development is limited to internal alterations to the first floor, and the use of that additional area, without increasing the footprint of the building; and the development will have no visual impact upon the amenity of the site or the locality. In those circumstances, I am not persuaded that there has been demonstrated a relationship between the proposed development and the proposed condition such that the condition would fairly and reasonably relate to the development the subject of the appeal, and on that basis such a condition could not be imposed.
While Mr Skalkos' evidence was that he would agree that landscaping could be provided, that would be only if it does not impact on the operators of the takeaway establishment and access to the service pit covers. The area proposed for the additional landscaping is that area in front of the takeaway café which is presently used for tables and chairs, and for parking. The lease for the takeaway café (exhibit 10) includes cl 15.1 which retains control and management of the external areas and car parks with the owner of the site. It was not in dispute that the applicant leases the space in the main building occupied by the brothel, however that lease was not in evidence and its terms, in particular whether it is in similar terms to that for the takeaway café, are not known. The evidence before the Court does not establish that the applicant could in fact implement any additional landscaping in compliance with such a condition if the owner of the site or the operator of the takeaway café objected. Whether or not that would mean that such a condition would be unreasonable in the sense identified in the third Newbury test, the possibility that the applicant may have limited capacity to ensure compliance would point against its imposition.
Conclusion
For the foregoing reasons, I am satisfied that the limitation on the number of employees and work rooms before 2pm on weekdays addresses the issue of limited on site car parking capacity. The Council did not raise any contentions relating to operation of the brothel, or in relation to the proposed extension of operating hours to 2.00am. The Council referred the application to the NSW Police Force, who noted no significant concerns and identified the proposed development has having a low crime risk rating, and suggested lighting, provision of CCTV cameras, measures for monitoring access to the premises, and provision of duress alarms (exhibit 3, pp 65-70). Those recommendations are reflected in proposed condition 5. I am satisfied that it is appropriate to approve the development application for expansion of the brothel and extension of trading hours, subject to the conditions as agreed between the parties and as discussed and determined in these reasons.
The orders of the Court are:
1. The appeal is upheld.
2. Development Application DA12/0614 for an increase in rooms, staff numbers, and trading hours for a brothel at 64 Alexander Avenue Taren Point, is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits A, E, 1, 8 and 11.
Linda Pearson
Commissioner of the Court
Decision last updated: 09 October 2013
0
7
4