Alphatex Australia v The Hills Shire Council (No 2)

[2009] NSWLEC 1126

Land and Environment Court

of New South Wales

CITATION:	Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126
PARTIES:	APPLICANT Alphatex Australia RESPONDENT The Hills Shire Council
FILE NUMBER(S):	11120 of 2008
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :- Brothel Proper role of Planning Principles
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Alphatex Australia v The Hills Shire Council [2009] NSWLEC 1104 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Martyn v Hornsby Shire Council [2004] NSWLEC 614 Parsonage v Ku-ring-gai [2004] NSWLEC 347 (2004); 139 LGERA 354 Tenacity Consulting v Warringah [2004] NSWLEC 140; (2004) 134 LGERA 23 Segal & Anor v Waverley Council [2005] NSWCA 310 (2005) 64 NSWLR 177 Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27 Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675
DATES OF HEARING:	11 and 12 March 2009
DATE OF JUDGMENT:	29 April 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC INSTRUCTED BY Hannaford Lawyers RESPONDENT Mr C Leggat SC INSTRUCTED BY Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

29 April 2009

08/11120 Alphatex Australia v The Hills Shire Council

JUDGMENT

1 SENIOR COMMISSIONER: The planning controls of The Hills Shire Council (the council) are entirely silent on the subject of brothels. Although these planning controls are comparatively recent, with the Local Environmental Plan dating from 2005 and the Comprehensive Development Control Plan dating from 2006, the word “brothel” does not appear in either of these documents. It necessarily follows from this that brothels are simply another undefined subclass of commercial premises. Brothels are thus, in terms of the zoning permissibility for use of premises, capable of operating, with development consent, in any of the zones within the council's area where commercial premises are permitted. An examination of the zoning table in the Local Environmental Plan shows that brothels are therefore a permitted land use, with development consent, in five of the council's zones. These are:

• The three commercial zones – (Business 3 (a) (Retail) Zone), (Business 3 (b) (Commercial) Zone) and (Service Business 3 (c) Zone);
• The residential tourist park zone – (Residential 2 (c) (Tourist Village) Zone); and
• The business park zone – (Employment Area 10 (a) (Business Park) Zone).

2 This latter zone includes much of the Norwest Business Park area. Brothels are not permitted within the light industrial zone [(Light Industry 4 (b) Zone)] within the council's area.

3 Unlike the position in many other local government areas where specific provisions have been made in the relevant planning documents for regulation of the location and operation of brothels, no such brothel-related provisions exist in this local government area.

The proposal and its locale

4 In this instance, a proposal has been lodged with the council seeking development consent for the renovation and alteration of existing commercial premises at 26B Old Northern Road, Baulkham Hills (the site) to permit the operation of a brothel. The site is located in the Baulkham Hills town centre.

5 The Baulkham Hills town centre is, effectively divided into two parts. The first is a conventional ribbon shopping centre running along the sides of the main roads that intersect the centre and having a focus on what has been and remains a major road junction (being the junction of Old Northern Road and Windsor Road). The second element of the town centre is a more contemporary major shopping mall comparatively recently constructed by Stockland Developments. This is on the north-western edge of the town centre. The shopping mall is of the conventional internally focused variety with significant on-site parking. Pedestrian linkage between these two shopping elements in the town centre is by roadside footpath and there are no more formalised connecting structures such as overbridges or underpasses.

6 For what might broadly be classified as the north-western quadrant of the intersection that is the focus of the older element of the town centre, this is bounded by Windsor Road, Old Northern Road and Olive Street. It has one constructed internal vehicle laneway from Olive Street and one such road. The first, an unnamed laneway, parallel to Old Northern Road, ends at the northern boundary of the site. Although the laneway leads to the site, at a point located at approximately two-thirds of the site's parking area’s depth from Central Place, it is the agreed position, as I understand it, between the parties that it would not be appropriate to seek the use this laneway (presently not providing a vehicle access to the site) to provide such access for parking purposes.

7 A much more substantial cul-de-sac, Central Place, effectively provides a spine to this quadrant. A free council car park with a three-hour parking limit is located on the western side of Central Place, together with access to Kentucky Fried Chicken premises that have a primary frontage to Windsor Road. The layout of the quadrant is that shown on an extract of the marked-up annotated air photo (tendered by the council) appearing below:

8 The site (marked in red above) runs, generally, east-west between Old Northern Road and Central Place. The site slopes from Old Northern Road to the west toward Central Place. At the Old Northern Road frontage, the site has a retail shopfront at ground level with a single level of commercial office space above. A staircase (using its own doorway to the footpath) accesses this office space. This access is entirely separated from the retail space.

9 As a consequence of the slope of the land gently to the west, there is a small ancillary space, presently used as a storeroom with laundry and toilet facilities attached, located on a lower ground floor. This lower space is accessed by a short flight of steps leading to a doorway. These stairs are from the site’s car parking area accessed from Central Place. This doorway also has a connecting staircase leading to the retail and commercial areas above.

10 The proposed brothel would operate on the lower ground floor level and in the commercial office space at the top of the building. A new and separate access would be created from the car park to the retail space with the lower ground floor remodelled to provide a disabled accessible workroom for the brothel. This workroom would have an ensuite bathroom. Ramp access would be installed from the car park to this room.

11 The existing staircase would be isolated from the retail premises and these stairs would simply provide interconnection between the two elements of the proposed brothel. Extensive remodelling would take place to the commercial office space to fit it out with a number of workrooms, a manager's space, a staff room and a waiting room. Each of the brothel workrooms would have ensuite facilities.

The site view

12 I held a site view on the morning of the first day of hearing. During the course of that view, I heard evidence, informally, from a number of objectors. This evidence was heard not only in the car park at the rear of the site but also in the grounds of the bowling club on the eastern side of Old Northern Road opposite the site. As discussed below, I also heard evidence on behalf of the New South Wales Police Service on each of the two proposed brothel levels within the premises.

13 At the commencement of the on-site evidence, I gave an anticipatory ruling concerning evidence that could be given and that would be relevant. I indicated that, in my view, I did not have jurisdiction to deal with questions of morals. Those comments were the subject of an application that I recuse myself on the basis of apprehension of bias. I declined to do so and the reasons for that are set out in a separate judgement (Alphatex Australia v The Hills Shire Council [2009] NSWLEC 1104).

14 The issues that were raised by the council can be summarised as follows:

• the acceptability of the internal layout of the proposal;
• the impact on surrounding businesses;
• incompatibility of the proposal with the future vision for the Baulkham Hills town centre held by the council; and
• the proximity of the proposed brothel to places frequented by young people on both the eastern and western sides of Old Northern Road.

Acceptability of the internal layout

15 During the course of the on-site inspection and, subsequently, in Court, I heard extensive evidence from Sgt Fellowes, the officer of the New South Wales Police Service who had undertaken the assessment of the brothel proposal for the police. This evidence related to concerns expressed by him on behalf of the police concerning both the security of the layout of the brothel at the upper level and the isolation of the disabled accessible workroom on the lower ground level.

16 It was his evidence that the concerns held by the police with respect to the first floor commercial premises layout could be resolved by a redesign of that layout. With respect to the lower ground level, the concerns that the police had about that could be resolved by the requirement that an additional managerial employee be stationed at that level during any time that that workroom was being used for the purposes of servicing clients. If such managerial employee could not be located at that level, it was his opinion that that element of the application should be refused. Given the overall conclusion that I have reached concerning the acceptability of the application, on unrelated grounds, it is sufficient that I note that these matters could be resolved by design changes and would not provide a basis for refusal.

Baulkham Hills Town Centre Development Control Plan

17 The Baulkham Hills Town Centre Development Control Plan (the Town Centre DCP) was adopted by the council in October 2008. The adoption, however, did not lead to the Town Centre DCP coming into effect – as the coming into effect was made contingent, by resolution of the council, on the coming into effect of a new contributions plan. The contributions plan has been adopted by the council but awaits approval by the Minister. That approval has not yet been given. As a consequence, although adopted, there can be no certainty as to when the Town Centre DCP will come into effect.

18 The Town Centre DCP expresses, as its vision for the quadrant within which the proposed brothel is located, a future mixture of retail (at ground level) with commercial or residential premises (at the next level above) and varying intensities of residential development above that.

19 The scale of this intended development is significantly greater than that which is presently located along the Old Northern Road and Windsor Road frontages. The Town Centre DCP also envisages a landmark building to be located at the intersection of Windsor Road and Old Northern Road in this north-western quadrant.

20 Mr Leggat SC, for the council, submits that I should have regard to the objectives of the Town Centre DCP and conclude that the location of a brothel, at the first and lower ground levels on the site, would be inimical to the realisation of this vision for the town centre expressed in the Town Centre DCP.

21 In this context, it is also relevant to note that Central Place is also envisaged by the Town Centre DCP to be turned into a much more active and pedestrian oriented space than is presently the case.

22 With a few exceptions, the present orientation of activity within this quadrant is outward looking towards Old Northern Road, Windsor Road or Olive Street. Little of the commercial activity, apart from a vehicle repair facility observed during the course of the site inspection and some businesses associated with the area at the Central Place end of the arcade connecting Central Place and Old Northern Road, is oriented toward Central Place. Indeed, the preponderance of present businesses is outward looking toward Old Northern Road or Windsor Road rather than to Olive Street.

23 The Town Centre DCP, from its schematic depiction of the desired future character of this quadrant makes it clear that a significant element of the future development emphasis will be inward looking to Central Place as well as retaining the present outward looking nature of the businesses along the boundaries of this quadrant.

24 The council submits that the approval of this brothel will act as a serious detriment to its achievement of the desired future character for this area.

25 It was the submission of Mr Galasso SC, for the applicant, that the absence of any specific controls on brothels anywhere in the council's planning instruments and the fact that they are simply treated as another commercial use, such a use on the site is consistent with the present character of the quadrant. This is merely a commercial use in premises where that commercial use is permitted, he submitted.

26 Mr Galasso also submitted that there was no immediate likelihood, on any evidence before me, that, if it were relevant, the council's desired character was likely to occur in the near future. As a consequence, he said it would be reasonable to assume that broader commercial pressures would effectively require the cessation of a brothel's activities at an appropriate time if the property cycle were to respond and developers were to commence developing in a fashion that would achieve the council's desired outcome.

27 Whilst the council's longer-term aspirations for this quadrant can readily be understood from the Town Centre DCP (and that development control plan would be a document to which I would be obliged to have regard pursuant to s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (the Act) if it had come into effect – subject to the guidance given by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373), it has not done so.

28 The consequence of that, my view, is that the document remains in a planning limbo to which the council has consigned it by making it contingent on the coming into effect of the contributions plan.

29 For that reason, I do not consider it appropriate to give any significant weight to the Town Centre DCP.

30 However, I do accept the proposition that, as a brothel will remain simply another type of undefined commercial premises within the council’s planning controls unless and until the council adopts some specific nominated provisions concerning such activities, any brothel will remain a permissible activity in any zone, including this zone, that permits commercial premises, with consent, and subject to an appropriate merit assessment pursuant to s 79C of the Act.

31 Whilst the council clearly envisages a different built form context for the quadrant and a significant alteration to its focus (both in terms of encouragement of greater residential density and a more active and human oriented Central Place), nonetheless brothels will maintain a permitted commercial activity in the commercial elements of this reinvigorated Baulkham Hills town centre if the council's vision for it were to eventuate and no other alterations were made to the council's planning controls prohibiting brothel uses in this zone.

32 The council also relies on the planning principle, published by Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 at para 18, as providing a relevant element to be considered in conjunction with the desired future character as set out in the Town Centre DCP. This reliance on one part (the fourth element) of the planning principle in Martyn is separate to the reliance on the seventh element the planning principle discussed later. This reliance centres on how the fourth of the elements set out by Roseth SC in Martyn is to be interpreted. The fourth element from Martyn is in the following terms:

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.

33 Before to discuss this broader general question of how one should approach the construction and understanding of the planning principle published in Martyn and adopted by the Court, it is apposite to note that, in at least one of the zones in this council's land use planning table in the local environmental plan, brothels are permitted, with development consent, (in the Residential 2 (c) (Tourist Village) Zone) as this zone permits commercial premises. This, perhaps, occurs as an unintended consequence of the fact that there are no specific provisions concerning brothels in the Local Environmental Plan and that the term “brothel” is not defined nor otherwise mentioned in that document.

34 If the council wishes to prohibited brothels in any of its commercial zones, or, indeed, in the Residential 2 (c) (Tourist Village) Zone, that can only be achieved by a specific prohibition being incorporated in the landuse table of the Local Environmental Plan. It would be entirely inappropriate for me to adopt a position in these proceedings of such sweeping generality. However, a position of such sweeping generality, for this commercial zone, would be the consequence of upholding the broad submission made on behalf of the council about this element of the planning principle set out in Martyn.

35 As earlier noted, in Martyn, Roseth SC published a planning principle setting out the relevant criteria for locating brothels. The criteria in that planning principle are as follows:

• 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.
• 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.
• There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application, this should be supported by evidence.
• 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.
• 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.
• There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses.
• 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 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.

36 Mr Leggat has submitted to me that I should construe the words “zoned residential” in the fourth of the terms of the planning principle in Martyn to mean any zone within which residential development is permitted. That is, I am invited to conclude that the words “zoned residential” in the relevant proposition in Martyn include land located in this council’s Business 3 (a) (Retail) Zone.

37 It is, therefore, appropriate to consider what be the proper role of planning principles in the Court’s decision-making process. To do so, consideration should be had not merely of what planning principles are but, in addition, what they are not.

38 The Court's website describes planning principles in the following broad terms:

What is a 'planning principle'?

A planning principle is:
• statement of a desirable outcome from;
• a chain of reasoning aimed at reaching; or
• a list of appropriate matters to be considered in making a planning decision.


While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over councils’ plans and policies.

Planning principles assist when making a planning decision – including:
• where there is a void in policy; or
• where policies expressed in qualitative terms allow for more than one interpretation; or
• where policies lack clarity.

39 Planning principles are developed by a process through the Court dealing with an abstract issue rather than the merits of a particular case. This is achieved by a collegiate process involving the Commissioners of the Court and, from time to time, interested Judges of the Court.

40 Although planning principles deal with a broad range of topics, they generally fall in one of two categories – namely definition or process oriented statements.

Definition oriented planning principles

41 The first category is both descriptive and prescriptive – in that they include describing what might be regarded as the answer when a planning instrument proposes that an undefined performance criterion must be achieved.

42 A prime example of such a planning principle is that set out by Roseth SC in Parsonage v Ku-ring-gai [2004] NSWLEC 347 (2004); 139 LGERA 354 (dealing with access to sunlight).

Process oriented planning principles

43 The second category is process orientated. These provide guidance for decision-makers on how to consider an issue where there is no detailed approach in the relevant planning instrument.

44 An example of these, as discussed later, is that in Tenacity Consulting v Warringah [2004] NSWLEC 140; (2004) 134 LGERA 23 dealing with impacts on views.

45 At the present time, there are forty-two planning principles (although some involve refinement of earlier principles) that have been adopted by the Court and listed on the Court’s web site.

46 Roseth SC described the process of development of planning principles (In a paper delivered to a Joint Conference of the Land and Environment Court and the Victorian Civil and Administrative Tribunal on 6 May 2005) as follows:

There are ten commissioners in the Court, and all commissioners initiate planning principles as they come across issues that, in their opinion, have general application. Since a planning principle published in a judgment obliges commissioners dealing with similar issues to, at least, consider the principle established earlier, the commissioners find it useful to consult with each other. The practice is to circulate the principle in draft form and invite the others to comment, amend, delete or add to the draft version. Comments from other commissioners are a particularly useful test.

47 This process enables a consensus to emerge before the principle is published. The consultation is not about the case’s facts – that consideration lies solely with the Commissioner determining the matter.

48 At the conclusion of this process, the resulting judgment will not merely deal with the merits of the case but will also set out the principle that has emerged from the consultation.

49 Sometimes the consultation process yields a consensus that it was either unnecessary or not yet appropriate to formulate and publish a principle on a particular topic.

50 The Court of appeal has endorsed the utility of planning principles in Segal & Anor v Waverley Council [2005] NSWCA 310 (2005) 64 NSWLR 177, saying “…. consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court ….” (per Tobias JA at para 96 [Beazley and Basten JJA agreeing])

51 Segal (per Tobias JA at para 99) also makes it clear planning principles do not bind Commissioners but provide assistance in consistency of decision making. Each case, however, must be decided on its own facts and circumstances.

52 A process oriented planning principle is intended to deal with what steps might be appropriate to be taken or issues to be considered in undertaking a merit assessment of a particular issue when there is not some formally prescribed basis of assessment in the relevant local environmental plan, a development control plan or established policy of the relevant consent authority.

53 The view impact assessment principles in Tenacity, the most commonly cited planning principle, are of assistance unless there is a very prescriptive code established for a particular local government area and that code subsumes or sets aside all the relevant elements of the principles in that decision. Tenacity lists four steps for assessing impacts on views and suggests factors to be considered for each step. These steps provide guidance to enable the appropriate merit assessment to be made as required by s 79C of the Act.

54 On the other hand, equally importantly, there are a number of matters that planning principles are not.

55 First, planning principles are not immutable. Planning principles are evolutionary and can change or grow as circumstances in particular cases give rise to matters where members of the Court collectively consider a further statement of generality (either by revision to or expansion of an existing planning principle) is desirable rather than merely the making, by those to whom the matter has been assigned by the Chief Judge, of a simple determination confined to the specific merits of the individual application.

56 For example, further consideration of the original planning principle dealing with the impact of extending trading hours of licensed premises (published in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277) led to the refined and expanded planning principle subsequently published in Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27.

57 Second, planning principles are not intended to be exhaustive. This is, perhaps, a corollary of the first proposition. Just as members of the Court will consider whether particular cases give rise to general matters which might expand or otherwise build upon an earlier planning principles, so the Court may invite the advocates for the parties, in appropriate cases, to suggest modification or evolution of an already published planning principle. Indeed, a case may canvass whether the establishment of a new principle should be contemplated and, if so, the approach that should be considered to that topic.

58 Third, planning principles are not binding. They are not the stone-inscribed commandments that Moses is described, in Exodus Chapter 20, as bringing down from Mount Sinai.

59 Planning principles published and adopted by the Court are intended to provide guidance to those who bring similar cases to the Court for determination and are also intended to provide assistance and guidance for local consent authorities. They do not and cannot have the same force as some form of statutory prescription. They certainly cannot automatically displace or override the provisions of a local environmental plan or a development control plan that deals with the topic of a particular planning principle in a fashion differing from that enunciated by the planning principle itself.

60 Fourth, planning principles are not statutory instruments and are not intended or expected to be the subject of the same statutory interpretation and construction of the words and phrases contained within them as if they had the force of law and were subject to the requirements for statutory interpretation of their intention.

61 Finally, they speak for themselves. Croesus asked Pythia, the sibyl or oracle at Delphi, if he should make war on the Persians and if he should take to himself any allied force. The oracle gave the response, that if he made war on the Persians, he would destroy a mighty empire. Croesus declared war and, indeed, succeeded in destroying a mighty empire – his own. Planning principles are not statements replete with hidden meaning or calculated ambiguity – unlike Delphic prophecies habitually were.

62 As a consequence, the appropriate position to adopt concerning these words – “zoned residential” – is to take the ordinary everyday meaning of these words as used by the then Senior Commissioner and conclude that when he wrote “zoned residential” he meant precisely that – no more or no less. This is the only possible approach that can be taken in light of the broader role of planning principles in the framework of the Court's decision-making processes.

63 It therefore follows that the fourth element of the planning principle in Martyn does not act to require refusal of the application on the basis that residential development is permitted within this zone.

Parking

64 I turn, now, to the question of parking adequacy and parking design.

65 The applicant proposes a total of six parking spaces on the site. One of them, between the two doorways at the rear of the premises (being, to the north, the door accessing the proposed lower ground floor workroom and existing stairway and, to the south, the proposed new doorway leading to the new staircase providing separated access to the ground floor retail premises), is to be a disabled car parking space. This is to be adjacent to the new ramp to be constructed leading to the access to the lower ground floor workroom. This parking space and ramp are designed to cater for disabled clients seeking to use the lower ground floor workroom.

66 The remainder of the parking spaces are along the northern boundary of the site. Although there is an unnamed laneway leading from Olive Street to the centre of the parking area of the site, as separately discussed, access is not appropriate through this laneway.

67 The parking associated with the site comprises the six parking spaces on the site and the three additional off-site parking spaces that had been provided by payment of a contribution to the council at the time of development of the site. As a consequence, it now satisfies the parking provisions of the council's development control plan. Although it is possible to argue that the now proposed configuration of the premises will embody an intensification of activity across the totality of the premises on the site, it was the evidence of Ms Castor, social planner for the applicant, that clients of the brothel are unlikely to park on the site and that sex workers at the premises are likely to access the site by public transport or will be driven to the premises rather than drive and park at the premises. Whilst the manager of the premises and any additional managerial employee who might be required for the lower ground floor workroom, would be expected to drive and park, I am satisfied that the on-site parking arrangements remain acceptable despite the change of proposed use.

68 In addition, given the evidence from Ms Castor about the likely hours of peak use of the brothel and the fact that the clients are likely to park away from the site, I am also satisfied that it is likely that there will be sufficient offsite parking in the council park car park on the opposite side of Central Place and in other on-street parking in the vicinity to meet parking demand.

69 Although the owners and occupiers of the two adjacent business premises to the south gave evidence about unauthorised use of their parking areas and altercations that had taken place with persons making unauthorised use of their parking spaces, I am satisfied that the demand pattern described by Ms Castor means that such conflicts are unlikely to arise from any systematic unauthorised parking activities on adjacent properties by patrons of the proposed brothel.

70 The parties agreed that the layout of parking on the site was acceptable and I see no reason to set aside that agreement.

71 I turn to consider the people and premises opposite on the eastern side of Old Northern Road. Those concerns that have been expressed either by the council or by individual objections relate to:

• Young people attending the bowling club directly across the road from the site;
• Young people who use the bus stop on the eastern side of Old Northern Road to catch or alight from a bus, whether to or from school or, during the summer months, using a beach bus operating from this bus stop; and
• Young people attending an electronic games centre some 40 m or so to the south-east of the site on the eastern side of Old Northern Road.

72 The fifth element in Martyn is in the following terms:

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.

73 It is therefore necessary to consider, for the eastern side of Old Northern Road, whether this element of the planning principle is breached and, if it be breached, whether this warrants refusal of the application. There are no “schools, educational institutions for young people” from which the brothel would be visible. There are the three locations identified above which are used by young persons and from which the brothel would be visible.

74 It is appropriate, first, to deal with a broad general issue concerning all three classes of young persons who might be on the eastern side of Old Northern Road. Old Northern Road, at this point, is a major arterial road carrying significant volumes of traffic. It is extremely unlikely, given the width of the road, traffic volumes and the comparatively short distances (some 50 m or so as a maximum to the north or south) to signalised pedestrian crossings, that there is any likelihood of any significant numbers of persons, whether young persons or otherwise, making a crossing of the road other than by the signalised crossings. It is therefore reasonable, in my view, to consider any young persons who might be passing the premises and being sourced from the eastern side of Old Northern Road, to be aggregated with those who might be passing the premises, in either direction, on the western side of Old Northern Road.

75 The spatial separation and the nature of the road effecting that separation are relevant matters in my consideration of this impact. Taking them into account, there is no impact of any significance possible on these young persons simply by them being in the vicinity of (but separated by a major arterial road from) the proposed brothel.

76 As a consequence, I do not consider that there is any basis for concern about young persons who are simply walking along the eastern side of Old Northern Road from any of the three sources about which concern was expressed. A similar concern was expressed and similar conclusion should be reached, in my view, concerning users (of any age) of the park or the community facilities adjacent to it, to that with respect to young persons walking on the eastern side of Old Northern Road.

77 The significant degree of separation of any residential premises on the eastern side of Old Northern Road is also such that there is no likelihood is significant impact on residents of those premises even if, consistent with the fourth element in Martyn, it might be possible to view the site from such residential locations.

78 Particular concern was expressed by the manager of the bowling club of the possible impact of the brothel on young people who are either junior members of the club or take part in organised “learn to bowl” activities during school holidays (in groups of up to 30 young people between the ages of 5 or 6 years of age and 18 years of age).

79 Whatever design might be adopted for the upper area of the proposed brothel, the windows that face Old Northern Road will be screened by louvres, curtains or some other form of privacy device (capable of being required by a condition of consent) so that young people in the bowling club will be unable to look into the brothel. The only signage proposed will be an under-awning sign, at right angles to the road, that will only contain the street number of the brothel. There will be no visible indication, from Old Northern Road, of the activities proposed to take place on the premises. Although young people who may attend the bowling club might become aware of a brothel operating at the premises opposite the bowling club, there is nothing associated with this application which could, rationally, have any impact on them.

80 For these reasons, I do not consider that there is any significant adverse impact that would arise with respect to any person who was on the eastern side of Old Northern Road in the vicinity of the proposed brothel (no matter the age of the person or the time or purpose of their presence there). Any impact would be so small that it could not make any contribution to refusal of the proposal.

Bus stops on the western side of Old Northern Road

81 I turn now to the question of bus stops on the western side of Old Northern Road and their use by young persons. There are two elements of the planning principle in Martyn that are relevant to this consideration. These are the fifth and seventh elements of that planning principle.

82 As earlier noted, the fifth element in Martyn is in the following terms:

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.

83 The seventh element in Martyn is in the following terms:

There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses.

84 I received a wide range of evidence concerning the use of these bus stops. The two relevant pieces of evidence from the on-site evidence were in the following terms taken from the notes of that evidence:

Ms Davie: 1km away. Lots of children use bus stops. School kids from Gilroy HS, Baulkham Hills HS, Kings, Tara & Oak Hill use these stops. Half a dozen at various times I have witnessed.

Brian George: 200 m up the road. Concerns: ………………. I sat and watched people getting on and off bus stops – old women, school kids get on and off here to get to the crossing. Get off here to go to Shopping Centre in Northerly direction………….

85 In addition, there were a number of other comments concerning the use of these bus stops contained in the written objections lodged with the council to this proposal. They are set out in the following paragraphs.

86 Mr Holloway, principal of Walsh and Sullivan First National Real Estate, a business located at 12 Old Northern Road, wrote that:

“This section of Old Northern Road sees children of school age passing by or waiting for buses on a regular basis on the weekend, during school holidays and both in the early morning and late afternoon on school days.”

87 Mr A Periera, director of Response Real Estate, a business located in Olive Street, wrote that:

“On any given weekday numerous children are waiting for buses for extended periods of time and alighting from the buses and walking past the premises which is only 50 m from the bus stop.”

88 Ms J Davey wrote an e-mail objection that included, inter alia, comments on the element of the Statement of Environmental Effects dealing with use of the nearby bus stop as not regularly being used by school buses. Ms Davey wrote that:

“On the contrary, there are dedicated school buses (that are not part of the commercial bus routes) that use these bus stops.”

89 Further written objections confirming the use of the nearby bus stop by schoolchildren were lodged by Ms M Merrall; Mr W Long; and Ms Degabriele and Ms Mallia, the owners of 26 and 30 Old Northern Road.

90 In addition to the objectors’ evidence, I also had a variety of additional evidence on the use of this bus stop.

91 The first of this evidence is contained in the council's assessment report on the application. Mr McKenzie, the council's Manager of Development Control, wrote this report. When dealing with the topic of use of the bus stops on the western side of Old Northern Road, he wrote:

It is in close proximity to school bus stops and businesses frequented by children and adolescents and as such is highly likely to offend.

92 He also wrote, with respect to the element of the planning principle in Martyn, in the following terms:

There are two bus stops on Old Northern Road within 50 m of the brothel entry. The bus stops are used in the mornings and afternoons by children attending schools including Oakhill College, Model Farms High School, Jasper Road Public School, and Matthew Pearce Primary School and the Kings School

93 Mr Moore, the council's consultant planner in these proceedings, said, in his Statement of Evidence:

There is a public bus stop approximately 50 m south of the main street entry to the proposed brothel. There is a clear line of sight from the bus stop to the front entry of the proposed brothel.
(Diagram omitted)
Buses service routes 600, 610, 612 and 630 which travel from Rogans Hill to Parramatta and from Sydney City to Rouse Hill. As outlined in the Council officer’s report, and numerous public submissions opposed to the proposed brothel, schoolchildren use these buses daily throughout the week. During my site visit, in school holidays, I saw adolescents and young families using the bus stop. Based on the proximity and clear visibility between the bus stop and the subject premises, the proposed brothel is in a location likely to offend.

94 The applicant’s Statement of Environmental Effects identifies the four bus routes noted above in Mr Moore's statement of evidence and adds the 619 to that list. It then sets out the route details of each of these five bus routes. It comments:

It is acknowledged that the above-mentioned bus routes stop at some education institutions, however, the bus stop is not regularly used by school buses.

95 The relevant portion of the Statement of Evidence from Mr Chapman, the applicant’s town planner, concerning this topic is in the following terms:

I agree that the bus stop on the western side of Old Northern Road is 50 m from the entry to the proposed brothel. I have measured the distance to the bus stop on the eastern side of Old Northern Road as 67 m.

In my opinion the interrelationship between the bus stops and the proposed brothel is not likely to offend people (including school children) using these bus stops. The 50 m separation between the entry to the brothel and the nearest bus stop ensures people using the bus stop will not be standing in front entry to the brothel. Additionally the when [sic] standing at the nearest bus stop (western side of Old Northern Road) the subject premises is not clearly visible. The premises is viewed in the context of existing buildings within the Baulkham Hills retail and commercial strip.

96 There was a joint expert witness conference involving Mr Moore, Mr Chapman and Ms Castor. This produced a joint conference report dealing with a variety of topics, including that of the bus stop on the western side of Old Northern Road. The form of the joint report was to note an item to be discussed; whether there was agreement between the experts or not; and, if there was no agreement between the experts, to record comments (prefaced by the initials of the relevant expert) from each of those participating who wished to comment on that topic. The relevant comments from the joint conference report are reproduced below:

18(c) Brothel should not adjoin or be clearly visible from schools and places where children and adolescents regularly gather.	Agree - does not adjoin and is not visible from a school Disagree regarding places where children and adolescents regularly gather.	TM says town centre and facilities such as bus stop, health facilities, playground and shops draw on all sections of the community including adolescents and children. BC states that is is obvious that the loaction of the brothel does not adjoin or is clearly visible from schools or places where children or adolescents regularly gather. CG states the subject site is not highly visible from Early Childhood Health Centre, park or places where children and adolescents regularly gather including the Stockland Mall and KFC restaurant.
18(d) Not appropriate to located a brothel next to a bus stop regularly used by school buses.	Agree - nearby bus stop is not used for school buses	TM notes that school children do catch buses from this stop. As address at point 14 above GC has undertaken a survey of the bus stops on Friday 13 February between 8.10am-9.00am and 2.30pm-3.30pm. The survey data is at attachment 2. The bus stops are not serviced by school buses.

Item/Discussion	Agreement	Comment
BUS STOP
12. It is 50m from a public bus stop which is not a school bus stop.	Agree	GC states that the entry door is not visible when standing at the bus stop and looking north to the subject site. BC concurs with GC the entry door of the brothel is not visible from the bus stop.
13. The bus stop on the eastern side of Old Northern Road is approximately 67m walking distance from the site, via the traffic light pedestrian crossing adjacent to the west side bus stop.	Agree	BC state that the Old Northern Road entry to the brothel is not a major pedestrian thoroughfare. GC states that there are no works the front fascade of the building that distinguish the proposed brothel when standing at the bus stop. The building is consistent with other retail/commercial buildings on the western side of the Old Northern Road.
14. Patrons waiting to access the brothel would be visible from the bus stop.	Disagree	BC states that this is dependent upon where patrons stand. GC has undertaken a survey of the bus stops on Friday 13 February between 8.10am-9.00am and 2.30pm-3.30pm. The survey data is at attachment 2. In summary, the bus stops are not serviced by school buses or regularly used by school children. The maximum number of adolescents and adults waiting at the bus stop at any one period (15 minutes) was 4.

97 The survey undertaken by Mr Chapman and referred to at (14) of the joint conference report was in the following terms:

Bus Stop Survey - 26B Old Northern Road, Baulkham Hills

The survey was undertaken by Garry Chapman (GC) on Friday 13 February between 8.10am-9.00am and 2.30pm-3.30pm counting the number of people waiting for and getting off at the bus stops on the eastern side and western side of Old Northern Road Baulkham Hills, south of the subject site.

Morning Survey - 8.10am to 9.00am

Bus Stop - Eastern Side Old Northern Road.

Time	Number of People
8.10 - 8.20	3 adults waiting for bus.
8.20 - 8.30	4 adults waiting for bus + 4 people got off the bus.
8.30 - 8.45	No additional people waiting (4 adults)
8.45 - 9.00	No additional people waiting (2 adults waiting from 8.30am).


Bus Stop Western Side Old Northern Road (50m from subject site).

Time	Number of People
8.10 - 8.20	2 adults + 1 adolescent waiting for bus.
8.20 - 8.30	3 adults waiting for bus.
8.30 - 8.45	1 adolescent + 3 adults waiting for bus from 8.20am.
8.45 - 9.00	3 adults waiting for bus.


Notes:

• 8.20am school bus travelling north, past subject site, did not stop.
• 8.35am school bus travelling south (opposite side of Old Northern Road) did not stop.

98 During the course of the evidence in court, Mr Moore gave evidence concerning this bus stop and he is attendance at it (transcript of 12 March from page 24 line 5 to page 26 line 5 inclusive). This evidence was in the following terms:

WITNESS MOORE: I attended the site on two occasions, once in the morning from 10 past 8 through till 9 o’clock or just after to observe people using the bus stop and I observed in the mornings a range of--

SENIOR COMMISSIONER: When you say the bus stop you’re referring to the bus stop that is between .6 and .7 on your plan, is that correct?

WITNESS MOORE: Yeah, both bus stops actually, that bus stop and the bus stop opposite that bus stop on the other side of the street which is shown on that plan as an orange rectangle. And in the morning when I attended I saw a number of school children getting on and off school buses on the stop on the western side of the road so buses in a northbound direction. The morning I attended the bus shelter on the other side of the road wasn’t actually there or in use because the roadworks were underway but on the other day that I attended in the afternoon I saw a number of school children using both bus stops. On the western side of the road I saw 15 school children using that bus stop and on the eastern side of the road I saw a total of 42 school children mostly leaving the school bus. And I have actually recorded more precisely in the information about those movements of people. I also saw some people who appeared to be adolescents and some adults using both of those bus stops and I say a reasonable amount of pedestrian traffic heading up and down the footpath heading to and from those bus stops.

LEGGAT: When you say you recorded those movements what do you mean by that?

WITNESS MOORE: I’ve got a tally of people getting on and off buses and at the times that they did that and I was prompted to do that I suppose because the other expert, Gary Chapman, had done a similar survey so I wanted to--

LEGGAT: Is that in a document that you’ve prepared?
WITNESS MOORE: Yes it is.

LEGGAT: Do you have that with you?

WITNESS MOORE: I do.

GALASSO: I object Commissioner. I’m reading a statement of evidence and a joint report and this is the first time I will have seen any of this. Disingenuous at the least. These people had a joint expert report in which the topic is dealt with on page 7 and if there was to be any significant disagreement from what we’ve seen on page 7 I would have thought - sorry, it’s consistent of course with applications made on the second day for you to recuse yourself but I would have thought a little bit more notice that at midday on the second day might be nice.

LEGGAT: Mr Moore did you provide the material to Mr Chapman at any stage?

WITNESS MOORE: Mr Chapman provided me the material on his bus stop survey at the conclusion of our joint conference and then I was prompted to do my own survey and I haven’t provided that information.

LEGGAT: Have not?

WITNESS MOORE: Have not.

LEGGAT: In any event Commissioner I could ask him to state what it is that he saw, that’s one way.

SENIOR COMMISSIONER: But this is all post the joint report is the point. What’s the point of a joint report?

LEGGAT: My understanding is that there is an obligation on witnesses to provide the best evidence to the court, obviously in a matter that’s fair to everybody, but if Mr Moore heard something at the joint conference which required him to reconsider his position then he’s under an obligation to do that, as I understand it..

GALASSO: Yes, as early as possible is the practice direction and that’s not the second day of a hearing. I object to it.

SENIOR COMMISSIONER: It would seem to me that what is stated on the joint report at page 7 is a statement by Mr Chapman who is recorded as saying, “The bus stops are not serviced by school buses or regularly used by school children”. It would seem to me that that statement is capable of challenge at this part but the provision of some form of detailed tabular document is not appropriate. I’m happy to have Mr Moore express the limited opinion that he has observed school children getting on and off the buses at those locations. I don’t think it’s appropriate that he provide what amounts to a supplementary expert report. Continue within that confining.

LEGGAT: May it please the court. Thankyou. Mr Moore on page 7 of the joint report Mr Chapman has stated, “In summary the bus stops are not serviced by school buses or regularly used by school children”. I note that that comment appears to be the subject of disagreement. Why did you disagree and why do you now appear to disagree with that comment?

WITNESS MOORE: At the time of the conference I was aware of Gary’s survey of bus stop movements and I’d relied on information on the bus stop about the types of buses that stopped there. There isn’t any mention on the bus stops of school buses stopping at those stops but after I received Gary’s survey of the bus stop usage I attended the site do to the same thing and I did observe--

GALASSO: Object.

WITNESS MOORE: --school buses stopping--

GALASSO: Object.

WITNESS MOORE: --at the site.

99 As earlier discussed, the various matters contained in planning principles published by the Court are not subject to questions of detailed construction and interpretation as if they were a statute. Such planning principles, as earlier noted, mean exactly what they say. In this instance, the seventh element of the planning principle in Martyn uses the expression “locate a brothel next to a bus stop regularly used by school buses”. Setting aside the question of whether the bus stop is “regularly used by school buses”, there is no basis upon which, on any ordinary factual consideration of the words “next to a bus stop”, I could include that the bus stop on the western side of Old Northern Road was “next to” the site of the proposed brothel. As there was no specific consideration of or submissions about why I should expand this element of the planning principle in Martyn, there is no basis, on its present formulation, to regard the proposed brothel as being in breach of it or any basis to expand it so that the degree of separation in this case would fall within it. It follows that the application cannot fail this element of this planning principle.

100 Therefore, in this instance, although the council raises the question of the location of the proposed brothel and its proximity to the bus stop on the western side of Old Northern Road that is used, I accept, by children catching buses to schools and for other purposes, this proximity does not fall within in the scope of the seventh element of the planning principle in Martyn and thus require refusal of the brothel on that basis.

101 However, this is not the complete answer to whether the use of this bus stop by young people and the routes by which they access the bus stop does not place an impediment in the path of this proposal. As earlier noted, the fifth element of the planning principle in Martyn is also engaged by the fact that this bus stop is a place where “children and adolescents regularly gather”.

102 I do, therefore, accept that the proximity of the brothel to the bus stop and the fact that, at least to some extent, young persons using the bus stop are likely to walk past the brothel along Central Place and through the arcade or along Old Northern Road across the face of the brothel is a matter relevant to be considered.

103 Although not warranting refusal, I am satisfied on the evidence that there is likely to be sufficient pedestrian use by young people of routes past the brothel, either at its front or rear, coupled with the gathering of young people at the bus stop (from which, on my observation, the Old Northern Road entrance to the brothel would be visible although not prominently so) for its location to be inappropriate in this context. This use, in my view, goes beyond the setting aside provision in the second sentence of the fifth element in Martyn – namely “This does not mean, however, that brothels should be excluded from every street on which children may walk.”

104 In this respect, the proximity of the brothel to the bus stop means that this is a factor that can contribute to warranting refusal of the application. However, this impact, in my view, certainly does not warrant refusal in its own right as would be the position if the site were immediately adjacent to the bus stop and the bus stop was regularly used by designated school buses.

Impact on businesses

105 I turn, now, to the question of the impact of the proposed brothel on clients and potential clients of businesses in the vicinity. In this context, I pay no regard to the fears about loss of property values as, consistent with the position long taken in the Court, this is not a relevant planning consideration.

106 The proprietors of the businesses in the immediate vicinity discussed the family nature of the clientele of a number of these businesses during the course of the evidence given on site. The noted summary of this evidence was in the following terms (concerning the impacts which were already being experienced on two such businesses):

Mr Wartman: Co-owner of property next door, R&W. Own premises on either side. If approved, we derive income on either side of shop. Lease for Hills Conveyancing up, they want to renegotiate rent terms lower because they may lose business because deal with Mums and Dads, families. Not singles, couple / young families – may not want to expose children to this. ………….
and
Mr Serrah [ sic] : Co-owner of Hills Conveyancing. …………………… We have pressure to provide clients' needs. Clients will move to different providers. Already, clients said they won't bring kids with them.

107 In addition, further material was contained in a written objection to the proposal dealing with this topic. Ms V Turner of the Professionals Real Estate, a business located at 24A Old Northern Road, wrote that:

“As the area/suburb is very family-oriented we often have children and young people company their families to visit us at our campuses/business and therefore feel that the proposed brothel would be most inappropriate to be placed in the same group of businesses in the street.”

108 As discussed by Stephen J in the High Court’s decision in Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, in some circumstances, social and economic impacts of a proposal can constitute proper planning considerations in the assessment of the proposal. His honour's comments were in the following terms:

17. There is one further observation to be made. The learned primary judge described one submission urged before the Tribunal, namely that the establishment of the appellant's proposed fried chicken shop would "adversely affect existing food shopping facilities" in the neighbourhood as being just such a consideration as I had earlier held, in Spurling v. Development Underwriting (Vic.) Pty. Ltd. (1973) VR, at pp 12-13, to be a proper planning consideration. I would with respect, agree with his Honour; the significant word, quite vital to the nature of the submission to which his Honour referred, is "facilities". If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.

109 It is therefore appropriate to consider the extent to which I should regard the impacts that have already occurred and the extent to which I consider that further impacts are probable in my assessment of this proposed brothel.

110 In this context, it is appropriate to note that a fear, no matter how honestly or conscientiously held, does not provide any basis for refusing or contributing to the refusal of a development application unless there is some genuine likelihood of the fear being realised resulting in an adverse impact or it having already crystallised with an adverse impact being caused as a result. If these latter circumstances apply, then the nature and extent of the impact are appropriate to be considered in the planning assessment of the proposal.

111 It is clear that not merely is there a realistic fear of an adverse impact on surrounding non-competing and unrelated businesses but that, to some extent, that fear has already been realised. Evidence of the conveyancing business is that the brothel has already commenced impacting on the clients of this business merely because of the proposal to locate the brothel next door.

112 Flowing from that, the owner of the premises rented by the conveyancing business, the proprietor of the adjacent real estate agency, is also already impacted by the proprietors of the conveyancing business seeking a lower rental for the premises because of the impact that the proposed brothel will have on their business.

113 These impacts are precisely the type envisaged in Kentucky Fried Chicken as being relevant and appropriate, in a planning sense, in assessing the economic or social impact of a proposal.

114 Such impacts on noncompeting and unrelated businesses are unacceptable. Whilst the mere fear of such an impact would not give rise to a basis for refusal, in this instance the impact has already been evidenced to the conveyancing business (with a flow-on impact on the landlord of those premises). In addition, it is, in my view, reasonable to accept that such an impact might also, to some extent, also flow on to other businesses such as the other real estate agents in the vicinity who have given evidence of the family orientation of their clientele.

115 On the uncontradicted evidence of Ms Castor, such a fear should be considered irrational.

116 However, the fact that the fear exists and is having, on the uncontradicted evidence of two of the objectors, a demonstrated and adverse affect on businesses in the vicinity is sufficient to engage the question of an adverse social or economic impact on those unrelated businesses. The impacts on the customers and prospective customers of these businesses (and, consequently on the proprietors and employees of these businesses) are not merely impacts that are feared but unlikely to come to fruition. The impacts, on the evidence available to me, have already commenced and I have no reason to assume that they will not continue if the premises were to be approved to be used as a brothel.

117 Although, on Ms Castor’s evidence (which I accept), there is no rational basis for these fears, the impacts caused by those fears (held by others not associated with the businesses) have already commenced and I accept are likely to continue.

118 That adverse impact, in no sense at the fault of the proprietor of either of the impacted businesses, is unacceptable and, in its own right, warrants refusal of the proposal.

119 I turn, now, to the impact on the premises that front Olive Street and Central Place. There were objections raised during the course of the on-site evidence by a number of the proprietors of such businesses. They comprised:

• an Italian restaurant with frontage to Olive Street and a common boundary with the parking area of the site;
• a hairdressing business similarly located;
• an automotive repair business further to the south on central place with its frontage to central place; and
• a hairdressing business at the western end of the arcade leading to central place.

120 In addition, a written objection was received from a real estate agent whose business has a frontage to Olive Street.

121 Although the trading hours of the restaurant, particularly on Friday and Saturday nights, might coincide with elements of the higher trading periods of the proposed brothel, I do not accept that the presence of the brothel is likely to have any impact on this business. I have reached this conclusion as the site, although sharing a boundary with the restaurant, is not able to be viewed from within the restaurant and as, on the site view, it could be seen that there was a wall between the outdoor dining area of the restaurant and the car park of the site. In addition, as Olive Street is a through street, consistent with the evidence Ms Castor, it is unlikely that patrons of the brothel will seek to park on this street (if it be permitted), in the evenings or at night, where they will need to pass the restaurant. I also accept her evidence that it is unlikely that such brothel patrons would be making significant amounts of noise and drawing attention to themselves.

122 A similar position, but, perhaps, more so, applies with respect to pedestrian traffic, during its normal hours of operation, across the face of the hairdressing business facing Olive Street. This business, however, has an area at its rear that is used by the predominantly female staff of the business as their lunch and break taking area and is also used by those patrons of the business who wish to smoke. This area is separated from the parking area of the site by a driveway accessing the rear of a number of businesses facing Olive Street.

123 There was erected, along the boundary of the site, an open fence with posts and multiple rails. One of the two owners of this hairdressing business expressed his objection on a variety of grounds. His objection relating to the value of his property is not one that, if it were to be realised, I am permitted to take into account in these proceedings. The second basis of his objection related to the impact that knowledge of the use of the site would have on his staff and patrons who were using the outdoor area at the rear of his premises coupled with the possibility that patrons of the brothel would make offensive comments to his staff and patrons. It was his opinion that knowledge of the presence of a brothel would impact not merely on his clientele leading to a reduction in his business but also on his ability to attract and retain staff, who were, to a significant extent, young women.

124 I accept that these fears are real and are likely to be realised, to some extent, at least, with respect to attraction and retention of young women to work in his business.

125 As was submitted by Mr Galasso, barrister for the applicant, this could be cured by requiring the applicant to erect a fence that could not be seen through – at least along this section of the boundary of the car park of the site. Erection of such a fence, I am satisfied could be required by a condition of consent to rectify this impact.

126 I accept that the erection of such a fence would eliminate this impact but this would have a consequent impact on the amenity of the outdoor area used by the patrons and staff of the premises as it would remove the open aspect of this space to the south and the west including viewing a significant parts of the tree canopy in the vicinity plus the human activity along Central Place. Although this would be an impact that would be caused by the necessity to erect such a fence because of the presence of the proposed brothel, such an impact would be caused if any owner or occupier of the site chose to erect a fence of a solid type along that part of the northern boundary of the site. As a consequence, I am not prepared to conclude that the desirability of screening this area should contribute to refusal of the proposal.

127 Although I accept that it is likely that there might be some impact on the ability of the hairdressing business to attract or retain young female employees, I also consider that this impact is minor and, although adding to the two major reasons for refusal, is neither necessary for refusal nor sufficient for refusal in its own right.

Conclusion

128 I have concluded that the adverse impact concerning neighbouring businesses (that, on the evidence, has already commenced occurring) warrants refusal of the application. I have also concluded that the impact on the amenity of the staff and patrons of the hairdressing business facing Olive Street make a minor contribution to a refusal on a cumulative basis. Similarly, with respect to the gathering of young persons at or their access routes past the brothel to the bus stop on the western side of Old Northern Road to the south of the site is also an adverse impact but not one of such sensitivity as to require refusal in its own right (consistent with the fifth element of planning principle in Martyn).

129 However, if I be wrong and the impact that has already commenced (and which I am satisfied is likely to continue into the future) on the adjoining businesses to the south is insufficient, in its own right, to warrant refusal, I am certainly satisfied that the cumulative effect of all three adverse impacts is sufficient to warrant refusal on the basis of the totality of these impacts.

130 Ms Castor has noted, in a written statement of evidence, the fact that there are, no other legal brothels operating in the council's area. She said, further:

However, during my telephone discussions with a representative of the New South Wales Police Force (The Hills Local Area Command) it was said to me that Police estimate there are 40-50 illegal brothels operating in the Baulkham Hills LGA, most usually out of private homes. This indicates that there is a need for such services in the LGA which is not being met by legal means.

The consequence of illegal operations is that Council (and the community it represents) has little or no control over brothel activities where they are established in the community is unlikely to benefit economically from any derived income. Furthermore, this leads to a reactive rather than proactive policing and monitoring.

131 In addition, Sgt Fellowes gave the following answers in his evidence:

Q. But as far as police records are concerned - and I’m not going to ask you for some addresses - there are incidences of illegal brothels operating?
A. Yes, that is correct.

Q. Are you able to tell the Commissioner approximately how many of them are that you’re aware of?
A. It would be a very wide guesstimate so besides being able to point out the ads in the local papers, other than that I couldn’t really give in all fairness to the Commissioner a correct answer to that.

132 In reaching the conclusion to reject this site for a brothel, I remind myself that I am not dealing with the broad question of brothels in the Baulkham Hills town centre (because locating brothels in this town centre or, indeed, in any of the five relevant zones in this local government area where commercial activities are permitted, is permissible, in abstract terms, subject to an appropriate method of assessment of any future proposal for such a use). This will remain the position whilst ever premises for brothels in these zones remain simply one element of permissible commercial uses in these zones. I am merely dealing with this proposed brothel.

Orders

133 The orders of the Court, therefore, are:

1. The appeal is dismissed;
2. Development Application 422/2009/HA for alterations to premises at 26B Old Northern Road, Baulkham Hills and consent to use the premises as a brothel is determined by the refusal of development consent; and
3. The exhibits are returned.
Tim Moore
Senior Commissioner