Boers v Parramatta City Council

[2010] NSWLEC 1097

Land and Environment Court

of New South Wales

CITATION:	Boers v Parramatta City Council [2010] NSWLEC 1097
PARTIES:	APPLICANT John Boers RESPONDENT Parramatta City Council
FILE NUMBER(S):	10765 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Brothel
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 Restricted Premises Act 1943 Civil Procedure Act 2005 State Environmental Planning Policy No 1- Development Standards Sydney Regional Environmental Plan No 28 - Parramatta Parramatta Local Environmental Plan 2001 Parramatta Development Control Plan Sex Services and Restricted Premises
CASES CITED:	Boers v Parramatta City Council [2010] NSWLEC 1071 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 CSA Architects Pty Ltd v Woollahra Council [2009] NSWLEC 1054 Huang v Parramatta City Council [2009] NSWLEC 1401 McInnes v Wingecarribee Shire Council (1997) 10 NSWLR 660 Mirvac Homes (NSW) Pty Ltd v Blacktown City Council [2005] NSWLEC 265 O'Donnell v Woollahra Council [2009] NSWLEC 1066 Uky Huang v Parramatta City Council [2009] NSWLEC 1331 Wehbe v Pittwater Council [2007] NSWLEC 827 Wei v Parramatta City Council [2010] NSWLEC 1046 Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	31 March, 20 April 2010
DATE OF JUDGMENT:	4 May 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle, barrister Australian Town Planning Consultants 2 Pty Ltd, agent RESPONDENT Mr T Pickup, solicitor Storey & Gough Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

4 May 2010

10765 of 2009 Boers v Parramatta City Council

JUDGMENT

1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Parramatta City Council (the Council) of consent to a development application for alterations to a building and its use as a brothel and for associated outcall/escort services at 45 George Street Clyde, Lot 19 DP 612994 (the site).

2 The applicant to the Council was Mr John Boers of Boers Consulting. The applicant nominated in the Class 1 application to the Court was Ms Uky Huang. At the commencement of the hearing and on the application of Mr Doyle who appeared for the applicant, I granted leave pursuant to s64 of the Civil Procedure Act 2005 to amend the application to change the name of the applicant so that these proceedings are in the name of Boers v Parramatta City Council. This was not opposed by the Council, is consistent with the decision of the Court of Appeal in McInnes v Wingecarribee Shire Council (1997) 10 NSWLR 660, and is the same course as adopted by Moore SC in Boers v Parramatta City Council [2010] NSWLEC 1071, proceedings which involved the same parties in relation to different premises.

3 The site is a two storey industrial building previously used as an engineering warehouse. The site is located on that part of George Street which runs between Parramatta Road and James Ruse Drive on the northern side of Parramatta Road, to the south of the M4 Western Motorway. The area is bounded to the north west by Duck Creek and a railway line. The surrounding precinct generally consists of industrial uses including automotive services and an RTA depot. There are four brothels in the streets to the south of Parramatta Road, and one located in Cowper Street Granville to the west.

4 The application to the Council sought approval for a total of 16 work rooms and 16 sex workers. After the Class 1 application was lodged, leave was granted to amend the application to reduce the number of proposed work rooms to 9, and the number of sex workers to a maximum of 10 with no more than 8 sex workers between the hours of 8.30am to 5.30pm.

5 In its Statement of Facts and Contentions filed after leave was granted to amend the application, the Council identified six contentions which could be addressed by conditions: car parking, number of workers, hours of operation, safety and security, water management, and compliance with the Building Code of Australia. The Council identified three contentions as a basis for refusal of the application: matters raised by objectors, waste management during construction and operation, and the public interest. The latter contention related to the proximity of the site to other brothels, and the likelihood that it would create and generate crime within the immediate area.

6 At the commencement of the hearing Mr Pickup for the Council informed the Court that the Council had resolved that the application could be the subject of development consent, subject to conditions. During the course of the hearing the parties reached agreement on conditions relating to the maximum number of sex workers, being a maximum of 9 between 5.30pm to 8.30am and 8 between 8.30am to 5.30pm; the provision of six car spaces on site including one disabled space; and the provision of a security guard on the premises between 9.00pm to 5.00am. The only issues which remained in dispute between the parties, and on which they led evidence, concern three conditions which the Council is seeking to have imposed: condition 2 being that any consent be limited to a period of two years, and conditions 27 and 28 requiring payment of an Annual Monitoring Fee and an Infrastructure and Restoration Administration Fee to the Council prior to the issue of a construction certificate.

Planning controls

7 The site is zoned 4 Employment under the Parramatta Local Environmental Plan 2001 (the LEP), and the proposed development is permissible with consent.

8 The site falls within the area covered by Sydney Regional Environmental Plan No 28 – Parramatta (SREP 28). The site is in the Southern Precinct, which is one of 8 precincts within the Parramatta Primary Centre created under cl3 of SREP 28 and identified on the Primary Centre and Precincts Map (Exhibit 3). The objectives of SREP 28 are identified in cl4(1):

4 Objectives of this Plan

(1) The objectives of this Plan are:
(a) to establish regional planning aims for the Parramatta Primary Centre, and
(b) to recognise the unique and varied nature of each Precinct.
(2) A separate Part of this Plan provides:

(a) aims for development and detailed development controls in:
Part 3 for Precinct 1—City Centre,
Part 4 for Precinct 2—Harris Park,
Part 5 for Precinct 3—Government,
Part 7 for Precinct 5—Rydalmere,
Part 8 for Precinct 6—Camellia,

(b) aims for development in:
Part 6 for Precinct 4—Westmead.

9 The Southern Precinct is not one of the precincts included in the list of precincts in cl4(2) for which SREP 28 provides aims for development and detailed development controls. Clause 14 of SREP 28 provides regional planning aims for the Parramatta Primary Centre.

10 Clause 5 of SREP 28 provides that the LEP does not apply to land within the City Centre, Harris Park or Government Precincts. It was common ground that as a consequence, the LEP applies to the Southern Precinct, and thus to the site.

11 It was common ground that Part 10 of SREP 28 applies to the site by virtue of cl53 of SREP 28, and accordingly the car parking provisions in cl57 of SREP 28, which provide the maximum number of car spaces, are applicable. Clause 58 of SREP 28 states that Part 11 of SREP 28 applies to land within the City Centre, Harris Park, Government Precinct, Rydalmere and Camellia Precincts. The exclusion of the Southern Precinct from this list of precincts to which Part 11 of SREP 28 applies means that cl79, which sets out considerations to be taken into account by a consent authority in determining an application for development for the purpose of a brothel, does not apply to this application. The relevant provisions are those in the LEP.

12 Clause 24 of the LEP provides that premises shall not be erected or used for the purposes of a brothel where they are located, among other things, with 200 metres of residences or land zoned residential. The development application was accompanied by an objection to the application of this development standard under State Environmental Planning Policy No 1 – Development Standards (SEPP 1).

13 Clause 24(2) of the LEP provides:

(2) In determining an application to carry out development for the purpose of a brothel, the consent authority must consider the following matters:
(a) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it,
(b) whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood,
(c) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood involving similar hours of operation,
(d) any other environmental planning instruments that the consent authority considers relevant,
(e) whether any signage related to the premises will be of a size, shape and content that interferes with the amenity of the locality,
(f) whether part of the brothel, other than an access corridor to the brothel, is visible from a public place or shopping centre.

14 The Parramatta Development Control Plan for Sex Services and Restricted Premises (the Sex Services DCP) came into effect on 9 December 2009. Clause 1.2 of the Sex Services DCP provides that it applies to all land within the Parramatta local government area “with the exception of the Government Centre, Harris Park, Camellia and Rydalmere areas” covered by SREP 28. It was common ground that the relevant provisions of the Sex Services DCP apply to the Southern Precinct and thus to the site.

Evidence

15 The hearing commenced on site with a view.

16 The original development application was publicly notified and the Council received one written submission and a petition signed by 8 businesses located on George Street. It is not apparent from the written objection whether the objector is the operator of a business in the vicinity of the proposed brothel, or a resident. The written objection noted that with 16 sex workers and management staff and customers on site there could be 32 car spaces needed and with only 8 provided on site the impact on parking would be unacceptable; a further concern was the proposed 24 hour trading, on the basis that closing the brothel between 7am to 3.30pm Monday to Friday would assist with parking and traffic problems. The objection signed on behalf of 8 neighbouring businesses raised concerns about the brothel bringing a seediness to the area, impact on business with customers feeling unsafe to come into the area, impact on property values, safety of family and customers, location of four brothels on the southern side of Parramatta Road, insufficient car spaces, and impact on children visiting automotive businesses.

17 Expert evidence was given by Ms Erica Marshall McClelland, architect and transport planner. Ms Marshall McClelland gave evidence as to the works required to alter the building to provide 9 work rooms and waiting rooms on two levels, office and kitchen facilities, and which include the provision of new staircases, and alteration of the external roller shutter door. Ms Marshall provided an estimate of the likely costs of carrying out these works. Based on the current Building Economist rate of $1000 per sq m for basic fitout, at an area of 320.91 sq m this would be in the order of $87,000, plus additional costs for the structural changes of $20,000 to $30,000. Ms Marshall McClelland stated that the total amount of $135,000 to $150,000 is a rough figure and it is difficult to quantify it further in the absence of a structural engineer’s advice about structural issues, and in the absence of a figure for hydraulics. In Ms Marshall McClelland’s opinion if a development consent lapsed after two years the extensive changes to the building would need to be demolished to return it to an industrial or factory use. In particular the structural work required for the walls and walkways would reduce the effective floorspace on the ground floor for a factory use.

18 Expert planning evidence was given by Mr Lawrence Winnacott on behalf of the applicant and by Mr Peter Fryar on behalf of the Council. Mr Winnacott and Mr Fryar were in agreement as to amendments to the proposed plan of management relating to provision of contact and business identification details, retention of a staff roster on the premises for a period of 3 months, risk management procedures, security arrangements, provision to staff of health contact details, cleaning, and waste management.

19 The oral evidence of Mr Winnacott and Mr Fryar focussed primarily on the Council’s proposed time limited consent condition. Mr Winnacott was of the opinion that a time limited consent was not warranted in relation to this site, as the development involves substantial capital expenditure and it is unreasonable for this expense to be incurred with no certainty that a consent beyond two years may be granted. In his opinion the conditions of consent and plan of management provide a suitable framework for the operation of the premises and if problems do arise the Council can make an application under the Restricted Premises Act 1943. As was the case with the application considered by Tuor C for premises at 1 Nirvana Street Pendle Hill (Uky Huang v Parramatta City Council [2009] NSWLEC 1331) (Nirvana Street), the present proceedings also concern a site located within 200m of a residential area; at Nirvana Street, however, there was an issue of potential adverse impact on adjoining residential uses from patrons parking in the residential area or people from the residential zone walking past the brothel, and here there were no objections from residential neighbours in relation to this site. Nirvana Street also had an internal car park for clients and there was an issue of the workability of that arrangement. This site is similar to the premises at 22 Brodie Street which were the subject of a decision of Dixon C in Huang v Parramatta City Council [2009] NSWLEC 1401 (Brodie Street), being located in an established industrial area well separated from any residentially zoned land. Here there is a physical barrier in the form of the canal and the railway line.

20 Mr Fryar agreed with Mr Winnacott’s description of the physical barrier between the site and the residentially zoned land. He was of the view that the site is suitable for a brothel in general terms; however, the satisfactory operation of a brothel is heavily reliant on the implementation of the revised plan of management and compliance with the conditions of consent. Mr Fryar acknowledged that there are no sensitive land uses in close proximity to the site. In his opinion a trial period would enable the Council to satisfy itself that the operation of the brothel has been conducted in a satisfactory manner before permitting a continuation of the operation, and a trial period places the onus on the operator to demonstrate an ability and willingness to comply and operate in accordance with the plan of management and conditions of consent. In oral evidence Mr Fryar was asked whether there were any features of these premises that created uncertainty that would not be equally applicable for other brothels; Mr Fryar stated that he could not generalise and that the impact needs to be assessed in each locality. Mr Fryar acknowledged that this site raises fewer concerns than would be raised for premises closer to a residential area; in his opinion this site would be at the lower end of the scale of brothel developments in terms of potential adverse impacts. Mr Fryar was of the opinion that it would not necessarily be appropriate for a time limited consent condition to require a new development application rather than an application to modify the consent pursuant to s96 of the Act.

Consideration

SEPP 1 objection

21 It was common ground that the site is approximately 150m away from the closest residential area in Arthur and Hamilton Streets on the northern side of Duck Creek and the railway line when measured from the boundary of the site, and is thus within the minimum distance of 200m specified in cl24(1)(a) of the LEP. The applicant provided an objection under cl6 of SEPP 1 with the development application.

22 The approach to the application of SEPP 1 was set out by Lloyd J in Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89:

26. … it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

23 In Wehbe v Pittwater Council [2007] NSWLEC 827 Preston CJ outlined the requirements for upholding an objection under SEPP 1, and set out the three matters about which the Court must be satisfied:

38 First, the Court must be satisfied that “the objection is well founded” (clause 7 of SEPP 1). The objection is to be in writing, be an objection “that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case”, and specify “the grounds of that objection” (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.

39 Secondly, the Court must be of the opinion that “granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3” (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 “and is also”). The aims and objects of SEPP 1 set out in clause 3 are to provide “flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act”. The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:
“(1) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(2) the promotion and coordination of the orderly and economic use of developed land.”

40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are:

“(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument”.

24 Clause 24(1)(a) of the LEP was the subject of detailed consideration by Tuor C in Uky Huang v Parramatta City Council [2009] NSWLEC 1331, and I accept her conclusion, which was not in dispute in these proceedings, that it is a development standard and not a prohibition.

25 The LEP does not in terms include any aims, objectives or statement of purpose for the provisions relating to brothels in cl24. In Uky Huang v Parramatta City Council [2009] NSWLEC 1331, Tuor C concluded (at [52]) that the underlying purpose of cl24(1)(a) is to provide adequate separation between brothels and residential uses to protect the amenity of residents in the area. I accept that conclusion.

26 In considering whether the objection is well founded in these proceedings, there was no dispute that while the site falls within the minimum distance specified in cl24(1)(a), because of the physical barrier presented by Duck Creek and the railway line, walking distance between the residential area and the site is approximately 410m, and the site is not visible from the residential area. Given the separation between the residential area and the site by major roads, and the nature of businesses operating in that part of George Street between Parramatta Road and James Ruse Drive, it is unlikely that residents will be walking past the brothel on their way to other destinations. I accept the evidence of Mr Winnacott that in those circumstances, impact on residential amenity is likely to be small, and I am satisfied that compliance with the development standard in cl24(1)(a) is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. Upholding the objection provides the flexibility consistent with cl3 of SEPP 1, and promotes the objects of s 5(a)(i) and (ii) of the Act.

27 Upholding the SEPP 1 objection is a precondition to considering whether the proposed development can be approved on the merits. As noted above, the only matters relating to the merits pressed by the Council relate to the three conditions in dispute between the parties.

Time limited consent

28 Condition 2 as proposed by the Council is in the following terms:

This consent is valid for 2 years from the date the consent becomes operative. Prior to completion of the 2 years, if the applicant wishes to continue the use, a development application to continue the use of the premises as a brothel should be lodged with Council.

29 This condition is consistent with Part 2 of the Sex Services DCP, which states that:

Consent for sex services and restricted premises will be limited to two years at which time a new development application will need to be lodged.

30 Mr Doyle for the applicant submitted that the time limited consent condition should not be imposed unless there is a significant reason requiring it. The expense of the works required to the building and the costs of establishing the business including building a client base and employing staff mean that it is inappropriate to have the uncertainty for the operator of having to lodge a new development application; there is the possibility of the use becoming prohibited or subject to new planning controls and the operator would not be able to rely on existing use rights; both expert planners accepted that to require a new development application every two years would be either inappropriate or unnecessary and Mr Fryar accepted that a s96 modification application would be sufficient. Mr Doyle submitted that the aims of the Sex Services DCP are of limited assistance in the application of the Sex Services DCP to a brothel. Mr Doyle submitted that in contrast to the situation in Nirvana Street, the evidence here does not support any specific concerns such as safety issues or impact on residential amenity, and that I ought to adopt the approach of Dixon C in Brodie Street. Mr Doyle submitted that the relevant principles in considering whether a time limited consent condition should be imposed are: the degree to which it is likely, after assessment pursuant to s79C of the Act that there will be impacts; the extent of risk that the premises will result in adverse impacts; the seriousness of the effects of any breaches of the development consent; the extent to which adverse effects of breaches could be addressed through other means; the costs incurred that are likely to be wasted if the consent is not renewed; whether the imposition of a time limited consent is a substitute for a proper assessment under s79C of the Act; and what form the condition takes including whether there are any objective criteria to guide a consent authority assessment at the end of the two year period.

31 Mr Pickup for the Council submitted that the time limited consent condition is warranted having regard to the fact that this is a new brothel operation and it is not certain what amenity impacts might arise, in particular the possible issues relating to parking, and health, identified by Mr Fryar. The decisions of Dixon C and Tuor C in Brodie Street and Nirvana Street respectively were determined before the Sex Services DCP came into effect. In relation to the costs of establishing the brothel operation, there is no reason to assume that a further consent would not be granted if there are no adverse amenity impacts; and there is a need to identify whether the plan of management is protecting amenity.

32 Section 80A(1)(d) of the Act provides that a condition may be imposed on a development consent if “it limits the period during which development may be carried out in accordance with the consent so granted”. The Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 held in relation to this provision:

83 I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision maker “take into consideration” both the “likely impact of the development” and “the suitability of the site for the development”. It is possible to “take into consideration” matters even though their full significance cannot be known with precision.
84 Where, as in this case, the nature of the development application is for the “use” of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion.
85 The implications of the approach adopted by Talbot J would unnecessarily limit the statutory power to permit development for a specific period where the full implications of the development are not known or cannot be stated with sufficient certainty. In any such case, the “likely impact” or “suitability” will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not, in the event, extended. The focus is then on “likely impact” during the probationary period.

33 In Nirvana Street Tuor C imposed a condition limiting the consent to two years, for the following reasons:

72 I accept that a trial period is warranted given the concerns about the safety aspects of the car park the hours of operation. The operation of the brothel is reliant on compliance with the conditions of consent and implementation of the Plan of Management and the Parking Plan of Management. A trial period will enable these documents to be reviewed and further refined if necessary. If the brothel operates in accordance with the consent it is unlikely to result in adverse impacts or reasons why its use should not continue.

34 In Brodie Street Dixon C decided that such a condition was not warranted in the circumstances of that case:

55 The applicant has agreed to a condition requiring that the premises be operated in accordance with the plan of management which is exhibit L and that plan of management is to be submitted to council prior to the commencement of the use. I accept that this is appropriate however; council also asks that I impose a limited consent by way of a trial. The evidence does not support the imposition of a limited consent or trial period. I am of the opinion that the safe and orderly operation of the premises is ensured by the amended plans and the conditions and plan of management.

56 The works to the building in accordance with the approved plans option B with require the applicant to carry out renovations which will be at some expense. After such expense it would be unreasonable in my view to impose a limitation on the operation of the consent without evidence to justify such an imposition. There is no evidence to support a time limit to the consent or a trial period. The council has opportunity to take enforcement action in the event of a breach of the conditions or the plan of management.

35 The relevant planning controls in both these matters did not include the Sex Services DCP. The Sex Services DCP applies to the site, and in accordance with the decision of the Court of Appeal in Zhang, must be considered as a “fundamental element” or a “focal point” of the decision-making process, while not being determinative. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [27], the Court of Appeal confirmed that while it might be open to take the view that, for reasons related to a particular site, it is not appropriate to compel compliance with requirements of a DCP, I am not entitled to take the view that the standards set by the DCP are inappropriate for reasons of general policy.

36 In considering whether a time limited consent condition should be imposed in this matter, the appropriate starting point is cl24(2) of the LEP which sets out the matters that must be taken into consideration. Those matters include (a) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it, and (b) whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood. It was common ground that because of the constraints of the major roads, the creek and the railway line, the area to be considered is that bounded by Parramatta Road, James Ruse Drive, the creek and the railway line. I accept the evidence of Mr Winnacott, which was not disputed by Mr Fryar, that impact on amenity of the closest residential area is likely to be minimal. However, the extent of potential impact on parking and the operation of neighbouring businesses is uncertain. The objections made in response to notification of the original development application raised concerns about parking, noting that on street parking is already an issue. Those objections were made in response to the then proposed 16 work rooms; amendment of the application has reduced the number of work rooms to 9, with a maximum of 8 sex workers and two other staff present on site between 8.30am to 5.30pm. Notwithstanding that reduction, this is a new brothel in a relatively confined area, rather than an extension or intensification of an existing brothel where impacts on neighbouring land uses are known. The objections support the evidence of Mr Fryar that there could be an exacerbation of existing parking problems, which could cause a disturbance in the neighbourhood in the sense identified in cl24(1)(a).

37 The aims of the Sex Services DCP are set out in part 1.6:

The aims of this DCP are to:
Regulate and control sex services premises, restricted premises and business and entertainment premises providing adult entertainment in appropriate locations so as to minimise amenity impacts upon adjoining land uses in the zone.
Discourage a concentration of sex services premises, restricted premises and business and entertainment premises providing adult entertainment in close proximity to each other.
Ensure high levels of both internal and external amenity are provided for sex services premises and restricted premises to ensure the amenity and security of staff, and users or occupiers of the respective premises as well as neighbouring properties.
Ensure that restricted premises and similar establishments such as massage parlours are designed in such a way as to prevent either the easy conversion or use as sex services premises without obtaining development consent or operating outside their development consents.
Provide an appropriate framework to effectively regulate the operation of sex service premises and restricted premises, through detailed provisions of development consent in the provision of plans of management and coordination with other relevant government agencies.
Support the health and safety initiatives of NSW Health and WorkCover NSW in regard to sex workers and their clients.
In accordance with ‘Purpose of this Development Control Plan’, prescribe the information to be submitted with a development application for sex services premises and restricted premises.

38 The Plan of Management proposed for the premises and agreed between the experts contains detailed provisions relating to health, safety and security. Compliance with those provisions is intended to ensure that the premises operate in a way that minimises amenity impacts on the adjoining land uses and assist in ensuring the amenity and security of staff and clients as well as neighbouring properties, which is consistent with the objectives of the Sex Services DCP. In these circumstances, I agree with Mr Fryar that while it would be appropriate to characterise the potential amenity impacts of this proposed brothel at the lower end of the scale, in comparison with other premises closer to residential or other sensitive land uses, it is appropriate to provide a mechanism by which performance of the operation of a new brothel and compliance with the Plan of Management and the other conditions of consent can be measured, and adjustments made if necessary to the Plan of Management or other conditions. The respondent accepts that the costs of the works required to the building before it can operate as a brothel are in the order of $130,000 to $150,000. The applicant submits that it is unreasonable for a business to incur these costs without the certainty that the consent can continue to operate after two years. While I agree that the estimated costs of establishing the brothel are not insignificant, I have no evidence before me as to what income is likely to be generated over a two year period and the relationship of the building and other establishment costs to the expected profits. The requirement in the Sex Services DCP that a consent be limited to a period of two years facilitates consideration of any adverse impacts at the end of what is effectively a trial period, and the cessation of the use if necessary as identified by the Court of Appeal in Zhang at [84]. It is appropriate, in the circumstances of this case, that this requirement of the Sex Services DCP be complied with.

39 The applicant submits that it is unreasonable to put an applicant to the delay and expense of lodging a new development application at the end of the two year period, and the process could be frustrated by the Council, leading possibly to proceedings in the Court. Mr Fryar was of the opinion that the issues that might need reconsideration at the end of what would effectively be a trial period could be adequately addressed in the form of an application under s96 to modify the consent by the deletion of the time limitation condition. An application under s96 requires that relevant matters arising under s79C of the Act are considered: s96(3). I agree that in the circumstances of this case, with a relatively limited range of possible amenity impacts, the aims of the Sex Services DCP can be met with assessment of impacts either through a new development application or through the s96 process. It is appropriate to depart from the provisions of the Sex Services DCP to the extent that it be left to the applicant to decide whether to extend the consent by means of a new development application or by an application under s96 of the Act.

40 The relevant provision in the Sex Services DCP leaves open the question of the status of the consent if an application to extend the use beyond the two year period has not been determined by the time it ends. The possibility that the consent could lapse during the assessment process could result in an application being made early in the period of operation of the brothel rather than towards the end of the two year period when any adverse impacts can be assessed. In the interests of certainty, and in ensuring that there be a sufficient period of operation to enable a proper assessment of impacts to be made, it is appropriate in my view to include provision in the condition that it does not lapse if an application is made either in the form of a new development application or a s96 modification application before the end of the two period.

Conditions 27 and 28

41 Proposed conditions 27 and 28 require the applicant to pay an Annual Monitoring Fee for Restricted Premises and Sex Service Premises, and an Infrastructure and Restoration Administration Fee, before issue of a construction certificate. An extract from the Council’s 2009/2010 Fees and Charges is in evidence (Exhibit 6), and indicates that the former fee is $1,000 per annum including GST, and the latter is $300 including GST. The draft Conditions of Consent state that the reason for the imposition of these conditions is

To comply with Council’s adopted Fees and Charges document and to ensure compliance with conditions of consent.

42 Mr Pickup relied on previous decisions of the Court imposing a requirement on a developer to pay a fee pursuant to s608 of the Local Government Act 1993 as a condition of development consent, including Mirvac Homes (NSW) Pty Ltd v Blacktown City Council [2005] NSWLEC 265, CSA Architects Pty Ltd v Woollahra Council [2009] NSWLEC 1054 and O’Donnell v Woollahra Council [2009] NSWLEC 1066. Mr Pickup submitted that my conclusion in Wei v Parramatta City Council [2010] NSWLEC 1046 that s608(6) of the Local Government Act does not operate so as to require that the payment of the fee be included as a condition of development consent for it to be recoverable should be reconsidered; and that, contrary to the conclusion I reached in Wei, in the circumstances of this case the conditions reasonably relate to the development and can properly be imposed.

43 Mr Pickup submitted that the Infrastructure and Restoration Fee is utilised to defray the costs of carrying out inspections of Council’s infrastructure to identify whether any damage has occurred as a result of development which has been carried out pursuant to a development consent; the Council previously imposed a general condition requiring a dilapidation report to be provided and a condition requiring a developer to meet the cost of restoring any damage to Council infrastructure if an inspection revealed that damage had occurred.

44 Mr Doyle submitted that there is no evidence that the proposed development is likely to damage Council infrastructure such as the footpath, and the inspection envisaged by the Infrastructure and Restoration Fee is not “reasonably required” for the purposes of s608(3) of the Local Government Act, may be unnecessary and may never take place. In relation to the annual Monitoring fee, Mr Doyle submitted that this is not required by the development consent and there is no aspect of the consent that makes it necessary or to which it relates into the future. The Council can determine for itself what inspections are necessary and the fees that should be levied, and s608 does not require the imposition of the requirement to pay the fee as it does for an approval under the Local Government Act.

45 In Wei the Council sought to have imposed as a condition of development consent a requirement that the applicant pay the Annual Monitoring Fee for Restricted Premises and Sex Service Premises. In that case I concluded, for the reasons in paragraph 43 of that decision, that s608(6) of the Local Government Act does not require that a condition requiring payment of the fee must be imposed on a development consent for the fee to be recoverable. Mr Pickup’s submissions on this issue were in substance the same as those put to me in Wei. I can see no reason to depart from the conclusion I reached in Wei on this issue.

46 Whether or not either of the conditions should be imposed depends on whether it meets the requirements of s80A of the Act and the general test in Newbury District Council v Secretary of State for the Environment [1911] AC 578, namely that it be for a planning purpose, fairly and reasonably relate to the development, and is not so unreasonable that no consent authority would have imposed it.

47 The applicant is proposing significant structural works to the building currently on the site. I agree with the Council that there is the potential for Council infrastructure, including the footpath, to be damaged during the course of construction. That would be an impact of the development relevant to the considerations in s79C(1)(b) of the Act, and the imposition of a condition requiring payment of a fee before construction commences to facilitate an inspection in my view meets the requirements of the Newbury test. Conditions requiring payment of similar fees have been imposed by the Court in Mirvac Homes (NSW) Pty Ltd v Blacktown City Council [2005] NSWLEC 265, CSA Architects Pty Ltd v Woollahra Council [2009] NSWLEC 1054 and O’Donnell v Woollahra Council [2009] NSWLEC 1066. The development consent should be subject to the imposition of Condition 28.

48 Condition 27 as sought by the Council would require payment of an annual fee. Assessment of adverse impacts arising from operation of a new brothel may require inspection initiated by the Council or in response to complaints, and to that extent could be relevant to the considerations in s79C(1)(b) of the Act. However, I agree with Mr Doyle’s submissions on this issue, and I am not persuaded that requiring payment of a fee before the issue of a construction certificate has the required connection with this development to make it appropriate to impose this as a condition of development consent.

Conclusion

49 The Council’s position during the hearing of this appeal was that development consent could be granted, subject to conditions. I am satisfied that development consent should be granted, subject to conditions which include condition 2, amended to reflect my findings in paragraphs 38-40 above, and condition 28 as proposed by the Council. The plans, and the draft conditions, need to be amended to reflect the amended number and configuration of the car spaces to be provided on the site. I propose to make directions in consultation with the parties requiring the provision of amended plans and conditions, following which orders will be made in chambers.

Linda Pearson