Boers v Parramatta City Council
[2010] NSWLEC 1071
•25 March 2010
Land and Environment Court
of New South Wales
CITATION: Boers v Parramatta City Council [2010] NSWLEC 1071 PARTIES: APPLICANT
RESPONDENT
John Boers
Parramatta City CouncilFILE NUMBER(S): 10766 of 2009 CORAM: Moore SC KEY ISSUES: DEVELOPMENT APPLICATION :-
Brothel
Consistency with future character of areaLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney Regional Environment Plan No 28 - ParramattaCASES CITED: McInnes v Wingecarribee Shire Council [1997] 10 NSWLR 660
Wei v Parramatta City Council [2010] NSWLEC 1046
Huang v Parramatta City Council [2009] NSWLEC 1401
Alphatex Australia v The Hills Shire Council (No. 2) [2009] NSWLEC 1126
Martyn v Hornsby Shire Council [2004] NSWLEC 614
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237DATES OF HEARING: 24 and 25 March 2010 EX TEMPORE JUDGMENT DATE: 25 March 2010 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr J Doyle, barrister
Mr C Drury, solicitor
Sparke Helmore
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE SC
25 March 2010
09/10766 Boers v Parramatta City Council
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.JUDGMENT
1 SENIOR COMMISSIONER: Sydney Regional Environmental Plan No. 28 - Parramatta (the SREP) overrides other local environmental planning controls in land that is predominately within the City of Parramatta and partly within the City of Holroyd.
2 Clause 3 of the SREP notes that it creates precincts, Precinct 5 being the Rydalmere Precinct. Each precinct in turn, includes a number of zones and the Rydalmere Precinct zoning map contains some eight zones, one of which is the Trade and Industry Support Zone which is described in cl 40A of the SREP (which clause is entitled “Land Use Zones and Explanation”). The Trade and Industry Support Zone is given an explanation of being “a zone that provides for businesses and industries that support the commercial and industrial activities of the primary centre” - that being the centre of Parramatta.
3 In addition to zones, the SREP also provides for special areas within each precinct. The Rydalmere Precinct Special Areas are mapped and are identified in cl 40P of the SREP. For these proceedings, the relevant special area is the Rydalmere Station and Environs Special Area.
4 I have in evidence an extract from the SREP map that shows the Rydalmere Station and Environs Special Area. It can broadly be described as comprising an area with the exception of a small area to the northwest of that area I am about to describe. That small area being to the west of the railway line and not being relevant for the purposes of these proceedings.
5 The Rydalmere Station and Environs Special Area is roughly rectangular in shape; is bounded to the north by a slip road from Victoria Road that provides the west travelling access to the special area. It is bounded on the west, except for the small area I earlier nominated, by a combination of the railway line and Vineyard Creek. It is bounded on the south by Parramatta River and on the east by Subiaco Creek. There are, within the area, five named streets and a number of small laneways.
6 The SREP also sets out planning aims for the Rydalmere Precinct in cl 40. The relevance of those aims for the purposes of these proceedings are in my view, aims (a), (b) and (c), they being as follows:
(a) To encourage a vibrant, attractive and mutually supportive employment, industrial, educational and research precinct.
(b) To increase employment numbers in the Rydalmere precinct and
(c) To increase the opportunity for residential, retail, commercial and community facility development, in close proximity to public transport.
7 The Trade and Industry Support Zone, within which the site that is the subject of these proceedings is located, has a number of zone objectives that are contained in cl 40D of the SREP. Those that are relevant in these proceedings are as follows:
(a) To provide opportunities for businesses that support the commercial and industrial activities of the primary centre.
(b) To provide opportunities for small-scale business and industrial enterprise development.
(c) To integrate the Rydalmere precinct with them to encourage usage of public transport and pedestrian networks by improving the accessibility and amenity of the area and
(d) To comply with the controls for special areas as set out in this part.
8 Analogous with the normal concept of a zoning table contained in conventional local environmental plans, cl 40D also includes the nature of the development that can be carried out without development consent; development that may be carried out with consent; and prohibited development. The only development that can be carried out without consent is exempt development. A number of nominated areas or types of development are contained in the “permissible with development consent” category and they include brothels, being the use proposed for the premises that are the subject of this appeal.
9 I note, as it is relevant to a submission that Mr Doyle, barrister for the applicant, made in passing concerning shops being established toward the southern end of one of the streets, that shops and retail activities are not permissible activities within this zone.
10 The objectives for the special areas that are relevant are contained in cl 40Q objectives of controls for special areas, cl 40Q sets the objectives for the special areas in the Rydalmere Precinct and those that are relevant are:
(a) To ensure development is compatible with the particular character and significance of each special area and
(b) To reinforce the specific attributes and qualities of each of the special areas.
11 To understand those objectives, it is necessary then to proceed to cl 40U, the Rydalmere Station and Environs Special Area, where 40U(1) is a character statement for this special area. The character statement is in the following terms:
The Parramatta rail link and the upgraded Rydalmere railway station will be the catalyst for redevelopment. The area centred on the station will be attractively developed for a mix of commercial and transport related activities. Brodie Street on the edge of the station precinct will comprise upgraded retail activities, shop top offices and housing. The station will be redeveloped to achieve integration with the surrounding land use. The area extending to Subiaco Creek will support a wide range of business services and enterprises, parking and traffic problems in the area will be reduced. The natural amenity of the Vineyard and Subiaco Creek foreshores will be enhanced with vegetation locally native to the area through bush regeneration, improved pedestrian and cycle links will be part of the revitalisation of the area.
12 Clause 40U(2) also contains provisions that relate to major development and the possibility for master planning, neither of which are provisions that are engaged by or need to be considered in these proceedings.
13 There is, in the SREP, no standard provision (as is commonly found in local environmental plans) requiring the consent authority to be satisfied that the general objectives of the document or the zone objectives, specifically, have been considered and are complied with by any development proposal.
14 Before embarking further, it is appropriate to give a slightly expanded geographic description of the area that is involved. I have earlier noted that it comprises a total of five nominated streets, a number of unnamed laneways together with the slip road exiting Victoria Road, when travelling west. Further access to the area is confined to an underpass, under Victoria Road, which permits access to the area from the north and indirectly from the west and from the north-east.
15 There are effectively two groups within the streets in the area, Mary Parade and Bridge Street as shown in the map below are to the east and are only connected to the other three streets by a short length of Mary Parade at its north-western end.
16 The eastern element of the precinct contains a series of three streets that are generally in the shape of an inverted Y. Brodie Street runs, in general terms, north-south for the full length of this element of the precinct. At approximately sixty per cent of its length to the south, Muriel Street branches to the east and then turns south. It is in Muriel Street that the premises that are the subject of these proceedings are located. Further down Brodie Street, past Muriel Street, a small street named Allan Street branches again generally to the south.
17 These proceedings are proceedings pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“the Act”) against the deemed refusal by Parramatta City Council (‘the council’), it being the consent authority identified as the relevant consent authority by virtue of the provisions of cl 7(1) of the SREP. Development application DA 483 of 2009 was lodged with the council on 29 July 2009.
18 At the commencement of the proceedings I drew to Mr Doyle’s attention the fact that s 97 of the Act permits the applicant to the council to appeal against a refusal or deemed refusal. The applicant to the council was a Mr John Boers of John Boers Consulting. The applicant nominated in the Class 1 application form was Ms Huang, who is to be the proprietor of the proposed brothel.
19 Having drawn this matter to Mr Doyle’s attention at the commencement of the court hearing, I granted leave pursuant to s 64 of the Civil Procedure Act 2005 to amend the application to change the name of the applicant so that these proceedings will be carried out in the name of Boers v Parramatta City Council. That in my view, is an appropriate and permissible course to follow and is consistent with the decision of the Court of Appeal in McInnes v Wingecarribee Shire Council [1997] 10 NSWLR 660.
20 Mr Doyle also raised the question of revised plans and an amended development application, leave to amend not being opposed by the council. Rather than having to embark upon the exercise of determining whether or not the proposed amendments were minor for the purposes of s 97B of the Act, the parties agreed that it would be appropriate for me to make an order by consent, pursuant to s 97B(2) of the Act, that the applicant pay the respondent the agreed sum of $1 within twenty-eight days as the appropriate costs order. I will reflect both the leave to amend and the s 97B(2) order in the formal orders of the Court when made at the conclusion of this decision.
21 The proposal that is the subject of these proceedings is to change the use of a two-storey industrial warehouse building into a brothel. The proposed hours of operation are to be twenty-four hours a day, seven days a week, with a maximum of ten sex workers on the premises at any one time, operating across nine client rooms. Parking and appropriate facilities for the employees of the premises are to be provided. The street address of the site is 16 Muriel Avenue Rydalmere.
22 In the council’s amended Statement of Facts and Contentions, contention (8) was in the following terms:
The proposed development will consolidate Rydalmere as a “red light” district. There is a proliferation of brothels in the area. Clustering of brothels in the area is an issue.
23 Prior to the commencement of the court hearing, the council, through its solicitor, Mr Drury, had notified the applicant that that contention was not pressed and that a number of comparatively minor matters remained in contention relating to conditions of consent, parking and the like.
24 However, as part of the notification process for this development application, there were three objections received from members of the public. Section 79C(1)(d) of the Act requires me to have regard to submissions that are to be considered as part of the assessment process of the merits undertaken pursuant to that section. In addition, I am to have regard to the suitability of the site for the development (s 79C(1)(e) of the Act).
25 I note, at this stage, that I have been assisted in my consideration of the issues that I need to determine by the evidence given by two expert planners in the proceedings, Mr Fryar for the council and Mr Winnacott for the applicant. I have considered the three objections that had been made. I need to comment briefly concerning each of them.
26 The first of them concerns premises adjoining 16 Muriel Avenue where an objection was lodged (and tendered in the council’s bundle) to the proposed brothel on the basis that those premises were being used (at least in part) as a residence. Mr Fryar, during the course of his oral evidence in court, indicated in response to a question from Mr Doyle that he had examined the council’s records and had established that the most recent approved use for this building (now being used as a dwelling) was as an office in support of commercial or industrial premises located to the rear. I am satisfied, as a consequence of Mr Fryar’s evidence on this point, that it is not appropriate for me to have regard to that objection.
27 The next objection to which I turn is one lodged by the financial manager of two businesses located on the opposite side of Muriel Avenue and some thirty or forty metres to the northwest of the site. That letter of objection contains, on my reading of it, four matters of substance.
28 The first is contained in the second paragraph of the letter and is that the businesses in the area do not want another brothel and that there are already five brothels located in the area to the knowledge of the author. The fact that somebody might not want a brothel is not a matter appropriate for me to consider, nor are questions of personal morality and taste associated with such premises. I am obliged to consider this application on a proper planning basis. As a consequence, the first basis of objection contained in that letter is not a matter requiring further consideration.
29 The second objection concerns “the bringing of the wrong crowd to the area” and that it will no longer be safe for women who work in the area. That is based, on my understanding of it, on a fear of the consequences of permitting the brothel to be established. Mere fear, no matter how honestly and genuinely held, is not an appropriate basis for planning consideration unless there is some rational evidentiary basis upon which I could conclude that the fears were likely to be realised and I have no such evidence in these proceedings. I pay no further regard to that objection.
30 The third objection is based is based on traffic and parking. I have expert evidence from an officer of the council and a traffic consultant on behalf of the applicant that provides me with an appropriate expert evidentiary basis to be satisfied that that objection is without foundation.
31 The fourth objection is a concern that there will be drugs, alcohol and other violence towards sex workers. Again, although that may be an apprehension honestly and genuinely held by the writer of the letter, there is no evidentiary basis upon which I could conclude that that would occur and I therefore do not consider that objection further.
32 The final objection raises three concerns (on my reading of it) - two of them being parking and traffic and drugs and vandalism and the like. Neither of those warrant further consideration as earlier discussed.
33 However the final objection is in the following terms:
As there are already numerous brothels in the adjoining streets, why do we need yet another one? The area is going to become another Kings Cross.
34 That, to a considerable extent, mirrors the more generalised expression in the contention put by the council but no longer pressed. It is however in my view couched in somewhat emotive language (as was the council’s original contention). They do, in my view, however, raise the underlying question which, in any event, I am obliged to address as a concept arising out of the SREP and that is, is the proposal consistent with the present or desired future character of the locality or neighbourhood within which it is proposed to be located? I will return to that topic shortly and do so in less emotive language than that which I have recently quoted.
35 A number of other matters were also raised during the course of the proceedings relating to the applicability of the council’s proposed Development Control Plan for such premises or the relevance of the present Development Control Plan for such premises (that has been adopted by the council as a policy applying to such premises). There were also a number of conditions of consent that were contested but consideration of these was deferred pending my determination of the primary issue of the appropriateness of the development.
36 As I earlier indicated, I have been assisted by concurrent evidence of Mr Fryar and Mr Winnacott in these proceedings. I will refer further to their evidence.
37 I turn first to deal with the first or primary step, that is my satisfaction or otherwise with the relevant provisions of the SREP.
38 During the course of the oral evidence given concurrently by Mr Fryar and Mr Winnacott, they agreed that the appropriate steps for the consideration of this question would be to commence with cl 40D(1)(e) of the SREP; to step from there to cl 40Q of the SREP; and then get to cl 40U(1).
39 I agree that this is the appropriate basis upon which I should step through those provisions of the SREP, although I observe that in addition to that provision, I must also address the terms of cl 79 - Brothels of the SREP. I will now step through these provisions.
40 Again the relevant provision in cl 40D(1)(e) requires compliance with the controls for special areas set out in the relevant part of the SREP. The objectives contained in cl 42 that are relevant are those that I have already cited being “(a) to ensure development is compatible with the particular character and significance of each special area” and “(b) to reinforce the specific attributes and qualities of each of the special areas”.
41 As I earlier note, the character statement for the Rydalmere Station and Environs Special Area is in the following terms:
The Parramatta rail link and the upgraded Rydalmere railway station will be the catalyst for redevelopment. The area centred on the station will be attractively developed for a mix of commercial and transport related activities. Brodie Street on the edge of the station precinct will comprise upgraded retail activities, shop top offices and housing. The station will be redeveloped to achieve integration with the surrounding land use. The area extending to Subiaco Creek will support a wide range of business services and enterprises, parking and traffic problems in the area will be reduced. The natural amenity of the Vineyard and Subiaco Creek foreshores will be enhanced with vegetation locally native to the area through bush regeneration, improved pedestrian and cycle links will be part of the revitalisation of the area.
42 The provisions of cl 79 of the SREP relating to brothels require that as part of the consideration of such an application there are four matters that need to be considered.
43 The first of them concerns disturbances in the neighbourhood. I am satisfied this is not relevant for my consideration in these proceedings.
44 The second of them is whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood. This, in my view, ties back to consistency with the present or desired future character of the area.
45 The question of disturbance from other brothels operating in the neighbourhood is a matter upon which I have no evidence concerning the operations of the other brothels in the neighbourhood and I am satisfied that I do not need to have regard to it. Further, there are no other relevant environmental planning instruments that I should consider as being relevant in these proceedings.
46 It is in this context that I need in considering the character of the area to consider that other brothels and restricted premises are located within the area that is identified in the SREP. There are, in the area, I earlier described two geographically distinct sub-precincts, the Mary Parade/Bridge Street sub-precinct and the Brodie, Muriel and Alan Streets sub-precinct. Each of them has, as its gateway, the slip road from Victoria Road. Prominent to the eyeline as one exits from Victoria Road travelling west is a restricted premises located on the slip road.
47 In Brodie Street there are presently two brothels that have been the subject of recent proceedings in the Court. There is an existing brothel at 19A Brodie Street that was approved by Commissioner Hoffman some time ago but was the subject of proceedings to expand and intensify its operation and the decision in that case Wei v Parramatta City Council [2010] NSWLEC 1046 was given by Pearson C on 17 March 2010. Commissioner Pearson approved the intensification of that brothel use so that it will now have three service rooms and three sex workers.
48 On 30 November 2009, Dixon C in Huang v Parramatta City Council [2009] NSWLEC 1401 granted approval to the establishment of a new brothel at 22 Brodie Street, and that will have ten sex workers at night, and eight sex workers during the day.
49 During the course of the proceedings, I had tendered by Mr Doyle a document prepared by the council that purported to show brothels in the general area going well beyond the Rydalmere Station and Environs Special Area I have already identified. There are two things that I observe with respect to that as being relevant to these proceedings, but only relevant in the sense of me recording that I propose to ignore them. First, that document identifies 8 Brodie Street as a proposed brothel that is subject to an undetermined development application. It is not, as I indicated during the course of the proceedings, appropriate for me to have any regard whatsoever to that application. Second, there is an as yet undetermined application for a further intensification of the brothel at 19A Brodie Street. That is the subject of a reserved decision before Fakes C. It would be entirely inappropriate for me to speculate on, or have any regard to that application, and I do not do so in these proceedings.
50 It was also the agreed position of the experts that premises that had been identified at 17 Bridge Street as being a brothel were not in fact an approved brothel. Finally, there is an approved brothel at the southern extremity of Bridge Street at 55 Bridge Street. The following tagged air photo (at 90 degrees to the earlier map) shows the positions of the brothels and of the restricted premises:
51 Although there are a number of matters contained in cl 79 of the SREP, it is also appropriate in my view to have regard to the Court’s planning principle concerning the establishment of brothels. Planning principles, however, as I observed in Alphatex Australia v The Hills Shire Council (No. 2) [2009] NSWLEC 1126, are not binding and are merely processes or statements designed to assist a decision-maker in reaching a conclusion - in this instance, about a particular application for the establishment of a brothel.
52 The planning principles dealing with brothels were set out by Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 where at para 18, the then Senior Commissioner set out a number of criteria to be considered when dealing with the location of brothels. Only one of them is relevant in these proceedings, it is the second last of the dot points and is in the following terms.
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.
53 In further considering this matter, I return to the geographic description that I gave of the Rydalmere Station and Environs Special Area earlier. As I noted, the Mary Parade/Bridge Street area is an apparently separated and distinct sub-precinct from the Brodie, Muriel and Alan Streets sub-precinct. Indeed, Mr Doyle asked me during the course of his submissions to exclude consideration of Mary Parade/ Bridge Street as we had not walked along them during the course of the site inspection as they were too remote.
54 I am satisfied, at least for the purposes of this decision, to disregard the brothel in Bridge Street and to confine my conclusions to the Brodie, Muriel and Alan Streets sub-precinct. I leave undetermined for the future, if it were to arise, whether an additional brothel in the Mary Parade and Bridge Street area would also have an unacceptable impact on the present or desired future character of the whole of the area.
55 I therefore turn to consider the present and desired future character of this sub-precinct area.
56 During the course of the proceedings, I raised with Mr Doyle and Mr Drury the need for me to be satisfied, as I considered it, about compliance with the appropriate provisions of the SREP. To enable that to be dealt with by the planners, they were instructed to have an informal joint conference during the course of the court proceedings, and they gave subsequent concurrent evidence about this. They agreed, on the process that I have earlier outlined, about the sequence of provisions that I should consider in dealing with the desired future character and the present character of the area.
57 Mr Winnacott dealt with these matters in an Amended Statement of Environmental Effects that he had provided in support of the amended plans. He discussed these matters relevantly on pp 11 and 12. On p 11, he dealt with the point from Martyn v Hornsby Shire Council to which I earlier referred, and offered the following comment:
Having regard to the distance of separation from other approved brothels in Rydalmere, the proposed development will not result in a concentration which is likely to change the character of the area.
58 He offered further commentary under the heading “7.4 Impact on Environment of the Area” on p 12 of the SEE. He said:
It has been outlined above in this statement that the proposed brothel is to operate in existing industrial premises. The scale of the brothel including facilities to be provided, staff levels, and expected number of patrons, is commensurate with the size of the premises. The majority of hours of operation of the brothel is in the evening after normal business hours, and when other businesses in the area are closed. Adequate car parking for staff and patrons is available on the site and in nearby streets. The brothel will then operate in accordance with state government guidelines, its own plan of management, and providing a high level of security. The brothel will operate in an inconspicuous and discrete manner, and its existence will not be apparent to persons driving or walking in Muriel Avenue. Therefore the proposed development will not have any adverse impact on the environment of the surrounding area.
59 He dealt with the social and economic impact in the public interest. He observed that moral and ethical issues are not relevant as I have earlier confirmed. He observed that all of the activities would be carried out within the building and that none of the activities of the brothel would be observable from any public place or otherwise from outside the premises. He then continued to say:
A brothel business provides a service for certain members of the Parramatta and broader community. This service will be provided in a discreet manner at the property which is located in an industrial zone and where the operation will be entirely inconspicuous from the street frontage and the surrounding area. The business will fulfil a real need for certain members of the community and in a sense will provide a social, public benefit. Therefore, in the absence of any indication that the business is likely to cause significant disturbance in the area it will not be contrary to the public interest for the development consent to be granted.
60 In his statement of evidence he made commentary on p 3 under the heading, “Change of Character”, saying:
The area in which the subject property is located has been specifically zoned to permit the establishment of brothels. The proposed development has been described in detail in my SEE. The development will have no outward appearance indicating that a brothel is being conducted within the premises. This is also the case with other approved brothels which are spread throughout the trades and industry support zone in Rydalmere. These premises are indistinguishable from other industrial and commercial premises in the area and give no outward appearance to brothel operations. Due to the distance separating these premises from any other sex related premises there would not be any significant interaction between the patrons or employees of competing businesses. Further, because of the bend in Muriel Street there is no place where the subject premises in any existing brothel can be seen at the same time. For those reasons there is no indication that the establishment of the approval brothels or the brothel now proposed on the subject property will involve a change in the character of the area.
61 Implicit in those statements, at least to some extent, is his view that the number of brothels in the area will not change the character of the area.
62 That is also consistent, at least to some extent, with the three tests that Mr Doyle suggested I should use to test the acceptability or change of character elements of this application. They were:
- is there a visual link between two or more of the brothels, that is, can any one brothel be seen from another brothel?
- will patrons of the various premises interact or is there an adequate physical separation between the premises? and
- are they located so close together that there would be discernable town planning impacts (by that he meant traffic or other matters)?
63 These are all purely empirical rather than qualitative assessments. Taken to their logical conclusion it might be possible to have very many more brothels in this sub-precinct that did not fail any or all of those tests.
64 That is not a matter that I have attempted to calculate and it is not a matter to which I need turn further or pay any significant regard as these empirical tests are passed by this proposal.
65 The question in my mind is that which was posed by Mr Fryar in the course of his oral evidence and not entirely conclusively answered by him - that is, with respect to the future character of the area what might be the threshold for the number of brothels - I am paraphrasing him in this regard - where the character might be changed. He said words to this effect - Does it give rise [on my notes] to a concentration of brothels so as to change the character of the area?
66 The conclusion that he drew with respect to that question was that if the present number of brothels had not passed that threshold, it has reached it.
67 As I indicated earlier, the desired future character is contained in cl 40U of the SREP. Although I accept that it is the case that the various sentences contained in that character statement are ones that on an analysis divide the Rydalmere Station and Environs Special Area into a variety of sub precincts, that is consistent with the proposition that has been put to me by Mr Doyle that I should treat the Mary Parade/Bridge Street sub-precinct as separate form the Brodie, Muriel and Alan Streets sub-precinct.
68 However, the desired future character for the whole of this special area is clearly a positive one for redevelopment. It is certainly not one that would encompass having a predominance of or reputation for a significant concentration of brothels within the area.
69 There are no numerical separation distances contained in the SREP nor in the analysis in Martin v Hornsby.
70 I do not have regard to the precise separations because I do not consider that that is relevant.
71 What I do consider is relevant is to determine the question of whether permitting a third brothel in this sub-precinct will change or commence to change the character of the area in a fashion that is incompatible with the desired future character. In this case there is a persuasive responsibility on the applicant, in my view, to satisfy me that that is the position.
72 Although brothels are permissible, they are not an entitlement (as is clear from the decision of McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237). The question of a permitted use in a zone certainly does not create a presumption that that use will be allowed to be fulfilled.
73 I am satisfied, in this case, that there is a sufficient possibility that the present level of intensification of brothels in these three streets arising out of the recent Huang and Wei decisions is such that the addition of a further ten sex worker, nine client service rooms brothel in the area is sufficiently likely to commence a change incompatible with the desired future character of the area. On a precautionary basis I should not grant consent to this proposed brothel as intensification of such uses is contrary to a positive redevelopment of the area.
74 That, in my view, is also consistent with having a lack of satisfaction that cl 79(b) of the SREP has been met because the operation of the brothel will be likely to interfere with the amenity of the area by negatively changing the desired future character of the area.
Orders
75 The consequence of all of the foregoing is that the orders of the Court are:
- Leave is granted to rely on amended plans;
- Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979, the applicant is ordered to pay the respondent the agreed sum of $1 within 28 days of the date of these orders;
- The appeal is dismissed;
- Development application DA 483 of 2009 to change the use of a two storey industrial warehouse building at 16 Muriel Avenue, Rydalmere to permit it to be used as a brothel is determined by the refusal of development consent; and
- The exhibits, other than Exhibit 1, are returned.
Tim Moore
Senior Commissioner
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