Brifman v Ryde City Council
[2008] NSWLEC 1296
•8 July 2008
Land and Environment Court
of New South Wales
CITATION: Brifman & Anor v Ryde City Council [2008] NSWLEC 1296 PARTIES: APPLICANT
RESPONDENT
Mary Anne Brifman & Ryszard Andrezej Jedrychowski
Ryde City CouncilFILE NUMBER(S): 10303 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- brothel, car parking, impacts on neighbouring businesses LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ryde Development Control Plan 2000
Ryde Planning Scheme OrdinanceCASES CITED: Martyn v Hornsby Shire Council 2004 NSWLAC 614 DATES OF HEARING: 08/07/2008 EX TEMPORE JUDGMENT DATE: 8 July 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Tomasetti, SC
instructed by DC Balog & AssociatesRESPONDENT
Mr J. Strati, solicitor
of Ryde City Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10303 of 2008 Mary Anne Brifman & Ryszard Andrezej Jedrychowski v Ryde City Council8 July 2008
This decision was given extemporaneously.
It has been revised and edited prior to publication.
JUDGMENT
1 This appeal involves a development application for the fit out and use of the existing two storey building at 908-910 Victoria Road West Ryde for the purposes of a brothel. The brothel is to comprise 11 working rooms and a secured customer entry, a staff room, reception, waiting area, kitchen and various other ancillary rooms. Up to 11 car parking spaces are available on the site with access via a right of way off Mulvahill Street at the rear, although three of these car spaces may not have adequate access. Additional landscaping and a front fence are also proposed. External signage is to be limited to the property’s street number.
2 The hours of operation of the brothel are to be Monday to Saturday - 9 am to 2 am the following day and Sunday - 1 pm to 1 am the following day.
3 The council has provided a set of without prejudice conditions of consent that incorporate the applicant’s Plan of Management. The applicant agrees to these conditions.
4 The site is located towards the north eastern corner of an existing industrial area. It adjoins an art supplies/picture framing business, a vehicle windscreen tinting premises and a swimming pool supplies shop. The nearest residential development is some 70 metres distance to the southeast on the east side of Mellor Street and in Linton Avenue on the north side of Victoria Road behind the existing car sales premises.
5 The site and surrounding lands are zoned Special Industrial 4(c1) under the Ryde Planning Scheme Ordnance and in this zone a brothel is permissible with development consent. In this context I note that brothels are permissible within the five industrial zones within the city of Ryde but prohibited elsewhere.
6 Nearby zonings include the residential zone on the east side of Mellor Street and an automotive business zone 3(c1) opposite the site in Victoria Road. (The abovementioned car sales premises). There are no provisions in the ordnance that I was directed to that are relevantly applicable to brothels.
7 Ryde Development Control Plan 2006 is applicable particularly Part 3.1 that deals specifically with brothels. Despite some concerns regarding car parking it was not in dispute that the eight effective car parking spaces met the requirement of the DCP that would otherwise require six parking spaces.
8 The application was advertised in accordance with the requirements of the DCP and 29 objections plus a petition containing 139 signatures were received. Expressed concerns include:
- The adjoining arts supplies business and the pool supplies business have many female and young customers who would pass the entrance of the brothel and would thus be adversely affected.
- Customers generally would feel ill at ease and unsafe and might take their business elsewhere. Other businesses in the locality were similarly concerned.
- Female staff of the art supplies business are concerned about walking back to their cars at night times.
- The brothel is to be in close proximity to the Meadowbank TAFE College. Car parking is problematical in this area and the proposed brothel would make the situation worse. Similarly traffic congestion would be worsened.
- Businesses generally are concerned that the brothel would have a negative impact on their businesses and residential properties might be adversely affected in terms of property values. The brothel would bring undesirable people into the area particularly in relation to criminal activity and drug and alcohol abuse.
- Prospective clients might mistake neighbouring properties for the brothel and cause distress to employees.
- Residents of nearby residential areas are concerned that it is inappropriate for a brothel to be located within an area that also contains schools, nursing homes and churches.
9 Interestingly the New South Wales Police Service, the North Shore Area Command provided the following comments in relation to another brothel operated by these applicants:
There is no evidence to suggest that the presence of the brothel has directly resulted in any increase in crime in the immediate area. Our experience with this location and also other legalised brothels in this area suggests that clientele of these premises seek discretion and by and large do not cause antisocial impacts in the area surrounding the brothel. In some cases it has been shown that the increased presence around these areas during night time or weekend periods may act to increase natural surveillance and reduce the opportunities for crime. Whilst it is clearly not possible to say with any degree of certainty what goes on within the brothel with respect to drug use there has been no evidence of an increase in street level drug use or dealing in the outdoor vicinity of these premises.
10 Neither the North Shore Local Area Command nor the Gladesville Local Area Command object to this proposal.
11 In dealing with this appeal the Court was assisted by the evidence of a council town planner, Mr C Young and the applicant’s town planner Mr G Shiels.
12 Submissions made on behalf of the council were to the effect that it is the impact on the neighbouring businesses that is the main issue in the case, these impacts being such as to indicate that the location of the brothel as proposed is inappropriate.
13 As indicated above the proposal meets the requirements of the DCP in relation to off street parking and although at times it is possible that the demand for parking might exceed what is to be provided I do not accept this as being a concern of any significance.
14 The DCP contains a number of matters for consideration as to the location of brothels and whether they might have an impact on the amenity of the neighbourhood. Matters for consideration include their location in the proximity of a childcare centre, educational establishment, recreational area or any place regularly frequented by children and other similar establishments. Also to be considered is the question of whether approval might result in a congregation of brothels so as to form “red light districts”. There was no suggestion that this is the case here.
15 In relation to amenity, consideration is required of whether the operation of the brothel might cause disturbances in the neighbourhood taking into account the availability of suitable waiting areas and access in the light of the proposed number of sex workers and operating hours. Again there was no suggestion that there is any deficiency in relation to access and operating hours.
16 I have already dealt with car parking. The DCP also limits signage and the only signage proposed here is the address of the property, this not being a matter of concern.
17 Moving from the requirements of the DCP my attention was drawn to the Court’s decision in Martyn v Hornsby Shire Council 2004 NSWLAC 614 that establishes certain criteria for the location of brothels. These criteria or principles can be utilised in the absence of a deficiency in otherwise applicable planning controls. Particular reference was made to the following criteria at para 18:
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.
18 As for the location of brothels generally, plainly by reference to the ordinance and the DCP the zone in which the site is located is deemed prima facie to be suitable for the establishment of brothels being an area generally that is least likely to offend by comparison with the remainder of the local government area that is not zoned for industrial purposes. Conversely, brothels are not permitted in residential zones where they are far more likely to offend. This approach mirrors that sought by the planning principle.
19 Despite this it cannot be disputed that most people reasonably believe the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. Reference was also made to the following further criteria in Martyn:
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.
20 When the hearing began on site I heard from the owners of the adjoining art supplies and pool stores premises. Apparently children and adolescents regularly attend the pool stores premises, usually with their parents.
21 The subject premises has its own off street parking and discrete access. Whilst it is possible, even likely, that some customers will attend by walking past the proposed brothel, access can generally be achieved without doing so. The owner of the pool stores premises was particularly concerned that his customers might become aware of the existence of the brothel ane would avoid his shop on this basis. This could have adverse financial consequences for his business and, thus, for him.
22 The owner of the art supplies premises explained that he regularly conducts on his premises weekly classes/demonstrations that are attended by many young children. Also older school children and TAFE college students attend his premises commonly in cars, for example to have their artworks framed or to purchase art supplies. He acknowledged that most of his customers come by car and as a consequence younger children are less likely to attend alone. Taking these things into account he was nevertheless concerned that the proposed brothel would discourage attendance by his usual customers.
23 Mr Young agreed that the location of the brothel was inappropriate because it was adjacent to the abovementioned businesses that are frequented by young people and because the brothel’s clientele and staff might walk past these premises. On being asked about this he found it difficult to explain as to how or in what form this might constitute an adverse impact. He also acknowledged that the visibility of the site from major pedestrian routes would be resolved by the applicant’s proposed screening including landscaping and a front fence.
24 On the basis of the residents’ concerns and the evidence of Mr Young the council submits that the impacts described by these witnesses are sufficient to warrant refusal of the application because these impacts are indicative of the site being inappropriate for the proposal.
25 Mr Shields disagreed with Mr Young saying that the location was appropriate taking into account the site, the built form and the zoning of the land. Also persons attending the neighbourhood businesses and the TAFE college would not be able to discern a person travelling to the brothel by car, the likely preferred means of travel, or on foot from any other person travelling to another activity in this locality and hence are unlikely to be offended. As observed by the police it was his opinion that brothel patrons and workers are likely to discreetly arrive and leave the premises without offending visitors to adjoining uses. This aspect is also dealt with in the Plan of Management.
26 Another important consideration is the distance of separation from the residential areas and the fact that the premises cannot be seen from these areas. Indeed it is little, if at all, seen from the neighbouring properties. He also noted that there was no evidence to show that there would be any economic impact on the neighbours. In this regard he expressed the view that the proposed use is less likely to generate offensive noise or hazardous emissions and is, therefore, less likely to have an adverse or economic impact on the surrounding area.
27 It was submitted on behalf of the applicant that it has not been established that the adjoining businesses would be adversely affected and there being no other concern of significance it is appropriate that the application be approved. It was emphasised that the Court can expect that staff will work and operate the premises in a lawful fashion and that customers will behave reasonably and that care needs to be taken not to give weight to emotive concerns that are not supported on planning grounds.
28 Concerns by neighbouring and other property owners about car parking are answered by the fact that the site provides more appropriately accessible car parking spaces than are required. The premises will be little seen, but to the extent that it will be seen this cannot be said to be so problematical as to require refusal of the application.
29 I have been persuaded, on the basis of the reasoning contained therein, by the submissions and evidence provided on behalf of the applicant and do not agree that this proposed brothel would generate such impacts that would indicate that this is an inappropriate location for such a land use. There may well be some impacts on neighbouring properties but one needs to give weight, but not determinative weight, to the fact that the council has decided that it is the industrial zones throughout the city that generally comprise appropriate locations for brothels.
30 As noted in the planning principle, brothels are to be located where they are least likely to offend. This does not mean that there should be no impacts at all and whilst acknowledging, as I have, that there might be impacts I expect that the extent to which this brothel might offend will be within the minds of those who might become aware of the premises. However, bearing in mind that prostitution is not unlawful, I do not accept that in the circumstances of this case this is sufficient to conclude that this is an inappropriate location for this brothel. Martyn effectively indicates, care needs to be taken not to apply excessively onerous criteria.
31 Also in the context of Martyn, whilst the brothel will adjoin premises where children and adolescents gather on a sometimes weekly basis I note that there is no overlooking to or from the premises. Despite the proposed brothel adjoining objectors premises, I heard no evidence to suggest that there would be any impact arising whilst children and adolescents are on those premises.
32 This leaves the question of whether the brothel should be excluded from this location because children may walk, and probably will, in the streets adjacent to the subject site. In this regard, and taking into account that small children are likely to be accompanied by an adult and again bearing in mind what the police have said about the likely discreet behaviour of brothel employees and customers, I do not accept that this concern is of sufficient significance to warrant refusal of the application.
33 I have, therefore, decided that the appeal should be upheld and conditional development consent granted subject to the conditions in Exhibit 5, which exhibit will be retained together with Exhibit B. Otherwise the exhibits are returned.
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- T A Bly
Commissioner of the Court
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