Chen v Campbelltown City Council

[2011] NSWLEC 1374

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chen v Campbelltown City Council [2011] NSWLEC 1374

Hearing dates:

3 November 2011, 19 and 20 December 2011

Decision date:

20 December 2011

Jurisdiction:

Class 1

Before:

Murrell C

Decision:

1.The appeal for the premises known as No 13 Lincoln Street Minto is upheld in part.

2.The s 96 modification application:

(i)to extend the hours from 9pm to midnight is given a two (2) year trial period, and

(ii)approval is granted to increase the sex workers from two (2) to three (3), subject to the conditions in Annexure A.

3.The exhibits, except 2 and B are returned.

Catchwords:

APPEAL - modification application to increase hours and number of sex workers. Impacts on character and amenity of area. DCP provisions.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Campbelltown Sex Industry Development Control Plan 2003

Cases Cited:

Martin v Hornsby Shire Council (2004) NSWLEC 614
Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280
Zhang v Canterbury City Council [2001] NSWCA 167

Category:

Principal judgment

Parties:

Min Yi Chen (Applicant)

Campbelltown City Council (Respondent)

Representation:

Counsel
Mr N Carney (Applicant)

Mr A Seton (Respondent)
Solicitors
Wang Fang & Co (Applicant)

Marsdens Law Group (Respondent)

File Number(s):

10888 of 2011

Judgment

1. This appeal is for a s 96 modification application for the increase in hours of a brothel at the premises known as 13 Lincoln Street Minto. The current approval allows for the development to operate from 10am to 9pm and the proposal to extend by three hours, from 9pm to twelve midnight.

1. The subject site is zoned Industrial B and there are a number of zone objectives in the industrial area. It is zoned under the Campbelltown Local Environmental Plan and as such the objectives of the zone, are to be considered in granting consent, in terms of the consistency with the objectives for the 4B zone.

1. The zone objectives include:

• to encourage activity
• to contribute to the economic employment growth of the city
• high quality and standard of development
• protect viability of the commercial centres, and
• to ensure development will not be carried out which have an impact on the amenity of the area.

1. Also relevant to my assessment is the Campbelltown Sex Industry Development Control Plan 2003 and there are a number of provisions that I must have regard to. The aims and objectives include: to locate sex industry premises so that they do not create adverse, social or economic impacts; do not result in the adverse affect on the amenity of the area; and do not become a prominent feature of the streetscape. The other relevant provisions are the location requirements for brothels. That is: in order to minimise the impact of brothels, they must not be located within 150 metre radius of sensitive land uses including child care centres, churches, community facilities, residences; and brothels are to be sensitively located so as not to create adverse social impacts that do not result in any adverse impacts in regard to the amenity of the area. And also similarly in cl 4.4 of the DCP, premises should not affect the amenity of the neighbourhood because of size nor its operating hours, number of employees and all development applications for brothels will be referred to the New South Wales Police Service for comment. In that regard the Court was taken to the New South Wales Police letter and no objection is raised to the proposed brothel and there is the comment that there is a need for CCTV.

1. The Court undertook an inspection with the parties and heard from objectors in the area to the brothel. Their concerns relate to the fact that the brothel would increase crime in their opinion, it would also lead to human trafficking and the development is not amenable to the community area, which has a strong community feel to it. Furthermore they said it would lead to antisocial behaviour, and in that regard, the objectors were also concerned about moral issues and the impact of the development in terms of calling on resources of the state such as policing, because in their opinion the brothel should not be located within the Minto community area.

1. The Court in its assessment of the development application must have regard to the planning regime and the planning framework provided by the council. And in this regard, I have considered controls in terms of the LEP, the zone objectives and consistency with same and the provisions of the DCP. By way of background, the Court approved the brothel approximately some twelve years ago and it has been operating without incident from the reports that have been provided to the Court.

1. The Court in the assessment has considered the threshold question raised by the respondent that the proposed development is not substantially the same development as that that was consented to. And in this regard, the Court was taken to the judgment of Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 and the Court was urged to do a quantitative as well as a qualitative analysis of the proposed s 96 modification application.

1. The Court has considered the threshold question of substantially the same development and I have concluded that the proposed modification application can be considered as a modification. In terms of the quantitative assessment I do note that as indicated on behalf of the respondent that there is an increase in the operation hours by some twenty-five per cent and an increase in the number of sex workers from two to three which is also in quantitative terms, significant. The qualitative assessment is that it will be a more intensive development but at the same time I am satisfied that the proposed development (which is the test under the relevant section of the Act that in the opinion of the consent authority), is substantially the same development and despite the quantitative differences, I am satisfied that it is essentially and materially the same and it may be considered on a merit basis. Therefore I must have regard to the relevant provisions of s 79C of the Environmental Planning and Assessment Act 1979 in considering the merits of the modification application.

1. The council raised in its facts and contentions a number of concerns including that the proposed development should be refused, not substantially the same, I have already covered this matter. And then the other issue raised are: issue two the application should be refused because a proposed modified development in terms of hours of operation is not compatible with the character of the area. The area is generally a low density industrial estate with a number of dwelling houses intermingled within the industrial areas. The closest dwelling houses are those at 4 Somerset, which is behind the subject site all but one, such that it shares a common point on the rear boundary, and one can see the dwelling house which is approximately some sixty metres from the subject premises. There is also a dwelling at 21 Lincoln and the Court must have regard to the amenity of these residential properties in its assessment and to the amenity of other uses within the industrial area which includes the dance studio that operates until 9.30 at night on the evidence before the Court, and also the number of churches in the vicinity. The Court on the view was taken to churches on the corner of Lincoln and Sussex Street and also was pointed out there is a church adjoining the laneway that provides access to the railway station.

1. In the Court's assessment I must also give a clear focus and make central to my consideration the provisions of the development control plan that provides for sensitive land uses not being located within 150 metres of the subject brothel premises. In this regard as I said there are a number of uses that would fit within the 150 metre radius, however on a merits assessment, I am satisfied that the variation to the 150 metre radius is justified on the basis of the discreet nature of the brothel and the fact there is no direct interface with the more sensitive uses. In particular one has regard to uses where children may attend and I am satisfied the dance school and the churches are far enough removed in terms of the physical juxtaposition of the subject brothel with the other uses, and in my assessment the brothel should not offend. It is noted that the entrance to the brothel is at the rear of the premises. There is also a door at the front; generally the door at the rear is the one that is used by clients accessing the premises. And between 9pm and twelve midnight, it is noted that the rear door solely will be used to gain access to the brothel premises.

1. The other contentions raised by the respondent are is terms of the character of the area. I do note that the character of the area generally like most industrial areas, is not used beyond five or 6pm of an evening. But nonetheless in my assessment that would not warrant refusal of the extension of the hours from 9 to 12pm. On the question of safety and security, the proposed development has a CCTV surveillance which allows for the monitoring of the brothel and those entering. The character of the area is one as I said, is an industrial area but I do have regard to the fact that there are residences, that is houses, within the industrial area and other more sensitive uses. Nonetheless I am still satisfied the proposed modification should be able to discretely coexist in this location.

1. The other contention raised by the council was the application should be refused because the proposed modified development will have an adverse impact on the amenity of residences within the locality and this can be the broader locality or district. In this regard the Court did hear objections from the residents within the area, not necessarily those that live immediately adjoining or near the brothel, but they objected to the proposal also on moral grounds. The Court recognises that there are several sectors of the community that in fact are offended by brothels, but at the end of the day, the Court must not impose different standards to what is legitimate in terms of permissible development. I am satisfied that there have been no incidences in terms of the current operation of the brothel over twelve years that would create alarm or cause concern as to why there should be not be an extension of the hours of the brothel or the number of sex workers from two to three.

1. On the intensification of the development, there will be an intensification of use, but once again the subject site, the locality and the general layout of the development is one that accommodates the intensification such that it would not be an overdevelopment of the site in my assessment.

1. The other question raised by the council is public interest. This in many respects coincides with my assessment in terms of the fact that some people may be offended by brothels. However I think at this point it is probably useful to refer to the judgment of the previous Senior Commissioner, John Roseth in terms of Martin v Hornsby Shire Council (2004) NSWLEC 614 and he made the comments in essence that:

Brothels are a legal land use that benefits some sections of the community, but offends others and 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 the areas of council's own municipality.

1. In this regard we do have the guidance of council's DCP that provides for the 150 metre separation distance which I have also assessed and consider that in the circumstances of this case, the 150 metre radius variation is justified. Dr Roseth also commented that:

There is no evidence that brothels in general are associated with crime or drug use and where crime or drugs are in contention in relation to a particular brothel application, this should be supported by evidence.

1. He also noted:

That brothels should not adjoin or be clearly visible from schools, educational establishments where young adolescents or children would gather. This does not mean that brothels should be excluded from every street from which children may walk.

1. The Court considers that the brothel has operated without incident. Whilst that cannot be used to assess the further extension of hours, at the same time it is worthy to note current hours have not created problems. In terms of the extension of the hours and the increase in the number of sex workers, the increase in the number of sex workers I consider can be clearly accommodated in the brothel as the physical layout as shown in the exhibit to the Court indicates. That is at exhibit B which shows a plan of the three work rooms, a separate area for the sex workers to rest, a lounge, waiting room area, kitchen facilities and each working room has a bathroom as well as a bathroom being located off the recreation room.

1. The Court was taken inside the premises to see the layout and the fact that there are nine CCTV monitors. The Court does express some concern although there have not been any incidences to date about whether in fact this is then connected to a back-to-base security company and/or if there is, not necessarily a security guard permanently, but at least be within the rounds of a security person. In this regard I do not consider at this point in time, that it is necessary to impose that there be a back-to-base or a security guard on rounds, but nonetheless I am of the opinion that it is appropriate to give a two year trial period for the extension of the hours from nine to twelve. This will allow for monitoring in terms of whether there are incidences and whether in fact there then would be a need to provide a back-to-base security. The authority in Zhang v Canterbury City Council [2001] NSWCA 167 a judgment of the then New South Wales Chief Justice considered that the trial period is appropriate, " especially when one may not completely know what the impacts may be of the proposed development ." And in this regard I think that the two year trial period would be more appropriate. Generally a one year trial period is provided for, but in the circumstances, there have not been incidences and a two year period would be more appropriate in the circumstances of this case.

1. The two year period will also allow for an assessment if there are unreasonable impacts in terms of the noise of the vehicles on the property at 4 Somerset. I consider that it would be unnecessary at this point in time to require an acoustic study, but the two year trial period will allow for the noise if any is created from the use of the rear parking area on the premises at number four or any other residential premises within the area. It is noted that the management plan is to encourage people to park at the rear in the hours of 9 to 12. The trial period will confirm or otherwise whether in fact it would be better for people to park on the street of the industrial during that later opening period of 9 to 12.

1. The increase in the number of sex workers will be approved as the modification application requested. And the plan of management can be assessed in the two year trial period to see if there are any additional requirements apart from the amenity impacts of vehicles in the rear yard and also whether there is a need for greater security than what is now provided. While it is a relatively comprehensive security system in terms of the internal knowledge of what happens on the site, but the only recourse at this point of time would be for the owner of the premises, the manager, to call the police in the case of any need for further security. It is inappropriate to call on public resources to an extent that is unreasonable, and therefore private security may be an appropriate way to also consider the impacts of the extended hours. As I said, I do not anticipate that there may necessarily be incidences, but it is appropriate where public resources may be called upon, to require the two year trial period and also in terms of the overall amenity impact.

1. Accordingly on the basis of my assessment above the formal orders of the Court are:

(1)   The appeal for the premises known as No 13 Lincoln Street Minto is upheld in part.

(2)   The s 96 modification application:

(i)   to extend the hours from 9pm to midnight is given a two (2) year trial period, and

(ii)   approval is granted to increase the sex workers from two (2) to three (3), subject to the conditions in Annexure A.

(3)   The exhibits, except 2 and B are returned.

J S Murrell

Commissioner of the Court

ANNEXURE A

Decision last updated: 09 January 2012