Chin v Rockdale City Council - [2010] NSWLEC 1271

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Chin v Rockdale City Council [2010] NSWLEC 1271

PARTIES:
APPLICANT
Taw Mooi Chin

RESPONDENT
Rockdale City Council

FILE NUMBER(S):
10264 of 2010

CATCHWORDS:
DEVELOPMENT APPLICATION :- Alterations to an existing building for use as a brothel.
SEPP 1 objections to development standards for brothels

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 1, Development Standards.
Interpretations Act 1987
Rockdale Local Environmental Plan 2000
Rockdale Development Control Plan 36 Brothels

CASES CITED:
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Wehbe v Pittwater Council (2007) NSWLEC 827
Martin v Hornsby Shire Council (2004) NSWLEC 614

CORAM:
Tuor C

DATES OF HEARING:
24 August 2010

EX TEMPORE DATE:
25 August 2010

LEGAL REPRESENTATIVES

APPLICANT
Mr A Gough, Solicitor
of Storey & Gough

RESPONDENT
Mr G Riley, Solicitor
of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Tuor C
25 August 2010
10264 of 2010 Chin -v- Rockdale City Council
This determination was given extemporaneously
and has been edited prior to publication
JUDGMENT

COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (council) of a Development Application (2009/374) under the Environmental Planning and Assessment Act 1979 for internal alterations to the first floor of an existing building for use as a brothel at 118 Hattersley Street, Banksia (site).

The site and its locality

The site has a frontage to Hattersley Street and a site area of about 475 sqm. It is occupied with a two storey brick industrial building with at grade parking accessed off Hattersley Street. The first floor of the building has an area of about 385 sq m and is currently vacant. The ground floor is used by a vehicle repair shop and has driveway access off Hattersley Street.
The site adjoins a car yard to the south and east (120-126 Hattersley Street and 371 Princes Highway) and two commercial buildings to the north (116 Hattersley Street). A residential flat building is diagonally east of the site (361 Princes Highway), which has a pedestrian access-way through to Hattersley Street. The Illawarra railway line is on the opposite side of Hattersley Street.
The surrounding development along Hattersley Street and Princes Highway is predominantly light industrial and commercial with some residential. Another brothel is located to the north of the site at 311 Princes Highway.

Background and the proposal

The hearing commenced on site on 3 June 2010 as a conciliation conference under s 34 of the Land and Environment Court Act 1979. No agreement was reached but the parties consented to my disposing of the proceedings under s 34(4)(b)(i) and that the site visit and resident evidence on site would be evidence in the hearing.
Prior to the hearing, the applicant was granted leave by the Registrar to rely on amended plans. These plans are the application now before the Court.
The proposal is for five working rooms with associated facilities. It will occupy most of the first floor other than an area of 115 sq m, which is indicated on the plans as not used by the brothel. The brothel is accessed via a separate lobby and staircase off Hattersley Street. At grade parking for six cars is provided off Hattersley Street. Two spaces are stack spaces. The brothel seeks to operate twenty-four hours, seven days per week with a maximum of five sex workers and one manager.

Planning controls

The site is zoned 3(b) Highway Business under Rockdale Local Environmental Plan 2000 (LEP 2000). Brothels are not included as a permissible use within the zone.
Clause 24(1) and(2) of LEP 2000 relevantly provide:
(1) Despite any other provision of this plan, development for the purpose of a brothel may be carried out only with consent and only if:
(a) it is located within the land shown shaded in Diagram 1, 2 or 3 in Appendix 2 to this Part, and
(b) it is not located:
(i) within 50 metres of land zoned Residential, land zoned Special Uses in relation to which the nominated purpose is Educational Establishment, Place of Public Worship or Hospital, or within 50 metres of land used for residential purposes, or
(ii) near or within view from any educational establishment, place of public worship or hospital or any other place regularly frequented by children, or
(iii) on land abutting or within a property used or partly used for residential purposes, or
(iv) within 50 metres of a railway station entrance or exit that is adjacent to a public footpath, or
(v) on land owned by or under the care, control and management of the Council.
(2) Consent must not be granted to development for the purpose of a brothel if the brothel:
(a) will be located within 200 metres of the boundary of any land on which there is one or more brothels lawfully operating or consented to at the time when the application for consent is determined, or
(b) will contain more than five rooms used for, or capable of being used for, the purpose of prostitution. For the purposes of this paragraph, any room with an area exceeding 18m2 will be considered to be two rooms.
(3) Before granting an application to carry out development for the purpose of a brothel, the consent authority must be satisfied that:
(a) the operation of the brothel will not cause a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood involving similar hours of operation, and
(b) the operation of the brothel will not cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees or other people working in it, and
(c) the operation of the brothel will not interfere with the amenity of the neighbourhood, and
(d) suitable pedestrian access will be provided to the brothel.
The parties agree that the proposal meets cl 24(1)(a) and that the locational criteria in cl 24(1)(b) and (2) are development standards that may be varied through State Environmental Planning Policy No 1 - Development Standards (SEPP 1).
The applicant has submitted SEPP 1 objections to cl 24(1)(a)(i), (ii) and (iii) and cl 24(2)(a) to demonstrate why strict compliance is unreasonable or unnecessary in the circumstances of the case.
Rockdale Development Control Plan 36 - Brothels (DCP 36) provides controls for brothels including location (cl 6.1), size of premises (cl 6.2), parking (cl 6.3), advertising (cl 6.4), health and building (cl 6.5) and access (cl 6.6).
Rockdale Development Control Plan 28 - Requirements for access (DCP 28) and Rockdale Development Control Plan - Crime Prevention Through Environmental Design (DCP 67) are also relevant.

Evidence

The Court visited the site and heard evidence from residents of 361 Princes Highway. Their main concern was the proximity of the brothel to where they and their children live. In their opinion, the brothel would be clearly visible from their units and from the rear outdoor courtyard, which is their only outdoor area and that the proposal will impact on their amenity. They stated that they used the rear entrance to Hattersley Street and that their children use Hattersley Street to walk their dog and ride their bikes. They were particularly concerned about the potential for their children to come into contact with patrons of the brothel.
The Court heard expert planning evidence from Mr C Weston, for the applicant and Ms K Rourke, for the council. Mr R Varga provided expert parking evidence for the applicant.
The key disagreement between the parties is whether the proposal meets the locational requirements for brothels in cl 24(1) and (2) of LEP 2000 and whether the SEPP 1 objections are well founded.
The planners agree that the proposed brothel is within 50 m of land used for residential purposes (cl 24(1)(b)(i)). They disagree whether it is near or within view of a place frequented by children (cl 24(1)(b)(ii)) or that it abuts land used for residential purposes (cl 24(1)(b)(iii)). For abundant caution Mr Weston prepared SEPP 1 objections to each of these standards.
The planners also disagree on whether the proposal meets the objectives of cl 24. In his SEPP 1 objection, Mr Weston states that the proposal:
….does not offend the purpose of the development standard notwithstanding the numerical non-compliance for the following reasons:
The subject property is:
located within an area specifically designated by council as appropriate for a brothel.
The proposed brothel is not upon residentially zoned land nor is it within close proximity to land used for residential purpose. The areas of No 361 Princes Highway which are used for residential purposes, ie, being the open space area and the dwellings themselves, are in excess of 50 m away from the entrance of the proposed brothel when adopting a usual walking route.
The operation of the brothel will not adversely affect the locality in which it is situated, which comprises predominantly of industrial landuses. The residential flat building at No 361 Princes Highway, which is prohibited land use in the zone, is not the predominant form of development in the locality.
The planners also agree that the site is within 200 m of an existing brothel but disagree on whether the objective of the standards for cl 24(2)(a) are met.
Mr Weston prepared a SEPP 1 objection to cl 24(2)(a). He concluded that the proposal met the relevant objectives for the following reason:
The subject property is located within an area specifically designated by council as appropriate for a brothel.
The proposed brothel is not in the same street as the brothel at No 311 Princes Highway, therefore does not result in a concentration of brothels in Hattersley Street. The brothels will not share parking or access facilities and will have no visual interaction. The two land uses are not proximate due to the presence of a number of buildings along the linear tangent.
The intent of separation distances in planning controls is to restrict uses such as brothels from concentrating along particular streets. The proposed brothel will not result in a concentration of brothels along Hattersley Street.
The numerical standard of 200 m separation between lawfully operated brothels is to reflect council’s intention not to concentrate such uses in a particular street. The proposed brothel is located 182 m from No 311 Princes Highway as measured boundary to boundary in a straight line. However, the walking distance separation is over 247 m.
Findings
The appropriate manner for dealing with a SEPP 1 is found in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 and Wehbe v Pittwater Council (2007) NSWLEC 827.
In Wehbe, Preston CJ comprehensively examines the requirement to uphold an objection under SEPP 1. His Honour states at [38] that:
‘First, the Court must be satisfied that the objection is well founded’ (cl 7 of SEPP 1). The objection is to be in writing, be an objection ‘that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case’, and specify ‘the grounds of that objection’ (cl 6 of SEPP 1).
At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary. Relevantly, he states:
An objection under SEPP 1 may be well found and be consistent with the aims set out in cl 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard….
The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with the development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternate means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
The objectives of cl 24 are:
To specify appropriate planning controls relating to the use of premises as a brothel.
To designate specific locations within the City of Rockdale where brothels may be established with development consent.
To ensure that brothels are not located within or in close proximity to land which is residentially zoned or used for residential purposes, or in areas near or within view from a church, hospital or school or from any other place regularly frequented by children.
To ensure that brothels are not located close to railway stations.
To ensure that the operation of a brothel does not adversely affect the amenity of the locality in which it is situated.
To provide for sufficient separation between brothels so that there is not a concentration of brothels in any one locality.
To limit the size of brothels.
Clause 24(1)(b)(i), (ii) and (iii)
Clause 24(1)(a) identifies areas where brothels are permitted but only if they meet the locational criteria in cl 24(1)(b). The experts agree that the proposal does not meet the criteria in cl 24(1)(b)(i) as it is located within 50 m of a residential use. I do not accept Mr Weston’s evidence that the objective of the standard is met despite the numerical non-compliance. Although the residential flat building is not permissible in the 3(b) zone, the requirement in cl 24(1)(b)(i) refers to residential use rather than zoning and clearly applies to 361 Princes Highway.
The building and the open space at 361 Princes Highway may be located more than 50 m from the entry to the brothel. However, the rear access entry to the residential flat building is located within 20 m of the brothel. This rear access is part of the land used for residential purposes and the evidence from the residents is that the rear entry is extensively used as it provides access to their parking in Hattersley Street and to the train station. Further, it is used by their children to access Hattersley Street as an area to ride their bikes and walk their dog.
Mr Riley, for the council, submits that the rationale for providing locational criteria for brothels is stated in Martin v Hornsby Shire Council (2004) NSWLEC 614 where at [17] Roseth SC recognises that ‘brothels should be assessed as sensitive land use, the location of which needs consideration beyond that of mere physical impact’
The Senior Commissioner then provides criteria at [18] for locating brothels which include:

Brothels are a legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality.
…….
Brothels should not adjoin areas that are zoned residential, or be clearly visible from them. Visibility is sometimes a function of distance, but not always.
Brothels should not adjoin, or be clearly visible from schools, educational institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk.
……

In assessing the application before him, Roseth SC concludes at [19] that:
The site fails to comply with several of the above criteria. It adjoins a residential allotment zoned Residential. While I accept there would be no overlooking and the brothel is screened from Nos 1 and 3 The Crescent, the brothel’s existence would be known. The Owner of No 1 The Crescent has objected to his rear yard adjoining a brothel. In my opinion, the objection is not unreasonable and is likely to be made by most people in a similar situation.
In the circumstances of this case, I reach the same conclusion. The proposal is within 50 m of land used for residential purposes. The building in which the brothel is located is clearly visible from the six units and the open space at 361 Princes Highway. I accept that the activity within the brothel and its entrance and car parking will not be visible. However, its presence will be clearly known. Further, there is a strong likelihood that there will be interaction between the two uses and the potential for conflict. The separation distance and the location of the brothel in relation to the residential flat building, particularly its rear access, does not recognise the sensitive nature of the brothel land use and does not comply with the numerical requirements or the objectives of the standard in cl 24(1)(b)(i).
I am not satisfied that the breach in the development standard is consistent with the aims of SEPP 1 or that compliance would tend to hinder the attainment of the specified objects of the EPA Act.
It follows that compliance with the development standard is not unreasonable or unnecessary in this case and that the SEPP 1 objection is not well founded. The consequence is that the appeal must be dismissed and the development consent refused.
For completeness, I will briefly discuss the other SEPP 1 objections. The parties did not agree that the site is near or within view of any place frequented by children. The evidence of the residents is that five children under 18 live in the units at 361 Princes Highway and that they frequently use the rear entrance at Hattersley Street. The proposal therefore does not comply with cl 24(1)(b)(ii). For the reasons discussed above the proposal does not meet the objectives of this control.
The experts also did not agree whether the proposal ‘abuts’ land used for residential purposes. Although they agreed that it ‘adjoins’ 361 Princes Highway. Mr Gough, for the applicant, submits that the term ‘abut’ is not defined in LEP 2000 or the Model Provisions. He referred to the definition in the Macquarie Dictionary:
Abutted, abutting (sometimes followed by on or against) to be adjacent: this piece of land abuts on a street… join end to end… and make contact with end….
Mr Gough submits that in the current circumstance, the connection of the two properties is not consistent with the definition of ‘abut’. The properties share no common boundary and do not join end to end. He submits that the Court would be satisfied that the proposed development does not contravene cl 24(1)(b)(iii).
The corner of the site connects and has contact with the corner of 361 Princes Highway. While it does not overlap to any extent, it adjoins the property and a commonsense and practical approach is that the proposal abuts land used for residential purposes. For the reasons above the proposal does not meet the objectives of the standard and must fail.
Clause 24(2)(a)
The planners agree that the site is about 182 m from the existing brothel at 311 Princes Highway in a linear measurement and that it is approximately 247 m walking distance.
Mr Gough submits that the distance should be measured according to the nearest route ordinarily used for travelling consistent with s 38 of the Interpretations Act 1987.
It is not necessary for me to adjudicate on the method of measurement as I accept Mr Weston’s evidence that even if the proposal does not comply with the numerical control it meets the objective of the standard, principally ‘to provide sufficient separation between brothels so that there is not a concentration of brothels in one locality’.
The proposal and 311 Princes Highway are located at either ends of the block. The brothel at 311 Princes Highway is not accessed off Hattersley Street and is not within the same visual catchment. The proximity of the two brothels will not result in a concentration of brothels that is likely to change the character of the street or the area.
Other issues
Size

Ms Rourke raised concerns about the proposal’s compliance with cl 24(2)(b) which requires that a brothel contain no more than five rooms used for or capable of being used for the purpose of prostitution. The brothel contains five rooms but Ms Rourke considered that the void area is capable of being used for prostitution and that compliance would be difficult to monitor.
I accept Mr Gough’s submission that ‘the void area is accessed via a single doorway behind the reception desk. Such an entrance is not conducive to a working room as it would require a travel path through the manager’s room and behind the counter. Further, the size, nature and lack of furnishings of any kind would not indicate that this room is capable of being used for prostitution.
The applicant will accept a condition of development consent that the void area not be used in conjunction with the brothel and the respondent has enforcement powers to ensure that the premises operate pursuant to the consent if an inspection of the void area would readily reveal whether the area was or is used for prostitution’.
Amenity
Mr Rourke considered the proposal did not satisfy cl 24(3)(c) and that it would interfere in the amenity of the neighbourhood, particularly in relation to noise and visibility. I accept Mr Weston’s evidence that these matters would not of themselves warrant refusal of the application. However, I refer again to the comments of Roseth SC in Martin that brothels are a sensitive land use, the location of which needs consideration beyond mere physical impact.
Parking
Ms Rourke raised concerns about the number, size and stack parking configuration of the parking spaces and their compliance with cl 6.3 of DCP 36. I accept Mr Varga’s evidence that the parking arrangement would be adequate to meet the parking demand for the brothel, however, this would result in no on-site parking being available for the ground floor use. Mr Gough submits that the ground floor has no entitlement to use the parking spaces and that the current use of the ground floor is operating without consent and that any future application to use the ground floor would require an assessment of its parking requirements. While I accept this is the case, I would need to be satisfied that the parking spaces were not required as part of any previous approvals to serve the needs of the whole building given that any approval of the brothel would mean that the parking requirements of the ground level could only be met by parking within the building or on the street.
The other issues raised by the council would of themselves not be reasons to refuse the application.

Orders

The orders of the Court are therefore:

The appeal is dismissed.
The Development Application (2009/374) for internal alterations to the first floor of an existing building for use as a brothel at 118 Hattersley Street, Banksia is refused.
The exhibits, except Exhibit C, may be returned.

___________________
Annelise Tuor
Commissioner of the Court