Egel v Ashfield Municipal Council

[2006] NSWLEC 611

Land and Environment Court

of New South Wales

CITATION:

Egel v Ashfield Municipal Council [2006] NSWLEC 611

PARTIES:

APPLICANT
Peter Egel

RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S):

10275 of 2006

CORAM:

Brown C

KEY ISSUES:

Development Application :- use of existing premises as a brothel - appropriateness of location - public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1985

CASES CITED:

Martyn v Hornsby Shire Council [2004] NSWLEC 614 ;
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154

DATES OF HEARING:

22/08/06

 
DATE OF JUDGMENT: 

09/29/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, barrister
SOLICITORS
Kells The Lawyers

RESPONDENT
Mr A Simpson, solicitor
SOLICITORS
Pike, Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 September 2006

10275 of 2006 Peter Egel v Ashfield Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Ashfield Municipal Council (the council) of Application No. 10.2006.009.1 to use the premises at 93 Edwin Street North, Croydon (the site) as a brothel.

The site and surrounding area

2 The site is generally rectangular with a frontage of 5.69 metres to Edwin Street North, a frontage of 20.69 metres to a pedestrian walkway and a rear frontage to a laneway of 5.57 metres giving a total site area of 181 square metres.

3 A two-storey terrace is located on the site and a similar structure adjoins this building. The building on the site has been used as a brothel or similar for the past 17 years without approval. The applicant in these proceeding has operated the premises for the past 7 years.

4 The site falls within part of the Croydon shopping centre that consists of smaller older style shopfronts with residential and commercial uses above. Some newer mixed commercial/residential developments are located in the shopping centre.

5 Residential development in Horden Place adjoins the commercial area to the south east and shares part of a rear lane with the commercial properties. A pedestrian walkway links Horden Place to Edwin Street North.

The proposal

6 The proposal provides for the use of the existing building as a brothel. The ground floor contains a reception area, waiting room, bathroom, storage, laundry and three working rooms. The first floor contains two working rooms, bathroom, shower, staff room and kitchen. Access for clients is from Edwin Street North with staff entry from the rear of the site. The current use of the premises provides all access from the rear of the site. The change of access necessitates minor internal alterations. Two car parking spaces are available at the rear of the premises and are to be used by staff.

7 The proposed hours of operation are:

• Monday to Friday: 10 a.m. to 10 p.m.
• Saturday: 10 am to 9 p.m.
• Sunday: 11 a.m. to 8 p.m.

8 The proposal provides for 6 staff, made up of 5 sex workers and 1 manager/receptionist. A Plan of Management provides further details on the operation of the brothel.

9 To address some issues raised by the council, amended architectural plans and an amended Plan of Management were prepared and filed after the close of the hearing. The amended architectural plans have been marked as Exhibit F and the amended Plan of Management have been marked as Exhibit G

Relevant planning controls

10 The site is within Zone 3(a) (General Business Zone) under Ashfield Local Environmental Plan 1985 (LEP 1985). Brothels are not separately defined under LEP 1985 but the proposed use is permissible with consent as a "commercial premises". Clause 2 provides aims, objectives for the plan. Clause 2(a) states:

This plan aims to:
(a) promote the orderly and economic development of the local government area of Ashfield in a matter consistent with the need to protect the environment; and

11 There are no other planning controls in LEP 1985 or development control plans that relate to brothels.

The issues

12 The council filed a Statement of Issues containing 10 separate issues. Following a meeting of the expert town planners and additional conditions and amended plans, the council did not press the issues relating to the proximity of the brothel to the Presbyterian Ladies College, the St Christophorous Catholic Church, the residential properties in Horden Parade and the Ashfield Aquatic Centre (Part Issue 1), the cumulative effect with another brothel in the locality (Issue 2), the ability to be able to look into the brothel from Edwin Street North (Issue 3), the adequacy of the car parking (Issue 4), the impact on the amenity of the residential properties on the western side of Horden Parade (Part Issue 5 and 6) and disabled access (Issue 7).

13 The remaining issues can be grouped into the following main areas:

1) whether the proposed brothel was appropriately located considering the nearby commercial uses and residential properties within the nearby mixed use developments (Part Issues 1 and 5), and
2) whether the proposed brothel is in the public interest and whether the issues raised by local residents in Horden Parade warrant the refusal of the development application (Issue 10).
The evidence

14 Mr Kerry Nash provided expert evidence on behalf of the council and Mr Anthony Betros provided expert evidence on behalf of the applicant.

15 The council assessment report identified the following objections when the application was advertised:

• the proximity to the NTK Gallery,
• the proximity to the child care centre in Railway St,
• the proximity to the Presbyterian Ladies College,
• the proximity to the St Christophorous Catholic Church,
• the proximity to Ashfield Aquatic Centre,
• the proximity to Ashfield Railway Station, shops and family restaurants,
• the proximity to residential areas,
• the proximity to an existing brothel,
• the location in an area frequented by family and children,
• the adverse impact on the amenity of the locality.
  

16 A number of local residents and occupiers of shops in the commercial centre provided evidence on site. Their concerns, in addition to those mentioned above, related to:

• inappropriate use for the area,
• insufficient parking in the area,
• males congregate around the site and general area,
• observe people going to the site and
• unacceptable behaviour such as urinating in public areas and injecting drugs.

Is the location appropriate?
The Council’s evidence

17 In his statement Mr Nash identifies the commercial establishment, NTK Gallery at 90 – 100 Edwin Street North, residential uses associated with the windows in the first floor of premises opposite the site at 76 – 78 Edwin Street North and residential properties in the mixed use development above the NTK Gallery as being land uses potentially affected by the proposed development. Following further evidence given on-site, Mr Nash also included the Final Checks make-up establishment at 95 Edwin Street North and stated that this commercial development is the most likely to be affected by the proposed development. This shop forms part of a recent mixed residential/ commercial development and is located on the opposite side of the pedestrian walkway to the brothel.

18 Mr Nash states that the relocation of the entry to Edwin Street North will increase the potential for affront to occur to customers of shops, cafes and commercial premises in the precinct and which may ultimately influence persons to shop elsewhere or take an alternate pedestrian route. His concern with the Edwin Street North access is that the street is a shopping street and pedestrian route for schoolchildren, residents and workers moving to and from the shops and Croydon railway station. Such outcomes may impact on the viability of existing commercial centre and be contrary to the aims and objectives in cl 2(a) of LEP 1985.

19 Further, the entrance to the brothel is located in close proximity to school bus stops. Clients entering and leaving the brothel will also be in direct view of persons using the outdoor seating of the restaurant at 81 Edwin Street North.

The applicant’s evidence

20 Mr Betros states that the brothel is in a suitable location because there is no opportunity for overlooking from the brothel. The location is also discreet and is limited in its exposure to children. Only one of the nearby school bus stops operates and this is limited to 8 am and 9 a.m. and therefore outside the opening hours of the brothel. He notes the brothel has been operating for 17 years with no complaints to the council.

21 Mr Betros further states that the brothel will operate predominantly in business hours and is unlikely to create any adverse amenity impacts. He states that patrons are ordinary members of the community and are unlikely to be distinguished from other users of the shopping precinct or commuters to the train station. The limited week and night operating hours are also unlikely to affect restaurant patrons.

The assessment approach

22 There are no relevant council planning requirements or specific development control plans that provide guidance on the appropriate location for a brothel. Because of the absence of planning controls, the planning principles in Martyn v Hornsby Shire Council [2004] NSWLEC 614 for assessing the appropriateness of the location of a brothel can provide some guidance. While planning principles are not matters to be considered under s 79C of the Environmental Planning and Assessment Act 1979, they helpfully particularise the more general considerations of “the likely impacts of a development, including…social impacts…in the locality" (S 79C(1)(b)), and "the suitability of the site for the development" (S 79C(1)(c)). I note Mr Nash and Mr Betros refer to the planning principles in Martyn in their statements of evidence.

23 The criteria in Martyn for locating brothels are:

1. 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. ·

2. Brothels should be located to minimise adverse physical impact, such as noise disturbance and overlooking. In this aspect they are no different from other land uses.

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

4. 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. ·

5. 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. ·

6. The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels) is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather. ·

7. There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses. ·

8. 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·

9. The access to brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shop and strip clubs predominate, signage should be restricted to the address and telephone number.

24 In New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) Lloyd J made the following relevant comments on amenity:

60 In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate ( Venus Enterprises at 69, Fairfield City Council v Liu Lonza & Beauty Holdings , NSWCA, Mason P and Dunford AJA, 17 February 1997, unreported). Indeed, as Mr Officer QC submitted, it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds ( Venus Enterprises per Cripps J at 70, see also Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 349 per Cowdroy J). Such antagonism would amount to a detrimental social impact ( Dixon v Burwood Council [2002] NSWLEC 190 at [66] per Pain J). These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak at 237, with the caution that there is room for opinions to differ in weighing the same objective criteria.
61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area ( Dixon at [53]). In Broad , de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.

62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act ( Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]).

63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that “... the demonstrable social effect of a particular ...use is relevant under s 90(1)(d) [now section s 79C]” (see also Dixon at [48]).

Findings

25 The disagreement between Mr Nash and Mr Betros on the planning principles in Martyn was limited to whether the brothel was located where it was least likely to offend (Criterion 1) and specifically whether it would be too close to existing bus stops (Criterion 7) and impact on some shops and residential uses in Edwin Street North (Criteria 2 and 5).

Bus stops

26 I understand that the original concern expressed by Mr Nash over the location of the school bus stops was due to the lack of information at the time of preparing his report. Based on the evidence of Mr Betros that only one of the two nearby bus stops is used regularly and at a time prior to the opening of the brothel, I accept that the location of the school bus stops is not a matter that would support the refusal of the development application. I acknowledge that both parties found difficulty in establishing the frequency of operation of the bus stop although there was general agreement that it was used infrequently.

Residential uses in the commercial zone

27 On the issue of the proximity of the brothel to the residential land uses identified by Mr Nash in Edwin Street North, I am not convinced that the proximity of the brothel to the residential land uses would support the refusal of the development application for number of reasons.

28 Importantly, the residential developments identified by Mr Nash are located within the 3(a) (General Business Zone). While accepting that residential properties within this zone are entitled to a reasonable level of amenity, they also cannot reasonably expect the same level of amenity as if they were located within a residentially zoned area. The level of amenity is determined by the existing environment, which in this case includes the operation of the commercial activities, traffic in Edwin Street North and to a lesser extent noise from the railway.

29 In this context, it is unlikely that the operation of the brothel will impact on the existing levels of residential amenity in any meaningful way. The hours of operation would not be inconsistent with other uses expected in a commercial zone, such as the restaurant at 81 Edwin Street North. The number of working rooms in the brothel is not large and patronage is not excessive based on the survey information on patronage levels provided by Mr Betros, that shows an average of 2.02 clients per hour.

30 Of the windows in the first floor of premises opposite the site, only one property was identified as being used for residential purposes. The residential properties of the mixed use development above the NTK Gallery are located some 25m diagonally opposite the brothel although the brothel is only be visible from the balconies of the properties when looking down towards the street. Considering the commercial zoning, the hours of operation and the patronage levels of the brothel, there is not likely to be any significant amenity impacts to the identified residential properties in the commercial zone near the brothel site.

Commercial uses

31 Of the commercial uses identified by Mr Nash, NTK Gallery is principally an art gallery and provides art classes to both adults and children. Mr Nash accepted that the gallery could not be classified as an educational establishment and any children attending classes would likely be accompanied and supervised by an adult. I accept that the proximity of the NTK Gallery would not support the refusal of the application largely because the use is not a place(s) where children and adolescents regularly gather but rather an art gallery that, as a secondary or ancillary use, conducts art classes that may include children. Additionally, the road reserve of Edwin Street North and a distance of some 25m provide a reasonable separation between the NTK Gallery and the brothel.

32 Final Checks provides make-up and hair styling as well as makeup and special effects make-up and training for the television, theatre and fashion industries and has been operating from the premises for 18 months. Classes are conducted for up to six students and their models on Monday to Friday between 10 am and 4:30 p.m. and 6 p.m. and 9:30 p.m. on Wednesday to Friday. The students range between 16 and 25 years of age. Ms Muller, the operator, expressed concerns for the safety of staff and students leaving the premises at night via the common pedestrian walkway with the brothel. She stated that she had seen people drinking alcohol and injecting drugs in the adjoining pedestrian walkway although only through the reflections in the glass window on the opposite side of Edwin Street North.

33 I accept the evidence of Mr Nash that Final Checks is the commercial use most likely to be affected largely because of the proximity to the site and the night operation on Wednesday to Friday, particularly when people leaving at this time use the exit onto the adjoining pedestrian walkway. Despite her concerns I did not understand Ms Muller to say that there had been any direct unacceptable contact between patrons of the brothel and people attending her premises although she mentioned gentlemen speaking to students.

34 The evidence given by Ms Muller of people injecting drugs in the adjoining pedestrian walkway was the most serious allegation of unacceptable behaviour. As I understand, Ms Muller did not indicate that her observations related to patrons of the brothel. With the benefit of the site view and an inspection from her premises, I must conclude that a clear understanding of what was happening in the pedestrian walkway via the glass window on the opposite side of Edwin Street North would be difficult given the distance, shadowing in the pedestrian walkway, passing vehicles, distortions in the glass and obstructions in Ms Muller’s premises. For these reasons, I am not prepared to rely on any observations via the glass window on the opposite side of Edwin Street North to the pedestrian walkway.

35 In relation to Martyn, it is also questionable that the premises could be seen as a place(s) where children and adolescents regularly gather although I accept that the close proximity of the brothel to Ms Muller’s premises heightens the potential for unacceptable interaction between her customers and the brothel patrons, particularly with the entrance to the brothel being relocated to Edwin Street North and next to Final Checks.

36 While I am not as convinced as Mr Nash that the brothel will affront people using the shopping centre and lead to a loss of liability in centre, the potential clearly exists. If this potential is combined with the unknown impacts of the operation using the Edwin Street North frontage for access, then any approval should be treated with some caution.

Issues raised by local residents in Horden Parade

37 Mr Nash was satisfied that the brothel would not create any unacceptable impacts on the residential properties in Horden Parade because the client access was only available from Edwin Street North. These properties fall within the 2(a) Residential zone under LEP 1985. He accepted that it was unlikely that the use of the rear access by staff would create any unacceptable impacts subject to the rear area being properly fenced and secured.

38 I accept that the change in the client entry from the rear of the property to the Edwin Street North has the potential to reduce the impacts associated with clients parking in Edwin Street North however I am not convinced that it will necessarily remove all access to the brothel from this street. Street parking in Edwin Street North is limited and based on the evidence of a number of residents, clients often seek anonymity when attending the brothel and to achieve this, clients may still park in Horden Parade. The pedestrian walkway would still provide ready access from Horden Parade even with the proposed change in entry.

39 Mr Betros argued that the brothel had operated for some 17 years without complaint to the council and despite a request from the council; the local police made no submissions. At the face value, this would suggest the operation of the brothel had created little if any impact on the surrounding area over the 17 years of operation. This conclusion was however in stark contrast to the evidence given to the Court on site by local residents who complained of the unacceptable behaviour of clients using the brothel.

40 In hearing the evidence on site from the local residents, the Court was left with the impression that there was a general concern over the use of the pedestrian walkway and rear lane by persons who behave in an unacceptable manner. I did not understand the unacceptable behaviour to be totally attributable to persons using the brothel although some instances, such as urinating in public places, were directly related to patrons of the brothel. On occasions, the Court had difficulty in differentiating the evidence between the general concerns of unacceptable behaviour and those directly associated with the brothel. It was clear from the site view that the potential for unacceptable behaviour in the pedestrian walkway and rear lane was high (and not necessarily because of the existence of the brothel) because of the lack of opportunity for surveillance and the limited and poor lighting in this area.

41 The appropriateness of the use within the commercial centre was an issue raised by a number of local residents and occupiers of commercial premises. Notwithstanding these concerns, a brothel is a permissible use within 3(a) (General Business Zone) and is required to the considered in accordance with any local planning controls and the broader controls within the Environmental Planning and Assessment Act 1979. This consideration was undertaken in this judgement through the issues raised by the council and the issues raised by the local residents and occupiers of the commercial premises nearby.

42 Additional traffic and lack of parking was an issue raised by a large number of local residents. In this case, the proposal can only provide two car parking spaces. These are dedicated for staff use. In my understanding of the evidence provided by the local residents, the area currently suffers from an historical lack of on street parking, particularly in Horden Parade. This is clearly exacerbated by the proximity to the commercial area in Edwin Street North. In my view, it would not be reasonable to penalise the applicant in this proceedings (or any other use the property) for the historical shortfall in parking in the area. In any event, I am not satisfied that the proposed development will place unreasonable demands on the available on street parking based on the likely patron levels.

43 A number of residents also raised concern over the observation of people attending the brothel or parking their vehicles and attending the brothel. The mere presence of people attending the brothel is not matter that would support the refusal of the development application based on the findings in the range of judgements found in New Century Developments.

A 12 month trial period and additional lighting

44 Because of the conflicting evidence on the impact of current operation of the brothel (see pars 39 and 40) a telephone mention was held on 19 September 2006 and the parties were requested to consider the appropriateness of a 12 months trial period and lighting in the pedestrian walkway.

45 The parties agreed to the imposition of a condition requiring a 12 months trial period. The parties however disagreed on part of the content of the condition. While agreeing that a further development application or application under s 96 is required to be lodged before the expiration date of the trial period, the applicant sought continued use of the brothel until the application was determined by the council or the Court.

46 There was also disagreement on the criteria for considering the further development application or application under s 96. There was agreement that the council's consideration of the further application should take into account evidence of non-compliance with the development consent however the applicant opposed the consideration of the Plan of Management and the number and nature of substantiated complaints.

47 On the content of the condition requiring the 12 month trial period, I accept the applicant’s submission that the use can continue until the application to extend the use is determined. I also accept the applicant’s submission that a reference to the Plan of Management is essentially superfluous as it is referred to in the conditions of consent. I agree however with the council that any submissions should form part of the consideration of the application. It would be reasonable to expect that as part of the consideration of any submission, an assessment would be made on the validity of any submission.

48 The condition requiring additional lighting to the pedestrian walkway was agreed. Appropriately, the lighting is limited to the hours of operation of the brothel however based on the evidence provided by local residents and operators in the commercial area, there appears to be a strong warrant for increased lighting in the rear lane and pedestrian walkway. Clearly this is a matter that should be addressed by the council rather than the applicant in these proceedings.

Conclusion

49 In balancing the total absence of complaints to the council over 17 years of operation and the absence of any negative comments from the police on the proposal against the negative evidence of local residents, I am satisfied that a 12 month trial basis is the appropriate way to deal with the development as it will allow a more thorough assessment of the application in the form presented to Court.

50 I am not satisfied that the limited number of unacceptable events that have been identified by local residents (and that can be directly attributed to the brothel) would support the refusal of the application at this stage. Considering the proposed change to the access arrangements and additional lighting, any concerns raised by local residents may change and the council (or Court) will have a better understanding of any impacts with the imposition of a trial period.

51 Put simply, the evidence did not suggest that the development should be refused however there was sufficient evidence to suggest that the potential exists for the brothel to unacceptably impact on the commercial and residential uses nearby. A trial period with the brothel operating in the manner proposed in the development application will allow any impacts to be identified and fully considered after 12 months.

Orders

52 The orders of the Court are:

1) The appeal is upheld.
2) Application No. 10.2006.009.1 to use the premises at 93 Edwin Street North, Croydon as a brothel is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits E, F and 9.

___________
G T Brown
Commissioner of the Court