Fang Lin v Sydney City Council

[2005] NSWLEC 95

Land and Environment Court

of New South Wales

CITATION:

Fang Lin & anor v Sydney City Council [2005] NSWLEC 95

PARTIES:

Applicant:
Fang Lin and J Wong

Respondent:
Sydney City Council

FILE NUMBER(S):

11285 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- brothel

DATES OF HEARING:

07/03/2005 and 08/03/2005

EX TEMPORE JUDGMENT DATE:

03/08/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr S Klinger, solicitor

Respondent:
Mr R Graham, solicitor of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 March 2005

11285 of 2004 Fang Lin and J Wong v Sydney City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Sydney City Council (the council) of a development application to use No 217 Cleveland Street, Redfern as a brothel. The applicant seeks a consent limited to one year.

The site

2 The site is at the corner of Cleveland and Pitt Streets. Opposite is Prince Alfred Park. Diagonally opposite is the Cleveland Street Intensive English High School. Adjoining to the west is 215 Cleveland Street, a terrace house attached to the subject property, sharing a common wall. On the other side of Pitt Street is the Redfern Mail Exchange. To the south of the site, on the west side of Pitt Street are residential properties, of which the closest is an apartment building at 22 Pitt Street.

3 The subject building is two-storeys with an attic. The ground floor contains a waiting area, a bedroom, a kitchen and a staff room. On the first floor there are three bedrooms. The attic floor contains one bedroom.

The proposal and its history

4 The applicant is using the premises as a brothel without development consent. Thus the application is to obtain consent for an unlawful use. The proposed hours of operation are 11am to 12.30am. The application is to use one bedroom on the first and one on the attic floor. The premises do not provide for off-street parking.

5 The plans of the application indicate the way in which the brothel now operates. There are four bedrooms with showers plus another room designated the manager’s bedroom and sitting room. I note that the room, while denoted as a sitting room, also contains a shower cubicle. The applicant proposes to “de-commission” (ie withdraw from use) two bedrooms. The application does not give an indication of how the building will operate when the bedrooms are withdrawn from use. It does not show a credible arrangement of a dwelling to which a two-room brothel is attached.

6 In January 2004 the council received complaints of the unlawful use of the premises as a brothel. The applicant lodged the development application in June 2004. Following notification the council received 74 objections and a petition. In September 2004 the council refused the application. The applicant lodged the appeal in October 2004.

Relevant planning controls

7 Local Environmental Plan 1998 (the LEP) zones the site Zone No 10 –Mixed Uses Zone. A local business is permissible within the zone.

8 Development Control Plan 1997 (DCP 97) requires, among other things, that in mixed use developments the floor space of the non-residential component should not exceed 25% of the total floor space of the building.

9 The Sex Industry Policy (the SIP) governs the planning control of brothels. The applicant contends that the brothel is a local business brothel as defined by the SIP. To comply with the SIP, there can be only two sex workers on the premises, the brothel must be separated from the nearest dwelling by a non-residential use, and the brothel component cannot exceed 25% of the floor space of the building.

The issues

10 The council submitted a Statement of Issues containing six issues, namely the suitability of the site for a brothel; inconsistency with the LEP; traffic and parking; impact on amenity; privacy; and compliance with planning controls.

11 In my opinion there are two real issues in this case. The first, and main issue is the site’s location in relation to residences, the park, and the school. The second is the suitability of the building for a local business brothel.

The evidence of objectors

12 The Court heard the evidence of nine objectors. Ms B Skuse, who lives at 215 Cleveland Street adjoining the subject site, gave reasons for her objection to the brothel:

· the brothel operates until 3am, not 12.30am as stated in the application;

· the noise penetrates into her house;

· the brothel has had poor management and shown disregard of neighbours for 14 months;

· her property looks into the rear yard of No 217.

13 Mr B Grimshaw, who lives at unit 9/22 Pitt Street, separated from the rear of the property by a lane, said that he looked into the yard of No 217, the coloured lights of No 217 made it look like a brothel, and the operation caused a great deal of nuisance through its waste disposal.

14 Mr G Cole, who lives at 211 Cleveland Street and shares a rear lane with No 217, said that the waste skip of No 217 has obstructed his access to the lane on a number of occasions. Ms J Pilon, the principal of the Cleveland Street Intensive English High School, said that her pupils (aged 11 to 19) use the park as their playground. The brothel is visible from the playground.

15 Several other residents added their concerns, the gist of which was that the brothel was too close to houses and boarding houses accommodating children.

Location

16 The SIP requires that a brothel shall be separated from any residence by at least one other non-residential land use. The subject site adjoins a dwelling at No 215. To the south the land use along Pitt Street is residential. The first building across the rear lane is an apartment building at 22 Pitt Street.

17 The applicant has retained Mr P Karantonis, an acoustic consultant, to advise on the measures necessary to render the noise impact on the neighbouring No 215 acceptable. The council retained the services of Mr G Atkins, also an acoustic consultant. The experts agreed that the current arrangements resulted in an unacceptable impact on the neighbour. The main difference between the two experts was that Mr Karantonis considered that it was possible to lower the noise impact to an acceptable level, while Mr Atkins had doubts that this could be done.

18 In the event, I do not think that the difference between the acoustic experts is crucial to the resolution of this appeal. This is because even if the acoustic impacts could be reduced to acceptable levels, the other impacts on No 215 are so severe as to be fatal to the application. I note, however, that several of the measures that Mr Karantonis suggested require changed management practices, eg. not using the laundry and the courtyard after 10pm. While good management has a role in keeping the operation of a brothel quiet, it is not as reliable as acoustic measures built into the building. It appears that acoustic measures alone will not ensure an acceptable level of noise impact at No 215.

19 The two buildings are separated by a party wall. The rear yards are adjoining. From the side windows of upstairs bedrooms each building has a view of the other and the other’s courtyard. It is true that the entrance to No 217, being in Pitt Street, is not visible from No 215. The applicant’s planning expert, Mr P LeBas, said that the close relationship between Nos 215 and 217 was “diminished by the separation of entries”.

20 It is clear that the two buildings, being a pair of terrace houses, are closely connected and that the activities in one must be perceived in the other. For example, the window of the rear bedroom on the first floor is about 4m from the window of the first-floor bedroom of No 217, a bedroom that the applicant proposes to retain in brothel use. In modern town planning practice, a separation of 4m between the windows of two habitable rooms is considered an unacceptably short distance. It is much more unacceptable when the separation is between the windows of a dwelling and a brothel. The impact of the brothel on No 215, when taken in its entirety is unacceptable. I accept that the fact that the entrance cannot be seen reduces the impact, but the reduction is minor in comparison to the impact that remains.

21 It is common ground that the SIP requires another non-residential use between a brothel and a residence, and that the proposal fails to comply with this requirement. I accept Mr LeBas’ evidence that a policy can be set aside where there is justification to do so. What justification does Mr LeBas advance for setting the requirement aside? Only the location of the entrance in Pitt Street where the residents of No 215 cannot see it. The removal of one of many adverse impacts on the neighbour is not a reason to set aside a well-established council policy.

22 Moreover, while the location of the entrance in Pitt Street may reduce the impact on No 215, it imposes an impact on the dwellings in Pitt Street. While I have so far concentrated on the impact on No 215, I have not lost sight of the fact that the location of the brothel is also inappropriate from the viewpoint of residences along Pitt Street. The apartment building at the corner of Pitt Street and the rear lane to the site is separated from the site only by the narrow lane. The residents of the corner apartments have a clear view of the courtyard and entrance. This fact also puts the proposal in contravention of the SIP.

Building

23 The application does not indicate how the building would be altered to operate as a local business brothel, ie a dwelling and a brothel, with the brothel component being no more than 25% of the total floor space. Mr LeBas’ evidence went only as far as saying that two of the bedrooms currently in use as a brothel should be withdrawn from use. In essence, he told the Court that the application could be amended to a proposal that he could support. The Court, however, is not considering the question whether an application could be amended; the Court is looking at the application before it. The question that interests the Court is whether or not the expert supports that application. I can only conclude that Mr LeBas did not support the application before the Court. If Mr LeBas wished the Court to consider that he supported the application, he should have advised the applicant to amend it to a proposal that he could support.

24 In fact, Mr LeBas told the Court that it would not be possible to separate the residential and brothel use so that the privacy of the residential occupants is ensured. In his opinion it was not necessary to achieve this level of separation. I do not accept this evidence. Unless a proposal provides for a credible residential component, there is a danger that the entire building ends up being used as a brothel.

25 I note that, even with the removal of two bedrooms from brothel use, the brothel component would be 36% of the building. The only justification for breaching this requirement of the SIP was that 36% was close to 25%. I do not accept that this is sufficient justification.

Conclusion

26 The location of a brothel at 217 Cleveland Street is inappropriate, mainly because of its proximity to residential use. The worst impact is on the neighbouring terrace house, No 215. However, the impact on other residences in Pitt Street would be sufficiently adverse to be fatal to the application.

27 In addition, the application fails to comply with the definition of a local business brothel. It would not comply after the withdrawal from use of two bedrooms, since the brothel component would exceed 25% of the building’s floor area.

28 I have considered the fact that the application is for a consent limited to one year, after which the impacts would be assessed again. However, if the Court granted a time-limited consent, the applicant would have to undertake alterations at considerable cost to insulate the building acoustically. Given that the site’s location is fundamentally inappropriate for a brothel, it would be unreasonable to expose the applicant to the cost of alterations and the council to the cost of assessing this application for a second time. For the above reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. Development application to use No 217 Cleveland Street, Redfern as a brothel is determined by refusal.

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner