FRG Developments Pty Ltd v Bankstown City Council - [2010] NSWLEC 1228

Land and Environment Court

of New South Wales

CITATION: FRG Developments Pty Ltd v Bankstown City Council [2010] NSWLEC 1228

PARTIES:
APPLICANT
FRG Developments Pty Ltd
RESPONDENT
Bankstown City Council

FILE NUMBER(S): 10363 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT APPLICATION :- Brothel

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Bankstown Local Environmental Plan 2001

CASES CITED: New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154

DATES OF HEARING: 12 August 2010

DATE OF JUDGMENT:
20 August 2010

LEGAL REPRESENTATIVES: Mr M Baird, Barrister
instructed by Mr S Miller
Mr A Seton, Solicitor
Marsdens Law Group

JUDGMENT:

- 24 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Morris C

20 August 2010

10363 of 2010 FRG Developments Pty Ltd v Bankstown City Council
JUDGMENT

1 COMMISSIONER: This is an appeal made under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Bankstown Council (the council) to grant consent to Development Application

2 The issues raised in the case are whether the site is suitable for the intended use and if the proposal is in the public interest.

The site

3 No. 7 Birmingham Avenue, Villawood is located on the eastern side of the roadway and is irregular in shape with an area of 3374 square metres. It is within the Villawood industrial area, an area characterised by a range of industrial and warehouse buildings used for a variety of purposes.

4 An access to the Villawood Immigration and Detention Centre is available from Birmingham Street approximately 150 metres to the north of the site.

5 A u-shaped building is erected to the side and rear property boundaries of the site and contains a total of sixteen factory units. A central driveway provides access to the units and to carparking spaces at the front of the site and below mezzanine office areas attached to each unit. Individual roller shutter doors provide access to the individual tenancies, which are accessed off the common driveway. The driveway divides towards the rear of the site to a T-shaped arrangement where it serves the rear seven units.

6 Unit 16 is located at the front, southern portion of the building and currently contains a ground floor area with access through two roller shutter doors and a first floor office area cantilevered over carparking spaces. According to the strata plan, unit 16 has access to four onsite parking spaces, all of which are located directly below the office area. A steel-framed mezzanine floor has been constructed within the unit.

The proposal

7 Alterations would be carried out to the mezzanine floor to relocate support columns and stairways so as to facilitate the provision of seven carparking spaces within the building on the ground floor. These spaces would be accessed through the front, western roller shutter door.

8 Partition walls to form a disabled workroom, laundry and bin room are to be installed in the ground floor area and the existing roller shutter doors would be perforated to provide ventilation to the carpark.

9 The first floor area would be fitted out to provide a further six workrooms, three waiting rooms, reception, staff area, storage room and manager’s office. All workrooms would contain an ensuite.

10 All existing windows would be tinted and have internal vertical blinds.

11 The proposed brothel would be staffed by a maximum of seven workers at any one time across three 8-hour shifts. In addition, one administration officer would be employed. The brothel would operate 24 hours a day, seven days a week.

12 A Plan of Management was prepared as part of the application and deals with controls proposed to be implemented to facilitate the orderly operation of the brothel.

Planning controls and relevant legislation

13 The site is zoned 4(a) Industrial pursuant to the provisions of the Bankstown Local Environmental Plan 2001 (the LEP). The objectives of the zone are specified in clause 51 of the LEP as follows:

(a) to permit primarily industrial uses or uses which are inappropriate in other zones, and
(b) to limit retail development, except where:

(i) it is ancillary to an industrial use of land, or
(ii) it services the daily convenience needs of the local workforce and does not have an adverse impact on the viability of the business areas of the City of Bankstown, and

(c) to promote a high standard of:

(i) building design (particularly along arterial roads), and
(ii) environmental management, energy efficiency and resource conservation, and

(d) to allow bulky goods salesrooms or showrooms only where they will not have an adverse impact on the viability of the business areas of the City of Bankstown.

14 Clause 52 of the LEP requires the consent authority to take into consideration a range of matters before granting consent to development within Zone 4(a) or 4(b). Those relevant to the application are:

(a) whether the proposed development will provide adequate off-street parking, relative to the demand for parking likely to be generated,

(c) whether the proposed development will contribute to the maintenance or improvement of the character and appearance of the locality,

(d) whether access to the proposed development will be available by means other than a residential street but, if no other means of practical access is available, the consent authority must have regard to a written statement that:

(i) illustrates that no alternative access is available otherwise than by means of a residential street, and

(ii) demonstrates that consideration has been given to the effect of traffic generated from the site and the likely impact on surrounding residential areas, and

(iii) identifies appropriate traffic management schemes which would mitigate potential impacts of the traffic generated from the development on any residential environment,

(e) whether goods, plant, equipment and other material used in carrying out the proposed development will be suitably stored or screened,

(f) whether the proposed development will detract from the amenity of any residential area in the vicinity,

(g) whether the proposed development adopts energy efficiency and resource conservation measures related to its design, construction and operation.

15 A brothel is permitted with consent in the 4(a) zone. Clause 33 of the LEP limits the areas in the zone where development for the purpose of a brothel may be carried out in the Villawood, Greenacre, Milperra and South Bankstown areas to those areas identified on the LEP map.

16 The site is at the northern extremity of the area nominated in the map as the Villawood area where brothels can be carried out.

17 Bankstown Development Control Plan 2005 (the DCP) applies to the site. Parts D6, D8 and D14 are relevant to this application.

18 Part D6 contains specific objectives and development controls that apply to industrial zones. I was referred to Section 8 which relates to safety and security and in particular, the need to install a security alarm system in a building, for lighting in a carpark to comply with relevant Australian Standards and where practical, for an outdoor car park to be closed to the public outside of business hours via a lockable gate. These matters are considered in detail further in this judgment, as they material to the principle contentions raised in the proceedings.

19 Part D8 of the DCP details parking requirements for all land uses and specifies that parking for brothels be provided at the rate of 1.5 car spaces per service room. It was agreed that the development proposal incorporates the necessary off street parking.

20 Part D14 is a specific chapter in the DCP regarding brothels and sets out the criteria against which the council will assess applications for brothels and the controls to be employed to ensure public health and safety. The Introduction in Section 1 of part D14 states that the DCP;

supports the LEP by providing additional objectives and development controls that regulate the activity of brothels within industrial areas in the City of Bankstown to the benefit of operators, workers and the community.

control the location of brothels in areas which are appropriate for the use and to establish controls which address the public health and safety standards for brothels.

21 Further, reference is made to the time limiting of consents and states;

In most circumstances, any consent granted to a brothel will have an initial maximum life of one year. At the end of this period, Council will examine the impact of the brothel on the neighbourhood and compliance with condition of consent. If the premises is having a significant negative impact on the amenity of the area, Council may decide not to re-issue consent. This impact would ordinarily be determined on the same basis as the closure of a brothel.

22 Section 2 provides locational requirements and states;

· a Brothel may not be within reasonable view of a church, school, community facility, hospital, medical centre, and any place regularly frequented by children for recreational or cultural activities (‘reasonable view’ shall be determined taking into account factors such as topography, vegetation, signage, intervening development and similar factors).

· Brothels should not be within a 100 metre radius from the boundary of the nearest property containing a sensitive use or used for residential purposes, regardless of the zoning of that property.

· Brothels may not front or locate within 100 metres of a state road.

23 It was agreed that the proposed site meets these locational criteria.

24 Further criteria are included in section 3.2 and require that a brothel should not locate within 200 metres of another brothel or other activities with similar operating hours.

25 It was agreed that the proposed site also satisfies this clause.

26 Section 6 of Part D14 limits the size of a brothel to 10 rooms. The proposed brothel has 7 workrooms so complies with this requirement. This section also requires that the operations of a brothel are not to cause difficulties with parking, access or safety/security for the surrounding premises. This aspect of the application is considered later in the judgment.

27 Section 7 relates to advertising structures and limits the signage that can be erected. The application proposes the installation of a street number only so complies with these provisions.

28 Section 8 deals with safety and security and is specific to the safety of clients and workers. The development controls are;

· The safety of clients and workers should be protected at all times. Applications submitted should include details on security arrangements to reduce the risk to persons visiting the site. Design of carparks, landscaping and entry areas should facilitate casual or formal observation. Car parks and entrances should be well lit and, where necessary, security staff employed.

· A brothel should not locate in an isolated area, unless extensive security arrangements are made. This is to assist in providing a safe environment for clients and workers and to reduce the likelihood that brothels will be associated with criminal activities. The assistance of the NSW Police Service will be sought when assessing this particular aspect of an application.

· The privacy of patrons must be considered through the design and internal layout of the premises.

29 The Plan of Management submitted with the application and the comments obtained by the council from the police address these requirements.

Site visit

30 The appeal started on site and I heard evidence from six persons, all of whom were owners and/or occupiers of units within the strata plan, No 7 Birmingham Avenue and had lodged objections to the council in relation to the proposed brothel. The issues raised by the objectors were:

· Concern about the type of people who would be attracted to the site, consider they are likely to be undesirables and/or violent customers;

· Concern about their safety and security and also for their staff, particularly when visiting the site after hours;

· Impact of the brothel on the value of their property;

· Impact of the brothel on the owner’s corporation insurance premium and individual’s insurance premiums;

· The brothel is inconsistent with the current family oriented nature of businesses on the site;

· The brothel will require the front entry gate to remain open at all times thereby increasing the security risk at the site. There had been incidents of vandalism, theft and rubbish dumping since the gate was broken.

· There are no visitor parking spaces so there is a threat of violence in relation to use of spaces allocated to individual tenancies;

· Female occupier objects to brothels and wants to move the business if the brothel is approved;

· The proposed security guard will not be interested in any activities other than those associated with the brothel;

· Would not feel safe if a security guard was required to be on site;

The issues

31 The issues are

· The impact of the proposed development in relation to the security of the existing industrial complex having regard to the proposed hours of operation, in particular, the unacceptable security risk after 7pm,

· Whether the site is suitable for the proposal and if it is in the public interest having regard to the objections that have been received in relation to the application.

The gate

32 Mr Boga, the Chairman of the owner’s association, owner of three of the factory units and proprietor of the business A La Turko which operates from unit 3, advised that the front security gate had been installed approximately 10 years ago and was used to secure the complex after usual business hours. Currently there is an agreement between the strata owners that the gate is closed between the hours of 7pm and 7am. Changes to the hours are made at meetings between proprietors of the strata plan. Access to the premises by business owners after hours was by way of a remote control which opened and closed the gate. All unit occupiers had access to a remote control to facilitate access after hours.

33 Mr Boga confirmed that the gate had not been operating for approximately one year and that the owner’s corporation was currently in the process of obtaining quotations for its repair.

The evidence

34 Expert town planning evidence was given by Mr Gough for the applicant and Mr Brown for the council. The two experts had prepared a joint report, which was tendered in evidence as Exhibit 4. That report dealt with the two contentions, the first being safety and security and the second, the public interest. The experts agreed that the only substantive issue raised in the objections related to the matters raised in the first contention.

35 Both experts had visited the site a number of times including one visit at night, each on a different Sunday evening.

36 Mr Gough advised that on the night he had visited the site, one floodlight, which is the one attached to the front wall of unit 16 was operational. The gate was open and there was no lighting along the central driveway or any part of the site that he could observe from the roadway. He had not entered the site however had observed a security guard at the business at the front left when viewing the site from the road.

37 Mr Brown had also visited the site during the evening and had entered the site parking his vehicle across the area where the gate was located in case it was closed when he was on site. He was not aware that it was not operational. Unit 1 was occupied at the time and no lights were on in any other part of the complex.

38 When asked whether the site was quiet at night, Mr Gough stated that it was however he did not consider it to be isolated as it is on route to the detention centre and he observed cars passing the site at night. He considered the area to be busy during the day. Mr Brown considered the site to be quiet and had been startled by unexpected activity that occurred during his visit.

39 In relation to the security implications of the brothel, Mr Gough stated that there would be a need for the gate to remain open all the time and that is what the application proposed. He did state however that if the owner’s corporation required the gate to be closed at night, options such as an intercom could be used and the gate opened remotely. As that option required the consent of the owner’s corporation, which had not been provided because of the opposition to the proposal, it was not subject of the application.

40 Both experts agreed that the gate, if operational, would provide a degree of security to the site. I agree.

41 In relation to the proposal for a security guard to be on site from 7pm to 7am, to install sensor lighting and upgrade the complex’s lighting to Australian standards, Mr Gough said that this was an essential element of the proposal but was required to appease the concerns of the owners of other units within the complex. He explained that the security guard would be employed to ensure the safety and security of the whole complex, not just those persons associated with the brothel.

42 In relation to the activities of the security guard, Mr Gough advised that there would be not set pattern but they could assess people entering the site, patrol the entire site and provide an active presence on throughout the complex. He considered this presence to be a better security solution than the gate.

43 Both experts agreed that the detail provided in the Statement of Environmental Effects about the security arrangements was to be read in conjunction with the Plan of Management submitted to the council with the application and that lighting being on and upgraded to Australian Standards, if it did not already meet that standard, and the provision of a security guard would significantly improve security and visibility of people on the site.

44 I note that the NSW Police Crime Prevention Officer has recommended the installation of CCTV and lighting to comply with the relevant Australian standards along with other safety and security recommendations including the operation of the gate via remote control and use of video intercom. This latter requirement would address the concerns of the occupants of the complex about the operation of the gate after normal business hours. All of the conditions recommended by the police have been incorporated into the draft “without prejudice” conditions of consent and there was no dispute in relation to those conditions.

45 Mr Brown highlighted the vegetation on site adjacent to Unit 16 which filtered the view from the proposed manager’s office and staff room and may restrict the view of any CCTV installed. He agreed that CCTV would improve the site security but was concerned that it wouldn’t cover the entire site or the area outside the site.

46 Both experts agreed that there is already CCTV installed to the walls of some of the units. This was evident during the site inspections as was the use of alarm systems, also attached to the external walls of the units.

47 Mr Gough confirmed that all security devices could be fitted within the boundaries of the Unit 16 strata lot and that no works would be required to common property.

48 When asked about the type of people likely to attend the brothel, Mr Gough stated that he has not seen unauthorised or intoxicated people visit brothels. Mr Brown agreed that patrons of the brothel would not cause criminal or anti-social behaviour.

Conclusions and findings

49 The site of the proposed brothel is within the area specifically designated by the council for the use. Whilst brothels are permitted with consent in all General and Light Industrial zones, Clause 33 of the LEP reduces the land available to locate a brothel to areas included on the map which have been considered suitable by the council for the purpose. Subject to a review of the matters required under s79C of the Act, this fact must weigh in favour of the application.

50 The application meets all the standards established under the council’s planning instruments for the establishment of a brothel.

51 There is clear concern amongst the proprietors of other businesses within the strata complex about the operation of the brothel. Whilst I recognise that concern, the test to be applied is that stated by Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154, where his Honour stated:

That the subjective fears and concerns must have a rational basis and be amenable to objective assessment in order for any significant weight to be attached to them.

52 I agree, from the evidence of both expert planners, that on site security will be improved through the lighting upgrade, installation of CCTV and the provision of a security guard to be provided by the applicant. I am satisfied that the physical works can be installed within the boundaries of the strata lot and therefore not require the consent of the owner’s corporation. It would however be appropriate that the gate was closed after normal business hours and controlled through a remote control. This will ultimately be a decision for the owner’s corporation to take and I do not find the lack of the gate to be determinative.

53 I note the evidence from Mr Brown who states that patrons of the brothel would not cause criminal or anti-social behaviour.

54 There is no evidence that it will not be possible for the Owner’s Corporation to insure the complex, only that the existing insurer will not provide cover. Nor do I have any evidence that individual unit holders will not be able to obtain insurance or that the brothel will adversely affect their businesses. It is apparent that the time lag in repairing the gate at the site has not had not led to sufficient consequences with site security so as to complete the repairs within one year of the gate being rendered non-operational.

55 Consistent with the Council’s DCP requirements, I consider that a one year trial operation for the brothel is appropriate. All security measures proposed including the provision of a security guard should be implemented by way of conditions of consent. Such a trial period will allow specific complaints or issues with the Plan of Management to be addressed. I accept Mr Baird’s submission that continuation should be allowed only after assessment of a s96 application.

Orders

56 The orders of the Court are therefore:

3. The exhibits, other than exhibits 1, B and D may be returned.

________________________

Sue Morris
Commissioner of the Court

ANNEXURE A

FRG DEVELOPMENTS PTY LTD v BANKSTOWN CITY COUNCIL

LAND AND ENVIRONMENT COURT PROCEEDINGS No. 10363 OF 2010

CONDITIONS FOR DA No. 666/2009

1. The proposal shall comply with the conditions of Development Consent. A Construction Certificate shall not be issued until the plans and specifications meet the required technical standards and the conditions of this Development Consent are satisfied.

2. This Development Consent is limited to the area within the boundaries of Lot 16 SP 37608. All works shall be undertaken within the boundaries of this Lot. Prior to the issue of a Construction Certificate a plan of all works and ancillary installations shall be prepared and provided to a Registered Land Surveyor who shall certify that all works proposed are within the boundaries of Lot 16 SP 37608. No approval is granted to undertake works external of the boundaries or to common property areas of SP 37608.

3. Development shall take place in accordance with Development Application No. DA666/2009, submitted by FRG Developments Pty Ltd, accompanied by Drawing No DA04, DA05, DA06, prepared by JND Architectural Services, dated 15 December 2009, Issue C, except where otherwise altered by the specific amendments listed hereunder and/or except where amended by the conditions contained in this approval.

4. A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use. Note: the obligation under this condition to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent.

5. Consent is granted for a trial period of 12 months commencing from the date of the grant of the occupation certificate. Continued use of the site will require a s96 application to the Council two months prior to the expiration of the trial period. The use may continue subject to the final determination of the s96 application by the Council and any appeal against such determination (if any).

6. A complaints line is to be established and a register of complaints maintained by the operator of the premises during the trial period.

7. A separate application shall be submitted to Council prior to the erection of any additional signage unless the proposed signage is "exempt development" in accordance with Bankstown DCP 2005 - Part D1.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

8. The Certifying Authority must ensure that any certified plans forming part of the Construction Certificate are not inconsistent with this Development Consent and accompanying plans.

9. All of the relevant and appropriate water conservation and energy efficient requirements of Bankstown DCP 2005 - Part D7 shall be complied with. Details of the proposed measures to demonstrate compliance with the above DCP shall be submitted with the Construction Certificate.

10. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator, for details see the Sydney Water web site com.au\customer\urban\index or telephone 13 20 92.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the Subdivision Certificate/occupation of the development.

11. A Construction Certificate shall not be issued until written proof that all bonds, fees and/or contributions as required by this consent have been paid to the applicable authority.

12. A Long Service Levy payment of $875, which is 0.35% of the value of the work being $250,000, is required to be paid to Council on behalf of the Long Service Levy Corporation prior to issue of the Construction Certificate.

13. Pursuant to section 80A(1) of the Environmental Planning and Assessment Act 1979, and the Bankstown City Council Section 94A Development Contributions Plan 2009 (Section 94A Plan), a contribution of $2,500 shall be paid to Council. The amount to be paid is to be adjusted at the time of actual payment, in accordance with the provisions of the Section 94A plan. The contribution is to be paid before the issue of the construction certificate.

Note: The Section 94 Contributions Plans may be inspected at Council's Customer Service Centre, located at Upper G r ound Floor, Civic Tower, 66-72 Rickard Road, Bankstown, between the hours of 8.30am-5.00pm Monday to Friday .

14. As any works within, or use of, the footway or public road for construction purposes requires separate Council approval under Section 138 of the Roads Act 1993 and/or Section 68 of the Local Government Act 1993, Council requires that prior to any Construction Certificate for this development being issued, evidence of lodgment of an application for a Works Permit and or a Roadway/Footpath Building Occupation Permit shall be obtained where one or more of the following will occur, within, on or over the public footway or public road:

WORKS REQUIRING A ‘WORKS PERMIT’

a. Dig up, disturb, or clear the surface of a public footway or public road,

b. Remove or interfere with a structure or tree (or any other vegetation) on a public footway or public road,

c. Connect a road (whether public or private) to a classified road,

d. Undertake footway, paving, vehicular crossing (driveway), landscaping or stormwater drainage works within a public footway or public road,

e. Install utilities in, under or over a public road,

f. Pump water into a public footway or public road from any land adjoining the public road,

g. Erect a structure or carry out a work in, on or over a public road

h. Require a work zone on the public road for the unloading and or loading of vehicles

i. Pump concrete from within a public road,

j. Stand a mobile crane within a public road

k. Store waste and recycling containers, skips, bins and/or building materials on any part of the public road.

All proposed works within the public road and footway shall be constructed under the supervision and to the satisfaction of Council. The applicant/developer shall arrange for necessary inspections by Council whilst the work is in progress.

For commercial or multi-unit residential developments within the designated CBD or an urban village area, footway design and construction and street tree supply, installation and tree hole detailing shall be as per the Council master plan for that area. Full width footways are to be supplied and installed at full cost to the developer to specification as supplied by Council. Layout plan of pavement to be submitted to Council for approval prior to the issue of the Works Permit.

All Council fees applicable, minimum restoration charges and inspection fees shall be paid prior to the assessment of the Work Permit in accordance with Council's adopted fees and charges. Note: Additional fees after approval will be charged where the Work Permit requires occupation of the Road or Footpath i.e. Hoardings, Work Zones etc.

In determining a Works Permit, Council can impose conditions and require inspections by Council Officers.

Forms can be obtained from Council’s Customer Service counter located on the ground floor of Council's administration building at 66 - 72 Rickard Road, Bankstown or Council's website I

Part of any approval will require the person or company carrying out the work to carry public liability insurance to a minimum value of ten million dollars. Proof of the policy is to be provided to Council prior to commencing any work approved by the Work Permit including the Road Opening Permit and must remain valid for the duration of the works.

The commencement of any works on public land, including the footway or public road, may incur an on the spot fine of not less than $1100 per day that work continues without a Works Permit and/or a Roadway/Footpath Building Occupation Permit.

All conditions attached to the permit shall be strictly complied with prior to occupation of the development. Works non-conforming to Council's specification (includes quality of workmanship to Council's satisfaction) shall be rectified by the Council at the applicant's expense.

15. Details of all air conditioning and mechanical ventilation plant, prepared by a qualified practicing mechanical engineer, to be submitted with the Construction Certificate. The plans are to indicate the location of all power units and method of noise attenuation. All systems to be designed, constructed and operated in accordance with AS 1668 and the Protection of the Environment Operations Act 1997.

16. Details to be provided of the natural or mechanical ventilation, cleaner’s sink, plumbing and drainage to the garbage room and location of the yellow approved medical waste bin. Inconsistencies between the SEE and the Waste Management Plan with respect to medical waste bins to be addressed and these documents to be re-submitted if required.

CONDITIONS TO BE SATISFIED PRIOR TO CONSTRUCTION WORKS COMMENCING

17. The erection of a building / subdivision works in accordance with this development consent must not be commenced until:

a. Detailed plans and specifications have been endorsed with a Construction Certificate (by the consent authority or an accredited

certifier),and

b. The person having benefit of the Development Consent has appointed a 'principal certifying authority' (PCA), and has notified the consent authority and the Council (if Council is not the consent authority) of the appointment, and

c. The person having benefit of the development consent has given at least 2 days notice to the Council of their intention to commence the development works the subject of this consent.

18. Prior to commencement, the applicant must provide a temporary on-site toilet if access to existing toilets on site is not adequate.

19. Prior to the commencement of any building work a fence shall be erected along the property boundaries of the development site, except where an existing 1.8m high boundary fence is in good condition and is capable of securing the site. Any new fencing shall be temporary (such as cyclone wire) and at least 1.8m high.

Where the development site is located within 3m of a public place then a Class A or Class B hoarding shall be constructed appropriate to the works proposed. A Works Permit for such hoardings shall be submitted to Council for approval prior to the issue of any Construction Certificate.

20. A sign shall be displayed on the site indicating the name of the person responsible for the site and a telephone number of which that person can be contacted during and outside normal working hours or when the site is unattended.

21. For development that involves any building work, subdivision work or demolition work, a sign must be erected in a prominent position on any site on which building work, subdivision work or demolition is being carried out:

a. showing the name, address and telephone number of the Principal Certifying Authority for the work, and

b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted during and outside working hours, and

c. stating that unauthorised entry to the work site is prohibited.

22. The application must be submitted to the appropriate Sydney Water Officer to determine whether the development will affect Sydney Water infrastructure (ie. Sewer mains, easements, etc). If the development complies with Sydney Water's requirements, the plans will be stamped indicating that no further requirements are necessary.

23. Permission is granted for the demolition of the internal fitout currently existing on the property, subject to strict compliance with the following: -

a. The developer is to notify adjoining residents seven (7) working days prior to demolition. Such notification is to be clearly written on A4 size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side, immediately at the rear of, and directly opposite the demolition site.

b. Written notice is to be given to Bankstown City Council for inspection prior to demolition. Such written notice is to include the date when demolition will commence and details of the name, address, business hours and contact telephone number and licence number of the demolisher. The following building inspections shall be undertaken by Bankstown City Council:

precommencement

(ii) A final inspection shall be carried out by Council when the demolition works have been completed to ensure that the site is left in a satisfactory manner, in accordance with the conditions of this consent.

NOTE: Payment of an inspection fee at Council's current rate will be required prior to each inspection. Civic Approvals requires 24 hours notice to carry out inspections. Arrangements for inspections can be made by phoning 9707 9410, 9707 9412 or 97079635.

c. Prior to demolition, the applicant must erect a sign at the front of the property with the demolisher's name, license number, contact phone number and site address.

d. Prior to demolition, the applicant must erect a 2.4m high temporary fence or hoarding between the work site and any public place. Access to the site shall be restricted to Authorised Persons Only and the site shall be secured against unauthorised entry when the building work is not in progress or the site is otherwise unoccupied. Where demolition is to occur within 3m of a public place a Work Permit application for the construction of a Class A or Class B hoarding shall be submitted to Council for approval.

e. The demolition plans must be submitted to the appropriate Sydney Water Office to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/on easements. If the development complies with Sydney Water's requirements, the demolition plans will be stamped indicating that no further requirements are necessary.

f. Demolition is to be carried out in accordance with the appropriate provisions of Australian Standard AS2601-2001

g. The hours of demolition work shall be limited to between 7.00am and 6.00pm on weekdays, 7.00am and 1.00pm on Saturdays and no work shall be carried out on Sundays and public holidays, and weekends (Saturdays and Sundays) adjacent to public holidays.

h. Where materials containing asbestos cement are to be removed, demolition is to be carried out by licensed contractors who have current Workcover Accreditation in asbestos removal.

i. Hazardous or intractable wastes arising from the demolition process shall be removed and disposed of in accordance with the requirements of WorkCover NSW and the Department of Environment and Conservation.

j. Demolition procedures shall maximise the reuse and recycling of demolished materials in order to reduce the environmental impacts of waste disposal.

k. During demolition, the public footway and public road shall be clear at all times and shall not be obstructed by any demolished material or vehicles. The public road and footway shall be swept (NOT hosed) clean of any material, including clay, soil and sand. (NOTE: If required, Council will clean the public road/footway at the applicant's expense). On the spot fines may be levied by Council against the demolisher and or owner for failure to comply with this condition.

l. All vehicles leaving the site with demolition materials shall have their loads covered and vehicles shall not track soil and other material onto the public roads and footways and the footway shall be suitably protected against damage when plant and vehicles access the site. All loading of vehicles with demolished materials shall occur on site.

m. The burning of any demolished material on site is not permitted and offenders will be prosecuted.

n. Care shall be taken during demolition to ensure that existing services on the site (i.e. sewer, electricity, gas, phone) are not damaged. Any damage caused to existing services shall be repaired by the relevant authority at the applicant's expense.

o. Suitable erosion and sediment control measures shall be erected prior to the commencement of demolition works and shall be maintained at all times.

p. Prior to the demolition of any building constructed before 1970, a Work Plan shall be prepared and submitted to Council in accordance with Australian Standard AS26012001 by a person with suitable expertise and experience. The Work Plan shall outline the identification of any hazardous materials, including surfaces coated with lead paint, method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.

CONDITIONS TO BE SATISFIED DURING CONSTRUCTION

24. The hours of site works shall be limited to between 7.00am and 6.00pm on weekdays and 7.00am and 1.00pm on Saturdays. No work shall be carried out on Sundays and public holidays, and weekends (Saturdays and Sundays) adjacent to public holidays.

25. The building work must be carried out in accordance with the requirements of the Building Code of Australia, the provisions of the relevant Australian Standards and the approved plans.

26. There shall be no stockpiling of building spoil, materials, or storage of equipment on the public road, including the footway. No work shall be carried out on the public road, including the footway, unless a Work Permit authorised by Council has been obtained.

CONDITIONS TO BE SATISFIED PRIOR TO OCCUPATION

27. The use of a building in accordance with this Development Consent must not be commenced until Councilor the PCA has issued an Occupation Certificate for the building and site works.

28. A final Occupation Certificate shall not be issued until all conditions relating to demolition, construction and site works of this development consent are satisfied and Council has issued a Work Permit Compliance Certificate.

29. Eleven (11) off street car parking spaces shall be provided/maintained for the use of visitor and employees to the premises in accordance with the submitted plans. Such spaces are to be sealed and line marked and maintained.

30. An Emergency Response Management Plan shall be prepared and submitted to Council's satisfaction. The Plan shall include the following:
a. List of chemicals and maximum quantities to be stored at the site;
b. Identification of potentially hazardous situations;
c. Procedure for incident reporting;
d. Details of spill stations and signage;
e. Containment and clean-up facilities and procedures; and
f. The roles of all staff in the plan and details of staff training.

USE OF THE SITE

31. Car parking spaces for eleven (11) vehicles shall be provided in marked spaces in the manner generally shown on the approved site plan. The car parking spaces, driveways and maneuvering areas are to be used for employees and visitors vehicles only and not for the storage of new or used materials, finished goods or commercial vehicles.

32. The hours of operation of the use are 24 hours each day, 7 days a week.

33. All loading and unloading of goods shall take place within the site or from the adjoining service lane in a manner that does not interfere with parking areas, driveways or landscaping.

34. There shall be no emissions of noise, smoke, smell, vibration, gases, vapours, odours, dust, particulate matter, or other impurities which are injurious or dangerous to health, or the exposure to view of any unsightly matter or otherwise.

35. All waste materials associated with the use shall be stored in containers located either within the building or behind screen walls in accordance with the approved plans.

36. Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby public roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Interim Australian Standard AS 4282-1997 The Control of the Obtrusive Effects of Outdoor Lighting.

37. Sensor lighting must be located in a position so that any movement down the existing central driveway triggers the lighting.

38. The lighting in the vicinity of the car park is to remain on during night hours.

39. A maximum of seven (7) sex workers and a manager shall be employed on the premises at anyone time.

40. A security guard is to be upon the premises between the hours of 7:00pm to 7:00am the following day, on all days. The guard is to regularly patrol the industrial complex throughout the night.

41. Customer access to the premises shall only be from the front entrance adjacent to the roller shutter to the internal car park. All other exits and entry points shall remain locked and secured, and admit staff entry only. This includes fire escapes providing they still operate in regulation with fire safety legislation.

42. All activities associated with the use of the premises as a brothel are to be undertaken wholly inside the premises so as not to be visible in any capacity from any public area.

43. Subject to condition 51, no food or drink is to be sold or given to clients and no skin penetration activities are to be carried out on the premises.

44. The business shall at all times be operated in accordance with the management standards specified within Section 11, Clauses 11.2 to 11 .11 of Part 014 of the Bankstown Development Control Plan 2005, including the provision of condoms and safe sex information in community languages, the licensed disposal of contaminated waste, clean linen and towels. Additionally, the premises and environs shall be well lit at all times and security guards provided if there is evidence that the safety of workers and clients is at risk.

45. All used linen and towels are to be kept separate from clean material and the laundry washer and dryer must be of adequate capacity to meet the maximum demand. A continuous supply of hot water is to be provided under pressure throughout the premises, and the hot water cycle must be used for the cleaning of linen.

46. The sign indicating the name of the operator, the name of the premises and that entry is prohibited to underage persons, as required by Clause 7.3 of Part 014 of the BDCP 2005 must be displayed in a position and be of a size adequate to facilitate viewing by clients.

47. The operation and management of the premises to comply at all times with the Plan of Management dated July 2009 as prepared by Farah Georges (FRG Developments) as submitted with this Development Application.

48. The operation and management of the premises to comply with all relevant requirements of the NSW WorkCover "Health and Safety Guide for Brothels 2001" and the joint NSW Health/Scarlet Alliance document "A Guide to Best Practice; Occupational Health and Safety in the Australian Sex Industry". NB These documents are guidelines and reflect best practice however they are dynamic documents and may be reviewed and amended at any time. Management and staff should ensure that information being given out is up to date.

49. All signs and information posters for staff on health and safety, safe sex practices, cleaning schedules, emergency contacts and evacuation plans are to be clearly visible, updated regularly and displayed in English, Mandarin and other appropriate languages.

50. The premises are not to be used for residential purposes and no sleeping or overnight accommodation is permitted without the prior approval of Council.

51. Tea, coffee or soft drinks to be available to clients at a customer-activated dispenser only. Provision of any bar, kitchen, serving area or counter for the preparation or serving of food or drink to clients is to be subject of a separate application.

52. The garbage bin area indicated adjacent to the laundry on the plans to be naturally or mechanically ventilated to requirements of the Building Code of Australia and/or AS 1668.

53. The garbage bin area to be provided with a cleaner’s sink with hot and cold hose fitting taps and drainage by way of a floor waste for the purpose of general cleaning and washing and cleaning of waste containers.

54. The doorway to the private client waiting room opposite working room No. 5 to be relocated to the opposite end of the wall to improve privacy to clients entering or leaving either room. This alteration to be reflected in the plans submitted with the Construction Certificate.

55. Contaminated Waste to be collected and disposed of to the requirements of Clause 11.10 of Bankstown City Council DCP Part 014. In lieu of yellow medical waste bins in each ensuite and bathroom, one approved container of adequate capacity to be located in the garbage room and serviced as required by DCP Part 14.

56. All advertising in print, internet or other media to carry words to the effect of "Full DA Approval" or the like.

POLICE CONDITIONS

57. Access to the car park needs to be restricted via the proposed security roller shutter. Access through this roller shutter should only be obtained via remote access from the office inside the premises. Staff need to screen all persons and vehicles entering the car park via a video intercom.

58. The installed CCTV system needs to have the ability to record and retain footage for a minimum of 2 weeks. The recorded footage should be stored in a concealed and secure location as it may be a target in the event of a break and enter incident.

59. Lighting should meet minimum Australian and New Zealand Lighting Standards. Lighting objectives relevant to crime and fear reduction are outlined in Australian lighting standard AS 1158 for public streets, car parks and pedestrian areas. This and other standards specify the types and quantities of Iighting that can be used in different applications. It is important that lighting meets this standard to enable the CCTV system to capture footage during the hours of darkness. All costs associated with this work shall be borne by the applicant.

60. The use of EFTPOS transactions should be encouraged to limit the amount of physical cash held on the premises. Banking should be conducted frequently and should be at random times to lower the risk of potential robbery offenders determining the banking schedule.

CITATION:	FRG Developments Pty Ltd v Bankstown City Council [2010] NSWLEC 1228
PARTIES:	APPLICANT FRG Developments Pty Ltd RESPONDENT Bankstown City Council
FILE NUMBER(S):	10363 of 2010
CORAM:	Morris C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Brothel
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Bankstown Local Environmental Plan 2001
CASES CITED:	New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154
DATES OF HEARING:	12 August 2010
DATE OF JUDGMENT:	20 August 2010
LEGAL REPRESENTATIVES:	Mr M Baird, Barrister instructed by Mr S Miller Mr A Seton, Solicitor Marsdens Law Group