Hall v Camden Council
[2012] NSWLEC 1003
•12 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Hall v Camden Council [2012] NSWLEC 1003 Hearing dates: 13, 14 December 2011 Decision date: 12 January 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Directions made for parties to provide amended conditions and plans following which orders to be made in chambers
Catchwords: Development application - brothel Legislation Cited: Environmental Planning and Assessment Act 1979
Camden Local Environmental Plan 2010Cases Cited: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99
Liapis v Camden Council [2010] NSWLEC 1230
Martyn v Hornsby Shire Council [2004] NSWLEC 614
Wei v Parramatta City Council [2010] NSWLEC 1046
Zhang v Canterbury City Council (2001) 115 LGERA 373Category: Principal judgment Parties: Greg Hall (Applicant)
Camden Council (Respondent)Representation: Mr A Seton, Marsdens Lawyers (Applicant)
Mr S Simington, Lindsay Taylor Lawyers (Respondent)
File Number(s): 10697 of 2011
Judgment
This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of an application for a change of use of an office building to a sex services premises, including alterations and additions to the existing building.
The building is located at 1 Kibble Place Narellan, on the corner of Millwood Avenue (the site). The site (Lot 11 DP 834527) has an area of approximately 2,313 sq m, and is used for a vehicle repair station. There are three buildings on the site, a vehicle workshop with three vehicle bays for heavy vehicles, an amenities and vehicle wash down bay shed and office, and the office building the subject of this application. Vehicle access is from Kibble Place and Millwood Avenue. There are nine car parking spaces on the site.
The application proposes an extension to the ground floor of the building and the construction of an additional floor, and fit out to provide a reception area, five waiting rooms, five work rooms (one with disabled facilities), a manager's office and laundry facilities. Access is to be provided by construction of a new driveway from Millwood Avenue, with parking for eight vehicles included in an area separated from the remainder of the site by a 2m high security mesh fence. The entrance to the premises is proposed by a pedestrian ramp from the separate car park area on the southern side of the building. The proposed hours of operation are 9.00am to 3.00am, seven days a week. The application proposes a street number at the front of the premises, and no other signage.
The issues between the parties relate to the impacts of the proposed development on the current use of the site, and the location of the proposed development near land used for recreational and community purposes. The Council contends that the proposal is an overdevelopment of the site because of inadequate provision for parking, and access to and manoeuvring of heavy vehicles on the remainder of the site; the proposal is contrary to the zone objectives because of a likely increase in demand for on street parking, reduction in existing landscaped character, and the design and external appearance of the building; the location of the proposed development is inappropriate having regard to nearby land used for recreational and community purposes; and the development is contrary to the public interest because of its proximity to and impact on land used for community recreational purposes, impact on users of the industrial area, and potential to create anti-social behaviour.
The Council submits that if the proposed development is approved it should be subject to a trial period with review of the extended hours of operation from 10.00pm to 3.00am after 12 months.
Locality
The site is located in the Narellan Industrial Area, and immediately surrounding the site are various general and light industrial land uses. There is a residential area approximately 70m to the west, separated by a fence; there is no pedestrian or vehicle link between the residential and industrial zoned land. To the south on the opposite side of Millwood Avenue is an Australia Post Mail Delivery centre which includes private post boxes, and a parcel pick up window open from 6.30am to 3.30pm Monday to Friday, and a Council depot. At the northern edge of the industrial estate is the Macarthur Regional Hockey Centre comprising hockey fields and a football field. Vehicle access to this facility is from the entrance at the end of Millwood Avenue, approximately 250m to the north of the site, and there is parking on site. It was common ground that the nearest public transport is a bus stop on Camden Valley Way, approximately 950m from the site, and that persons travelling to the hockey field complex from that bus stop would pass the site along Millwood Avenue.
The Council has granted development consent for a proposed country club complex in Porrende Street to the north of the hockey field complex, with parking approved for 275 cars and hours of operation to be 9.00am to 3.00am seven days a week. The site for the proposed country club has a boundary to Millwood Avenue, however there is no direct access, and vehicle access is to be from Porrende Street.
Current use of the site
The applicable development consent for the site (DA257/94) was granted in 1995 for development described as "Plumbing and Draining Contractors Depot comprising commercial premises, mechanical workshop, sand and soil bulk storage areas". That consent approved 9 car parking spaces, being six spaces at the southern end of the office building, and three spaces alongside the materials storage area.
The applicant agreed to a condition of consent for the proposed development requiring modification of the 1995 consent, including a condition reflecting the proposed relocation of the nine car parking spaces on the site.
Photographs taken on the site on 5 September 2011, which form an annexure to Exhibit 4, show parking of heavy vehicles in the designated car spaces, in the egress driveway to Kibble Place, and in the manoeuvring area adjacent to the vehicle repair bays.
Planning controls
The site is zoned IN1 General Industrial under the Camden Local Environmental Plan 2010 (the LEP), and sex services premises are permissible with consent. Under cl 2.3(2), the consent authority must have regard to the zone objectives when determining a development application. The objectives of the IN1 General Industrial zone are:
· To provide a wide range of industrial and warehouse land uses.
· To encourage employment opportunities.
· To minimise any adverse effect of industry on other land uses.
· To support and protect industrial land for industrial uses.
· To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.
· To enable non-industrial land uses that are compatible with and do not detract from the surrounding industrial and warehouse land uses.
Clause 7.6 provides:
7.6 Sex services premises
(1) The objective of this clause is to minimise land use conflicts and adverse amenity impacts by providing a reasonable level of separation between sex services premises, specified land uses and places regularly frequented by children.
(2) Development consent must not be granted to development for the purposes of sex services premises if the premises will be located on land that adjoins, is directly opposite or is separated only by a local road from land:
(a) in Zone R1 General Residential, Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone RE1 Public Recreation, or
(b) used for the purposes of a child care centre, a community facility, a school or a place of public worship.
(3) In deciding whether to grant consent to development for the purposes of sex services premises, the consent authority must consider the impact the proposed development would have on any place likely to be regularly frequented by children.
It was common ground that cl 7.6(3) applies which requires the consent authority to consider the impact the proposed development would have on any place likely to be regularly frequented by children.
At the date of lodgement of the development application the applicable development control plan was the Camden Council Development Control Plan 2006 (2006 DCP). Part F: Chapter 2 of the 2006 DCP contained provisions for Brothels. Clause 3 provides that brothels are only permitted on land zoned General Industrial 4(a) "as shown on Map 1 of this Chapter". Map 1 identifies two areas as "Places where Brothels are Permissible"; the site is not located in either area. Clause 4 Location Parameters notes that development for the purpose of a brothel "must not be carried out if the building or place used for a brothel is located outside the area shown hatched on the map, or adjacent to any property used or partly used for residential purposes".
Clause 5 lists planning matters to be addressed in assessing a development application for a brothel:
The following planning matters are required to be considered in the determination of an application to carry out development for the purpose of a brothel (in addition to any other matter that is required to be considered under the EP&A Act):
(a) whether the brothel is to operate near, or within view from a church, child care centre, hospital, community facility, school, public open space, residential development or any place regularly frequented by children for educational, recreational or cultural activities;
(b) whether the operation of the brothel is likely to cause disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood or other land uses within the neighbourhood involving similar hours of operation;
(c) whether suitable access is available, or is proposed to be provided, to the brothel;
(d) whether a suitable waiting area is provided in the brothel so as to prevent clients loitering outside the building;
(e) whether sufficient off-street parking is available or proposed to be provided, if appropriate in the circumstances;
(f) the design and external appearance of the building and any associated structure and their impact on the character of the surrounding built environment;
(g) the content, illumination, size and shape or any advertisement and distinctive external lighting;
(h) whether the operation of the brothel is likely to cause a disturbance in the neighbourhood because of its size and the number of people working in it;
(i) whether the operation of the brothel is likely to interfere with the amenity of the neighbourhood; and
(j) any other relevant planning matter that the Council considers relevant.
Clause 6 contains a number of specific controls relating to brothels. Those controls include:
- cl6.1(c): "The entrance to and exit from a brothel is not to be within view of any place regularly frequented by children";
- cl 6.2 Amenity: "The operation of the brothel must not affect the amenity of the surrounding neighbourhood because of its size, operating hours, number of employees or clients";
- cl 6.4 Signage; and
- cl 6.7 which provides that consents "may be initially limited to a period of twelve months".
The Camden Development Control Plan 2011 (2011 DCP) came into effect on 16 February 2011. Clause A1.11 provides that it applies from the date of commencement, however "development applications lodged prior to the commencement date may be assessed under the provisions of the Camden DCP 2006".
Part D5.4 of 2011 DCP applies to brothels, and provides:
D5.4 Sex Service Premises
Objectives
1. Provide appropriate planning controls relating to the use of a building or place as a sex service premise.
2. Ensure that sex service premises do not adversely affect the amenity of land used for educational, recreational, residential, service industrial, business, cultural or community purposes.
3. Ensure that sex service premises will not have adverse impacts on the community.
Controls
Note: The land use table and Clause 7.6 in LEP 2010 provides statutory land use controls for sex services premises in the Camden LGA.
1. Development for the purpose of a sex service premise must not be carried out if the building or place is adjacent to any property used or partly used for residential purposes.
2. Sex services premises must not be located near, or within view from a place of public worship, child care centre, hospital, community facility, school, public open space, residential development or any place regularly frequented by children for educational, recreational or cultural activities.
3. The operation of the sex service premise must not affect the amenity of the surrounding neighbourhood because of its size, operating hours, number of employees or clients.
4. The entrance to and exit from a sex service premise is not to be within view of any place regularly frequented by children.
5. A suitable waiting area is to be provided in the sex service premise so as to prevent clients loitering outside the building.
6. The operator of a sex service premise shall ensure proper conduct of patrons exiting the building.
7. Sex workers must not display themselves in windows or doorways of the sex service premise or outside such buildings.
8. The NSW Department of Health should be contacted in regard to relevant health standards for the operation of a sex service premise.
9. Advertising signs and structures are to be discreet and inoffensive. No signs may display words or images, which are in the opinion of the Council, sexually explicit, lewd or otherwise offensive.
10. Any sign should not exceed 0.3m x 0.6m in size (or other dimensions, but of equivalent surface area), and identifies only the name of the person who conducts the business or the registered name of the business.
11. All buildings used as a sex service premise must be fitted with the necessary services and facilities which are currently required for Class 5 buildings (an office building used for professional or commercial purposes) under the Building Code of Australia.
12. The development application must specify the name and residential address of the person responsible for operating the sex service premise. If development consent is granted, a condition of any consent will require written notification to Council of a change of name or address of the nominated operator.
13. All proposals must comply with section B1.8 of this DCP with regard with Trial Periods.
14. In determining a development application for sex services premises, Council consider:
(a) whether or not the operation of the sex service premise is likely to cause disturbance in the area when taking into account other sex service premises operating in the area or other land uses within the area involving similar hours of operation;
(b) the design and external appearance of the building and any associated structure and their impact on the character of the surrounding built environment;
(c) the content, illumination, size and shape or any advertisement and distinctive external lighting;
(d) the operation of the sex service premise is likely to cause a disturbance in the area because of its size, operating hours, number of employees or clients.
It was common ground that the reference in cl13 of the Controls to section B1.8 should read B1.18:
B1.18 Trial Periods
Background
Certain land use types have the potential to have an adverse impact on surrounding land uses due to the nature of the business that they undertake and their proximity to other sensitive land use types. The nature and extent of the impact can often be controlled via the design of a development and the proper ongoing operation and management of the development. This section provides controls relating to the imposition of trial periods in development consents so that the extent of these impacts can be monitored.
Objective
1.Provide controls for the imposition of trial periods for development which is likely to have an adverse impact on surrounding land uses, so that the impact of the development can be monitored.
Controls
1.In the event that Council proposes to grant development consent for the use of premises and the use is to be carried out on, in or adjacent to a residential zone pursuant to LEP 2010, or is to be carried out on, in or adjacent to any sensitive land use and the proposed use is likely to have an adverse impact on surrounding land uses, Council may include as a condition of consent a trial period, for a maximum of 12 months from the date of the issue of the Occupation Certificate.
2.The imposition of a trial period will enable Council to assess the actual impact of the proposed development on surrounding land uses once the proposed development.
3.An application for the removal of the trial period condition should be lodged no less than 60 days before the expiry of the trial period. In determining an application to remove the trial period condition, Council will have regard to the operation of the use within the preceding trial period.
Evidence
The hearing commenced with a view of the site and the locality. Expert planning evidence was given on behalf of the applicant by Mr Michael Brown and on behalf of the Council by Mr Anthony Rowan. Expert evidence on traffic and parking issues was given on behalf of the applicant by Mr Michael Bridgman and on behalf of the Council by Mr Callum Hutcheson.
The evidence included copies of written submissions made to the Council in response to notification of the proposed development (Exhibit 1). Those submissions raised concerns that the proposed development is close to the hockey field which is frequented by children and visitors who drive or walk to the fields and past the premises; devaluation of nearby properties; safety of staff who work in the area; proximity to a residential area; safety concerns for residents; potential for increase in crime; traffic and noise; precedent; and moral grounds.
The Council notified the NSW Police of the development application, and the Safer by Design Evaluation conducted on 25 January 2011 (Exhibit 1 tab 3) concluded that the rating for the proposed development had been identified as Medium Crime Risk. The NSW Police report to Council included general comments on and recommended consent conditions for natural surveillance, lighting, landscaping, territorial reinforcement (including signage), the garbage area, and security and access control measures including alarms and CCTV cameras.
Planning evidence
The main area of disagreement between the planners concerned whether the location of the proposed development was appropriate having regard to the nearby land uses. It was common ground that the development will not impact on the amenity of any residential area. The closest such area is separated by a fence.
The site is some 250m from the entrance to the hockey fields and football field at the end of Millwood Avenue. The planners agreed that the fields are used from February to September for training and competition, and that parking for the users of those playing fields is provided on site. Mr Rowan's opinion was that children reliant on public transport to get to those playing fields would walk past the site, and that the entrance to the premises would be visible to any children travelling to the sporting facility who would pass along the footway or in vehicles to the playing fields. Mr Rowan's evidence was that the post office delivery centre is a destination facility for the general public who could be accompanied by children, and the proposed development would be visible from that centre; and that the Council's animal pound, 100m to the south, is a destination facility for the general public who could be accompanied by children.
The planners disagreed on the appearance of the proposed development in the industrial locality. Mr Rowan was of the opinion that it will have an appearance similar to a two storey face-brick building, and its position on a corner will result in it being visually distinctive from all other buildings in the industrial area. Because it is visually different, and the proposed second storey will be closer to the street frontage, it will be visually prominent and people will quickly become aware of what it is. This heightens the interface and is why it should not be in close proximity with children. He would not have the same concern if the development was in a quieter street. Mr Brown was of the opinion that existing building was approved as an office, and was built for that purpose, and that the industrial estate is eclectic in its architecture.
Mr Rowan considered that the quality and area of existing landscaping would be reduced, partly due to the provision of the new driveway and from the proposed extension of the building. Mr Brown was of the opinion that the only reduction in landscaping is one street tree for a driveway crossing and some minor landscaping which could be replaced with additional landscaping and street trees.
It was common ground that the side access to the building from the staff waiting room included in the development application is not required to meet Building Code of Australia requirements, and the planners agreed that that entrance and the gate in the fence should be removed to enable the premises to be discreet from the vehicle repair station.
Traffic and parking
Mr Bridgman and Mr Hutcheson agreed that there is adequate provision for car parking for the vehicle repair station, and that manoeuvrability of vehicles and heavy goods vehicles within the existing vehicle repair station will be satisfactory. Their joint report provided turning and manoeuvring templates for vehicles 8.8m,12.5m, and 14.5m. They agreed that the proposed development would not directly result in adjacent streets being used for on street parking of heavy goods vehicles awaiting repair, and would not significantly increase on street car parking that would impact on road safety or amenity.
Mr Bridgman provided evidence of traffic and parking surveys conducted on 18 November 2011 from 7.00am-9.00am, and 3.00pm-5.00pm. Mr Bridgman observed no vehicles from the vehicle repair station parked on the street. In the morning up to 20 vehicles including 5 trailers, 1 semi prime mover, 1 boat trailer, 6 trucks and 6 light vehicles were on site. In the afternoon there were up to 15 vehicles including 4 trailers, 1 semi prime mover, 1 boat trailer, 5 trucks and 4 light vehicles on site. There were no pedestrian movements recorded between 7.00am and 9.00am, and 4 pedestrian movements on Millwood Avenue south of the site recorded between 3.15pm and 3.30pm.
Mr Hutcheson and Mr Bridgman agreed that there is adequate provision for car parking for the proposed development, and during the course of the hearing agreed on an amendment to the proposed car parking layout to enable the provision of a disabled parking space that meets Australian Standard AS/NZS2890.6.
Mr Hutcheson gave evidence of the Council's consideration of bicycle paths in the area, and stated that because the country club consent did not include provision for a bicycle path the only opportunity to have one to the hockey fields would be along Millwood Avenue. Mr Hutcheson stated that there is no formal policy or strategy adopted by Council relating to bicycle paths.
Consideration
In considering whether the proposed development should be approved, the relevant considerations include the zone objectives and cl7.6(3) of the LEP. The focus of the Council's submissions was on cl7.6(3), which is considered below. The zone objectives include consideration of whether the proposed use is compatible with and does not detract from the surrounding industrial land uses, and in relation to this issue the focus of the evidence and submissions was on the design and external appearance of the building, landscaping, and whether the location is appropriate for the proposed development, discussed below.
Section 79C(1)(a)(iii) requires consideration of any development control plan. As noted above, the 2011 DCP replaced the 2006 DCP after the development application was lodged, and the 2011 DCP provides that this application could be assessed under the 2006 DCP. The expert planners were of the opinion that the 2006 DCP has the potential to be more onerous than the 2011 DCP, and that from a practical perspective it is appropriate to rely on the provisions of the 2011 DCP.
The primary reason why the 2006 DCP could be considered to be more onerous is the exclusion of the site from the areas marked on Map 1, and the inclusion of the statement that development for the purpose of a brothel "must not be carried out" on land outside the area shown on the map (see [14] above). However, development for the purpose of a brothel is permissible with consent in the IN1 zone, and any provision in the development control plan that purported to prohibit such a use would not be consistent with the LEP: s74C(5) of the Act. This provision should be regarded as an indication of the Council's preferred location for brothels in the industrial area, which would not include the subject site.
In most other respects the provisions of the 2006 DCP and the 2011 DCP are similar. The required considerations are similar, however those at cl5 in Part F: Chapter 2 of the 2006 DCP are framed in terms of matters that are required to be considered, while many of those in Part D5.4 of the 2011 DCP are in more prescriptive terms. The provision for a trial period is expressed differently, however both provide for a trial period for the use for 12 months. In my view it makes no difference whether the proposal is assessed against the 2006 DCP or the 2011 DCP controls, as I am satisfied for the reasons outlined below that the proposed development complies and is consistent with those controls.
The parties referred to the planning principle in Martyn v Hornsby Shire Council [2004] NSWLEC 614, in which the former Senior Commissioner sets out principles for assessing brothels in areas where there are no locally adopted guidelines, reflecting the principle that brothels are a sensitive land use, and their location needs consideration beyond that of mere physical impact. The planning principle incorporates recognition that brothels are a legal land use and that while the aim should be to locate them where they are least likely to offend, the criteria for their location should not be so onerous as to exclude them from all areas of a municipality. The planning principle in Martyn is of limited assistance in circumstances where both the 2006 and 2011 development control plans provide controls for assessment of brothels, in the context where the provisions of the development control plan, while not determinative, are a fundamental element and a focal point of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. In any event, many of the criteria outlined by Roseth SC have been incorporated in the LEP and development control plan controls, including the principle that brothels should not adjoin or be clearly visible from schools or places where children and adolescents regularly gather, and that access to brothels should be discreet and discourage clients from gathering or waiting on the street. To the extent that the planning principle in Martyn assists in determining this application, I am satisfied that the proposed development is consistent with the criteria outlined by Roseth SC.
Design and external appearance of the building
Both the 2006 DCP and the 2011 DCP require consideration of "the design and external appearance of the building and any associated structure and their impact on the character of the surrounding built environment". I agree with Mr Brown that the surrounding built environment is eclectic in character, with a range of building styles and heights as a consequence of the diversity of industrial uses in the locality. The design of the present building reflects its function as an office building. I am not persuaded that the proposed increase in height and reduced setback continuing the style of the present structure, or the provision of security fencing, are such as to result in a building out of character with the surrounding built environment.
Impact on places likely to be frequented by children
Clause 7.6(3) of the LEP requires that the impact of the proposed development on "any place likely to be frequented by children" be considered. The objective of this provision is to minimise land use conflicts and adverse amenity impacts by providing a reasonable level of separation between the sex service premises and places regularly frequented by children (cl 7.6(1)).
The 2006 DCP requires consideration of whether the brothel "is to operate near, or within view from a ... community facility, ... public open space, residential development or any place regularly frequented by children for educational, recreational or cultural activities". The 2011 DCP is more prescriptive, stating (at D5.4 (2)) that sex services premises "must not be located near, or within view from" such places, and (at (4)) that the entrance to and exit from a sex service premises is not be within view of any place regularly frequented by children. The objective of these controls is stated to be that sex services premises not adversely affect the amenity of land used for "educational, recreational, residential, service industrial, business, cultural or community purposes", and to ensure that sex service premises "will not have adverse impacts on the community".
The Council submits that the site is both near to the hockey fields and other places frequented by children, and in a location where children have to pass on their way to the hockey fields, and that those who walk or ride bicycles past the site will have a direct view to the entrance to the premises.
It was common ground that the hockey and football fields are used by children, and that the vehicle entrance is located at the end of Millwood Avenue some 250m from the site. The evidence as the numbers of children who use the playing fields, and who therefore pass the site, comes primarily from the written submissions made in response to notification of the development application. The President of the Macarthur Skylarks Hockey Club in her written objection to the application stated that on a weekly basis "approximately 1000 young hockey players and 500 adult team members and parents drive or walk past the proposed development". Those numbers are confirmed in the written objection made by the Secretary of the Macarthur Hockey Association Inc, who comments that "most children visit the complex at least twice, this means they pass by the suggested premises at least 4 times a week". Mr Rowan's evidence was that the hockey training season runs from February to April and that hockey and football competition runs until September. The Council Assessment Report notes (at p9) that during the hockey season the fields are used until 9.00pm Monday to Thursday, 10.00pm on Friday, 8.00am-3.30pm on Saturday and 8.30am-6.30pm on Sunday. The report also notes that during daytime hours the fields may be used by local schools, however the bookings are not regular and the children are always transported by bus, and continues (at p10):
During the assessment process three inspections took place on various days and included a Saturday between 9.00am and 1.00pm and on a Monday at 4.00pm.
During all times it was observed that all patrons coming into the venue were in vehicles. On the Saturday morning when competition was on and presumably the busiest period, vehicles were parked along Millwood Avenue but not in any location or proximity that a child may be able to adequately view towards, and into, the sex premises.
The other evidence as to pedestrian movements on Millwood Avenue comes in the observations recorded by Mr Bridgman on 18 November 2011. Mr Rowan accepted that he had not observed pedestrians on either of his two visits to the site.
It was common ground that the playing fields are regularly used by children for recreational activities. The Macquarie Dictionary defines the verb "frequent" to mean "to visit often; go often to; be often in", and I accept that using the word in that sense, the playing fields are a place "regularly frequented by children". The entrance to that facility is approximately 250m from the site, however the playing fields themselves are located some further distance away, and the playing fields and parking area are not visible from the entrance at the end of Millwood Avenue. While Mr Brown conceded in oral evidence that 250m could be regarded as "near", based on the view there is nothing at the entrance itself that would make it a place where children might gather, and while part of the building is visible from that location, the proposed entrance to the premises is not. I am satisfied that the proposed development would not operate within view from the playing fields, and given the distance to the playing fields themselves, it could not be said to operate "near" that facility. I am satisfied that there is an appropriate separation between the proposed development and the playing fields.
While there is evidence as to the numbers of people, including children, using the hockey fields between February to September, the evidence before me does not establish that a significant number of young people using the facility would be passing the proposed development on foot. Council officers made three inspections at times considered likely to be those when young people would be going to the hockey fields for training or for competition, and did not observe children walking to or from the playing fields. It was common ground that the nearest bus stop is on Camden Valley Way, approximately 950m away, and Mr Brown's evidence that this distance is greater than one appropriate for someone aged 8 to 15 years to walk by themselves was not disputed.
I am satisfied, based on the evidence of the Council inspections and the distance to public transport, that it is unlikely that a child would pass the site other than by private vehicle or a school bus. I agree with Mr Brown that there is nothing at the site or in its vicinity that would attract children to linger. In those circumstances I am satisfied that while children may pass by the site, most would do so by vehicle, and it is not a place which children visit or go to, and thus is not a place which children "regularly frequent".
I accept the evidence of the planners that the post office delivery centre is used by members of the public to collect parcels and to access private mail boxes. There is no evidence before me to indicate that this facility is attended by unaccompanied children, and the hours of operation and distance from public transport suggest that this would be unlikely. There is no evidence as to the hours of operation of the Council depot, and while it is possible, as Mr Rowan suggested, that children may go there, there is no evidence to indicate that it is a place that children would regularly frequent.
Other impacts
Clause 5(b) of the 2006 DCP requires consideration of whether the operation of the brothel is likely to cause disturbance in the neighbourhood when taking into account other land uses within the neighbourhood involving similar hours of operation. A similar provision is made in cl 14(a) of part D5.4 the 2011 DCP. Mr Rowan was of the opinion that there is a potential for anti-social behaviour arising from operation of both the proposed development and the approved country club between 10.00pm to 3.00am. In oral evidence Mr Rowan stated that his concern was that people would leave the licensed premises and go to the brothel and increase the risk of conflict with management and staff of the brothel. Traffic to and from the country club along Graham Hill Road would pass its intersection with Millwood Avenue within 300m of the proposed development. The proposed development was not envisaged when the licensed premises were assessed and approved and there had not been any assessment of potential future conflict in the event that the premises becomes a destination for intoxicated persons leaving the licensed premises and resultant anti-social behaviour.
Mr Rowan stated that he is not concerned with the proposed hours if the country club is not operating. He recommended that approval of the hours 10.00pm to 3.00am should be for a temporary period only, to cease 24 months after the operation of the licensed portion of the approved country club, subject to a modification application to extend the hours no sooner than 12 months after commencement of the licensed operations associated with the country club. The Council's position is that a trial period for extended hours of 12 months from the issue of an occupation certificate for the proposed development is appropriate.
The issue of whether there should be a trial period consistent with cl 6.7 of the 2006 DCP or cl B1.18 of the 2011 DCP is considered below. Mr Rowan's specific concerns about the operation of the proposed development and the country club for the same hours, which might be relevant for consideration under cl 5(b) of the 2006 DCP or cl 14(a) of the 2011 DCP, are not supported by the other evidence available. In particular, the Safer by Design Evaluation undertaken by NSW Police notes (Exhibit 1, p30) that the evaluation measures "include crime likelihood (statistical probability), consequence (crime outcome), distributions of reported crime (hotspot analysis), socio-economic conductions (relative disadvantage), situational hazards and crime opportunity". The NSW Police report to Council makes no reference to any concerns about the hours of operation, or to any concerns about the operation of the proposed development in the context of the existing hotel on Camden Valley Way or the approved country club. The site is not on a direct route for those patrons leaving the country club using Graham Hill Road, and Mr Rowan accepted that not all patrons leaving the approved country club would need to use Graham Hill Road. I am not persuaded that the evidence supports a conclusion that the operation of the proposed development is likely to cause disturbance in the neighbourhood taking into account the prospective operation of the country club during the hours 10.00pm to 3.00am.
Considering the proposed development against the other controls in the 2006 DCP, it was common ground that there are no other brothels in the neighbourhood; there is suitable access to the brothel; the proposed alterations to the building include provision of waiting areas inside the premises; there is sufficient off street parking; and the only signage will be a street number. Proposed conditions of consent include provision for employment of security personnel between 8.00pm to 3.00am, limitation on the number of sex workers to five; provisions for laundering and changing of linen and provision of safe sex supplies; security for doors and installation of CCTV; and lighting. The controls in the 2011 DCP at D5.4 are similar. Whether the 2006 DCP or 2011 DCP is applicable, I am satisfied that the proposed development is consistent with and complies with the applicable controls.
Landscaping
The proposed development will result in the loss of one street tree to enable the additional driveway access to be provided. Based on the view, the remaining landscaping will screen the entrance to the building for users of Millwood Avenue other than in the vicinity of the driveway entrance, and in particular, from the entry to the hockey field area at the end of Millwood Avenue. The Council accepted that the loss of this street tree would not be a basis for refusal.
Impact on use of the vehicle repair station
The Council contends that the proposed development will lead to an overdevelopment of the site because of the likely impacts on the use of the site as a vehicle repair station. It was common ground that the current use of the site as a vehicle repair station is not an approved use. The evidence before me does not establish when that use commenced, and whether the change from the use approved in the 1995 development consent may have been authorised as exempt development. The Council submits that while the vehicle repair station is not an approved use, it should be considered on the basis that it is an actual use of the site. In support of the submission that even if the present use is unlawful it should still be considered, the Council relied on Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99. The Council submits that potential impacts on vehicle access to and manoeuvring on the site, and the potential need for vehicles to be parked on the street, are relevant matters.
Jonah is authority for the proposition that past unlawful use is not relevant in undertaking a merit determination of whether to grant a development consent, other than in a context where past unacceptable impacts might be relevant in evaluating the likely impacts of a prospective use. Regardless of whether the use of the site as a vehicle repair station is authorised or not, and whether impacts on that use arising from a different prospective use are relevant, the evidence before me does not support a finding that approval of the proposed development would be likely to have an adverse impact on the current use of the site. The evidence is to the contrary, in particular the evidence of Mr Bridgman and Mr Hutcheson that there is adequate provision for car parking on the site for the vehicle repair station; that manoeuvrability of vehicles and heavy goods vehicles within the vehicle repair station will be satisfactory; and the proposed development would not directly result in on street parking of heavy goods vehicles awaiting repair or other on-street parking. Accepting that evidence, the possibility that additional on-street parking for the vehicle repair station may be generated by the provision of separate parking for the proposed development would not in my view be a basis for refusal of consent.
Conclusion
I am satisfied that the proposed development is compatible with and does not detract from the surrounding industrial and other uses, and in its location provides a reasonable level of separation from places regularly frequented by children. I accept that it is likely that the nature of the use of the building will become known to people in the area, including to young people who pass the site on their way to and from the playing fields. However, that knowledge of itself would not in my view have an adverse impact on the use of the playing fields, or on the amenity of other land in the area or on the community generally. I am satisfied that the proposed development is consistent with the specific controls applicable to sex service premises in the 2006 DCP and the 2011 DCP, and that the proposed conditions relating to provision of lighting in the car park area and entry way, CCTV cameras, provision of security personnel, and security and surveillance systems, and the requirement for compliance with the approved Plan of Management, will minimise any adverse impacts that might arise from the proposed use. I am satisfied that the proposed development should be approved.
Trial period
The Council's position is that if the development is approved, it should be subject to a reviewable condition for hours of operation (proposed condition 1.0(2)), which would require that after 12 months after the issue of an occupation certificate the premises would cease operation between the hours of 10.00pm and 3.00am, subject to an application being made for modification of the consent to permit the extended hours to continue.
If that condition is not accepted, the Council submits that there should be a condition as suggested by Mr Rowan, which would permit operation between 10.00pm and 3.00am for a temporary period to cease 24 months after the operation of the licensed portion of the country club. In his opinion a review is appropriate because of the minimal distance from the intersection of Graham Hill Drive, and the similarity of operating hours between the approved licensed premises and the proposed development.
The Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 noted that a condition requiring a trial period could be imposed under s 80A(1)(d) of the Act which provides that a condition may be imposed on a development consent if "it limits the period during which development may be carried out in accordance with the consent so granted", and that the scope and purpose of the Act may be better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not extended beyond the trial period. That discussion was in the context of a development application for a change of use of existing premises, where adverse effects would be readily reversible. While the Council relies on cl B1.18 of the 2011 DCP, it accepts that it is not appropriate to impose a trial period for operation of the premises as a brothel where the development requires financial investment in fitting out the premises for the proposed use (see Liapis v Camden Council [2010] NSWLEC 1230), and is proposing review only of the extended hours of operation between 10.00pm to 3.00am. The purpose of the trial period is stated in B1.18 to enable the extent of impacts on surrounding land uses to be monitored. The assessment report provided to Council recommended the trial period for hours of operation "which may cause a disturbance or interfere with the surrounding area" (Exhibit 1, p 30). Proposed condition 1.0(2) would require assessment of a modification application under s96 of the Act, reviewing implementation and compliance with the Plan of Management, the complaints and incidents register, any comments from Camden Police or from Council's Compliance and Environment Branch, and public submissions.
Evidence in support of the view that adverse impacts on the surrounding locality are unlikely includes the incorporation of the conditions recommended by the NSW Police Safer by Design evaluation into the Plan of Management and proposed conditions; the recommendation by the Council's Community Safety Officer who considered the application and the proposed Plan of Management and commented that there were no issues with the application in relation to public health and safety (Exhibit 1, p 43); and the agreement in the assessment report provided by Council officers to the security measures supervising the immediate area outside the premises and inside the premises contained in the Plan of Management. That report accepts (Exhibit 1 p54) that the presence of Narellan Police Station on Camden Valley Way would allow a relatively rapid police response to address any anti-social behaviour. The planners agreed that the busiest periods for the industrial uses in the area would be between 7.00am to 3.30 or 4.00pm, with some activity continuing until 5.00pm. I am not persuaded on the evidence that in the context of the location of the site, separated from the residential area; the proposed operation after other uses of the surrounding area have ceased; and the provision in conditions and Plan of Management meeting the recommendations of NSW Police, that the imposition of a trial period in accordance with B1.18 of the 2011 DCP, or cl 6.7 of the 2006 DCP, would be warranted. I agree with the Council that a modified form of trial period for the hours of operation between 10.00pm to 3.00am would be appropriate in order to provide an opportunity to review the provisions of, and compliance with, the Plan of Management. Condition 1.0(2) should be imposed in the form sought by the Council.
Conditions
The Council initially proposed the following condition:
1.0(5) Inspection of Sex Service Premise: An inspection fee and charge at the rate allocated in Council's fees and charges levy to be adopted and to be made payable per inspection of the premise and inspected every six (6) months or when Council receives a complaint about the operations.
During the course of the hearing the Council's position changed, and it pressed for the retention of this text as a Note, with minor amendment to the wording. I agree with the applicant that, consistent with the decision in Wei v Parramatta City Council [2010] NSWLEC 1046, if such a fee is validly imposed under the relevant provisions of the Local Government Act 1993 there is no need for it to be imposed as a condition of development consent, and that the reference to it in the form of a Note is not necessary.
The Council proposes condition 1.0(7):
Use of the Site: The remainder of the site subject to Development Consent 257/1994 is to be used as approved by Development Consent 257/1994 or as may be subsequently approved.
The applicant opposes this condition given the inclusion of proposed condition 1.0(6) which sets out the required modifications of development consent 257/1994 in accordance with s80A(1)(b) of the Act. I agree with the applicant that condition 1.0(7) is not necessary, given s76A(1)(b) of the Act and condition 1.0(6), and as drafted by the Council does not take into account the possibility of a lawful change of the use approved in development consent 257/1994.
Conclusion
The proposed development should be approved subject to conditions. Those conditions are to include condition 1.0(2) as proposed by the Council, and proposed conditions 1.0(5) and 1.0(7) are deleted. The following amendments to other conditions as discussed during the hearing are be made: condition 1.0(1A) inclusion of "and door on the western elevation" after "lot"; and condition 1.0(6) new condition 5A inclusion of "or in designated parking spaces" after "site". The Council proposed for condition 2.0(3) the deletion of "the approved plans" and replacement with "exhibit L being the marked up version of Drawing 2895 Issue E". In my view it is preferable in the interests of certainty that Drawing 2895 be amended to reflect the agreement as to location of the disabled parking space.
Directions will be made in consultation with the parties for provision of the amended conditions and plans, after which final orders will be made in chambers.
Linda Pearson
Commissioner of the Court
Decision last updated: 12 January 2012
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