Hong Hang v Holroyd City Council

[2004] NSWLEC 52

Land and Environment Court

of New South Wales

CITATION:

Hong Hang v Holroyd City Council [2004] NSWLEC 52

PARTIES:

APPLICANT
Hong Hang

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

10890 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Deemed refusal of consent for a brothel in an existing mechanics workshop
flooding
unpleasant workplace
need for pollution remediation
Impact on amenity of adjoining house
inadequate plans

LEGISLATION CITED:

Holroyd Local Environmental Plan 1991
State Environmental Planning Policy 55 - Remediation of land
Development Control Plan 3 - Industrial Code and Australian Standard 2890.
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

20/01/2004 and 21/01/2004

EX TEMPORE
JUDGMENT DATE :

01/21/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. J. Galpin
Barrister

RESPONDENT
Mr J. Cole, solicitor
of Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10890 of 2003

Hoffman C

21 January 2004

Hong Hang
Applicant
v

Holroyd City Council
Respondent

Reasons for Judgment

1 . This was a Class One appeal 10890 of 2003 between Hong Hang and Holroyd Council in regard to the deemed refusal of consent for a brothel in an existing mechanics workshop at 179 Military Road Guildford.

2 . The area was an industrial zone 4(b) under the Holroyd Local Environmental Plan 1991 . The use was previously prohibited in that zone but by reason of Amendment 20 to the Local Environmental Plan clause 38 made brothels permissible and no changes were made to the objectives of the zone, which stated:

(a) to encourage the development and expansion of a wide range of light industrial activities which will contribute to the economic growth of and create employment opportunities within the City of Holroyd.
(b) to ensure that industrial development creates areas which are pleasant to work in and safe and efficient in terms of transportation, land utilisation and services distribution.
(c) to allow commercial or retail uses only where they are associated with, ancillary to or supportive of industrial development.


3 . The respondent put that a brothel was not consistent with these objectives and clause 9(3) was mandatory that in such circumstances consent must not be granted. The Court cannot accept that argument as it would implicitly mean that council did not know the ramifications of Amendment 20 when it made brothels permissible.

4 . The Court accepts the applicant’s evidence that a brothel could be seen as consistent with objective (c) in providing a recreational facility for industrial zone workers and others and it was not anathema to objectives (a) and (b).

5 . The applicable controls were, Development Control Plan 1 - Parking, Development Control Plan 25 - Brothels, the Contaminated Lands Policy of Council, State Environmental Planning Policy 55 -Remediation of land. Development Control Plan 3 - Industrial code and Australian Standard 2890.1 1993 - Off-street parking.

6 . The site was 411 square metres in area with frontage of 12.2 metres and a depth of 33.7 metres. It sloped down away from the street by about one metre at the rear. It had on it an existing timber frame shed and carport. The shed had a brick front wall and behind it three rooms slightly elevated above the ground that were originally offices for the mechanic’s workshop. The workshop floor was at ground level and from the site view appeared to be flat on the ground and level just behind the offices, (the previous offices), but then sloped away with the ground slope. There were no levels on the subject plans to show otherwise.

7 . At the rear was a gutter along the back boundary that took all rainwater and drained along the back of the next property to the north, being 178 Military Road, a house with a shed at the rear.

8 . Behind both 179 and 178 was a large concrete walled industrial building set right on the common boundary and fronting Guernsey Street, the next street north. The street numbers in Military Road were consecutive because the opposite side of the street was the railway to Melbourne. On the south side of the site was another concrete walled industrial building set on the boundary.

9 . The issues were:

(1) Non compliance with Development Control Plan 25 - planning controls for brothels, in that the amenity of neighbouring properties and the locality is not protected and the proposal is located on the ground floor.
(2) Whether the proposal complies with the Building Code of Australia in respect of the setback from side boundary and modifications required for disabled access.
(3) Whether the parking proposed is adequate and appropriate having regard to numbers of spaces of the stack parking proposed, the single client’s space and inadequate vehicle manoeuvrability on site, pavement, lighting, reversing movements.
(4) Whether the site has been adequately remediated having regard to its former use as a service station. (I believe that on the evidence that should be mechanics workshop).
(5) Whether the proposal can and should be redesigned so as to enhance its visual appearance, adverse impact of chain wire mesh fencing two metres high surrounding the area forward to the building to Military Road.
(6) Adverse impact on amenity of surrounding area, in particular noting dwelling immediately next door adjacent to two new car spaces with no boundary setback.
(7) Matters raised by resident objectors including noise and traffic.
(8) Inappropriate pedestrian access by use of the driveway.
(9) Inadequacies and inaccuracies with the application and plans including no structural building details, lighting, or remediation, and clause 5 of DCP 25 information, and BCA compliance.

10 . The Court heard the respondent’s evidence from:

• Mr N Butler, owner of the house at 178 Military Road,
• Mr G Falzon, townplanner.
11 . The applicant’s evidence was heard:

• Mr J Boers, townplanner.


12. But there were two expert reports in evidence on contamination from Mr E. Gergis and Mr T Fletcher, they were not required for cross-examination.

13 . The evidence could be summarised as follows:

(1) The brothel had been operating without consent for sometime and the proposal was for six workers, a manager and a receptionist to be on-site at any one time and there would be three shifts a day, 24 hours a day, seven days a week.
(2) The existing internal rooms were generally in accord with exhibit 1 and had been built that way without consent and had five workrooms, various bathrooms and office and reception areas.
(3) The proposed internal layout was in exhibit A and had five workrooms and three waiting rooms and the reception area had been deleted.
(4) There was no proposal to vacate the premises in the development application during construction.
(5) The land was contaminated by the petroleum tank from the previous use and although the site could probably be remediated the experts recommended the site be vacated and locked off until remediation could be done. Also, the pipes from the old tank to the bowser location, some distance away as seen on the view had not been identified as yet, and there could be contamination under the existing building. While bores had been done on the site there were none under the building, so the extent of contamination and necessary remediation was not yet known.
(6) The site flooded in heavy rain due to their being no outlet to the surface and roof water drainage from the rear of numbers 179 and 178 except surcharge across the property at the rear to Guernsey Street. All the roof water drains connected to the gutter at the rear of the site. The evidence was the flood on the site came up halfway along the building and the rear section of the old workshop being at ground level also flooded. This would mean two work rooms, two waiting rooms, a disabled persons bathroom, the staff room and staff shower and toilet and the laundry and garbage area including the backyard would have water over the floors and surfaces. Nothing in the proposal indicated that this situation would change.
(7) The adjoining house at No. 178 had full view of the side driveway and the two entry doors to the brothel from its dining and kitchen windows and its rear verandah. The whole area was floodlit at night and the coming and going of brothel customers and possibly cars would occur on a 24 hour a day basis seven days a week. The tenant of the house had young children who visited regularly at weekends and school holidays.
(8) The existing building would need considerable amount of work as yet unknown in its full extent in order to comply with the fire regulations and the building code of Australia. The full extent of these works was not shown on the plans, in fact there were only plans and no elevations or sections or levels or many other matters required by statue and/or development control plan to be provided with a development application such as this. Just some examples were: the timber-framed south wall was in large part less than one metre from the boundary with No. 180 Military Road and was timber-framed. For fire regulations it should be masonry or water drenched, also many rooms were shown without windows but there were no details of how they would be lit or ventilated.


14 . In considering the evidence and the applicable controls the Court has concluded that while the industrial zone, in general, is a good location for a brothel, any specific development application must have regard to its adjoining land uses.

15 . The house at No. 178 is a constraint to which the brothel has had little or no regard. The 24 hour operation of the brothel must have an adverse affect on an already limited amenity of the house being in an industrial zone. Mr Butlin said “At least the brothel should have its driveways and entries on the opposite side of the allotment to the house with the building in between.”

16 . The council’s evidence was that the non compliances with the Building Code of Australia and the Fire Regulations, and the occasional flooding of the mechanics workshop, indicated that its conversion to a brothel was an inappropriate change of use. The adverse amenity impacts on the neighbour only confirm that. The council expressed the view the building really needed demolition and a new structure if it was to be a brothel and not based on the subject plans.

17 . The Court agrees with the respondent’s evidence and finds that the proposal fails on the evidence in regard to issues (1), (2), (4), (6) and (9) and fails to be consistent with the objective (b) of the 4(b) zone of the Holroyd Local Environmental Plan 1991 .

18 . The orders of the Court are:
1 The appeal is dismissed.
2. The exhibits are returned to the parties except exhibit 1, 10, A and C.
_______________________
K G Hoffman
Commissioner of the Court
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