Huang v Parramatta City Council - [2009] NSWLEC 1401

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Huang v Parramatta City Council [2009] NSWLEC 1401
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Uky Huang
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10174 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- Brothel, parking, public interest, hours of operation.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan 1997
Sydney Regional Environmental Plan No 28

CASES CITED: Wei v Parramatta City Council [2008] NSWLEC 1157
Zhang v Parramatta City Council [2004] NSWLEC 199
Terrace Tower Holdings Pty Ltd V Sutherland Shire Council (2003)129LGRA 21
New Century Developments Pty Limited V Baulkham Hills Shire Council [2003] NSWLEC154
Martyn v Hornsby Shire Council [2004] NSWLEC 614.

DATES OF HEARING: 27 August 2009 and 3 September 2009

DATE OF JUDGMENT:
30 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Doyle (barrister)
SOLICITOR
Australian Town Planning Consultants 2 Pty Ltd
RESPONDENT
Mr P Marincowitz (solicitor)
SOLICITOR
DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

30 November 2009

10174 of 2009 Uky Huang v Parramatta City Council
JUDGMENT

Introduction

1 This is an appeal against the refusal by Parramatta City Council of a development applicant for the alteration and use of a building at 22 Brodie Street, Rydalmere as a brothel.

2 The issues raised in this appeal include: parking and vehicular access, the hours of operation and the number of sex workers and the public interest.

3 Following a consideration of the evidence, submissions and relevant matters under section 79C of the Environmental Planning and Assessment Act 1979 I approve the application in accordance with the plans in option B subject to conditions.

The proposal

4 The Court has allowed two amendments to the plans in this Class 1 appeal: firstly, on 21 May 2009 which I describe as the option A plans and; secondly, on the morning of the hearing which I describe as the option B plans. The plans in option A provide at ground floor a gross floor area of 163.71 m2 with 3 workrooms (including a disabled workroom) and 5 waiting rooms and a car-parking layout providing for 5 cars and; option B provides at ground floor a gross floor area of 154.71 m2 with 2 workrooms (including a disabled workroom) and 4 waiting rooms and a car-parking layout for 6 cars.

5 Both options result in a reconfiguration of the layout on the first floor.

6 The application was further amended at the hearing when the applicant agreed to the imposition of conditions to:

reduce the number of sex workers onsite at anyone time from 12 to not more than 10 and not more than 8 between the hours of 8.30 am and 5.30 pm,
to designate 3 of the car parking spaces for the exclusive use of patrons and; as suggested by council's strategic crime and corruption officer continuous recording (by real time video surveillance) of the entry area of the premises during trading and 30 mins thereafter and to display signs advising the area is under video surveillance.

7 Despite these changes, the Council maintains its objection to the application at the hearing.

The site and surrounds

8 The site is on the north-western side of Brodie Street which is a cul de sac and is within walking distance to Rydalmere Station and Victoria Road. It adjoins a council reserve and another vacant lot, which is owned by Rheem Australia Pty Ltd, which is a working lot for the storing and manovering of trucks connected to the large manufacturing plant at the end of the cul de sac. At the rear of the site is bushland adjacent to Subiaco Creek. An empty two-storey building with two onsite car spaces, previously used for the assembly of engineering parts, is erected on the site and it is this building the applicant proposes to alter and use as a brothel.

9 The site is not within view of any residential properties, churches or schools although Western Sydney University is in the locality but has no direct access to the site. There are currently 4 approved brothels operating within this industrial precinct the closest being 19A Brodie Street some 200m north of the site toward the station. That brothel was approved by the Court on 26 May 2008 (Wei v Parramatta City Council [2008] NSWLEC 1157) It is a smaller brothel above a shop with a maximum of 2 sex workers with no off street parking and operates 24 hours a day seven days a week.

10 Directly opposite the site is a marine repair business and a bridal hire car business. Generally, the area has industrial development apart from the local shopping strip near the station.

Planning Controls

11 The parties agree that Sydney Regional Environmental Plan No 28 - Parramatta applies to the site, as does Parramatta Local Environmental Plan 2001, but the consequence of Clause 5(5) of the LEP is that SREP28 prevails to the extent of any inconsistency.

12 Located within the Rydalmere Precinct the site is zoned Trade & Industry Support under Sydney Regional Environmental Plan No 28 - Parramatta. The zoning map of the PLEP 2001 contains a notation referring to SREP 28 with respect to the site.

13 The relevant sections of the SREP 28 are:

14 The planning aims of the Rydalmere Precinct in clause 40 of the SREP are diverse and apply to many uses however, the applicant's planning evidence is that this development will satisfy the following aims:

(c) increase an opportunity for commercial development in close proximity to public transport.

15 I accept that the abovementioned planning aims of the SREP are satisfied because the evidence is that the development site is within walking distance to the train and bus routes and will provide employment for 12 staff including sex workers, reception and cleaning staff and security personnel. The Council traffic experts says that given the nature of the use the likelihood of public transport being used by the staff or patrons of the brothel is slim, however, the opportunity to use public transport is all that is required to satisfy the planning aim of that control.

16 The objectives of the Trade and Industry Support Zone are listed in clause 40(1) of the SREP28. The applicant submits objective (a) and (b) are satisfied by this application because it will provide an opportunity for a business that supports the commercial and industrial activities of the primary centre and, it will provide an opportunity for small scale business development. I agree that this application satisfies those zone objectives in SREP 28.

17 The applicant says that the proposal satisfies the location requirements in Clause 24 of the PLEP however, Clause 79 of the SREP28 overrides that control in the PLEP and provides a list of matters that I must consider when determining an application to carry out development for the purposes of a brothel it provides:

18 I will deal with the specific matters in clause 79 (a), (b) and (c) later in this judgment. However, in dealing with clause 79(d) I must ask the following question.

Does Parramatta Development Control Plan 1997 apply to the site?

19 The council submits that Parramatta Development Control Plan 1997 (Brothels) applies to the site and is a relevant consideration particularly sections: Part 2.1-Location, Part 2.2-Access and Layout of the Premises, Part 2.3 Parking, Part 2.4 Hours of operation, part 2.5 Size of Premises, Part 2.8Health and Building.

20 The reasoning behind this submission is outlined by council's planner in the joint report she states " ... the site was formerly subjected to PLEP 2001 and PDCP 2001, which when it was gazetted, rescinded the application of the Brothels PDCP 1979 to the subject site. However, Amendment 7 of SREP 28 rezoned the Rydalmere precinct, which included the subject site to become part of SREP 28. As PDCP2001 was never applicable to the areas subjected by the controls of SREP28, the Brothel PDCP 1979 remains applicable to the subject site ... despite the fact that Parramatta DCP 2005 repealed all DCPs applying to land within the Parramatta local government area."

21 The applicant strenuously opposes the application of PCDP 1997 to the site and submits consideration of its provisions in my assessment of this appeal would be a grave error of law.

22 The applicant submits that Parramatta DCP 2001 was repealed by Parramatta DCP 2005 and that such repeal was complete and irrevocable The applicant relies on section 30 of the Interpretation Act 1987 which provides:

revive anything not in force or existing at the time at which the amendment or repeal takes effect, or
affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule.

23 In support of its position that the PDCP 1979 does not apply the applicant relies on the current section 149 certificate for the site which makes no reference to the application of the Parramatta DCP 1979 or any other DCP. It clearly refers to the application of Sydney Regional Environmental Plan No 28 - Parramatta (as amended). Council concedes that this is an omission, which is to be corrected by the issue of a new certificate.

24 The case was conducted on the basis that I would make a ruling about the application of the Parramatta DCP 1979 at the conclusion of the hearing, Accordingly; I allowed evidence, cross-examination and submissions to cover the application of DCP 1979.

25 After consideration of this issue of the application of the PDCP 1979 I am of the opinion that the PDCP 1979 does not apply to the site. I accept the submission of the applicant that it has been repealed in its entirety by DCP 2001 .It is important to be able to have confidence in the certainty of the planning process and if the law repeals a control in respect of a site it is not able to be resurrected without a deliberate act by the Council to reintroduce the control. Nothing stops council adopting a development control plan in similar if not the same terms of a repealed instrument but there is a planning process, which must be followed and there is no evidence that Council has adopted such a DCP. The Council says that the site was excluded from the SREPP map and thereby PDCP2001 never applied so logic follows that PDCP1979 remains in force for the site despite its repeal in respect of other sites. Based on the evidence this is A difficult construction of the planning regime for this site.. The applicant's submission is supported by the fact that the council issued a section 149 certificate for the site which makes no reference to the PDCP 1979. To accept Council's position I need to accept the submission that the site is outside the area and that means the repealed control still applies. I am unable to accept Council's submission on the evidence submitted

26 However, if I am wrong at law, based on my merit assessment of this particular amended application under section 79C of the EPA Act I am of the opinion that this development achieves the objectives of the locality control in 2.1 of the PDCP1979 because it is sensitively located so that it does not create adverse social impacts or offence to the community at large; or result in any other adverse environmental effects. Any numerical non compliance with any other provision of the PDCP1979 is able to be justified on the evidence and the principles in: Zhang v Parramatta City Council [2004J NSWLEC 199. and would not warrant refusal of this application.

27 It is useful to consider in some detail the assessment of the original application, particularly, the assessment report prepared by council's planner on 7 April 2009 because it demonstrates how the amended plans before the court address the issues raised by the Council. It also explains why the council's town planner and engineer had difficulty in maintaining their objection to the amended application during their oral evidence at the hearing.

Council's assessment of the original plans in DA/48/2009

28 The development application DA/48/2009 was lodged with the council on 2 February 2009 and was notified in accordance with council's policy. Two submissions objecting to the application were received including a petition with 100 signatures from Holy Church, Rydalmere and the other from Rheem Australia.

29 Father Lamont from Holy Church Rydalmere and Mr Wicks' (manager of financial reporting and analysis) at Rheem attended the hearing to tell me why they oppose the application even in its amended form. I will refer to their oral evidence and that of the other objectors gave oral evidence at the hearing under the heading of public interest later in this judgement.

30 However, their written submissions are discussed in council's assessment report dated 7 April 2009 and they raise the following issues:

Council's planner comments in the report dealing with the application dated 7 April 2009 "given that the brothel is within close proximity to another brothel at 19A Brodie Street and 5 other similar premises, the proposed 24 hours, 7 days a week operational hours and comments received from council's crime and Corruption Officer, a brothel on the subject premises is not considered to be in the public interest."

"Community values, whilst not a consideration under section 79C of the EPA Act, public interest can be considered as part of this assessment. As such, on the basis of comments made by council's crime and corruption officer, the extensive hours of operation and those 5 similar brothels are operating within close proximity, that the proposed brothel would not be in the public interest."

"Council policies do not stipulate any restrictions to brothels being located adjoining a public reserve. However, council's crime and corruption officer states that the isolation of the premises will result in the 'stand out feature "and therefore draw increased attention on the brothel.

"The brothel DCP prescribes 1 parking space for every 2 employees. The application proposes 14 employees including a reception and cleaner and therefore requires 7 spaces. However, the maximum car parking provisions of the SREP is applicable to the site and as such overrides the requirements stipulated in the Brothels DCP. Accordingly, whilst there are no specific parking provisions for brothels, the parking provision for commercial premises are applicable. The SREP requires 1 space per 50m2 GFA and as the gross floor area of the premises is 356.73m2 a maximum of 7 spaces can be provided. The plans indicate 7 parking spaces are provided and are therefore compliant with the parking provisions of the SREP."

31 Then she quotes the council's traffic engineer who refers to the objectives of the SREP 28 parking control, which is to encourage the use of public transport. However, the traffic engineer qualifies his assessment because of the proposed use and likely hours and comments the "…relatively low frequency of public transport late at night and the unlikelihood of the patrons of the premises to use it…” coupled with the fact he assesses that the nature of the use is "seen as high risk premises due to their social influence and impacts on crime it is preferred that a majority of the activity including parking for the development is accommodated onsite. He assesses that the development is only likely to accommodate 3 to 4 cars spaces onsite which are AS 2890.1-2004 compliant and that would not cater for the employee and/or peak visitor numbers during late evening hours. On that basis he assesses that the proposal is an overdevelopment of the site and affects the traffic in the vicinity so he recommends a reduction of employee numbers to 8 employees with he suggests a reduction in parking demand. This he says would still comply with the max number of car spaces as required by the SREP of 7 based on the GFA.

32 The planner then adopts the traffic engineer's assessment and concludes that a reduction in the number of employees is necessary to address the parking demands of this development. However, because at that stage there had been no amendment to the application to reduce the number of employees the council assessment officer concludes, "The proposed brothel cannot be supported".

33 In summary Council's assessment report recommends a reduction in the employee numbers to 8 and onsite parking up to 7 spaces with spaces compliant with the Australian Standard. If those amendments had been made the council's planner and traffic engineer, it would appear have recommended approval of the application on those issues at least. The report states "It is recommended that the applicant reduce the maximum number of employees onsite to 8 employees. This reduction in the number of employees permitted on site would reduce the traffic generation and the parking demand from the proposed development ... however, as the plans have not been amended, the proposed development cannot be supported."

The Amended Application

34 The amended application, which I describe as option B adopts many of council's recommendations. I accept the evidence of the applicant's expert Ms Marshall that the amendments in option B together with a reduction in the number of sex workers on site to a maximum of 10 at any time and up to 8 on site during normal work hours between 8.30 to 5.30 (and receptionist/cleaner and security) overcomes any concern that this is an over development of the site as suggested by Council's experts. This amendment reduces the intensity of the use during normal business hours and reduces the possibility of conflict with the amenity and street parking requirements of other businesses operating in the locality. The amended plan option B increases onsite parking to 6 spaces by reducing the ground floor area of the development and nominates 3 Australian Standard compliant onsite spaces to be designated for use by the development's patrons. These amendments in my opinion address council's concerns in respect of internal amenity of the development by reducing work rooms on the ground floor and increasing onsite parking for patrons and staff.

35 Essentially, the amended application proposes a smaller brothel with fewer sex workers and more onsite parking. The use is permissible in the zone and onsite parking for 6 cars is proposed by the option B plan. The joint planning report records that the experts agree that Clause 57 of SREP28 contains the relevant planning controls in relation to the provision of car parking. Clause 57 of the SREP provides a maximum number of parking spaces. It does not contain any standard for Brothels but it does contain standards for commercial and industrial uses. The amended plan option B in providing 6 spaces with 3 for patrons on the evidence satisfactorily complies with the max requirement of 7 in SREP28, which is based on the GFR.

36 At its worst the parking provided in option B is one short of the max control for parking under SREP28 which the traffic expert say is the applicable control for parking on this site. However, if the number of sex workers on site during normal work hours is a max of 8 that fact coupled with the evidence of existing street parking (which was confirmed by the view) leads me to conclude that the parking generated by this development is adequately dealt with by the proposal in option B and existing street parking. Furthermore, I heard oral evidence from council's planner and engineer that the amended application in their opinion satisfies the SREP 28 planning and traffic controls and an assessment under section 79C of the EPA ACT apart from the public interest.

37 The case then turns on the remaining issue of whether the application should be refused on the ground of the public interest.

38 The New South Wales Police Rosehill Command gave evidence at the hearing and Senior Constable Carn spoke to the police's written submission tendered in the hearing. His evidence centred on the prevention of crime. He told me that a brothel is a cash business and thereby prone to robbery and criminal activity. He told me of his experience of criminal activities at other brothels and his concern that this brothel would also encourage that type of crime. He spoke of assaults on patrons at other brothels and a desire to avoid a proliferation of brothels in an area to avoid a "red light district". His evidence is that there are already enough brothels in this area and he does not support this application on the basis of the public interest. However, he did not give any evidence of any specific criminal activity relating to this application. He expresses concern for the workers for example from Rheem walking past the site at night on their way to the station. But he gave no evidence to support a finding that their safety is more at risk if this particular brothel is approved.

39 I accept his concern that a cash business like brothel may be a target for robbery and assault. However, the conditions attached to the consent include closed circuit video surveillance cameras installed at the entry of the premises operating throughout trading hours and thirty minutes thereafter (condition 23), and signs to be displayed indicating the area is under video surveillance, and the plan of management provides for a back to base security system. These conditions attempt to deter robbery and assault and to control entry to the premises, and to record on video any criminal activity. Ensuring that the applicant complies with this plan of management is the real issue.

40 Council's crime and corruption officer Mr Mamouszelos provided a comprehensive report to the court on the issue of criminal activity and the connection with brothels in NSW. He gave sincere and informed evidence about his extensive experience with criminal activity concerning brothels in NSW and the council's area. I appreciate his expertise in this subject and his evidence was very useful in formulating security conditions for the consent and the security measures to be incorporated in the plan of management. However, as he appreciated while giving his oral evidence this is a permissible use in this locality and without specific evidence to relate a crime to this development a planning court has no power to refuse an otherwise acceptable development based on an assessment under section 79C of the EPA Act. The evidence is that he was not able to provide specific evidence about a connection between criminal activity and this application for a brothel. Although he was concerned about a clustering of brothels and an increase in criminal activity in this precinct as a consequence of an approval of this brothel again but he was not able to produce evidence to support such a conclusion.

41 I have no doubt that council's crime prevention officer's conclusion that a clustering of cash businesses such a brothel invites a criminal element but he only offers informed general views with no specific connection with this site. I appreciate it is very difficult if not impossible to link criminal behaviour to a particular site however, without such site-specific evidence I have no basis to accept that approval of this application will result in more crime in this area. The fact that this brothel is within the vicinity of 4 approved brothels is not of its self-unacceptable when council has no specific policy or control, which precludes this level of clustering. Even applying council's PDCP the control in that instrument only precludes brothels within 100m of each other and there is no brothel 100m away from this site.

42 Ms Croft, an academic with considerable research and practical experience in the study of brothels and working girls, gave evidence that based on her research the refusal of a brothel, on a permissible site, on the basis that it will avert criminal activity is a misguided belief. Her evidence is that the refusal of the development of brothels only encourages the operation of illegal brothels and based on her research that is more likely to attract a criminal element and generate more crime. Her evidence was logical and informed and supported an approval of the use as proposed.

43 I will deal with the evidence of the objectors who attended the hearing as there evidence is generally concerned with issues of safety and increase in crime and loss of street parking.

44 According to the evidence of Mr Wicks's, who is the manager of financial reporting and analysis at Rheem ,the large manufacturing plant at the end of the cuI de sac in Brodie Street; his company employs about 600 staff (who work 2 shifts of 300 am and pm) and some of those staff will walk past the brothel to get to public transport. He expressed concerned for their safety as he anticipated that if the brothel is approved there will be an increase in crime such as robbery or assault .He was also concerned that some of the patrons from the brothel might park in the Rheen lot next door or park to block its entry and exist gates. He spoke to the company's written objection lodged with council and opposed the development. It was clear from his evidence that parking for the Rheem employees is satisfied by the extensive carparks on site. The vacant lot (working lot for trucks) next door is fenced and gated and I do not accept that patrons would be able to access a locked vacant lot or block the gated entry and exist. I am of the opinion the conditions and amended plan of management will assist to address his parking and safety concerns for his employees.

45 Directly opposite the site is a marine repair business which employees 6 employees and has 5 onsite parking spaces. Mr Bamford of GRE Marine gave evidence of his concern about the impact of the development on street parking. He told me that his business requires that repair and movement of boats in and out of his workshops opposite the site. He said he currently uses the street to park his boats and does not want to lose existing street parking, which he says is already tight. He opposed the development.

46 Next to the marine shop is Silvercar Wedding Cars, a bridal car hire business and show room. According to Mr Collins the owner of that business, twice a week between 6.30 am and 9.30 pm about 6 to 10 couples attend his premises to inspect his hire cars. He is concerned that the brothel use will offend his customers and have a negative effect on his business. He told me that the applicant's site had recently been used illegally as a brothel and during that time he noticed a loss of on-street parking, which he believed, was taken by the brothel patrons' parking on the street.

47 Father Lamont, a local catholic priest, gave evidence against the development on behalf of the Church and associated school. His objection was based on moral grounds and a concern for a proliferation of brothels in this area, which is in his opinion, sends a sad message to the community. He referred to the petition lodged by the parishioners of the church a copy of which is in the evidence submitted by council.

The case law on the ground of the public interest

48 The refusal of an application on the grounds of public interest is a consideration in section 79C of the EPA Act that I am required to consider. The Court of Appeal has held that environmental planning instruments are not the "only means of discerning planning policies or the "public interest' Terrace Tower Holdings Pty Lld V Sutherland Shire Council (2003)129LGRA 210. However, I cannot blindly accept the subjective fears and concerns expressed in the evidence as the basis to refuse an otherwise permissible use. Whilst such views must be taken into account, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area or adjoining development New Century Developments Pty Limited V Baulkham Hills Shire Council [2003] NSWLEC154 Lloyd J. While I do not discount the genuine and honest concern of the council's strategic crime and corruption officer and the police to discourage an increase in criminal activity in this area there is no evidence before me to support a refusal of this application on that genuine and honest belief. Much of the evidence was based on an apprehension or fear of an increase in criminal activity with no evidence of that fact relative to this application. While there are 4 other brothel in the vicinity they cannot be seen from this site and the nearest is some 200m away. Council has no anti clustering of brothels control to preclude this development. Even the PDCP1979 controls (if they were applicable) in respect of location would be generally achieved by this application. I do not accept that the proximity of the university is a reason to refuse the application .1 do not accept that their is any need to consider the impact of this development on students at a university generally over the age of 18 years the same way I might have regard to a school or other sensitive land uses such as a church. There is not evidence before me to support the proposition that shift workers walking past the site to get to public transport are at any risk of assault or crimes if this application is approved. The council reserve adjoining the site has no seating and the evidence is that workers often eat their lunch on the grass this use will not adversely impact on that activity without signage indicating a brothel it would be difficult to distinguish it from another commercial use in the industrial precinct.

49 There is much case law concerning the approval of brothels and the parties have referred me those relevant cases. It is useful to cite the planning principal of the Court in respect to brothels formulated by the former Senior Commissioner Roseth in Martyn v Hornsby Shire Council [2004] NSWLEC 614.

"Planning principle: location of brothels

The following are criteria for locating brothels:

Brothels are

a

legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality.

50 The planning principal invites a consideration of criteria for locating brothels and on the evidence in this case that consideration supports the approval of development for this brothel on this site.

51 As required I have considered the matters listed in clause 79 of the SREP28 and based on the evidence and submissions have determined that the operation of this brothel (subject to the amended plan option B and the conditions together with the plan of management) is not likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation or clients or the number of employees and other people working in it - clause 79(a). This is an industrial precinct and the neighbourhood has no sensitive uses such as a church or school for children. The brothel has been reduced in floor area on the ground floor and a workroom has been removed at that level. Parking has been increased and the number of sex workers in normal working hours restricted to 8 and increased to a max of 10 at other times. The brothel will have 2 other employees onsite to ensure that the operation is in accordance with the conditions and plan of management. There is no evidence that this brothel will cause any disturbance in this neighbourhood.

52 Its operation is unlikely based on the evidence to interfere with the amenity of the neighbourhood- clause 79(b) because this is an industrial area with no sensitive uses near or within view of the site and the amended plans together with the conditions and plan of management will increase onsite parking, reduce the number of sex worker during business hours and will offer increased security for workers and patrons of the development.

53 There is no evidence that the operation of this brothel will be likely to cause a disturbance in the neighbourhood when taking into account other brothels in the neighbourhood - clause 79(c). The nearest brothel is smaller and some 200m from the site the evidence is that there are 4 other brothels in the locality. There is no evidence before me to connect the operation of this proposed brothel to any other brothel such as to find that its approval is likely to cause a disturbance in the neighbourhood.

54 I have considered other environmental instruments as required by clause 79(d) of the SREP28 and have determined that the amended plans together with the conditions and the plan of management make this application suitable for approval based on the amended plans option B and the applicant's version of the conditions of consent.

Time limit on the consent

55 The applicant has agreed to a condition requiring that the premises be operated in accordance with the plan of management which is exhibit Land that plan of management is to be submitted to council prior to the commencement of the use. I accept that this is appropriate however; council also asks that I impose a limited consent by way of a trial. The evidence does not support the imposition of a limited consent or trial period. I am of the opinion that the safe and orderly operation of the premises is ensured by the amended plans and the conditions and plan of management.

56 The works to the building in accordance with the approved plans option B with require the applicant to carry out renovations which will be at some expense. After such expense it would be unreasonable in my view to impose a limitation on the operation of the consent without evidence to justify such an imposition. There is no evidence to support a time limit to the consent or a trial period. The council has opportunity to take enforcement action in the event of a breach of the conditions or the plan of management.

Hours of operation

57 Council's planner submits in her joint report that the 24-hour operation of the brothel is excessive and conflicts with the operational hours of the adjoining industrial premises and therefore interferes with the amenity of the neighbourhood as per the comments of the Council's Strategic Crime and Corruption Analyst. However, in concurrent evidence she accepts that the brothel at 19A Brodie operates 24 hours and is not aware of any interference with the amenity of the neighbourhood arising from that 24-hour operation. Furthermore, the applicant agrees to a condition, which reduces the number of sex workers during the day between 8.30am till 5.30pm, and this no doubt will improve the amenity of surrounding businesses in these normal working hours. There is no evidence to support that this site should not operate 24 hours. Again in the event of a breach of the conditions of consent or the terms of the plan of management council has the opportunity to take enforcement action requiring compliance.

58 The application before me is a permissible use and I am satisfied that the amendments made during the course of the hearing to the plans which reduce the number of work rooms and number of sex workers on site at anyone time, increase the onsite parking, increase safety measures together with the conditions and plan of management make this application acceptable for approval having regard to the matters in section 79C of the EPA ACT 1979.

59 The Orders of the Court are:

1 The appeal is upheld.
2. Development consent is granted for the development of a brothel at 22 Brodie Street, Rydalmere, DA 48/2009 in accordance with the amended plans filed in the proceedings prepared by Lyle Marshall and Associates Pty Ltd, dated 12 May 2009 with the proposed ground floor drawing 5831-09 -07 Issue B dated 21 August 2009 and subject to the conditions as amended by the applicant and the Plan of Management Exhibit L as amended by this judgment.

___________________

S Dixon
Commissioner of the Court
Ajl/ljr

Annexure ‘A’

Conditions of Consent

Uky Huang v Parramatta City Council

General Matters:

1 The development is to be carried out in compliance with the following plans and documentation listed below, except where amended by other conditions of this consent:

Architectural Drawings

No	Rev	Title	Author	Date
5831-09-02	A	Existing Site Plan	Lyle Marshall and Associates Pty Ltd	12 May 2009
5831-09-03	A	Existing Ground Floor Plan	Lyle Marshall and Associates Pty Ltd	9 May 2009
5831-09-04	A	Existing First Floor Plan Level A	Lyle Marshall and Associates Pty Ltd	12 May 2009
5831-09-05	A	Existing First Floor Plan Level B	Lyle Marshall and Associates Pty Ltd	12 May 2009
5831.09-06	A	Existing Section A-A	Lyle Marshall and Associates Pty Ltd	12 May 2009
5831-09-07	B	Proposed Ground Floor Plan showing 6 carparking spaces	Lyle Marshall and Associates Pty Ltd	21 August 2009
5831.09-08	B	Proposed First Floor Plan Level A	Lyle Marshall and Associates Pty Ltd	21 August 2009
5831-09-09	A	Proposed First Floor Plan Level B	Lyle Marshall and Associates Pty Ltd	12 May 2009
5831-09-10	A	Proposed Section A-A	Lyle Marshall and Associates Pty Ltd	12 May 2009

Documents

Title	Author	Date
Statement of Environmental Effects	John Boers Consulting	February 2009
Plan of Management	John Boers Consulting	December 2009

The Use of the Site:

2 A plan of management is to be submitted to Council prior to the commencement of the use. The plan is to include the following details:

proof of ABN and GST registration for the business;

proof of workers compensation insurance and any necessary public liability insurance.
If there are changes to the operator, owner of the business, a new Plan of Business Management is to be submitted to Council prior to the commencement of the new operator, business owner.
Reason: To ensure that the development complies with the development consent.

3 The hours of operation of the subject premises are 24 hours seven days per week.

4 Staff members not involved in the provision of sexual services are to be suitably trained in the use of fire fighting equipment (i.e. portable fire extinguishers). A trained staff member is to be present on the premises at all times during brothel operation.

Reason:

5 The number of sex workers employed at the premises is not to exceed 10, and is not to exceed 8 between the hours of 5.30am and 8.30pm.

Reason:

6 The number of client service rooms is not to exceed 10.

Reason:

7 [DELETED]

8 Traffic facilities must be installed (such as; wheel stops, bollards, kerbs, signposting, pavement markings, lighting and speed humps) in compliance with AS2890.1-2004.

Reason:

9 Clear sight lines shall be provided at the property boundary line to ensure adequate visibility between vehicles leaving the carpark and pedestrians along the frontage road footpath in compliance with Australian Standard AS2890.1-2004 – Figure 3.3. The required sight lines to pedestrians or other vehicles in or around the site should not be compromised by the landscaping, signage fences, walls or display materials.

Reason:

10 Six (6) on site car parking spaces are to be available. The three spaces outside the building are to be for the exclusive use of the patrons of the premises at all times.

Reason:

11 [Deleted]

12 The display or erection of any advertisement or signage external to the premises or visible from a public place is strictly prohibited without further development consent first being obtained.

Reason:

13 The direct retail sale of goods including sex toys and products from the site is prohibited.

Reason:

14 The operation of the premises shall be in accordance with the Plan of Management and entitled “Plan of Management”.

Reason:

15 The operation of the premises shall comply with the requirements in the NSW Health and Workcover publication “Health and Safety Guidelines for Brothels in NSW” (1997) or such other publication which may supersede these guidelines published by the above regulatory agency.

Reason:

16 All obsolete materials and combustible rubbish are to be removed from inside and outside the building (i.e. all materials unless they are absolutely necessary for the functioning of the business).

Reason:

17 Arrangements shall be made for a garbage collection service to be provided to the premises prior to the occupation of the building. Contaminated waste must be disposed of by a DEC’s licensed waste collector.

Reason:

18 A staff member suitably trained in, or aware of the requirements of the Plan of Management and all conditions of this consent, is to be present on the premises at all times the brothel is operating.

19 [DELETED]

20 No provision or consumption of alcohol on the premises is permitted at any time.

Reason:

21 The service rooms shall not be used for sleepovers at any time.

Reason:

22 [DELETED]

23 Closed circuit video surveillance cameras shall be installed so as to provide coverage of the entry area to the premises from Brodie Street.

Reason:

24 [DELETED]

25 No construction works (including excavation) shall be undertaken prior to the release of the Construction Certificate.

Note:

Reason:

26 All building work must be carried out in accordance with the provisions of the Building Code of Australia.

Reason:

27 Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans and documentation submitted with the Construction Certificate are to be amended to satisfy all relevant conditions of this Development Consent.

Reason:

27A A door allowing egress from the rear courtyard is to be installed. The door to the courtyard and the door from the courtyard to the rear of the premises are to be of appropriate design and with appropriate latch fittings so as to allow adequate fire egress to ensure the building complies with the Building Code of Australia Part D1.4(c) (Exit Travel Distances). (see condition 28).

(b) Exit signs being provided are to be in accordance with BCA clause E4.5.

(c) Exit travel distances are to be in accordance with BCA clause D1.4(c)(1).

(d) Alternatively, if the requirements set out in the BCA cannot be achieved, then an alternative solution is to be prepared by a Grade 1 or 2 fire engineer. This report is to be submitted to the PCA for their consideration and approval prior to the release of a Construction Certificate.

Prior to the issue of a Construction Certificate:

(Note: Some conditions contained in other sections of this consent (including prior to occupation/use commencing) may need to be considered when preparing detailed drawings/specifications for the Construction Certificate.)

28 The Construction Certificate is not to be released unless the Certifying Authority is satisfied that the required levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 has been paid.

Reason:

29 The consent holder must submit a report from a qualified “access consultant” certifying that the disabled sanitary facilities comply with the requirements of the Building Code of Australia and Australian Standard 1428. The certification shall be submitted prior to the issue of the occupation certificate.

30 [DELETED]

31 The building shall include the provision of a security / safe room for staff which can be locked to secure against unwanted entry. Details of security devices including the provisions of a back to base security system shall be provided prior to the issue of a Construction Certificate.

Reason:

32 The main front entry / exit door in a required exit, forming part of a required exit or in the path of travel to a required exit must be readily open-able without a key from the side that faces a person seeking egress, by a single hand downward action or pushing action on a single device which is located between 900 mm and 1.2 m from the floor. Details showing compliance with this requirement must be submitted for approval prior to the issuing of a construction certificate.

33 The applicant shall submit a BCA Compliance Report indicating the premises have been upgraded so as to comply with the Building Code of Australia in the following areas:

BCA Section D “Access and egress” – particularly D1.4, D1.6, D2.21, D2.20

BCA Section E “Services & Equipment” – particularly E1.6
The Compliance Report must be prepared by a suitably qualified person and approved by the Principal Certifying Authority prior to the issuing of an occupation certificate.

34 The applicant must submit details to the Principal Certifying authority prior to the issuing of the construction certificate, of works to the existing bathrooms and other wet areas, to ensure compliance with part F1 of the Building Code of Australia.

35 The windows facing the street shall be frosted or opaque glass. This requirement shall be reflected on the Construction Certificate plans.

Reason:

Prior to Work Commencing:

36 A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:-

(b) Showing the name of the principal contractor (or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and

(c) Showing the name, address and telephone number of the Principal Certifying Authority for the work.
Any such sign must be maintained while to building work or demolition work is being carried out, but must be removed when the work has been completed.
This condition does not apply to building works being carried out inside an existing building.
Reason: To comply with statutory requirements.

37 Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must:

(b) Notify Council in writing of their intention to commence the erection of the building (at least two (2) days notice is required).
The Principal Certifying Authority must determine when inspections and compliance certificates are required.
Reason: To comply with legislative requirements.

During Work:

38 Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00am to 8.00pm and Saturday 8.00am to 8.00pm. No work is permitted to be carried out on Sundays or Public Holidays.

Reason:

39 A copy of this development consent, stamped approved plans and accompanying documentation is to be retained for reference on-site during the course of any works. Appropriate builders, contractors or sub-contractors are to be furnished with a copy of the development consent and accompanying documentation.

Reason:

40 Noise from construction and/or demolition activities associated with the development shall comply with the NSW Environment Protection Authority’s Environmental Noise Manual and the Protection of the Environment Operations Act 1997.

Reason:

41 No materials, machinery, signs or vehicles used in or resulting from the construction or demolition relating to the development shall be stored or placed on Council's footpath, nature strip or roadway.

Reason:

Prior to the issue of an Occupation Certificate/Use Commencing:

42 In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the Principal Certifying Authority, the Principal Certifying Authority is to forward a copy of all records to Council.

(a) the development application and construction certificate number;

(b) the address of the property at which the inspection was carried out;

(c) the type of inspection;

(d) the date on which it was carried out;

(e) the name and accreditation number of the certifying authority by whom the inspection was carried out; and

(f) whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.
Reason: To comply with legislative requirements.

43 Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use.

Reason:

44 A localised, multi-point mains wired smoke detection system must be installed to the common areas of the building including the roof space prior to Occupation (Note: - thermal detectors may be used in the roof space to reduce nuisance alarms). The system is to comply with the requirements of AS3786 and the detectors are to be spaced in accordance with AS1670.

Reason:

45 A complete system of emergency lighting and illuminated exit signs is to be installed throughout the building in accordance with the Building Code of Australia, including referenced Australian Standard 2293 prior to occupation.

Reason:

46 A certificate is to be obtained from a suitably qualified electrician certifying that existing electrical wiring system has been inspected and is adequate, safe and fit for purpose prior to occupation.

Reason:

47 Prior to the issue of the final occupation certificate the applicant shall submit to Council a Final Fire Safety Certificate attesting to the adequacy of the newly installed:

(b) emergency lights, and

(c) illuminated exit signs.
A copy of the Final Fire Safety Certificate is to also be submitted to the New South Wales Fire Brigades (Private Locked Bag 12, Greenacre 2190) and a further copy is to be displayed in a prominent position in the building for easy inspection by Council or the New South Wales Fire Brigade. Each calendar year after this original certificate, you are required to prepare and submit an annual fire safety statement to both Council and the New South Wales Fire Brigade. A copy is also required to be displayed in a prominent position.
Reason: To ensure these essential fire safety measures have been installed in accordance with acceptable design standards.

48 A 3.5 kg carbon dioxide portable fire extinguisher (or equivalent) is to be located adjacent to the electrical switch board. The extinguisher is to be suitably wall mounted and sign posted.

Reason:

49 Approved essential services pictogram signage is to be installed with all Portable Fire Extinguishers, the pictograms must be positioned in accordance with the provisions of AS 2444.

Reason:

03/12/2009 - typographical amendments - Paragraph(s) 8, 33, 36, 51, 52, 54, and 57

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Citations

Huang v Parramatta City Council [2009] NSWLEC 1401

Most Recent Citation

Sansiro Group Pty Ltd v Parramatta City Council [2010] NSWLEC 1065

Cases Citing This Decision

4

Qu v Blacktown City Council [2010] NSWLEC 1282

Wei v Parramatta City Council No 2 [2010] NSWLEC 1107

Boers v Parramatta City Council [2010] NSWLEC 1097

Cases Cited

4

Statutory Material Cited

4

Wei v Parramatta City Council [2008] NSWLEC 1157

Martyn v Hornsby Shire Council [2004] NSWLEC 614

Zhang v Parramatta City Council [2004] NSWLEC 199

CITATION:	Huang v Parramatta City Council [2009] NSWLEC 1401 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Uky Huang RESPONDENT Parramatta City Council
FILE NUMBER(S):	10174 of 2009
CORAM:	Dixon C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Brothel, parking, public interest, hours of operation.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001 Parramatta Development Control Plan 1997 Sydney Regional Environmental Plan No 28
CASES CITED:	Wei v Parramatta City Council [2008] NSWLEC 1157 Zhang v Parramatta City Council [2004] NSWLEC 199 Terrace Tower Holdings Pty Ltd V Sutherland Shire Council (2003)129LGRA 21 New Century Developments Pty Limited V Baulkham Hills Shire Council [2003] NSWLEC154 Martyn v Hornsby Shire Council [2004] NSWLEC 614.
DATES OF HEARING:	27 August 2009 and 3 September 2009
DATE OF JUDGMENT:	30 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle (barrister) SOLICITOR Australian Town Planning Consultants 2 Pty Ltd RESPONDENT Mr P Marincowitz (solicitor) SOLICITOR DLA Phillips Fox