Joseph Vassallo v Blacktown City Council

[2004] NSWLEC 85

Land and Environment Court

of New South Wales

CITATION:	Joseph Vassallo v Blacktown City Council [2004] NSWLEC 85
PARTIES:	APPLICANT Joseph Vassallo RESPONDENT Blacktown City Council
FILE NUMBER(S):	11153 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- brothel SEPP 1 objection car parking crime
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 Blacktown Local Environmental Plan 1988
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	9/03/04, 10/03/04
DATE OF JUDGMENT:	03/16/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport, barrister SOLICITORS Craig Milne & Company RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor

JUDGMENT:

Appeal No: 11153 of 2003

11 of 11

1 of 11

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11153 of 2003

Brown C

Joseph Vassallo

Applicant

Blacktown City Council

Respondent

Judgment

Introduction

1. This is an appeal against the refusal of DA-03-296 by Blacktown City Council (the council) to use Unit 18, 11 Romford Road, Kings Park (the subject site) for a brothel.

2. I record that a view of the subject site and surrounding areas was undertaken on the morning of the first day of the hearing in the company of representatives from both parties. With the agreement of the parties, evidence from a local resident and an owner/occupier of a nearby unit was taken on site.

3. For the reasons set out in the judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions.

Subject site and surrounding area

4. The subject site is a factory unit within an industrial complex comprising 47 factory units. It is described as Lot 18 in SP 48457. Access to the industrial complex is from Romford Road although the subject site also has a frontage to Vardys Road.

5. The surrounding area is predominantly industrial with the nearest residential use located some 300m to the east, on the opposite side of Sunnyholt Road.

The proposal

6. The proposal seeks to use the subject site for a brothel. The ground floor contains an entry foyer and reception, waiting rooms, staff room, laundry and garbage area and two bedrooms. The first floor area contains 8 bedrooms. The configuration of the rooms and facilities on the ground floor were amended prior to, and during the hearing to address a number of concerns raised by the council.

7. A Management Plan also forms part of the application and contains further details on the operation of the brothel. In relation to the hours of operation, the application was amended during the hearing to change the hours of operation from 6pm to 6am to 7.30pm to 6am. Personnel comprise a manager/receptionist, one security guard and up to 10 sex workers. It is envisaged that an average 5 sex workers will be employed during weekdays. Other matters covered in the Management Plan include safety and security, advertising and parking.

Relevant planning controls

8. The subject site is zoned 4(a) Industrial General under the provisions of Blacktown Local Environmental Plan 1988 (the LEP). The proposed use is permissible with consent within this zone. Clause 42A provides specific requirements for brothels. Clause 42A(1) specifies locational requirements for brothels. Clause 42A(2) requires specific matters to be considered in determining a development application for a brothel.

9. Blacktown Development Control Plan 1992, Part E - Development in the Industrial Zones (the DCP) also provides specific requirements for brothels. Clause 6.6 provides specific requirements and standards for brothels, relevantly location (cl 6.6.1), access (cl 6.6.2), car parking (cl 6.6.3) and security measures (cl 6.6.4).

10. The council filed a Statement of Issues containing five issues. These can be grouped into the following main areas:

1) whether the SEPP 1 objection is well founded?,
2) whether adequate car parking is provided? and
3) whether there is a likely risk to members of the community, the clientele of the brothel or service providers?

11. A submission was received from Mr Michael Thorpe, a resident who lives some 4 kilometres from the subject site. He expresses a number of moral and other concerns over the establishment of a brothel in this location and brothels generally. It is well established that moral considerations are not relevant matters for consideration in the assessment of development applications. His concerns over the subject location are addressed later in the judgment.

12. Clause 42A(1) states:

Despite any other provision of this plan, development for the purpose of a brothel must not be carried out if the relevant premises are:
(a) within a straight line distance of 300 m of land is zoned for residential, commercial or public open space purposes; or
(b) adjacent to any property used or partly used for residential purposes; or
(c) near or within view from any school, church, hospital, childcare centre, community facility or public open space or any place regularly frequented by children; or
(d) within 100 m from a road zoned Special Uses-Arterial Road and Arterial Road Widening or Special Uses-Local Road and Local Road Widening.

13. Clause 6.6.2 of the DCP states:

Access to a brothel is to be discreet. The brothel will be accessed via a separate entrance to prevent staff and clients causing a disturbance to other premises within the same complex.

14. There was no dispute that the proposed development satisfies subcll (a), (b) and (c) in the LEP. However, the subject site is within 100 m of Vardys Road. This road is zoned 5(c) Special Uses - Local Road and Local Road Widening so the proposal is captured by subcl (d). Mr Gregor Zylber, the applicant's town planner, provided an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) to show why compliance with this development standard is unreasonable or unnecessary in this instance.

15. Mr Zylber and the council's town planner, Mr Glenn Apps provided a joint statement. As the LEP provides no specific objective for the development standard, Mr Zylber and Mr Apps agreed that the underlying objective was to reduce the prominence of brothels. When the proposed development is tested against this underlying objective there was no agreement between Mr Zylber and Mr Apps on whether the proposed primary access from the existing northern entry facing Vardys Road satisfies the underlying objective. Mr Apps took the view that the entrance is so prominent it undermines the agreed underlying objective. Mr Zylber took the opposite view.

16. In his oral evidence, Mr Apps helpfully suggested that if the northern entry to the brothel was limited to emergency access only and the main entry was relocated to the proposed door in the eastern wall of the building then his concerns over prominence from Vardys Road would be satisfied. On this basis he would be willing to support an SEPP 1 objection to the development standard. The applicant accepted this suggestion and proposed a number of conditions to address the changes suggested by Mr Apps.

17. While Mr Zylber and Mr Apps ultimately agreed that the SEPP 1 objection was well founded, the Court must also come to the same conclusion based on its own assessment. The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed.

18. I accept that the agreed position that the underlying objective of the development standard relates to the prominence of brothels. With the benefit of the view of the subject site, the surrounding area and the amended location for the access, I accept that the brothel will not be unacceptably prominent .Its access will also be discreet. While the subject site has a frontage to a designated local road; the character of Vardys Road is one of a higher order road because of its 4 lane separated carriageway construction and carrying capacity. Additionally, the subject site is screened from Vardys Road by landscaping and no signage is proposed to alert any passers-by of its existence. It was argued that there would be lighting of the unit at times when it would not normally be expected for an industrial use and this could give some indication of its existence. I am not however convinced that this will necessarily be the case. While some persons passing the subject site may notice the lights there are no overt indications that is being used as a brothel.

19. In concluding that compliance with the development standard would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 and that the proposal satisfies the underlying objective of the development standard, I find that compliance with the development standard is unnecessary in this instance and that the SEPP 1 objection is well founded.

Car parking

20. The proposal seeks to provide car parking by way of allocations from the subject site (2 spaces), allocations from units 15 and 19 owned by the applicant (4 spaces) and written approvals from owners of adjoining units 17, 34, 35, 36, and 47 for use of their allocated parking spaces (10 spaces). The allocation of these spaces (except those for the subject site) is on the basis that the brothel will operate at times when the spaces are not required for their normal use. Mr David Thompson, the applicant's traffic consultant also indicates that on street parking within and adjoining the bulb of the cul-de-sac in Romford Road can accommodate a further 12 spaces.

21. Mr Thompson and Mr Apps provided a joint statement. They agreed that the proposed development would generate a need for 15 car parking spaces notwithstanding this figure is less than the 22 spaces required by the DCP. They also agree that for all practical purposes, the car parking demand of 15 spaces can be achieved.

22. Ms Frances Nicholls, the part owner of an air conditioning establishment near the subject site gave evidence on site and provided a written statement. One of her concerns related to the lack of parking provided by proposed development.

23. In considering this issue, it was submitted by the council's advocate that little consideration should be given to the approvals given by the owners of the adjoining units for the use their car parking spaces. It was argued that the approvals could be rescinded by a change of ownership or lease and that the ad hoc location of these spaces would create problems in directing patrons and staff to the specific car parking spaces.

24. On the issue of car parking, I concur with the agreement of Mr Thompson and Mr Apps that the demand for car parking can be satisfied. In coming to this conclusion I accept that the 10 spaces from adjoining units could be unavailable in the future for the reasons mentioned by councils advocate however this is not necessary fatal to the application. I see no reason why the 10 spaces should not be used. They are convenient and could be signposted at 7.30pm to indicate their availability. In the event that some or all become unavailable, I accept that the deficit of 9 spaces can be accommodated in Romford Road. Importantly, the operating hours of the brothel will ensure little or no conflict with the factory premises in this area.

25. Clause 42A(2) states:

In determining an application to carry out development for the purpose of a brothel, the council must consider the following:
(a) ……
(b) ……
(c) ……
(d) whether the brothels is likely to put at risk members of the community or its clientele or service providers

26. Clause 6.6.4 of the DCP states, in part:

The operator is to contract a security firm to conduct regular patrols of the site and its surrounds between the hours of 5.00pm and one hour after closing to ensure acceptable behaviour of patrons at and leaving the premises and to restrict possible theft and vandalism with the immediately surrounding industrial area. The firm is also to be on call to deal with any incidents which may occur at and around the site.

27. Senior Constable Linda Turner provided evidence for the council on this issue. She is the Crime Prevention Officer at Quakers Hill Local Area Command. Her evidence contained a Safer By Design Crime Risk Evaluation of the proposed development. The overall Project Risk Rating was "Moderate" in a range of ratings consisting of "Low", "Moderate", "Significant" and "High". As a general summary, she states that there is a concern that the proposed entry to, and out of the development is at the "natural" rear of the complex (or the elevation facing Vardys Road) and not facing into the interior of the industrial development and the car park. With the surrounding vegetation screening the entry point she has a concern that this may provide concealment opportunities for potential offenders. In addition, this would create confusion for prospective clients and members of the public. It would also provide opportunistic criminals with a legitimate excuse for frequenting the area. Senior Constable Turner makes a number of recommendations and states that should her recommendations be implemented, the amendments would minimise the opportunity for crime occurring on, and in the vicinity of the proposed development.

28. Senior Constable Darrel Wood also provided evidence for the council on this issue. He initially raised issue with the potential impacts from consumption of alcohol from the premises however he accepted that these concerns were addressed through the applicant volunteering a condition that prohibited alcohol on the premises. Other concerns related to the proximity of two licensed premises. Based on his experience, he believes a number of patrons leaving the hotels and returning to their residential addresses would walk past the premises which could create anti-social behaviour due to intoxication levels. He also expressed a concern over the potential conflict with pedestrian movement and traffic due to the location on Vardys Road. Senior Constable Wood concludes by stating that the location of the brothel in an industrial area may solve the issue of placing it out of sight, however it will not take away the impact of crime. Patrons attending the premises will become targets for assault and robbery offences due to the location and the hours of operation. He disputes that the presence of a security guard will remove the incidence of assault and robbery.

29. Mr Zylber and Mr Apps addressed this issue in their joint statement and agreed that the site is suitable for a brothel and is unlikely to have any adverse environmental or social impacts. Provided it is run in accordance with the Management Plan they agree it is unlikely to encourage or attract criminal activity. It was also agreed that the industrial development in which the subject site is located has adequate lighting and that a properly managed brothel is unlikely to either attract or generate criminal behaviour.

30. Ms Nicholls also expressed concern over the potential for attracting more undesirable people to this location and illegal drug use.

31. Clause 42A(2)(d) asks two main questions. Firstly, is there "likely" to be a risk and secondly whether the risk affects three different groups of people. These being" members of the community", " clientele" (of the brothel) or "service providers" (or the sex workers).

32. In considering the first question, the Court heard arguments over the words "likely" and "possible". Put simply, the applicant's advocate argued that any affects were not likely but more correctly described as possibilities. Senior Constable Turner generally accepted the proposition that any effects were possible rather than likely. Senior Constable Wood partially accepted the same proposition but maintained that there is a direct link between brothels and increased crime. He based this on two sets of data he obtained from police computer records. The first consisted of a search using keywords "brothel" and "swingers club". The results were tendered as Exhibit 9. The second search consisted of a review of individual incidents identified in the first search. These were not available to the Court, as the review by Senior Constable Woods did not generate any hard copy.

33. On this matter, I am not convinced that it can be reliably concluded from the evidence of Senior Constable Wood that there is a direct link between brothels and an increase in crime. For such a conclusion to be reached a more rigorous and far reaching assessment would need to be undertaken. It may be that the limited sample of incidents that were investigated by Senior Constable Wood led him to the conclusion that he stated in his evidence. It would, however be unsound for the Court to rely on this conclusion for the assessment of the development application. To do so would be to give little weight to the provision of the proposed security measures. I note that the security measures proposed with this application exceed those in cl 6.6.4 of the DCP. In my view, a more balanced assessment would suggest that the potential for increased crime is a possibility but this possibility needs to be considered in light of the particular characteristics of a brothel, including the range of security measures proposed.

34. The Safer By Design Crime Risk Evaluation undertaken by Senior Constable Turner is undoubtedly a valuable crime prevention strategy. In this case however, the assessment was undertaken on plans different to those considered by the Court. The plans, the subject of the assessment by Senior Constable Turner, were amended on three occasions after her assessment and no new assessment was undertaken. Her evidence indicated that the amendments addressed the recommendations in her evaluation and provided a significantly improved design in terms of crime prevention. Senior Constable Turner acknowledged that the risk rating, after the amendments, would be lower than her evaluation on the earlier plans.

35. In terms of the likely impact on "members of the community", the evidence suggests that this would be limited to pedestrians using the Vardys Road frontage. There was no suggestion that this frontage forms part of a regularly frequented corridor between locations that regularly attract members of the community. Senior Constable Wood suggests that the Vardys Road frontage could be frequented by local residents to gain access to nearby licensed premises however it is likely that the level of pedestrian movement would be low. The evidence and view did not reveal any other significant attractors in the area that would require pedestrians to walk along this frontage. I note that the most recent amendments also orientate the entry away from the Vardys Road frontage towards the car park in a manner recommended by Senior Constable Turner. The amendments also provide additional lighting and video surveillance.

36. The potential impact on "clientele was progressively reduced with the amendments to the layout of the brothel. The relocated entry and internal modifications to the reception area, increased lighting, additional surveillance cameras and security guard significantly address the safety concerns in the vicinity of subject site. The remaining issue centred on clientele that may need to walk the 130 m from Romford Road, if they parked their vehicles in this location. Senior Constable Turner maintained a concern that concealment points existed for potential offenders along the likely route within the factory unit. It was also submitted that existing vegetation near the entry to the industrial complex limited the opportunity for the security guard to view cars parked in Romford Road. This area was also seen as having poor street lighting although evidence from Mr Thompson indicated that this lighting could be upgraded.

37. On this issue, I accept that any risk to clientele is limited and not sufficient to warrant the refusal of the development application. As previously stated, parking for clientele is available close to the subject site and provides minimal risk. If available, this area is likely to be used in preference to any parking in Romford Road. If this area is not available and clientele need to park in Romford Road then I also accept that this is an acceptable practice although this location is clearly less desirable than parking closer to the subject site. It was agreed that the lighting within the industrial complex was acceptable and combined with the upgrading of the lighting in Romford Road; the path of travel from the subject site to Romford Road is adequately lit.

38. In my view, any risk to "service providers" is adequately addressed through the allocation of 6 car parking spaces adjoining the subject site. I note that the allocation of 6 car parking spaces for employees was not disputed because of the likely use of other forms of transport besides private motor vehicle.

39. In consideration of cl 42A(2)(d), I find that the proposed development is not likely to put members of the community, the clientele of the brothel or service providers in sufficient risk to warrant the refusal of the development application.

Conditions

40. There was general agreement on the council's draft conditions and a number of further conditions tendered during the proceedings. There was also general agreement on the need to upgrade the lighting in Romford Road although the council sought a deferred commencement condition whereas the applicant preferred a general condition.

41. On the issue of upgrading the lighting in Romford Road, I agree with the applicant's submission. The applicant's condition still requires the lighting upgrade to be in place prior the brothel commencing operation. For this reason, and considering Mr Thompson's evidence on the manner in which the upgrading is to be done, a general condition of consent is appropriate.

Orders

42. For the reasons mention in the judgment, the Orders of the Court are:

1. The appeal is upheld.

2. Development application DA-03-296 to use Unit 18, 11 Romford Road, Kings Park for a brothel is approved subject to the conditions in Annexure A.

3. The Exhibits are returned with the exception of Exhibits 2, 8, B and H.

________________

G T Brown

Commissioner of the Court