Leach v Council of the City of the Gold Coast

[2000] QDC 384

IN THE DISTRICT COURT

HELD AT SOUTHPORT   NO:       of 2000

QUEENSLAND

[2000] QDC 384
Before HANGER   D.C.J.

BETWEEN:               CRAIG LEACH  Applicant

AND:  COUNCIL OF THE CITY OF THE GOLD COAST         Respondent

REASONS FOR JUDGMENT – HANGER   D.C.J.

(Delivered the 3 day of November 2000)

The applicant, Craig Leach, failed to obtain approval from the respondent, the Gold Coast City Council, for permission to establish a brothel at 39 Upton Street, Bundall. 

Consequently he is applying for declarations that:

1. The development application made by Craig Leach to the Gold Coast City Council dated 1 August 2000, seeking a development permit for a material change of use for a licensed brothel in respect of the existing premises at 37 Upton Street, Bundall, and more particularly described as Lot 19 on RP 108179 (the subject land) requires code assessment under the Integrated Planning Act 1997.

1. The subject land and the existing buildings on the subject land are within an industrial area.

1. The development application complies with section 64 of the Prostitution Act 1999.

The parties agree that there are two main issues for determination. Put briefly they are, firstly, whether the subject property is in an “industrial area”, in the sense in which that expression is used in paragraph 3(a) of Schedule 1 of the Integrated Planning Regulation 1998, and secondly, whether the site of the proposed brothel is within 200 metres of a “place … regularly frequented by children for … recreational activities” (referred to for convenience as a “sensitive area”) – in this case a public park containing a children’s playground. If it is in such an area the “assessment manager”, (defined in s.3.1.7 of the Integrated Planning Act,) must refuse the application pursuant to s.64 of the Prostitution Act 1999.

That section, insofar as it is relevant, states:
           “64 (1)  The assessment manager must refuse the application if -

(a)The land the subject of the application is in, or within 200 metres of, a primarily residential area or an area approved for residential development or intended to be residential in character; or

(b)The land is within 200 metres of a residential building, place of worship, hospital, school, kindergarten, or any other facility or place regularly frequented by children for recreational or cultural activities; or … “

“(2) For subsection (1), distances are to be measured according to the shortest route that reasonably may be used in travelling.”

It is the applicant’s submission that subsection 2 should be construed as if the word “lawful” was included before the word “route”.  The basis of this submission is that the distance from the park to the subject land is less than 200 metres if a potential traveler trespasses on other property in the course of his journey, but in excess of 200 metres if he travels by the shortest route which does not involve such a trespass.

The subject site is situated at 37 Upton Street, Bundall and is within an area bounded by Bundall Road, Ashmore Road, Crombie Avenue and Upton Street. It is approximately half way between Crombie Avenue and Ashmore Road. The area between Upton Street and Bundall Road is generally two allotments wide, with frontages either to Bundall Road or Upton Street.  The rear boundaries of these allotments adjoin.  Due to the nature of the businesses in the area there are accessways beside some of the existing buildings which allow vehicular access, although over private property, from Bundall Road to Upton Street.  One such laneway adjoins lots 9 and 20 to the north and traverses lots 21 and 8 to the south.  The subject site is lot 19.

Before addressing the issues it is relevant to consider the purpose of the legislation, and then to determine the issues in that light. The use of the expression “industrial area”, together with the provisions of the Act prohibiting the establishment of a brothel within 200 metres of a “sensitive area”, would suggest an attempt to have them located away from areas of general public resort.

The fact that only “Code assessment”, as opposed to “Impact assessment” which requires public advertising of the proposal, applies would suggest that a relatively narrow interpretation of  “industrial area” should be adopted as it is unlikely that the legislature intended to deprive the public of the right to object to a proposal to establish a brothel in an area frequently visited by the general public.

The effect on the amenity of the area is also relevant. The geographical location of a brothel can reasonably be regarded as having an adverse impact on the amenity of the area in which it is located. Reference has been made to the case of Frankston v. Kiwiforce Pty Ltd (2000) VCAT 759, a decision of the Victorian Civil and Administrative Tribunal. This case dealt with the interpretation of similar Victorian legislation. I found it of some assistance. In the course of its judgement the tribunal referred to the adverse impact the location of a brothel may have on the amenity of an area, even if “Those disbenefits (sic) are psychological, relating to perception rather than actuality”. Even if the distance from the site to a sensitive area is in excess of 200 metres as measured in accordance with s.64 (2), it could still adjoin that area. Surely the intent of the legislation was to avoid such a situation.

Having regard to the purpose of the legislation an interpretation which would give effect to this intent should be adopted.

Section 14A(i) of the Acts Interpretation Act 1954 states:

“In the interpretation of the provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.” 

Industrial area

Schedule 1 of the Integrated Planning Regulation 1998 sets out the type of assessment required for assessable development. It allows “Code assessment” as opposed to “Impact assessment” for:
           “3.  Making a material change of the use of premises for a licensed brothel –

(a)In an industrial area …”

The expression “industrial area” is not defined. Again, the purpose of the legislation is relevant when considering what is meant by that term. Provisions of the Town Planning Scheme are relevant in determining the nature or character of the relevant area, and as the expression is not defined, regard may be had to the dictionary definition. (Ref. Implementation Note 22 Integrated Planning Act).

The subject land is included in the “Commercial Industry zone” and is designated by the strategic plan as “Mixed Industry and Commercial”.  How large an area should be considered has been the subject of some submissions. However I do not consider it should be restricted to the area within a radius of 200 metres of the site.  In this case it is appropriate to consider the area bounded by Bundall Road, Ashmore Road, Crombie Avenue and Upton Street, and to a lesser extent the opposite sides of Bundall Road and Upton Street which are close to the subject land.

The development, and likely future development of this particular locality, needs to be considered.  Lengthy evidence from town planners, Mr Bell and Mr Brannock, and from Mr Robinson, an architect, was adduced.  It is apparent from their evidence that generally the premises along the road frontages are primarily commercial consisting of numerous showrooms, warehouses and retail outlets frequented by the public.  However, behind the shop frontages there are undoubtedly numerous small businesses which are categorised as industrial.  Mr Brannock and Mr Bell have come to different conclusions as to whether or not the site should be regarded as being in an “industrial area”.  Where they differ, I prefer to accept the evidence and opinions of Mr Brannock.

Some support for limiting the interpretation of “industrial area” may be gained by a consideration of the Industrial Strategy Diagram depicted in Part 1 – 17 of the Gold Coast Planning Scheme which distinguishes between areas designated for “Industry” and “Commercial Industry”. The subject site is in an area designated as “Commercial Industry.”

In addition to the provisions of the Town Planning Scheme, regard may also be had to dictionary definitions when determining whether the subject site is within an “industrial area”.

It is perhaps trite to say that members of the public do visit areas which are truly industrial if one uses that term to refer to an area devoted to heavy industry or industry in the traditional sense.  However such an area is more likely to be one where the general public has little reason to visit.  This is not the case with the present area which is undoubtedly one which is far more likely to be frequented by the general public, including children, comprising as it does, a wide range of retail outlets and showrooms.

In the circumstances I consider that the applicant has not established that the subject site is in an “industrial area” as contemplated by the Prostitution Act and Schedule 1 of the Integrated Planning Regulation 1998.

Distance from “sensitive area”

I now turn to a consideration of s.64 (2) of the Prostitution Act.
It is not in dispute that if a traveller makes use of one of the accessways available to him, the distance he travels from the park to the subject site is less than 200 metres. It is unreasonable to assume that such a route, even though it involves a trespass, would not be used by members of the public when proceeding from Bundall Road to Upton Street. There is undoubtedly no power to impose any requirements on adjoining or surrounding landowners to construct a fence to deter such trespassers, or to stop the removal of any existing fences. It is also of significance to note that section 64 (1) (a) specifically states that it is the distance of the land, from the sensitive area which is to be measured, not the distance from the entrance to the brothel, or from the land closest to that entrance.

I refer again to the decision of Frankston v. Kiwiforce Pty Ltd (supra) In the course of the judgement it was stated in paragraph 127:

“The intention is not that the distance that a child would travel from a pre-school to a brothel should be measured; but that the distance between the pre-school and a brothel should meet a minimum requirement.  The use of ‘any route which reasonably may be used in travelling’ as set out in the Act, ensures that the distance is a practical one on the ground, rather than (for example) ‘as the crow flies’.  The distance between the points of the two sites where they are closest to each other according to the means of measuring distance as set out in the Act, best fulfils that intention.”

Those comments are appropriate to the present case.

One other point should be mentioned. There is evidence that a wire fence has been constructed across one of the accessways between Bundall Rd. and Upton St.. It is not on the subject land. As there is an alternative route that is less than 200 metres, it is not necessary to determine whether such a barrier should affect the way in which the distance is to be measured. It may well depend on the nature of the barrier.  A fence, which could easily be climbed, may well be in a different character to a high brick wall. However having regard to the purpose of the legislation it is unlikely that it was the intention of the legislature to allow a brothel to be sited where, if it was not for the existence of a wire fence, it would be within 200 metres of a sensitive area.

Consequently I am satisfied that the present proposal does not comply with the provisions of section 64 of the Prostitution Act and that the application was properly rejected by the assessment manager.