Lillian Enterprises Pty Limited v Bankstown City Council

[2008] NSWLEC 1314

Land and Environment Court

of New South Wales

CITATION:	Lillian Enterprises Pty Limited v Bankstown City Council [2008] NSWLEC 1314
PARTIES:	APPLICANT Lillian Enterprises Pty Limited RESPONDENT Bankstown City Council
FILE NUMBER(S):	10535 of 2008
CORAM:	Moore C
KEY ISSUES:	Development Application :- Brothel
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	21 August 2008
EX TEMPORE JUDGMENT DATE:	21 August 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr A Simpson, solicitor Pikes Lawyers RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

21 August 2008

10535 of 2008 Lillian Enterprises Pty Limited v Bankstown City Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 COMMISSIONER: Bankstown City Council’s Local Environmental Plan provides, in cl 33, for development for the purposes of a brothel being permitted at certain specified locations, in the suburbs of Villawood, Greenacre, Milperra and South Bankstown, at places located on the Council's various zoning maps.

2 The present application seeks consent for the establishment of a brothel at 9 Exceller Avenue in South Bankstown (this falling within one of the areas specifically identified in the map referred to in cl 33 of the Local Environmental Plan). Brothels are permitted in the area zoned and marked on the map by reference to the table of permitted uses in addition by the specific terms of cl 33 of the LEP.

3 There are a number of other matters that inform and define the nature of brothels that are to be permitted. However, at the commencement of dealing with those concerns, I note that the application has been amended in two respects, amendments that were not opposed by Mr Seton, solicitor for the Council. The first alters the proposed parking arrangements so that, in lieu of the previously proposed six parking spaces (being three within the building to be protected from the outside area by a new roller door proposed to be installed and three outside including a disabled parking space outside - the outside spaces being for clients) so that there will be six internal parking spaces, one of which will be a stacked parking space, a matter to which I will return later, and the three outside parking spaces.

4 The second manner in which the application has been amended is to delete reference to the consent being sought for “9 Exceller Avenue” and substituting in lieu thereof consent being sought for “Lot 198 Deposited Plan 13506 known as 9 Exceller Avenue”, that being a step necessary to deal with the fact that the building may, in fact, encroach somewhat on the adjacent property to the south and there being no owner’s consent from that property owner – indeed there is active opposition from that property owner to the proposal. The use, therefore, as proposed to be approved by me, will be confined to the allotment identified by the property identifier rather than to the building.

5 There are a number of matters which are placed in contention by the Council. It is convenient first to turn to the question of parking compliance given that there has been a significant amendment in this regard. Originally the parking proposed was not compliant with the provisions of Part 8 of the Council's Development Control Plan where, in the section relating to off-street parking and the schedule of parking standards, there was a numerical requirement for 1.5 car spaces per service room, there being proposed to be six service rooms in this development. As the development will now provide nine parking spaces, it is numerically compliant in that regard.

6 Mr Seton presses an objection on the basis that the balance of provision of the parking between clients (of three external spaces) and six internal spaces for management and sex workers on the premises is an inappropriate balance. In this regard I have had the agreed and uncontradicted expert evidence of Mr Brown, planner for the Council, and Mr Betros, planner for the , that the parking split is acceptable under the circumstances. Particularly, the experts agree that under the circumstances here where stacked parking is proposed for two of the internal spaces for staff of the premises that stacked parking is appropriate in that limited circumstance (contra the provisions of the first sentence of s 4.3 of pt D14 of the Development Control Plan – which deals with parking in brothel developments and indicates that stacked parking is not acceptable).

7 However, the second element of 4.3 is of considerable importance in my view. It requires that parking areas must be located, designed and lit to maximum safety of workers and clients.

8 In my experience in dealing with matters involving sex industry premises, the greatest risks of violence are not to the patrons but are to the employees of those premises. It is my experience that the provision of safe working circumstances, including safe parking for employees of those premises, is a matter of significant consideration, more so than questions of safety for clients. I am satisfied, in this regard, that the provision of the six internal parking places for manager, receptionist and six sex workers on the premises will maximise the safety of those workers without compromising the safety of the clients.

9 Further, to the extent that there may be a parking inadequacy during daylight hours, there being no suggestion that there will be inadequate after-hours parking on the site or at weekends, I am satisfied that it is appropriate to have regard to the broader experience that I have had in dealing with such matters which would indicate that, for brothels located in industrial areas, the patrons during daylight working hours of the industrial premises are likely to be significantly supplemented (if not dominated) by employees of those premises arriving on foot, not requiring parking for those purposes.

10 In addition, as is the evidence provided in the joint statement of the planning experts, there is ready access to nearby public transport. There is also some evidence (upon which I do not rely significantly) that patrons may arrive by taxi. I am satisfied, however, that during daylight working hours there is likely to be a significant pedestrian patronage of the facilities. For that reason, during daylight working hours of the industrial area, I am satisfied that three client parking spaces would be adequate. I do not therefore reject the application either on a quantitative or qualitative basis with respect to the provision of parking.

11 The question of separation also arose during the course of the inspection of these premises and the inspection of the approved brothel at 12 Cottam Avenue (some 125 m away in a direct line from the premises and in the block immediately to the west) of screening to adjacent premises.

12 As a consequence, I raised with Mr Simpson, solicitor for the applicant, the question of providing screening to the parking area outside to ensure that viewing to and by patrons of the premises could not be afforded either to or from the premises to the south or north. That was agreed to and it is to be provided for in the conditions of consent and incorporated into the plans.

13 Whilst that was informed to Ms Naboulsi, one of the objectors and an owner of the premises immediately to the south at 7 Exceller Avenue (and was not accepted by her as an appropriate resolution of part of the issues that she raised), I am nonetheless satisfied that it will provide some protection to her and to her family in a practical (if not in a psychological) fashion.

14 With respect to the provision of wash rooms – that is toilet, hand basin and shower in each of the workrooms – that is required by provision 10.3 of the Development Control Plan. Although the second paragraph of that provision might appear to imply that it could be dealt with on a discretionary basis, I am satisfied that Council has applied that to the premises at 12 Cottam Avenue. There is no evidence that there has been any inconsistency of application of it by the Council.

15 Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 which requires me to take the Development Control Plan as the starting or focal point of my consideration, I see that there is no good reason to set aside the requirement in 10.3 that there be those facilities in every workroom. On my observation, there would not appear to be any insurmountable plumbing difficulties and indeed the other plumbing proposed in the application would appear to indicate that as well. I am satisfied that the requirement for those facilities is desirable and they should be required.

16 I deal with the question of the trial period. I do so in the context, again, that the requirement for a trial period which is contained in the Development Control Plan at part D14 on p 3, there is no evidence that that has been departed from (and indeed, with 12 Cottam Avenue, it has been imposed). Although the wording in that is one which says “in most circumstances”, there is no evidence that the Council has departed from such trials. I am satisfied that, although there are extremely limited concerns expressed by the relevant officer of the New South Wales Police Service who responded to the Council about this and indicated that in his assessment there was only a likelihood of a moderate risk of increase in crime, there is, nonetheless, some potential as discussed in the second and third paragraphs of the letter of Constable Halloran dated 7 February 2008.

17 Further, although I accept that there is a significant possibility that there may not be an increase, the neighbours to the south, Mr and Mrs Naboulsi, hold genuine views and fears about the operation of the premises which I am satisfied do not warrant refusal but do warrant the provision of the trial period. If there is no difficultly within the trial period then the applicant will be able to re-approach the council for an extension or for permanency.

18 This leaves the last and most difficult issue to deal with which is the question of separation between the brothels at 12 Cottam Avenue and the proposed facility at 9 Exceller Avenue. There are a number of provisions in the Development Control Plan that deal with separation. The first is contained in cl 2 of Part D14. It has two elements. The first is that brothels should not be within a 100 m radius from the boundary of the nearest property containing a sensitive use or used for residential purposes. The second is that brothels may not front or locate within 100 m of a state road, there being a state road, Canterbury Road, to the south of the premises.

19 There is no question that these premises do not comply with the 100 metre setback from Canterbury Road nor am I satisfied on the evidence is there any difficulty in accepting that the 12 Cottam Avenue premises also so comply. The premises are also not within a 100 m radius from the boundary of the nearest property containing a sensitive use. A sensitive use does not appear to be defined in any specific fashion, however, the following clauses in cl 3 dealing with impacts on neighbourhoods. A passage appears which says:

“This would include massage parlours, adult bookshops and other restricted premises, licensed premises, pub/hotels, nightclubs, other sensitive uses and the like.”

20 Reading that ejusdem generis, I intuit that sensitive uses encompass those enumerated uses and uses which are similar to them. There are no other sensitive uses in the vicinity other than the brothel at 12 Cottam Avenue. That brothel and the present premises satisfy 2.3.

21 However, 3.2 dealing with the impact on the neighbourhood deals with the location of brothels within 200 m of this type of use being a sensitive use or within 200 m of another brothel. It is not specifically described as a radial measurement although Mr Seton puts to me the proposition that there is nothing else logically capable of being implied.

22 Taking it at its highest, I am satisfied that it would not be unreasonable to depart from the requirement for a 200 m direct linear separation between this proposal and the brothel at 12 Cottam Avenue. I do so because the walking or vehicle travel distance to get from one to the other is at least 350 m. There is no physical possibility of direct passage from one to the other save by helicopter or some other aerial and improbable means.

23 The separation, I am satisfied, in the absence of any alternative prescription in the Development Control Plan, is designed to prevent clustering of both premises and patrons. I am satisfied that the 350 m functional separation between the two is appropriate for that in these circumstances – particularly as one of the legs necessary to be travelled or walked to achieve transit from one to the other on the shortest direct route is a main road and that it acts as a psychological separation between the two as well as providing a functional element to the distance separation.

24 For all those reasons, subject to revision of the plans to give effect to the changes which are necessary arising from my decision, I am satisfied that the appeal should be upheld and the proposal should be granted development consent subject to revised conditions and those revised plans.

Tim Moore

Commissioner of the Court