Mark Makhoul v Sydney City Council - [2005] NSWLEC 331

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Mark Makhoul v Sydney City Council [2005] NSWLEC 331

PARTIES:
APPLICANT:
Mark Makhoul
RESPONDENT:
Sydney City Council

FILE NUMBER(S):
10094 of 2005

CORAM:
Watts C at 1

KEY ISSUES:
Development Application :- Brothel application
Parking
Amenity
Perception of amenity

LEGISLATION CITED:
South Sydney Local Environmental Plan 1998, (SSLEP) - Environmental Planning & Assessment Act 1979, s 79C - Draft Regulation of Sex Service Premises DCP 2003, (RSSDCP), adopted as an interim policy by the council on 8 December 2003.

CASES CITED:
Broad v Brisbane City Council (1986) 59 LGRA 296 - Dixon v Burwood Council [2002] NSWLEC 190 - Fang Lin & Anor v Sydney City Council [2005] NSWLEC 95 - Liu v Fairfield Council [1996] NSWLEC 272 - Martyn v Hornsby Shire Council [2004] NSWLEC 614 - Perry Properties Pty Limited v Ashfield Municipal Council [2000] NSWLEC 188 - Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62

DATES OF HEARING: 08/06/2005

DATE OF JUDGMENT:

06/22/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Dr S M Berveling, barrister, instructed by
Mr V Conomos, solicitor
SOLICITORS:
Pike Pike and Fenwick
RESPONDENT:
Mr C J Leggat, barrister instructed by
Ms L R Finn, solicitor
SOLICITORS:
Abbott Tout

JUDGMENT:

Appeal No: 10094 of 2005

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

22 June 2005

10094 of 2005 - Mark Makhoul v Sydney City Council

JUDGMENT

Environmental Planning and Assessment Act 1979,

Martyn v Hornsby Shire Council

.

The premises
4 The premises is situated on the southern side of Bayswater Road between the road and the Eastern Suburbs railway line. The rear southern boundary abuts the railway line. The site is slightly to the west of the intersection of Bayswater Road and McLachlan Avenue. The site on which the premises stands, is relatively level and has a frontage to Bayswater Road of about 10m a depth of around 23m and an area of about 230m2.
5 Erected on the site is a two-storey commercial building with a ground floor of around 139m2 and a first floor commercial office of around 140m2. ‘Elvis Pizza’ fifty-seat restaurant previously occupied the ground floor of the premises and operated until midnight each night. That restaurant has moved a few doors to the west. The previous uses of the subject premises generated a demand for seven (7) off-street car parking spaces and there was no on-site parking provided. No car parking is proposed on-site.
6 To the west at Nos 129 131 Bayswater Road is a three-storey mixed commercial/residential building. The residential uses are apparently on the upper floors. To the east at Nos 137 –141 Bayswater Road is another three storey building used for commercial purposes. In this building is the Fuss Beauty College.

Relevant planning controls

South Sydney Local Environmental Plan 1998, (SSLEP)
7 Under the provisions of the SSLEP the land is zoned commercial and the proposal is permissible with consent.
8 Other planning controls of relevance include:
· Environmental Planning & Assessment Act 1979, s 79C.
· South Sydney Development Control Plan 1997, (DCP).
· Draft Regulation of Sex Service Premises Development Control Plan 2003, (RSSDCP) adopted as an interim policy by the council on 8 December 2003.
· Sex Industry Policy as amended.
· South Sydney Development Control Plan No 11- Transport Guidelines for Development, (DCP11).

The proposal and its history
9 Development application No D/2004/1685 was lodged with the respondent council on 20 December 2004 to establish a brothel at Nos 133-135 Bayswater Road, Rushcutters Bay. The proposal is described in Drawing No A101, Project No 200445, prepared by Mark Makhoul, Architectural Design & Building Solutions in Exhibit A.
10 The proposed brothel would provide ten (10) working rooms with one being located at ground level for disabled use and the others on the first floor.
11 The applicant states that while the operation would be classified correctly under council's draft RSSDCP, as a ‘brothel’, the operation would not be providing sex services that include sexual intercourse or oral sex. However, I have considered the application as if it were primarily a brothel.
12 The entrance to the premises would be maintained in a central location on Bayswater Road. A new awning is proposed to link with the existing awning on the building to the east. Provided on the ground floor would be two retail shops on either side of the central entrance, a waiting/reception room, a unisex toilet, garbage room under the stair, one workroom with amenities for persons with a disability, general staff amenities, office, staff room, and laundry. On the first floor there would be nine (9) workrooms each with shower and sink including two spa rooms. A new entrance would be provided at the rear of the building at the southeastern corner. A number only would identify the entrance to the brothel. It is proposed to brick up the windows on the first floor on the western side near Nos 129 - 131 Bayswater Road the three-storey mixed commercial/ residential building so that blank walls would present to the lightwell opposite residential uses in that building. On the ground floor widows opening onto the lightwell would be opposite non-residential uses.
13 The proposed hours of operation would be 10.00am to 5.00am, Thursday to Saturday and 10.00am to 2.00am Sunday to Wednesday. A receptionist and security personnel would be present during operating hours.

Notification
14 The application was notified to nearby owners and occupants on 5 January 2005. In addition, notices were placed on the site and the proposal was advertised in the daily press in accordance with the provisions of the Draft City of Sydney Advertising and Notification Development Control Plan 2003. The council received sixty-seven (67) submissions objecting to the proposal and these are contained in Exhibit 2, Section 2 - Objections.
15 Residents objected to the potential loss of amenity, likely increase in crime, traffic congestion and proximity to residential and sensitive land uses.
16 There were no objections from the residents of the three-storey mixed commercial/ residential building to the west at Nos 129 131 Bayswater Road. However, there were objections from the occupants of the three-storey commercial building to the east at Nos 137 –141 Bayswater Road including from the Fuss Beauty College that occupies that building.

The council’s decision
17 Despite support of the application from the Sex Industry Liaison Officer of the council (SILO) and a recommendation for approval from its planning officers, the council by notice dated 18 April 2005, refused the development application.

The hearing
18 The applicant filed a deemed refusal appeal on 10 February 2005 prior to the council’s refusal of the application.
19 At the hearing the court heard evidence on behalf of the council from a number of residents and from Mr J Swan, Area Planning Manager, City of Sydney Council.
20 On behalf of the applicant Mr A D Betros, consultant town planner, and Mr R Varga, consultant traffic engineer gave evidence.
21 Many residents also gave evidence and the solicitors for each side prepared notes of that evidence on behalf of the Court.

The issues
22 On 28 April 2005 the council filed a statement of issues:

ISSUE 1- SUITABILITY OF THE SITE
1. The proposed development is not suitable for the site.
Particulars:

The proposed brothel is inconsistent with the adjoining uses fronting Bayswater Road; in particular the site adjoins residential development and subsequently fails to comply with locational requirements within Clause 2.1 and 3.2 of the Draft Regulation of Sex Services DCP 2003.
The development has inappropriate pedestrian entry and egress points onto Bayswater Road. It does not include a separate ground floor tenancy that would adequately separate the proposed use from the public domain and fails to comply with design requirements under Clause 3.4 of the Draft Regulation of Sex Services DCP 2003.

ISSUE 2 - AMENITY

2. The proposed development will unreasonably impact on the amenity of adjoining and nearby residential dwellings.

Particulars:

The brothel fails to comply with location and design requirements within the

and amenity controls described within Mixed Use 10 Zone objectives within the South Sydney LEP 1997 and Part E Operational Controls and Part F Mixed Use Development Controls within the South Sydney DCP 1997, in particular:

It will unreasonably impact upon residential amenity in excessive noise and disturbance to the adjoining dwellings;

(i)

The proposed brothel does not incorporate sufficient amenities for the staff or clients in terms of client screening areas, waiting areas and staff rooms;

(ii)

The proposed brothel will erode safety and security in the area;

(iii)

The proposed brothel will generate excessive waste; and

(iv)

The proposed brothel has excessive hours of operation.

ISSUE 3 - INCONSISTENCY WITH MIXED USE ZONE/TRANSITIONAL PRECINCT

OBJECTIVES

The proposed development is inconsistent with the zone objectives.

Particulars:

The proposed development does not comply with zone objectives in 21(1) of the South Sydney Local Environmental Plan 1998 or the planning intent of Precinct 2, Mixed Use Transitional under the South Sydney DCP 1997 in that:

(i)

it would not protect the amenity of adjoining residential areas;

(ii)

it does not ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular, and pedestrian traffic, or other factors, is controlled so as to preserve the quality of life for residents in the area;

(iii)

it does not promote supportive or compatible land uses in close proximity to each other; and

(iv)

it does not incorporate urban design principles and does not have a satisfactory relationship with the public domain.

ISSUE 4 - TRAFFIC & PARKING
4. The proposed brothel will result in excessive traffic and parking impacts to the locality.
Particulars:
The proposed brothel fails to comply with the South Sydney DCP No. 11 Transport Guidelines for Development 1996. In particular the proposal provides no off street parking or delivery areas and will result in unacceptable traffic generation from staff, clients, and deliveries to the brothel. Parking and traffic impacts upon surrounding streets will be unsatisfactory.

ISSUE 5 - STREETSCAPE DESIGN
5. The proposed development fails to satisfy Part E 2.5 'facade treatment' of the South Sydney DCP (Urban Design) as the facade treatment on Bayswater Road fails to reinforce the character and continuity of the streetscape by recognising contextual cues and fails to contribute to harmonious and robust streetscapes.

ISSUE 6 - THE PUBLIC INTEREST

6 The proposed development is considered to have detrimental impacts upon residential amenity, conflicts with zone and precinct objectives and is poorly designed. In this regard it is considered that the proposal will have detrimental effects on the public interest and is inconsistent with Section 79C (1) (e) of the Environmental Planning and Assessment Act 1979.

The evidence and findings

Internal amenity and external appearance of the proposal
24 There was no dispute between the parties as to the internal amenity of the proposed brothel or the external appearance of the proposal, except for the frosting of the new windows on the first floor above the awning facing Bayswater Road.
25 Mr Swan was of the opinion that the change to frosted windows in the front elevation above the awning would adversely impact on the streetscape. I am not persuaded by that evidence and I am satisfied that there would be very little change in the appearance of those first floor windows, as presently they are trimmed with a light coloured material that would be similar in tone to frosted glazing. The proportions of the windows would be improved when compared with the existing and would better relate to the proportions of the façade.
26 A single centrally located entrance door on the ground floor would give access to the brothel from the footpath in Bayswater Road. As proposed, no advertising would be permitted and only a street number would identify the brothel. As proposed and as conditioned, no spruikers would be permitted on the footpath. An awning is proposed over the footpath that would throw shade, during the day, on the ground floor shop-front windows and the entrance to the brothel and in my opinion give greater visual definition to the front elevation.
27 There would be a blank wall on the first floor facing the lightwell of the adjoining mixed-use building at Nos 129-131 Bayswater Road that contains some residential uses above the ground floor. I would not refuse the application for reason of internal layout or physical appearance in the streetscape.

The perception of an adverse impact on amenity
28 There were sixty-seven written objections to the proposal and many residents who had written to the council, gave evidence at the on-site hearing. I have selected but a few to give an indication of the depth of the residents’ feeling of antipathy towards the establishment of a brothel at the site.
29 The head teacher of the Rushcutters Bay pre-school was concerned that if a brothel were located on the premises that parents might be reluctant to place their children at the pre-school.
30 Ms I Taumberger, the owner of the Fuss Beauty College said that the proposal would be likely to affect her business as parents of the young women, who attended her college, would be likely to withdraw their daughters once word was out about the brothel.
31 Ms S Pearson, also from the college, said young women of the college on their morning tea and lunch breaks use the bus seat (with no bus stop) outside the front door of the proposed brothel and might attract the attention of the brothel’s clients.
32 Others gave evidence that likely adverse impact of the proposal would “…serve little to enhance life of the local community in this pleasant and historic district,” and would “…encourage the overspill of sleazy enterprise from the neighbouring Kings Cross district.” [Note: Exhibit 2 Section 2 p 2 email from Mr D L Mills who is a resident of No 1A Clement Place ‘Marina One’].
33 Mr A Strauss, who was present at the on-site hearing, supported his written objection and spoke of his personal experience with brothels in Kings Cross as he established a photographic business in the 1980s at No 64 Darlinghurst Road. He wrote, “…sleaze just does not happen it is planned for. It is easy to destroy an area and [destroy] the hard-working people who put their effort into building an enterprise. It does not take much for the area to collapse. It does however, take an eternity to rebuild.” [Note: Exhibit 2 Section 2 p 76]
34 Ms T Engelen, an architect, who resides in a recently erected apartment building opposite the premises and who had designed and built a number of new apartment buildings in the area, said that she, had through her work, sought to improve the physical appearance of the area and if the brothel were approved it would be likely that the ‘tone’ of the area would be lowered. She said that she would not feel safe taking her children for a walk in the area if the brothel were approved.
35 Mr M J Robinson, barrister, who resides at No 25/33 Waratah Street, Rushcutters Bay referred to his comprehensive objection at Exhibit 2 Section 2 p 65 and following. He considered that “…a brothel such as this …ought to be quarantined in Kings Cross where other brothels operate. It should not be allowed in Rushcutters Bay, where it is not wanted or needed by residents or visitors.”
36 Mr Swan, town planner for the council, concluded, [Note: Exhibit 3 pp 13-4]:

The proposal fails to comply with the City of Sydney draft regulation of

in that the proposed location …adjoins residential development and adjoins a sensitive land use, that being Fuss Beauty College and is within close proximity to other sensitive land uses such as parks and a childcare centre and as a result on-street car parking, patrons will be required to use the local streets where these sensitive land uses exist and therefore will result in an unacceptable impact on the local community.

The hours of operation are considered excessive and will impact on surrounding properties and are not consistent or respect existing surrounding land uses.

The proposed uses [are] not consistent with the mixed uses zone as specified in

, or the planning intent of precinct two, mixed use transitional under

(urban design).

The proposed changes to the facade of the building detract from the streetscape and the use of opaque glazing will become a prominent feature in the streetscape.

The main weakness of the proposal is its closeness to Fuss Beauty College. The premises are adjacent and it is likely that students of the college would frequently encounter the brothel’s clients on their way to and from the classes.

It is incompatible because of the perceived view of the community that a brothel in this location will change the inert character of this small area or precinct.

Brothel use when mixed with other uses in the vicinity will create a perceived view to the local area that in my view is unacceptable.

Martyn v Hornsby Shire Council

“…fundamental reason for that application failing was that the brothel was proposed located close to the college of skin care.”

“…the main weakness in the site’s location.”

Martyn

“…to encounter the brothel’s clients on their way to and from the classes.”

Martyn v Hornsby Shire Council

.

It [the proposed brothel] is permissible [in the Zone X mixed-use zone] with no impacts, promotes employment, in an accessible area. Operation will not be detrimental to the quality of life of the residents due to adequate distance of separation five lanes of Bayswater Road and the retail shops on Bayswater on the southern side. A high level of background noise …dominates this island site. The council officers in their report said that it was consistent with the objectives of the zone. Council’s [sex industry liaison officer] SILO also gave positive comment before and after being aware there was residential next door and suggested that the locational provisions [contained in the draft DCP] should be revisited.

Martyn

Perry Properties Pty Limited v Ashfield Council (No 2)

I made my assessment, as did the planning officer. There have been no impacts demonstrated today. The appearance of the entry and building [would be] quite discreet. On its island site the proposed building with opaque glass [in the first floor windows] is not prominent in the streetscape.

It will sit in between two other shops. [There would be a] single door with a light above it.

Martyn”

Martyn

Business B (Special)

Martyn

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 be not so onerous as to exclude them from all areas of the municipality.

Brothels should be located to minimise adverse physical impact, such as noise, disturbance and overlooking. In this aspect they are no different from other land uses.

There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application this should be supported by evidence.

Brothels should not adjoin areas that are zoned residential or be clearly visible from them. Visibility is a function of distance, but not always.

Brothels should not adjoin or be clearly visible from schools, education institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk.

The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather.

There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses.

Where a brothel is proposed in proximity to several others, it should be considered in the context that a concentration is likely to change the character of the street or area. In some cases this may be consistent with the desired future character, in others not.

The access to a brothel should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shops and strip clubs predominate, signage should be restricted to the address and telephone number.

“…day care or child minding centres, primary or secondary schools, churches, parks, playgrounds or any other place regularly frequented by children,”

Fang Lin & Anor v Sydney City Council

Martyn

,

Liu v Fairfield Council

Dixon v Burwood Council

190

Broad v Brisbane City Council

There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the residents’ subjective perception of this locality. Knowing the use to which a particular site is, or may be, put may affect one’s perception of amenity.

Perry Properties Pty Limited v Ashfield Council

It is clearly established in the decided cases that the concept of “amenity” in a town-planning context (including one that does not include, as a potentially relevant consideration “social impact of the proposal in the locality”) is a concept that transcends merely physical content.

Perry Properties Pty Limited v Ashfield Council

A rational fear, or one having a real basis, is a matter for consideration. However, in view of the factual finding of the Commissioner concerning the absence of anti-social behaviour it is impossible to ascribe any basis to the objectors concerns, which rely upon the very existence of such behaviour. As a result it is an unjustified fear alone which the commissioner determined was adverse to the application and which the Commissioner found was contrary to the public interest. As a consequence the Commissioner’s conclusion cannot be supported.

In my opinion these two cases (Broad and Perry No 2) stand for the proposition that the concept of amenity itself is wide and flexible and can include the subjective perception of residents in relation to the locality in question (subject to the question of weight). Furthermore, such matters will be relevant to determining the “likely impacts”, most relevantly the social impact under s 79C of the

.

Environmental Planning and Assessment Act 1979.

Parking
77 Mr Varga the applicant’s traffic expert, concluded that the parking issue would not represent adequate or appropriate grounds for refusal of development consent as:
· parking accumulation surveys conducted on Friday and Saturday night confirm that vacant parking spaces are readily available near the site;
· the majority of vacant parking spaces are located in commercial areas of Neild and McLachlan Avenues less than 150m walk from the site;
· the site is exceptionally well served by public transport and is located on a busy arterial route which carries a high volume of taxis; and
· the number of car drivers visiting the proposed massage parlour would be likely to be similar to the number of car drivers which visited the previous uses in the existing building, particularly the 50-seat pizza restaurant.

“no net increase in …car parking”

Conditions
81 The conditions are those in Exhibit 4 and there was no objection taken to these by the applicant.

Orders
82 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No D/2004/1685 lodged with the respondent council on 20 December 2004 to establish a brothel at No 133-135 Bayswater Road, Rushcutters Bay is approved subject to Conditions 1 to 59 in Annexure A.
3. The exhibits with the exception of Exhibits A and 4 are returned.
S J Watts
Commissioner of the Court
sw

Annexure A

Mark Makhoul v Sydney City Council

Without Prejudice Conditions of Approval

Schedule 1A Development, Contributions and Covenants
Note: Some conditions in Schedule A are to be satisfied prior to issue of a Construction Certificate and some are to be satisfied prior to issue of Occupation Certificate, where indicated.
Note 2: Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate.
APPROVED DEVELOPMENT
1. Development must be in accordance with Development Application No D2004/1685 dated 20 December 2004 and Statement of Environmental Effects prepared by Anthony Betros Consulting dated December 2004 and amended drawings numbered A1.01 Revision A and prepared by Building Design & Technology, dated 16 May 2005 and as amended by the following conditions:
OPERATING HOURS
2. The hours of operation are regulated as follows:
(a) The hours of operation of the premises shall be restricted to 8.00am to 11.00pm Mondays to Saturdays and 10.00am to 10.00pm Sundays.
(b) Notwithstanding (a) above, the premises may operate between 8.00am to midnight seven days a week for a trial period of 1 year from the date of commencement of these extended hours. The operator shall inform Council in writing of the date upon which these extended hours commenced and of any interruption to the continual operation of these hours.
(c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period for Council’s consideration. Such consideration will be based on, inter alia, the performance of the operator in relation to compliance with development consent conditions, comments received from the NSW Police Service and any complaints received.

SIGNAGE
3. The following signage requirements apply:
(a) A separate development application for any proposed signs which are either externally fitted or applied must be submitted for the approval of Council prior to the erection or display of any such signs.
(b) No advertisements or signs other than an approved identification sign, relating to the brothel or business carried there in shall be erected, displayed or exhibited to public view in the window or entrance of the premises, or in, outside or directly above an access corridor to the premises.
(c) No merchandising display relating to the brothel, or business carried out there in shall be erected, displayed or exhibited in an access corridor (including any stairwell to the premises) so as to be open to the public or used by the public.
(d) No above awning signage will be supported.
PLAN OF MANAGEMENT
4. The Plan of Management submitted with the development application prepared by Julie Bates – Urban Realists dated December 2004 is to be signed and dated by the management of the premises and shall be updated to include the following details:
(a) Acknowledge the possibility of sexual intercourse taking place on the premises and ensure that safe sex practices and equipment are catered for. This includes the placement of signage in workrooms and enable safe sex equipment to be made freely available to staff.
(b) Maintenance and handling of sharps and identify the needle exchange services.
(c) Education Information including evidence of relationships established with health service providers to be provided and further details as to the information resources used as guidelines to the responsibilities identified in the plan. Additional detail to the information resources used for other language/cultural groups.
5. The revised Plan of Management shall be submitted and approved by Council prior to the issue of a Construction Certificate.

Schedule 1B
Conditions to be complied with prior to issue of Construction Certificate to the satisfaction of the Certifying Authority
6. Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate.
SECTION 94 CONTRIBUTIONS PLAN - 1997
7. As a consequence of this development, Council has identified an additional demand for public amenities and facilities. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979, and Sydney City Council Section 94 Contributions Plan, 1997, the following monetary contributions towards the cost of providing facilities and amenities are required.
Contribution Category Amount
Open Space Land Acquisition $517.00
Open Space/Townscape/Public Domain $1,890.00
Accessibility And Transport $15.00
Management $60.00

CPI

17. All contaminated waste including condoms, dams, gloves and tissues must be double-bagged and stored in an approved contaminated waste container, as required by the NSW Department of Health and be disposed of twice weekly by waste collectors licensed by the Environment Protection Authority. The applicant is to provide evidence of a contract with licensed waste collectors within one month of the date of this Notice, to the approval of Council.
ACCESS FOR PEOPLE WITH DISABILITIES
18. Access and facilities for people with disabilities shall be provided in accordance with Part D3 of the Building Code of Australia and Council’s Access Policy. Prior to issue of a Construction Certificate under Environmental Planning and Assessment Act 1979 , a certificate certifying compliance with this condition OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act 1979 ) must be provided, and copy submitted to Council.

FIRE SAFETY
19. Pursuant to Clause 94 of the Environmental Planning and Assessment Regulation 2000 the following works are required to be completed prior to the issue of an Occupation Certificate to ensure that there is adequate fire safety in the building, and details are to be submitted for approval by the PCA with any future application for Construction Certificate:
(i) An automatic smoke detection and alarm system shall be installed throughout all areas of the whole premises, inclusive of the existing ground floor food premises, and connected to a building occupant warning system, and in accordance Specification E2.2a and AS 1670.1.
(ii) A fire and life safety assessment in accordance with the provisions of the BCA, and with particular reference to provision for egress from the a building for the proposed increased usage of ground and first floor brothel areas, is to be provided to, and approved by the Principal Certifying Authority prior to issue of a Construction Certificate. The proposal indicates a single means of egress, as the “statement of effects” provided by Anthony Betros Consulting has indicated that an area located to the rear, does not provide a suitable means of egress to a road or open space.
(iii) A system of emergency lighting and exit signs shall be installed throughout the whole premises, to comply with the provisions of Australian Standard AS2293.1;
(iv) Openings within 3m of the east and west allotment boundaries shall be protected, in accordance with the requirements Clause C3.4 of the BCA. Details shall be submitted and approved by the Certifier prior to the issue of any Construction Certificate.
(v) Access and facilities for persons with a disability are to be provided in accordance with the requirements of the Building Code of Australia (BCA), Councils Access policy and relevant Australian Standards, and details of the method of providing a means of reasonable and dignified access is to provided with any future application for issue of a Construction Certificate.
INSTALLATION LOADS OF SPAS & SHOWERS
20. A letter from a qualified practicing structural engineer (NPER) shall be attached to the Construction Certificate Application, having regard to the installation of proposed spas and shower installations. The letter must state that the existing structure is adequate to support the new loads from the proposed installations, and that the design will comply with the relevant Australian Standards adopted by the Building Code of Australia.

INSTALLATION & WATER PROOFING SHOWERS
21. Specific details with respect to the proposed installation and waterproofing of the proposed shower enclosures is to be provided to, and approved by the pca prior to release of any future construction certificate.
INSTALLATION OF DUAL-FLUSH TOILETS
22. All toilets installed within the development shall be of water efficient dual-flush capacity with a minimum “AAA” rating. The details shall be submitted for the approval of the certifying authority, prior to issue of a construction certificate for the building under the Environmental Planning and Assessment Act 1979.
INSTALLATION OF WATER EFFICIENT TAPS
23. All taps and shower heads installed shall be water efficient with a minimum “AAA” rating. The details shall be submitted for the approval of the certifying authority, prior to the issue of a construction certificate for the development under the Environmental Planning and Assessment Act, 1979.
CERTIFICATION OF MECHANICAL VENTILATION
24. The details of any mechanical ventilation or air conditioning must be certified by a competent person to comply with Council’s Ventilation Code, the Building Code of Australia and relevant Australian Standards, to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) prior to commencement of any mechanical services work.
25. To enable certification, the mechanical ventilation documentation prescribed below shall be submitted to the Principal Certifying Authority:-
(a) Certified plans (in duplicate), coloured so as to adequately distinguish the proposed alterations;
(b) A general description of the project plus mechanical ventilation drawings and documentation in duplicate, coloured to show ductwork and equipment as set out below. (Where appropriate a schematic drawing should also be submitted).
i. Supply Air Ducts, Shafts and Fans - Blue
ii. Return Air Ducts, Shafts and Fans - Pink
iii. Outside Air Ducts, Shafts, Intakes and Stair Pressurisation - Green
iv. Exhaust Air Ducts, Shafts, Fans, Discharges and Smoke Spill - Orange
v. Mixing Boxes and Conditions - Yellow
vi. Fire Dampers and Electric Heaters - Red
(c) Drawings which show where applicable the existing and proposed air intakes, air discharges and cooling towers and their relative position to each other, the boundaries of the site, openable windows, and adjoining buildings;
(d) A Mechanical Ventilation Design Certificate pursuant to Section 93 of the Local Government Act 1993 in the form of Attachment M1 , OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) together with the Curriculum Vitae of the Design Engineer or other appropriate Certifier must be submitted to Principal Certifying Authority (PCA). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council by the PCA;
(e) Documentary evidence in support of requests for departure from the prescribed or deemed provisions of the Building Code of Australia or any other requirements.

Notes:

(a) An appropriately qualified practising structural engineer certifying by completing Attachment S1A must have:-
i. Appropriate tertiary qualifications in Civil or Structural Engineering; AND
ii. Corporate membership of the Institution of Engineers Australia or equivalent; AND
iii. Evidence of relevant experience in the form of a CV/Resume;
iv. Appropriate current professional indemnity insurance.
(b) An appropriately qualified practising structural engineer certifying by issuing a Compliance Certificate must have accreditation as a certifier for Structural Engineering issued by the Institution of Engineers Australia in accordance with the Environmental Planning and Assessment Act 1979 .
i. An appropriately qualified person certifying by completing Attachment S1B must have a good working knowledge of the Building Code of Australia and Structural and Architectural drawing co-ordination so that all structural elements supporting the new work are fully certified by the project structural engineer.
ii. Certification of Inspection/s is also required prior to issue of the Occupation Certificate, and/or prior to use. See Schedule 1E Conditions.
BARRICADE PERMIT
27. Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council.

Schedule 1D
Conditions to be complied with during work on site to the satisfaction of the Principal Certifying Authority
HOURS OF WORK AND NOISE
28. The hours of construction and work on the development shall be:
(a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30 a.m. and 5.30 p.m. on Mondays to Fridays, inclusive, and 7.30 a.m. and 3.30 p.m. on Saturdays, with safety inspections being permitted at 7.00 a.m. on work days and no work must be carried out on Sundays or public holidays.
(b) The applicant must provide to Council a 24 hour per day telephone contact number and must ensure such number is continually attended by a person with authority over the building work during the construction period.
(c) The approved hours of work and a 24 hour telephone number must be prominently displayed at all times on the building site and must be visible from a public street or a public place.
(d) All work, including demolition, excavation and building work must comply with "The City of Sydney Building Sites Noise Code" and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites”.
PROTECTION OF PUBLIC WAY
29. The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of Notice by Council to stop all work on site.
DEMOLITION WORKS
30. All Demolition Work shall be carried out in a safe manner by trained personnel under the management of a licensed demolisher who is registered with the WorkCover Authority, in accordance with:-
a. The approved Demolition Work Method Statement;
b. Australian Standard AS2601-1991- Demolition of Structures;
c. Relevant Codes of Practice of the WorkCover Authority (NSW);
d. The Construction Safety Act 1912 and Demolitions Regulations;
e. The Occupational Health and Safety Act 1983 ; and
f. All other relevant Acts and Regulations.
31. Demolished combustible materials shall not be stockpiled. Material must be removed regularly.
CONTROL OF RUNOFF DURING CONSTRUCTION
32. To comply with the Protection of the Environment (Operations) Act 1997 whereby it is an offence to pollute classified waters such as Sydney Harbour to which most of the City’s street drainage is directly connected:-
(a) concrete trucks, concrete pumps and their attachments, and trucks used for the disposal of spoil shall not be washed out on the public way;
(b) any water collected from on-site washing down of concrete trucks, concrete pumps or their attachments and trucks used for the disposal of spoil shall not be pumped, directed or allowed to flow to the street stormwater system;
(c) any seepage or rain water collected on site during construction shall not be pumped to the street stormwater system unless separate prior approval is given in writing by Council and evidence of approval is to be submitted to the Principal Certifying Authority prior to discharge into such system.
CITY OF SYDNEY COMPLIANCE INSPECTIONS
33. The purpose of this condition is to ensure that the Council is given sufficient notice prior to the issuing of the Occupation Certificate to carry out inspections of soon to be completed buildings, where Council considers it necessary. In doing so, this ensures that the Council is able to provide an independent analysis of whether the building is constructed to a standard that complies with the BCA and in accordance with the development consent.
(i) The applicant and building owner are to note that it is an offence under S.109N of the Environmental Planning and Assessment Act 1979, to occupy or use a building in whole or in part, unless an Occupation Certificate has been issued in relation to the building or the part.
(ii) A maximum penalty of 25 penalty units applies under the provisions of the Environmental Planning and Assessment Act 1979, for the contravention of the above requirements.
(iii) Council officers may undertake random inspections from time to time during construction and toward the end of building works to ensure that buildings or part of buildings are not occupied without a partial or final Occupation Certificate, and to check compliance with conditions of development consent and the BCA.
(iv) In the event that a Principal Certifying Authority (PCA) other than Council is appointed, written notice shall be given to Council (whether by the developer, builder or other person relying on the development consent) on each of the following occasions:
(a) Within 7 days of installation of services, such as plumbing, mechanical ventilation and the like which penetrate fire rated walls and slabs (excluding basement areas); and
(b) 7 days prior to the installation of false ceilings or cornices which abut fire rated walls and slabs; and
(c) 14 days prior to the final inspection to be carried out by the PCA for the purpose of issuing an Occupation Certificate.
(v) The PCA shall be advised in writing (whether by the developer, builder or other person relying on the development consent) of Council’s requirements pursuant to paragraph (d).
(vi) This reserves time for Council or persons appointed by Council to conduct any random inspections Council may choose to do, prior to the issue of the Occupation Certificate, in order to ensure that buildings or part of buildings are not occupied without a partial or final occupation certificate, and to undertake random audits of certified works.

Schedule 1E
Conditions to be complied with prior to issue of Occupation Certificate and prior to commencement of use, to the satisfaction of the Principal Certifying Authority
OCCUPATION CERTIFICATE
34. An Occupation Certificate (in accordance with Clause 155 of the Environmental Planning and Assessment Regulation 2000) must be obtained from the Principal Certifying Authority (PCA) (Council or a private accredited certifier) and a copy furnished to Council in accordance with Section 79L of the Environmental Planning and Assessment Amendment Regulation 1998 prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. A copy of the certificate shall be submitted to Council if it was not the PCA.
SECURITY MANAGEMENT PLAN
35. The operator shall prepare and submit a Security Management Plan which specifies appropriate security patrol, training of staff, uniforms, numbers of security staff at different times, surveillance, weapons detection and other security and response methods in and around the site, for approval of Council prior to commencement of the use .
36. The Security Management Plan shall also include the following:
(a) the procedures for monitoring & responding to security cameras;
(b) the procedures for responding to duress alarms;
(c) identification and details of security service providers; and
(d) identify the safety procedures for staff in the staff room and isolated working rooms (room 9 and 10)
37. The management shall install digital CCTV surveillance cameras strategically placed within the premises with particular coverage to the entrance and all areas accessed by clients except working rooms. The video monitors will be placed within the premises so as to be used by staff to assist in the assessment and monitoring of clients. The video tapes/disc shall have the time and date automatically recorded and shall be kept for a minimum period of 30 days before being reused or destroyed. The video tapes/discs are to be made available to the police upon request.
38. Suitable signage must be displayed at the principle entrance of the premises with the words “Closed Circuit Television” in use on the premises”. The same signage must be attached in a prominent position within the premises i.e. reception area and client management areas. Details of the signage must be submitted to Council prior to commencement of the use.
CERTIFICATION OF MECHANICAL VENTILATION
39. Prior to issue of an Occupation Certificate under Environmental Planning and Assessment Act 1979 and following the completion, installation, and testing of all the mechanical ventilation systems covered by the approval, a Mechanical Ventilation Certificate of Completion and Performance in the form of Attachment M2 , OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the Principal Certifying Authority (PCA) (Council or a private accredited certifier). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council if it was not the PCA.
WASTE MANAGEMENT CONTRACTS
40. Prior to issue of an Occupation Certificate and/or commencement of the use of the premises, all required contracts or arrangements for the collection and removal of wastes and recyclable material must be finalised.
COMMERCIAL CONTRACT TO LAUNDER LINEN
41. That the proprietor shall enter into a commercial contract to launder linen or install and use a washing machine capable of washing at a temperature of not less than 70 degrees Celsius.

Schedule 1F
Conditions to be complied with during the use of Premises
NOISE
42. That the use of the premises shall not give rise to:
(a) Transmission of ‘offensive noise’ to any place of different occupancy, and,
(b) A sound pressure level at any affected premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5dB(A). The source noise level shall be assessed as an LAeq, 15min and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content, and,
(c) A sound pressure level at any affected premises that exceeds the recommended planning levels outlined in the NSW, EPA Industrial Noise.
ANNUAL FIRE SAFETY STATEMENT
43. An annual Fire Safety Statement (form 15A under the Environmental Planning and Assessment Amendment Regulation 1998) must be given to Council and the NSW Fire Brigade commencing within 12 months after the date on which Council receives the initial Fire Safety Certificate.
PREMISES TO BE MAINTAINED IN SATISFACTORY CONDITION
44. That the premises shall be maintained in a clean, sanitary condition and kept in a satisfactory state of repair at all times.
CLEAN LINEN
45. The proprietor shall ensure that all linen, towelling and other bed coverings which come into contact with clients shall be changed immediately after each use.
ACCESS TO HEALTH SERVICE PROVIDERS
46. The proprietor must give access to health service providers to provide information and educational activities on disease transmission issues.
WRITTEN INFORMATION ON SEXUALLY TRANSMITTED DISEASE
47. The proprietor shall provide written information, i.e. pamphlets and brochures, for sex workers and their clients on sexually transmitted infectious diseases in a variety of languages including those of any sex worker who has difficulty communicating or reading the English language.
PUBLIC HEALTH ACT
48. The proprietor’s attention is drawn to Section 13 of the Public Health Act. 1991, which makes it an offence to knowingly permit sex workers suffering from a sexually transmissible disease to have sexual intercourse with other persons unless the client has been informed of the risk and voluntarily agreed to accept the risk.
SUPPLY OF SAFE SEX EQUIPMENT
49. The proprietor shall provide an adequate supply of condoms, dental dams and water based lubricant free of charge for sex workers and their clients.
REGULAR HEALTH CHECKS FOR WORKERS
50. The proprietor shall ensure that all sex workers undertake regular sexual-health check-ups and that accurate records are kept indicating the frequency of such check ups.
ADEQUATE LIGHTING TO ALLOW HEALTH CHECKS
51. That all workrooms be provided with an adequate level of lighting to allow sex workers to conduct health checks of their clients for any visible signs of sexually transmitted diseases.
ADEQUATE WASTE CONTAINERS
52. That adequate waste containers with disposable plastic liners be provided in all work rooms for the disposal of used gloves, soiled tissues and the like.
MAINTENANCE OF POOLS/SPAS
53. That swimming and/or spa pool/s and pool surrounds shall be maintained in accordance with the Public Health (Swimming Pools and Spa Pools) Regulation 2000. Note: Guidance may also be obtained from the NSW Health Department’s “Public Swimming Pool and Spa Pool Guidelines”.
CARE OF BUILDING SURROUNDS
54. In addition to Council's daily street sweeping and cleansing operations, the owner/manager of the building shall ensure that the forecourt and the surrounds of the building including pavements and gutters are to be kept clean and free of litter at all times.
NO SOLICITING
55. No display or soliciting shall take place outside the premises.

NO SPRUIKERS
56. No persons (such as those commonly known as spruikers) or recordings or other devices which have the effect of spruiking are to be located on Council owned property. Furthermore, the sound level of any spruiking or amplified noise generated within privately owned land must not be audible on Council’s footpath adjoining the subject premise and within 3 metres of the premises.
CLIENTS ARE NOT TO WAIT OUTSIDE PREMISES
57. Clients are required to wait inside the building and are not permitted to wait outside the premises or in passageways associated with the premises.
REMOVAL OF GRAFFITI
58. The owner/manager of the site shall be responsible for the removal of all graffiti from the building within 48 hours of its application.
WINDOW CLEANING
59. The owner/manager of the building shall ensure that all windows on the façade of the building are cleaned regularly and, in any event, not less than annually.

Schedule 2
The prescribed conditions in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000 apply to the development.
1.
(a) The work must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate is made).
(b) This condition does not apply:
(i) to the extent to which an exemption is in force under Clause 187 or 188, subject to the terms of any condition or requirement referred to in Clause 187(6) or 188(4) of the Environmental Planning and Assessment Regulation 2000 ; or
(ii) to the erection of a temporary building.
2. In the case of residential building work for which the Home Building Act 1989 requires that there be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force.

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Citations

Mark Makhoul v Sydney City Council [2005] NSWLEC 331

Most Recent Citation

ACM Landmark Pty Limited (ACN 087 236 217) v Cessnock City Council [2005] NSWLEC 645

Cases Citing This Decision

1

ACM Landmark Pty Limited (ACN 087 236 217) v Cessnock City Council [2005] NSWLEC 645

Cases Cited

5

Statutory Material Cited

1

Dixon v Burwood Council [2002] NSWLEC 190

Fang Lin v Sydney City Council [2005] NSWLEC 95

Martyn v Hornsby Shire Council [2004] NSWLEC 614

CITATION:	Mark Makhoul v Sydney City Council [2005] NSWLEC 331
PARTIES:	APPLICANT: Mark Makhoul RESPONDENT: Sydney City Council
FILE NUMBER(S):	10094 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Brothel application Parking Amenity Perception of amenity
LEGISLATION CITED:	South Sydney Local Environmental Plan 1998, (SSLEP) - Environmental Planning & Assessment Act 1979, s 79C - Draft Regulation of Sex Service Premises DCP 2003, (RSSDCP), adopted as an interim policy by the council on 8 December 2003.
CASES CITED:	Broad v Brisbane City Council (1986) 59 LGRA 296 - Dixon v Burwood Council [2002] NSWLEC 190 - Fang Lin & Anor v Sydney City Council [2005] NSWLEC 95 - Liu v Fairfield Council [1996] NSWLEC 272 - Martyn v Hornsby Shire Council [2004] NSWLEC 614 - Perry Properties Pty Limited v Ashfield Municipal Council [2000] NSWLEC 188 - Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62
DATES OF HEARING:	08/06/2005
DATE OF JUDGMENT:	06/22/2005
LEGAL REPRESENTATIVES:	APPLICANT: Dr S M Berveling, barrister, instructed by Mr V Conomos, solicitor SOLICITORS: Pike Pike and Fenwick RESPONDENT: Mr C J Leggat, barrister instructed by Ms L R Finn, solicitor SOLICITORS: Abbott Tout