Martyn v Hornsby Shire Council

[2004] NSWLEC 614

Land and Environment Court

of New South Wales

CITATION:	Martyn v Hornsby Shire Council [2004] NSWLEC 614
PARTIES:	Applicant: Yada Martyn Respondent: Hornsby Shire Council
FILE NUMBER(S):	10788 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- planning principle: location of brothels
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Zhang v Ashfield Municipal Council [2004] NSWLEC 259
DATES OF HEARING:	26/10/2004 and 27/10/2004
DATE OF JUDGMENT:	11/05/2004
LEGAL REPRESENTATIVES:	Mr M Baird, barrister Mr I Woodward, solicitor of Storey & Gough Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

5 November 2004

10788 of 2004 Yada Martyn v Hornsby Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application for a change of use to a brothel of the premises on lot 7 DP 14023, known as 373 Pennant Hills Road, Pennant Hills.

The site

2 The site fronts to the east side of Pennant Hills Road near the overhead pedestrian bridge to the railway station. Its frontage is 6m and its area 83m2. To the north it adjoins a pedestrian pathway, to the east a residential allotment, No 1 The Crescent, and to the south a two storey commercial building. The ground floor of the commercial building is occupied by a video store, while a beauty therapy college (the Sydney College of Skin Care) is located on the first floor. Across Pennant Hills Road is a hotel.

3 A single storey brick building, set back 2m from the road, now occupies the site. The applicant proposes to adjust the internal layout for the needs of a brothel. The internal arrangements are not in dispute.

The proposal and its history

4 The applicant proposes to use the existing building as a brothel, with a receptionist/manager and three sex workers on the premises at any time. There are two rooms for sex. On-site parking is not possible, partly because of the smallness of the site and partly because the only access is from Pennant Hills Road. Apart from the address, no signage is proposed. A 600mm lattice is proposed on top of the rear fence that adjoins No 1 The Crescent. The applicant has prepared a Management Plan that, in the case of approval, would be attached to the conditions of consent.

5 The previous use of the premises was approved in 2000 as a chiropractic clinic without on-site parking. The chiropractor worked alone in a single consultation room. The premises are now unused, though they appear to have been used as a brothel in 2002.

6 The applicant lodged the current application in December 2003. Following notification, the council received 268 objections, including two petitions containing 444 signatures.

Relevant planning instruments and policies

7 The Hornsby Shire Local Environmental Plan 1994 (the LEP) zones the site Business B (Special), a zone in which business premises are permissible with consent. The LEP does not contain a separate land use category called brothel; hence the proposal must be assessed as a business premise. The Pennant Hills Commercial Centre Development Control Plan relates to the development of the centre but it does not contain guidelines that would assist in deciding the issues in this case. The Car Parking DCP requires two on-site parking spaces for the proposal. There is no development control plan in Hornsby containing criteria for the location and design of brothels.

The issues

8 The council submitted a Statement of Issues containing twelve issues, two of which deal with the question whether the proposal is consistent with the aims of the LEP and the objectives of the Business B (Special) zone. In my opinion, these objectives are so general as to provide no assistance to the assessment of the application.

9 In effect, there are only two issues in this case, namely:

· whether the site is suitable for a brothel; and
· whether the lack of on-site parking is acceptable.

Is the site suitable for a brothel?
The objectors’ evidence

10 The Court received a bundle of 219 written objections and heard the evidence of ten objectors, of whom three were located close enough to be directly affected. Ms Teresa Fibrich, the principal of the Sydney College of Skin Care, said that she feared that a brothel operating next door would adversely affect her business. The entrance to her college adjoins the entrance to the brothel. The students of her college are all young women, some of them 16 years old. Classes of about 30 students are conducted from 6 to 9 pm, a time when the brothel is likely to be at its busiest. She said that the parents of her students would not like their daughters attending premises next to a brothel and would take them out of her College if the brothel were approved.

11 Ms Theresa di Cuffa told the Court that her 18-year-old daughter was one of the College’s students. She would not like her daughter to attend classes next door to a brothel.

12 Mr Mark Geraghty, who lives at 3 The Crescent, said that he would have a clear view of the rear of the brothel premises. He had young children and he was concerned about the brothel’s proximity to his house.

13 Mr Clive Nuttall, the owner of the adjoining building containing the video store and the Sydney College of Skin Care, said that his main concern was that the brothel’s clients would park in the video store’s basement parking area. This happened when the chiropractic clinic was in operation with a single chiropractor and a closing time of 5 pm. It would be worse when there are three sex workers on the site and the opening hours are longer.

14 Objectors who lived far away from the site objected on the grounds of morality, the exploitation of women and because they thought that brothels are associated with crime and drug use.

The expert evidence

15 The Court heard the evidence of Mr Anthony Moody, a town planner retained by the council. Mr Moody considered the location of the site unsuitable for a brothel because it is too close to the College of Skin Care, the video store, the street, the laneway and it has a common boundary with a residential allotment.

16 Ms Juliet Suich, a town planner retained by the applicant, took issue. She pointed out that, despite the common boundary, there would be no overlooking from the brothel to the adjoining residential allotment. Conversely, the brothel could be seen only indistinctly from the allotment. In her opinion, while the brothel may have an adverse impact in the period immediately after it opens, once people realise that it is not causing any disturbance, the impact will disappear.

Absence of locally adopted criteria in Hornsby

17 In contrast to local environmental plans that separately define brothel as a land use category, under the Hornsby LEP a brothel must be assessed as a business premise. Moreover, in Hornsby there are no development control plans or planning policies that establish criteria for the location and design of brothels. This does not mean, however, that the community of Hornsby regards a brothel as just another business premise. The development application for a chiropractic clinic on the same site four years ago generated one objection related to the lack of parking. This application generated over 200 objections, few of which related to physical impact. The strong community reaction suggests that a brothel should be assessed as a sensitive land use, the location of which needs consideration beyond that of mere physical impact. It is therefore useful to state the principles under which a brothel should be assessed in areas where there are no locally adopted guidelines.

Planning principle: location of brothels

18 The following are criteria for locating brothels:

· Brothels are a legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality.
· 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 sometimes a function of distance, but not always.
· Brothels should not adjoin, or be clearly visible from schools, educational 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 brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shop and strip clubs predominate, signage should be restricted to the address and telephone number.

Application of the planning principle

19 The site fails to comply with several of the above criteria. It adjoins a residential allotment zoned residential. While I accept that there would be no overlooking and the brothel is screened from Nos 1 and 3 the Crescent, the brothel’s existence would be known. The owner of No 1 The Crescent has objected to his rear yard adjoining a brothel. In my opinion, the objection is not unreasonable and is likely to be made by most people in a similar situation.

20 The main weakness in the site’s location, however, is its closeness to the College of Skin Care. The entrances are adjacent and it is likely that the students of the college would frequently encounter the brothel’s clients on their way to and from the classes. I do not want to judge whether this in itself would have a corrupting effect on them. However, it is likely, that some of the parents would not like the proximity of the brothel and would look for other colleges for their daughters. The economic effect on the College could be serious. Instead of 30 students, they may find only 20 or fewer for their classes.

21 As regards the closeness to the video store, the street and the lane, in my opinion, there are negative aspects of the application, but they are not so serious as to justify refusal.

Lack of on-site parking

22 According to Mr Moody, the lack of off-street parking is a drawback, but not a major one. Given that the site cannot provide parking, whatever use is proposed on it in the future will have to be considered in the light of this drawback. Clearly the most suitable use for the site is one that generates little parking.

23 I do not think that Mr Nuttall’s objection would justify refusal of the application. It would be unreasonable to assume that the brothel’s clients (or indeed the clients of any establishment on the site) will use the parking provided by the video store unlawfully and then base a refusal on this assumption.

Conclusion

24 The location of the site for a brothel is unsuitable, principally because it adjoins a residential allotment in a residential area and because its entrance adjoins that of a college attended by young women.

Orders

1. The appeal is dismissed.

2. Development application for a change of use to a brothel of the premises lot 7 DP 14023 known as 373 Pennant Hills Road, Pennant Hills is determined by refusal.

3. The exhibits are returned.

_____________________
Dr John Roseth
Senior Commissioner