Pedersen v Parramatta CC

[2005] NSWLEC 202

Land and Environment Court

of New South Wales

CITATION:

Pedersen v Parramatta CC [2005] NSWLEC 202

PARTIES:

APPLICANT
Patrick and Pataicia Pedersen

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11379 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Brothel/swingers club - site suitability - social impact - amenity objections

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001

CASES CITED:

Zhang v Canterbury CC

DATES OF HEARING:

21/04/2005

EX TEMPORE JUDGMENT DATE:

04/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Creighton, agent

RESPONDENT
Mr T. Howard, barrister
of Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

21 April 2005

11379 of 2004 Patrick and Pataicia Pedersen v Parramatta City Council

JUDGMENT

Background

1 This appeal is against council’s refusal of a development application for a brothel/swingers club at 18 Ferndell Street, Granville, which is proposed to operate on the basis of 7 days per week and a 24 hour cycle.

The site

2 The site is described as lot 36 in DP14788 and has a total area of 544 sq m with a 14.93 m street frontage. There is an existing industrial warehouse building on the site and it is generally surrounded by other industrial/commercial type uses.

The Proposal

3 The proposal involves use of this warehouse as the brothel/swingers club and proposes some relatively minor internal alterations. The operation involves a maximum of two sex workers on the premises at any time together with a receptionist. There are five bedrooms including one with facilities for disabled, a common lounge room and a pool room. Five car parking spaces are proposed.

The Issues

4 For the appeal the council identified a number of issues including matters raised by the objectors. These particularly relate to impact on the area, social impacts, disabled access and initial police concerns. However the police concerns have subsequently been resolved and can be covered by way of conditions of consent.

5 For the appeal, the parties agreed to Mr G Porter, as the Court appointed expert on social impacts. He has prepared a detailed assessment and his report, (exhibit 5), resulting in his conclusion that conditional consent is reasonable in this case.

6 He particularly addresses the matters raised by the objectors and states that:

Traffic and parking impacts
“I do not foresee the maximum number of patrons set by the applicant, (25 plus 3 staff) being achieved often if ever. Busy times can reasonably be expected to be weekend evenings and Sunday daytime. Even if peak capacity is achieved and everyone comes by the car, the additional traffic levels would be so minimal as to have no social or amenity impacts on other users. As there is a large amount of space for legal on street parking in the area, I consider it unlikely that parking by staff and clients will have any impact on existing users of the area.”

Proximity to facilities used by children and to residential dwellings
“The site is within an industrial area and there are no facilities used by children nearby. There are no residential dwellings in the vicinity, and the houses on Highfield Road to the rear as so far away and well-separated from the site that I do not anticipate any impact on them. Consequently, I would conclude that the relevant requirements of Parramatta LEP 2001 are met and I anticipate no adverse social impacts.

Negative impacts on amenity, crime, public safety
“I have found no evidence that such impacts will occur. Consequently, I do not foresee a negative impact or loss of amenity, and no disturbance, in the terms set out by the LEP is anticipated.”

7 Apart from this, a detailed planning assessment was undertaken by council’s manager development services, Mr A Cowell. He has assessed the proposal in terms of the prevailing planning framework, whereby under Parramatta LEP 2001 the site is zoned Employment 4. Brothels are permitted in this zone.

8 With respect to the “Swingers Club” component he says that:

“… whilst swingers club is not defined in the LEP, the swingers club can be classified as a recreation facility which is defined in the following manner.
Recreation facility means a building or place used for sporting activities, recreation or leisure activities whether or not operated for the purpose of gain and may include:
(a) swimming pools,
(b) bowling greens,
(c) tennis courts and
(d) playing fields”

9 On this basis he says that the proposal is permitted with consent and in the absence of any challenge to this conclusion, I accept it.

10 He also has addressed the objections submitted, including the petition. Of particular relevance to the concerns and perceptions raised in these objections, he states:

Adverse social impacts on surrounding residents
“The proposal complies with all the locational requirements for brothels prescribed in the LEP. The proposed site is located in the middle of the South Granville Industrial Zone. Entry to the site is not within view of any residential property or other sensitive land uses such as places of public worship, educational establishments or recreational facilities frequented by children. On this basis it could not be argued that the site will have any adverse impact, thus clearly demonstrating that the site is a suitable location for the land use proposed.”

Crime & safety impacts
“Some objectors are concerned that the brothel would create adverse crime impacts in the local community and in some cases would prevent people leaving their dwellings as they are fearful of being victims of crime.
There is no documentary evidence that has been submitted which indicates that the approval of the proposal would increase crime in the area. The application was referred to the New South Wales police for comment. The issues raised by the police have been addressed by way of additional information and appropriate conditions of consent will be included on any consent issued to address the comments made by the police.”
Impact on property values
“Objectors have raised the concern about the adverse impact on property valuations in the area if the use is approved.

11 No evidence has been provided to substantiate this claim.

12 Then with reference to proximity to areas where children play, he says that the property is adjacent to a vacant industrial site formerly occupied by Rothmans Pall Mall and approval has been granted to the construction of an industrial complex for three large warehouses with ancillary parking on the site and construction of these industrial units is to commence shortly. When this occurs, children will not be able to play on the site. It is also noted that no windows or doors are provided along the rear elevation of the subject building and thus it would be difficult to establish the use of the site whilst observing the building from its rear.

13 In regard to the proximity to an adjacent bus stop, he says that the LEP states that brothels should not be sited within 50 m of a public transport facility and a bus stop is located in front of 24 Ferndell Street, and this is complied with.

14 With reference to proximity to schools he has provided a detailed table with lines of site distance and walking distance and he says that this table clearly demonstrates the proposal is not within close proximity or walking distance to these schools.

15 In terms of the siting and location of the swingers club, he has also tabulated other surrounding sensitive land uses. In paragraph 24, there is comprehensive list that has not been challenged and his conclusion is that none of the identified sensitive land uses are less than 400 m walking distance of the proposed premises. Whilst Ray Marshall Reserve is located approximately 400 m from the site, the catchment of local residents who would walk to this reserve from their homes via the subject site would be quite low as there are alternative parks such as Campbell Hill Reserve and Everley Park where these residents including children would most likely recreate.

16 However, one of the other significant matters raised concerns the amenity impacts with the operation of the premises. In this regard Mr Cowell refers to Cl 24(2) provisions of the Parramatta LEP, which outlines standards for operating.

17 By reference to the matters for consideration he concludes that:

“Whilst it is proposed that the premises cater for a maximum of 25 people at any time, the siting and location of the premises is satisfactory to accommodate this number of patrons without impacting on any sensitive land use or surrounding business. The management plan submitted with the application clearly indicates that drugs will not be tolerated and no alcohol will be served on the premises, which significantly reduce the likelihood of neighbourhood disturbance from rowdy behaviour of clients leaving the premises.
Also, the proposal will not interfere with the amenity of the neighbourhood, specifically the location, siting, design of the proposal, as well as a submitted management plan clearly demonstrates that if the operation of the premises is carried out in accordance with the management plan the amenity of the neighbourhood will not be adversely affected.”

18 From this he concludes that conditional consent is reasonable in this case.

19 Having carefully considered the competing positions, on balance I rely on his conclusions, together with Mr Porters, that this proposal does merit conditional consent.

20 Arising from the examination of the evidence and draft conditions the applicant objected to the condition requiring a 12 month trial period.

21 In support of this trial period Mr Howard submits that there is an awareness that the brothel/swingers club has been operating illegally in the past and that council’s concern is that alcohol may be used on the premises and difficult to control despite conditions of consent prohibiting alcohol. In light of the past disregard for the law and relative uncertainty of the swingers club’s activity, therefore the 12 months trial period is reasonable.

22 Further, he refers to the anti social incident stated by Ms Kaplan, of a person intruding on the adjoining property and causing some nuisance.

23 Whilst the details of the intrusion are limited, particularly where the person came from, accordingly I would give this isolated incident diminished weight. Nevertheless I accept that this type of development of a brothel/swingers club is somewhat novel, according to Mr Howard’s description, in this neighbourhood and that the associated activities of the swingers component of the development are not specifically mentioned in the planning controls.

24 Therefore, the resultant operational outcomes and impacts are somewhat uncertain for this particular sensitive land use. Whilst I accept the applicant’s submissions that no alcohol will be allowed on the premises and that there will be no external amenity impacts, this needs to be strictly enforced and the proposed management arrangement of two sex workers and one receptionist on the site does not guarantee this in my opinion, particularly when the maximum number of patrons may be attending.

25 Accordingly, I consider it reasonable to require the 12 months trial period to allow for a settling in period, to allow the operator to demonstrate it can operate as a good neighbour. Compliance with the conditions of consent should generally achieve this.

26 One of the conditions of consent requires the introduction and operation of a complaints register to be held on the site and available for council inspection. Also the complaint phone number should be clearly known so that genuine complaints are recorded and addressed.

27 Insofaras I consider this trial period condition is reasonable it is primarily on the basis to allow the development to “settle in“ and operate on a good neighbour basis. For Mr Howard’s submissions, I understand that flowing from the Zhang v Canterbury Appeal, that a trial period can be required in certain circumstances. In this case it is a sensitive type of the development, in the subject location, which are circumstances in my opinion, that warrant the trial period.

28 Accordingly, I consider that the detailed planning assessment by Mr Cowell who supports the application including the 12 months trial period and Mr Porter’s social impacts assessment resulting in his support also outweighs the objections raised by the various neighbours to the proposal. Therefore, I consider that it is satisfactory to grant conditional consent to this development application.

29 The Court orders are:

(1) The appeal is upheld.
(2) Development consent is granted to DA1224/2004 for the use of the premises at 18 Ferndell Street, Granville as a brothel/swingers club in accordance with the conditions in Annexure A.
(3) The exhibits may be returned except exhibit 1 (tab 5), 2, 4, 5, 6, A.

______________________

R Hussey

Commissioner of the Court

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