Peninsula Paradise Pty Ltd v Council of the City of Sydney

[2014] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peninsula Paradise Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1095

Hearing dates:

15 April and 16 May 2014

Decision date:

23 May 2014

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is upheld.

2. Development Application No.D/2013/1270 for the use of the premises as a massage premises and a sex services premises, including exterior alterations and internal reconfiguration, at 200-202 Harris Street, Pyrmont, is approved, subject to the conditions in Annexure A.

3. The exhibits, other than exhibits 2, C and D, are returned.

Catchwords:

DEVELOPMENT APPLICATION: massage premises on the ground floor and sex services premises on the first floor; no issues raised by Respondent; resident objectors.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Peninsula Paradise Pty Limited (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Mr M Staunton Barrister (Applicant)
Mr P Clay SC (Respondent)
Lawmark Solicitors (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

10958 of 2013

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. D/2013/1270 for a sex services premises and a massage premises (the proposal) at 200-202 Harris Street, Pyrmont (the site) by the Council of the City of Sydney (the Council).

1. The appeal was subject to mandatory conciliation on 14 February 2014, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 10 March 2014, pursuant to s 34(4) of the LEC Act.

Issues

1. The Council had no contentions in regard to the amended proposal.

The site and its context

1. The site is on the north-eastern side of Harris Street, Pyrmont and contains two adjoining Victorian terrace houses, with a contemporary rear addition of two and three storeys. The rear of the site backs onto Paternoster Row. The site has an area of 298.3sqm, with a frontage to Harris Street of 9.72m.

1. The site is within the retail/commercial strip on Harris Street, on the block bounded by Miller Street to the north and Pyrmont Bridge Road to the south.

Background and the proposal

1. The amended proposal is for the use and fit-out of the existing building as a Thai Massage premises on the ground floor and a sex premises on the first and second floors. There is no internal access between the two premises.

1. There are 3 staff car parking spaces at the rear of the site.

1. The massage premises consists of 5 massage rooms, a staff room, a kitchen and an accessible bathroom.

1. The sex premises consists of an entry from Harris Street, a foyer and an accessible work room on the ground floor; reception and waiting room, staff room, toilets and four work rooms on the first floor; and three work rooms and a laundry on the second floor.

1. The patron entry to the sex premises is from Harris Street. There is a staff entrance to the sex premises from the rear, with a secure gated entry. There is no patron access to the sex premises from Paternoster Row.

1. The operation of the massage premises includes the following:

• hours of operation from 10am until 10pm, Monday to Sunday (condition 8(a)).

1. The operation of the sex premises includes the following:

• a maximum of 7 sex workers on the premises at any one time (condition 11(a));
• hours of operation from 10am until 10pm, Monday to Sunday, with a trial period for 12 months to extend the hours of operation from 10pm until 12 midnight (condition 8); and
• two security staff on site from 6pm until 1 hour after closing time, 7 days per week (exhibit D, p 12).

Planning Framework

1. The site is zoned B2 Local Centre, pursuant to Sydney Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the B2 zone are as follows:

· To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

· To encourage employment opportunities in accessible locations.

· To maximise public transport patronage and encourage walking and cycling.

· To allow appropriate residential uses so as to support the vitality of local centres.

Public submissions

1. At the commencement of the hearing, three resident objectors provided evidence in regard to their objection to the proposal, which can be summarised as follows:

• there is an existing sex services premises in Pyrmont Street and the rear of the premises backs onto Paternoster Row and the rear entry is used for access by patrons, who are noisy and drive up and down Paternoster Row;
• the proposed sex premises is less than 75m from the existing sex premises when comparing the rear entry of both premises;
• another brothel in the area is not in keeping with the residential, village atmosphere of Pyrmont;
• the behaviour associated with brothels will discourage other, more desirable retail in the area and brothels attract people from outside Pyrmont and is not a business patronised by locals;
• there is a childcare centre located in Paternoster Row; and
• there is a bus stop adjacent to the site.

The amended proposal

1. The outstanding issues between the planning experts, Mr Kerry Nash for the Council and Ms Katherine Sheppard for the applicant, were resolved during the hearing by amending the proposal as follows:

• to provide illuminated display boxes for static window display in the existing windows of the Harris Street elevation of 200 Harris Street, which will not contain sex-related products, items or images (exhibit D, p 17);
• to increase the size of the foyer area inside the entry to the sex premises (exhibit C);
• to increase the size of the accessible work room and ensuite on the ground floor of the sex premises (exhibit C);
• to require that no patrons are permitted to access the sex premises from Paternoster Row (condition 3(c));
• to provide a group waiting area in the sex premises adjacent to the reception area on the first floor (exhibit C);
• to provide a door in the hallway on the first floor of the sex premises to separate the work rooms from the reception area (exhibit C);
• to reduce the number of work rooms in the sex premises to eight and requiring that there be a maximum of seven sex workers on the premises at any one time (exhibit C and condition 11(a));
• to require that prior to 10pm, there are to be a minimum of 2 staff (including the manager) present when the sex premises is open (condition 11(b1)) and after 10pm, when there are 4 or more sex workers on the premises, there is to be 3 staff present (excluding sex workers and security personnel)(condition 11(b2));
• to make the balconies not accessible, except for a small smoking area on the second floor, behind the Harris Street facade (exhibit C).

1. The hearing was adjourned for the preparation of amended documents. The Council submitted that the hearing should be adjourned for a longer period to allow for objectors to be notified of the amended proposal.

1. The City of Sydney Notification of Planning and Development Applications Development Control Plan 2005 (DCP 2005) includes the following in relation to amended applications, at cl 6.1:

When an application is amended, prior to its determination, the application shall be readvertised or notified (as appropriate in terms of the provisions of this DCP) when the amended application is considered likely to result in additional environmental impacts.

Amended applications that result in a reduction in the environmental impact of a development proposal are not required to be readvertised or renotified.

1. The parties submitted that the Court, pursuant to s 39(2) of the Land and Environment Court Act 1979, could readily exercise the discretion permitted by clause 6.1 of DCP 2005 and decide not to renotify the proposal. The applicant submitted that the amended proposal differs only in minor respects from the previous proposal and the amendments are an improvement that results in a reduction in the environmental impact of the proposal.

1. I agreed with the applicant's submission that the amendments were minor when considered in the context of clause 6.1 of DCP 2005 and would not result in additional environmental impacts and it was appropriate to dispense with the notification of the amended proposal for the following reasons:

• DCP 2005 provides discretion for the consent authority to decide not to renotify objectors if the consent authority is satisfied that the amendments result in a reduction in the environmental impact of a proposal;
• the planning experts made the amendments to the proposal during joint conferencing, in response to Council's contentions;
• Council's planning expert, Mr Nash, was satisfied that the issues had been resolved by the amendments made to the proposal; and
• I am satisfied that the amendments made to the proposal address the issues raised by the objectors to the extent that amendments to the proposal are able to address their objections.

1. Council is satisfied that the entry to the amended proposal in Harris Street is more than 75m from the existing sex services premises primary entrance in Pyrmont Street (exhibit 1, f 32).

Conclusion

1. In considering LEP 2012, the amended plans, the amended Plan of Management and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objectors, I am satisfied that there is no reason why consent should not be granted to the amended plans.

Orders

1. The orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No.D/2013/1270 for the use of the premises as a massage premises and sex services premises, including exterior alterations and internal reconfiguration, at 200-202 Harris Street, Pyrmont, is approved, subject to the conditions in Annexure A.

(3)   The exhibits, other than exhibits 2, C and D, are returned.

Susan O'Neill

Commissioner of the Court

**********

Decision last updated: 23 May 2014