Piao v Willoughby City Council

[2008] NSWLEC 1407

Land and Environment Court

of New South Wales

CITATION:	Piao v Willoughby City Council [2008] NSWLEC 1407
PARTIES:	Applicant: Shuncai Piao Respondent: Willoughby City Council
FILE NUMBER(S):	10631 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- brothel
DATES OF HEARING:	15 October 2008
DATE OF JUDGMENT:	17 October 2008
LEGAL REPRESENTATIVES:	Applicant: Mr J Hannaford, solicitor of Hannaford Lawyers Respondent: Mr A Pickles, barrister instructed by Mr J Browne, solicitor of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

17 October 2008

10631 of 2008 Shuncai Piao v Willoughby City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Willoughby City Council (the council) of a development application for a brothel at 1/78 Hampden Road, Artarmon.

The site

2 The site is in the Artarmon shopping centre, which is a traditional shopping strip opposite Artarmon Railway Station. It has a 5.5m frontage to the western side of Hampden Road and a rear boundary to Hampden Lane. The Lane is about 6.5m higher than Hampden Road. The proposed brothel is on the first floor towards Hampden Road (over a take-away chicken shop) and at ground level towards the Lane. The rear of the building is more than 20m from the lane.

3 Adjoining development is similar to the existing building on this site, ie two-storey towards Hampden Street and single-storey towards the lane. A minority of businesses have access only from the Lane.

The proposal and its history

4 The applicant proposes to renovate the first floor (to Hampden Road) of the building and use it as a brothel. Three parking spaces and a lift for wheelchair access are proposed in the rear.

5 The applicant lodged the application in April 2008. Following notification the council received 17 objections. In June 2008 the council considered a report from its planning department recommending approval. The council rejected the recommendation and requested the Environmental Services Director to provide reasons for refusal. In July 2008 the council refused the application. The applicant lodged the appeal in June 2008 against deemed refusal.

Relevant planning controls and policies

6 Local Environmental Plan 1995 (the LEP) zones the site 3(a) General Business, a zone in which brothels are permissible. Clause 13A of the LEP deals with brothels. The Willoughby Development Control Plan (the DCP) contains a section on brothels, which mostly echoes the provisions of the LEP. Part C4 of the DCP deals with, among other things, parking requirements.

Matters in contention

7 The council submitted its Statement of Contentions containing six matters. During the hearing these were reduced to the following two:

· the brothel is prohibited because it is not located at ground level; and

· the on-site parking provided is short by one car space.

The objector’s evidence

8 The Court heard the evidence of Mr W Roderick, who spoke on behalf of Ms X Wu. Ms Wu runs a “relaxation centre” at 88A Hampden Road. Mr Roderick said that the approval of this proposal would result in too many brothels in Artarmon. The council does not support the objection.

Is the brothel at ground level?

9 Clause 13A(2) of the LEP states that:

Development for the purpose of a brothel is prohibited on land to which this plan applies if the brothel is located at ground level within a business zone.

10 The proposal is not at ground level at its Hampden Road frontage and at ground level at its rear boundary with Hampden Lane. The question arises whether this satisfies cl 13A(2). The applicant’s planning expert, Mr G Chapman, considers that the brothel being at ground level towards Hampden Road is sufficient to satisfy the clause. The council’s planning expert, Mr P Grech, disagrees. He believes that, in order to satisfy the clause, the brothel should be at first floor level also at Hampden Lane. His reasons are:

· Hampden Lane is not just a service lane; it is a public thoroughfare used by pedestrians;

· the brothel can be accessed from the lane;

· the brothel can be seen from the lane.

11 I do not think that Mr Grech is correct. To satisfy his interpretation, a site would have to have a single frontage or, alternatively, the service lane would have to be on the same level as the main street. These conditions are rarely met. Moreover, the rear entrance is a positive feature of the application. While Hampden Lane is a public thoroughfare, a lot fewer people walk on it than on Hampden Road. There is no shopfront on the lane, nor any other feature that indicates the nature of the activity within. The building is more than 20m from the Lane; with cars parked in the rear the building will be partially obscured. All the properties are open to the lane; if a screen were erected on this site, it would draw attention to itself.

12 It was common ground that the purpose of cl 13A(2) is to avoid brothels that are at ground level in shopping streets where most buildings have shopfronts, which are not appropriate to brothels. The first floor location of the brothel towards Hampden Road makes it more discreet. If the brothel were on the first floor towards the Lane, it would be more conspicuous rather than more discreet. In my opinion, a commonsense and purposive interpretation of cl 13A(2) in respect of this application is that it requires a development that is not at ground level at Hampden Road.

13 The brothel is not a prohibited use pursuant to cl 13A(2) of the LEP.

Parking

14 It was common ground that the rear yard of the site can accommodate three parking spaces, of which one is for a disabled driver. It was also common ground that the consent for the ground floor use (the take-away chicken shop) requires two spaces. The DCP requires two spaces for the brothel; however, given the above facts, it can provide only one. The question for the Court is whether the shortfall of one parking space justifies a refusal of the application.

15 The DCP provides criteria for varying parking rates. These include the availability and accessibility of public parking, the accessibility of public transport and the probable transport mode of users. I have no way of knowing by what form of transport clients of the brothel will come to it; however, the site scores well on the other two criteria of public parking (available in Hampden Lane) and public transport, since Artarmon Station is just few metres away. Since the DCP’s parking requirement for brothels applies to all locations in Willoughby, it is reasonable to accept a lesser provision so close to a railway station.

The provision of one parking space instead of two is not a reason for refusal. The appeal is therefore upheld.

Conditions

16 Draft Condition 3 proposes to limit the consent to one year. This is based on section G.4.3.C of the DCP, which states that “development consents granted to brothel application may be initially limited to a period of twelve months”. The applicant opposes this as unreasonable. I agree that it is highly unreasonable. The application involves building works, including several new bathrooms. A consent for one year would not justify the applicant committing itself to these costs. Moreover, a one-year time limit would require the council to assess the application again in a year. The Environmental Planning and Assessment Act 1979 requires the council (and the Court) to assess the application thoroughly. A time-limited consent seems to me an admission that the application has not been properly assessed. Condition 3 is therefore not imposed.

Orders

1. The appeal is upheld.

2. Development application for a brothel at 1/78 Hampden Road, Artarmon is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 7 and B.

_________________
Dr John Roseth
Senior Commissioner