Poonsup v Ku-Ring-Gai Council
[2010] NSWLEC 1304
•12 August 2010
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION:
Poonsup v Ku-Ring-Gai Council [2010] NSWLEC 1304
PARTIES:
APPLICANT
Poonsup
REPONDENT
Ku-Ring-Gai Council
FILE NUMBER(S):
10265 of 2010
CATCHWORDS:
DEVELOPMENT APPLICATION
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Civil Procedure Act 2005
Disability Discrimination Act 1992
Ku Ring Gai Planning Scheme Ordinance
Ku Ring Gai Local Environmental Plan (Town Centres) 2010
CASES CITED:
Zhang v Canterbury City Council [2001] NSWCA 167; and 115 LGERA 373
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195
Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 126
Kentucky Fried Chicken v Gantidis [1979] HCA 20; vol 140 CLR 675
Martin v Hornsby Shire Council [2004] NSWLEC 614
Manzie v Willoughby City Council [1996] NSWLEC 26
Ali v Liverpool City Council [2009) NSWLEC 1326
Cheung v Ku ring gai Council [2009] NSWLEC 1408
CORAM:
Moore SCMorris C
DATES OF HEARING:
4-5 and 11 August 2010
EX TEMPORE DATE:
12 August 2010
LEGAL REPRESENTATIVES
APPLICANT
Mr M Baird, Barrister
SOLICITOR
Storey & Gough Lawyers
RESPONDENT
Mr J Robson SC
SOLICITOR
Norton Rose
PUBLICATION RESTRICTION:
JUDGMENT:
The Land and
Environment Court
of New South WalesMOORE SC
MORRIS C12 August 2010
10265 of 2010 Poonsup v Ku-Ring-gai Council
This decision was given extemporaneously and has been revised and edited prior to publication.
JUDGMENT
COMMISSIONERS: In the iconic Australian comedy, The Castle, Tiriel Mora, playing Dennis Denuto, an advocate seeking to find the basis for his submissions, says:
“In summing-up, it is the constitution. It's Mabo, it's justice, it's the law, it's the vibe and, no, that's it, it's the vibe.”
In this case, the cri-de-coeur from Mr Baird, barrister for the applicant, was that “it is not the vibe”, a proposition that we accept. The vibe is not the basis upon which to consider the application for approval of a brothel in the Gordon Shopping Centre, proper consideration of the genuine planning issues is the only basis upon which we can proceed.
Equally, as we described at the commencement of the onsite evidence from the objectors, the Court is not an arbiter of public morality. With those two observations in mind, we commence our determination of this matter.
The appeal that is before us concerns Development Application 0423/09 which seeks consent to use the first floor of 763 Pacific Highway, Gordon (the premises) as a brothel with four work rooms, four sex workers, a receptionist and to operate seven days a week between 10am and 11pm.
Gordon Shopping Centre is a traditional suburban strip shopping centre bounded at its northern end by the former Gordon Public School (now municipal library) on the eastern side of Pacific Highway; and, on the western side, Ku-Ring-Gai Council (the council) chambers and a large commercial office building. To the south of these intersectional defining buildings are a variety of commercial premises that have, at levels above ground level, various commercial, professional or other service occupations.
The shopping centre extends as far south as St Johns Avenue and, between the Pacific Highway and railway line at Gordon's station (a distance of perhaps of 100 metres or so) also has shops with upper level occupations, as earlier described. To the rear of the shops, on the eastern side of the Pacific Highway is, first, Wade Lane, a one-way street providing access to a major multilevel municipal car park and, beyond that multi-level municipal car park, which is on the eastern side of Wade Lane, the eastern boundary of that car park is formed by the main North Shore railway line.
The premises are on the eastern side of the highway at approximately the midpoint of the shopping strip on that side. The surrounding businesses are a McDonald’s Family Restaurant and, immediately underneath the proposed premises, a shop known as Hot Bargains that displays and sells what might be gently be described as an eclectic range of merchandise. From our inspection and the evidence from Ms Zhang, the proprietor of the business, the stock compromises predominantly stationery items and party supplies for younger children.
The premises that are proposed to be used as a brothel have a separate entrance adjacent to Hot Bargains at the Pacific Highway frontage, the door to which accesses a small vestibule landing from which stairs lead upward to the premises that are proposed to be the subject of the fit-out in this application. There is no interaction between that vestibule and stairway and the Hot Bargains shop.
To the rear, that is to the east leading towards Wade Lane, there is a further set of stairs, which goes down to a landing at the rear of the Hot Bargains operation and, because of the topography of the site sloping gently from west to east, then has a further set of stairs leading down past storage areas at the rear ground area that form part of the Hot Bargains premises.
It is clear to us, from the documents we have in evidence relating to the tenancy of Hot Bargains, that the stairway and landing areas, although apparently used by Hot Bargains for informal storage purposes, are in fact common areas for egress from both the upper level tenancy where the brothel is proposed to be located and from Hot Bargains itself.
In the context of the location, we should also observe, as it is a matter to which we will return, that, on south-western corner of the intersection of St Johns Avenue and the Pacific Highway, is located St Johns Anglican Church and its rectory, and, on the north-western side of the same intersection, but to the rear of the shops and some fifty metres or so further to the west of the intersection down St Johns Avenue, is located St Francis Liberal Catholic Church.
We attended the site together with the legal representatives of the parties and those advising and instructing them. We undertook a site view, which included a walk around the Gordon Shopping Centre on both sides of the Pacific Highway, through portion of one side of the street from the highway towards the station and portion of Wade Lane to the point where the pedestrian laneway running along the northern sides of the Bunnings hardware store leads to the Pacific Highway.
We also inspected the rear parking area that is proposed to be utilised by the brothel and shared with Hot Bargains. During the course of the site inspection, we attended the council chambers, where we heard evidence from a number of the objectors. We will return later to the content of this.
There are four specific locations that it is appropriate to note that we observed during the course of our site perambulations. The first was the location of the McDonald’s Family Restaurant, immediately adjacent to the premises at 716 Pacific Highway. On the opposite side of the road, during our return walk from the council’s chambers, we were asked to observe the entrance to premises at 790A Pacific Highway, premises known as the Butterfly Relaxation Centre, being premises, that we accept, from the evidence, is an unlawfully operating sex services premises. Immediately adjacent to these premises, we visited a musical school known as Music Makers and entered, at the invitation of its proprietor, those premises to inspect the nature of the teaching rooms and facilities operating in the lower ground level.
As part of our return to the site, we heard evidence on her site from Ms Zhang, the proprietor of Hot Bargains.
We then entered the site. During the course of the inspection of the internal premises, premises that are proposed to be significantly altered by partitioning and provision of additional or modified ablutions facilities as part of the application, we heard evidence from Senior Constable Cleary, the crime prevention officer of the Ku-Ring-Gai Local Area Command. He raised a number of matters of concern, all of which, as it transpired, were capable of being resolved if development consent is to be granted to the proposal. They may be summarised as follows:
A preference that staff not use the rear stairs for purposes of entry to or egress from the premises, save in emergency circumstances, with general access being via the front stairs and door;
Requirement that the parking area be lit, so that there were no hiding places that would permit ambushing of staff during the evening hours;
A rearrangement of the proposed focal area of the proposed closed-circuit television camera to ensure that passers-by were not inadvertently visually captured on film and that only those persons who actually sought to enter the premises would be so filmed; and
A requirement that there be some form of secure money handling facility as a crime deterrent, with appropriate signage indicating that either no (or no significant quantities of) cash were kept available on the premises.
Each of those four matters, as we apprehend it, were agreed to by Mr Baird, on instructions, as to be either incorporated in the plans or in the conditions, thus resolving those matters of concern.
Senior Constable Cleary nonetheless assessed the proposal as having a moderate to significant crime risk, a risk that we accept would be significantly moderate if those changes and other changes, to which we will return later in the context of our merit assessment, were implemented.
The history of the proposal is that the development application was lodged on 6 July 2009. It was advertised by the council, which received fifty-one submissions, including a petition, in opposition to the proposal. We return to the nature of those submissions later in this decision. On 22 September 2009, the proposal was refused and, on 14 April 2010, these Class 1 proceedings were commenced.
We now turn to the planning framework, which is applicable, as it is complicated to a moderate extent by the coming into effect of several environmental planning documents during the recent past.
The first principal instrument at the time the application was lodged (being the deemed Local Environmental Plan) was the Ku-Ring-Gai Planning Scheme Ordinance, a document that dates from the early 1970s. Under that Ordinance, the premises are zoned 3(a) Business Retail Services and have three zone objectives they being; to identify existing business centres within the municipality. The principal functions of which are to:
(a)satisfy the retail and the community service demands of the community which they serve;
(b)permit within the business centres hierarchy business and office premises of a scale and character which could not threaten the role of the business centres as described in (a) above; and
(c)permit other community facilities, recreation, leisure and general service within the zone to meet the needs and demands of the employees within the centres and the community which each centre service.
As brothels are not prohibited in the 3(a) Business Retail Centre Service zone, they are a permitted lands use. However, on 25 May 2010 the Ku-Ring-Gai Local Environmental Plan (Town Centres) 2010 (the 2010 LEP) came into effect.
This plan repealed all prior Local Environmental Plans, but contained a saving provision, at 1.8A, which requires us to assess the application as if that plan had not come into effect. The imminence and certainty, however, of that plan coming into effect is a matter to which we can have regard as part of our assessment.
The landuse table under the 2010 LEP zones the location as zone 2(b) Local Centre. As a consequence of that and the fact that brothels are an innominate use in the land use table for that zone, brothels are permitted.
There is, in the 2010 LEP, a restrictive provision relating to location for sex services premises, that being the technical definitional category within which a brothel falls for the purposes of the 2010 LEP. Those restrictions are contained in 6.7 and, it is accepted, as we are understand it, that those locational provisions are not breached by the present proposal. It is clear that, from the definitions, as we have earlier indicated, sex services premises for purposes of the LEP are defined as incorporating a brothel.
Until 11 June 2010, the applicable Development Control Plan was Development Control Plan 42 being entitled, "Development Control Plan for the Regulation Of Brothels". Of particular importance to note in these proceedings is that this Development Control Plan included a variety of specific locational requirements that set distances from certain other activities in the community within which brothels should not be located. Those places included; churches or places of public worship, educational establishments and a number of other matters that we do not need to note.
On 11 June, however, Ku-Ring-Gai Development Control Plan Town Centres 2010 (the Town Centres DCP) came into effect (having been adopted by the council on 8 June 2010). Clause 1A.4 makes it clear that the development control plan applies to all lands to which the Ku-Ring-Gai Local Environmental Plan 2010 applies, that is, it encompasses the present site.
It is important, given the nature of the submissions that have been made to us by both Mr Robson SC, for the council, and Mr Baird, for the applicant, that we note how the coming into effect on 11 June of the Town Centres DCP has effected the operation of DCP 42. That is provided for in cl 1A.8 of the Town Centres DCP under the heading "Relationship to Other DCPs". That provides inter alia:
“All Development Control Plans applying to the land to which the plan applies and to other land cease to apply to the land to which this plan applies.”
Although there was a humorous Monty Pythonesque interchange as to whether DCP 42 was a dead parrot or merely the black knight struggling to fight on, we are satisfied that, as a consequence of the provision that we have just cited that the Development Control Plan concerning brothels that applied in the past, has been entirely superseded and that the interactive planning instruments, to which we are obliged to have regard, are:
the Town Centres LEP 2010, to a limited extent;
predominately as the relevant environmental planning instrument, the Ku-Ring-Gai Planning Scheme Ordinance; and
Part 13 of the Town Centres Development Control Plan, that being a part of the DCP described as Sex Industry Controls.
The Issues
The council raised five matters as issues in the proceedings. We note in passing, that a variety of other matters, including matters of either a moral and ideological objection to brothels and/or prostitution, were raised by objectors. We note that they are not matters appropriate for our consideration in these proceedings. The issues that were put by the council were as follows:
• The impact on the amenity of the area including surrounding land uses and businesses;
• The adequacy or safety and security for the premises;
• Inadequate parking;
• Inadequate access for persons with a mobility disability; and
• It was contrary to the public interest.
We make three observations at this point. The first concerns the role of the Development Control Plans. The guidance we are given comes from the decision from the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; and (2001)115 LGERA 373. From what was said by Spigelman CJ at para (75) in that decision, it is clear that, although we have a wide ranging discretion, that discretion is not at large and is not unfettered. Secondly, the provisions of a Development Control Plan are to be considered as a fundamental element in or focal point to our decision making process, particularly, if there are no issues relating to the compliance with the Local Environmental Plan and finally a provision of the DCP directly pertinent to the application is entitled significant weight but is not in itself determinative.
However, that does not override our obligation to have regard to the matters that are contained in s 79C of the Environmental Planning and Assessment Act. One of the matters that is called up by s 79C being s 79C(1)(e) is the public interest. To that extent Mason P observed in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195, at para (81) inter alia:
“A consent authority may range widely in the search for material as to the public interest.”
a matter to which we will return later.
The third observation we make concerns the realisation of fears. We refer to Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 126 at para (110) where it is said:
“It is appropriate to note that a fear, no matter how honestly or conscientiously held does not provide any basis for a refusing or contributing to the refusal of a development application, unless there is some genuine likelihood of the fear being realised resulting in an adverse impact or it having already crystallised with an adverse impact being caused as a result. If these latter circumstances apply then the nature and the extent of the impact or appropriate to be considered in the planning assessment of the proposal.”
We note, at this time, that the first and fifth of the council's issues differ to some extent, but as they are the principal matters that we consider are determinative in these proceedings, we deal with them before proceeding to the second, third and fourth of the council's contentions.
One impact that is raised as a consequence of the first of the council's contention is the impact on local businesses. There are, on our understanding of it, four issues that are specific, as opposed to general, matters of objections concerning anxiety or fear of, the impact on businesses that are raised in these proceedings. The first of them concerns the Music Maker Music School on the western side of the Pacific Highway, the second concerns of the business operated by Mr Cardwell, the third, the business operated by Ms Zhang and the fourth is McDonald’s.
With respect to the first three of those, the concerns that are expressed by the proprietors relate to their apprehensions of impact upon their business, as opposed to any certainty that those impacts either have, or are likely to be realised.
This differs, in our view, and as we particularly drew attention to the advocates, from the position concerning McDonald’s. McDonald’s lodged a letter of objection to the council dated 14 August 2009 during the course of which they observed as follows:
“The development will significantly impact our sales, as our customers have communicated to us that they will no longer visit the restaurant should the development be approved.”
That, in our view, sets the fears of the McDonald's management aside from, and differs from, the unquantified and uncrystallised fears of the other three businesses.
We are not prepared to accept that the fear of the other three businesses provide any basis upon which we could consider refusing the application.
There are two matters relating to the McDonald’s concerns of their customers, and the statements of the concerns being recognised by clients or customers saying that they will no longer visit the restaurant, that warrant our consideration. The first arises as a matter of general principle from the decision of the High Court in Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675 where at p 687 Stephen J makes an observation in which he says:
“There is one further observation to be made. The learned primary judge described one submission urged before the Tribunal, namely that the establishment of the appellant's proposed fried chicken shop would “adversely effect food shopping facilities” in the neighbourhood as being just such a consideration as I had earlier held in Spurling v Development Underwriting (Vic) Pty Ltd (1973) VR, at pp 12-13, to be a proper planning consideration. I would with respect, agree with his Honour; the significant word, quite vital to the nature of the submission to which his Honour referred, is “facilities”. If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether the jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant planning consideration.”
There is no suggestion in these proceedings, in material provided by McDonald’s, that, if the brothel was to be approved, the McDonald’s restaurant would be closed, merely, the evidence that its business would be somewhat diminished.
As a consequence, we are satisfied that on the test propounded by his Honour in Kentucky Fried Chicken, there would not be a loss of facilities to the local community and, as a consequence, as a matter of general principle, we would not be able to conclude on that general ground, that the application should be refused. That, in some extent, is what distinguishes this case from the circumstances with which the Court was required to deal in Alphatex. However, consistent with our obligation to consider the provisions of a Development Control Plan, we are obliged to turn to the provisions of the Town Centres DCP at Part 13.3, particularly at 15 where the control that is provided in that DCP is that
“the premises and its activities must not have an adverse effect on surrounding and adjoining land uses and business in the locality or within the same site.”
That is a different, and in our assessment, a higher threshold test than that which flows generally from the decision in Kentucky Fried Chicken. We are satisfied that there will be, on the uncontested evidence given by the representative of McDonald’s, an adverse impact on the business of that restaurant, contrary to the requirements of Part 13.3 paragraph 15.
Whilst the other businesses to which we have referred may be affected, McDonald’s undoubtedly will be. It may be that as Dr Berg, social planning expert for the applicant, indicated, that time will cure that.
It is, however, impossible on our view, to assess, in any way, why people who did not attend premises, did not attend those premises. We are satisfied that there would be an adverse impact. We are satisfied that the impact would not, on the uncontradicted evidence that we have, be so little as to be regarded as de minimis. It is contrary to Part 13.3 paragraph 15 of the Town Centres DCP, and as a consequence, warrants refusal of the application on that basis.
The second element of the council's contentions relate to the concept of sensitive land uses. We consider that this is separate from the question that we have just determined. In this regard, as we have earlier referred to, we are able to have broad regard to what might constitute the public interest, pursuant to s 79C (1)(e) of the Environmental Planning and Assessment Act.
In this case, we note that the Town Centres DCP includes objectives as well as controls. The second of the objectives for the Town Centres DCP is to ensure sex services premises are located so as not to impact adversely on the environment, public areas and other sensitive uses. There are, however, no specific locational controls of the nature of those contained in DCP 42, but there are locational controls contained in paragraphs 1 and 2 of Part 13.3 of the DCP. Neither of the controls in those paragraphs is breached by the present proposal.
However, as Zhang makes it clear, the DCP does not impose a straightjacket on us but also enables us to cast a little more widely, consistent with the decision in Terrace Tower, as to what might constitute the public interest.
We are of the view that in doing so, we are entitled to as a matter of public interest, where an element is not dealt with by a development control plan or is not dealt with adequately by a development control plan, to have regard to the planning principles that are published by the Court.
The relevant planning principle concerning the location of brothels is contained in Martin v Hornsby Shire Council [2004] NSWLEC 614 where, at paragraph 18, Roseth SC set out nine criteria to be considered in dealing with the location of brothels. Six of those criteria are not said to be relevant by the council in these proceedings. However, the fifth, sixth and seventh are. They are in the following terms:
“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.
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.
Finally, 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.”
In his written submissions, Mr Robson said that there were a number of sensitive uses, which he identified. They were a popular McDonald’s restaurant, a number of churches, a busy educational establishment and a bus stop, to which he added, in his oral submissions, the premises known as Hot Bargains operated by Ms Zhang.
We have considered those various elements. We are satisfied that the location of St John's Anglican Church and St Francis Liberal Catholic Church are not matters that warrant any adverse conclusion being drawn with respect to this proposal. We have reached that conclusion, not only because of the absolute distance in walking terms from the entrance of the proposed brothel to each of those churches, but also as a consequence of the fact that it would require, in the case of the Anglican Church, the crossing of not only the Pacific Highway but also the busy local feeder road of St Johns Avenue and in the case of St Francis, the crossing of the Pacific Highway.
With respect to the educational institution known as Music Makers, its concerns were expressed by Ms Brown, its proprietor. She described those premises as having twenty-six teachers and teaching more than 250 pupils a week. One of the matters that she related was that when travelling to the school she has observed that children will walk up from the train station and spend time at McDonald’s and the local shops before coming to the school.
Mr Baird drew our attention to the proximity to the Butterfly Relaxation Centre next door, being an unlawfully trading sex service premises. We do not consider that the location of that unlawful activity is an appropriate matter for our consideration in these proceedings. However, we are satisfied there are other reasons to conclude that the location of brothel, compared to the location of Music Makers, does not warrant concern.
There are two reasons for that. The first, as was also discussed in Alphatex (No 2), is the fact that for there to be a direct transit of young persons to the vicinity of the brothel, they would have to take considerable risks in crossing what is an otherwise extremely busy, major highway, so designated in the road hierarchy of the State.
It is reasonable to assume that a prudently acting young person would traverse, in either a northerly or southerly direction, to the nearer set of traffic lights before crossing the road to go to the vicinity of the brothel.
Finally, the concern that was expressed by Ms Brown, relating to children spending time at McDonald’s is not, in our assessment, an issue relating to her music school but is, in fact, merely an adjunct to the concerns that are raised about McDonald’s as a place of congregation of young persons, rather than those of the music school itself.
We turn to the question of the bus stop. This is a matter that is raised by the council, in particular 1.4 to the first contention. The particularisation is in the following terms:
“The proposed development would be located in proximity of a local bus stop. The bus stop is likely to be utilised by students, school children, families and adolescents given its proximity to uses where students regularly gather and frequent.”
The particular is specifically in the terms "is likely". There is no actual evidence, whatsoever, presented to us that school buses use this bus stop. The bus stop is modestly less than forty metres from the front door of the proposed brothel. There is no evidence as to what is the use or patronage of buses stopping at that bus stop and we are satisfied that that is not a basis warranting an adverse finding, nor could it contribute to any adverse finding, concerning the proposed brothel.
There are two proximate uses to the proposed brothel to which we should pay particular concern. The first is the McDonald’s restaurant. We note that it is not a drive-through facility and that it has no rear customer access.
The letter of 14 August 2009 describes it, that being the trading name as we understand it, of the chain as being a ‘McDonald’s Family Restaurant’. They point out that they employ a number of young people and they note on the second page of the letter, which is a letter from Ms Jessica Thomas, McDonald’s Asset Manager, that they seek to promote their premises as an environment that is safe and welcoming for families and that they have been advised, as we have earlier adverted to, that their customers have said that, if the development proceeds, they will no longer bring their families to the restaurant based on the environment that this development will create.
The second sensitive land use in the immediate vicinity that is put by the council is said to be Ms Zhang's premises known as Hot Bargains. As we have earlier indicated, there is a predominance of, on the evidence given in her store by Ms Zhang and earlier by her son, Mr Zhou, during the course of the informal evidence at the council chambers, and extensive use of the premises by young people.
The notes that were tendered and form part of the evidentiary record concerning Ms Zhang's evidence, assisted to some extent by translation by her son, was that they sell toys, games, family products and household items (including stationery and party items), over a thousand items, and that they started and built the business from scratch and chose the location to attract the children who were customers from the McDonald’s restaurant. They observed that many students frequent the area and their store, including families with small children.
There are two other matters that are of concern that they raised. The first is the question of identification of the premises as 763A, which is their shop, and the brothel at 763B. We consider that that is a matter that could be dealt with by a condition dealing with the size of the site identification number at the entrance to the premises.
They also indicated that there were high volumes of Chinese high school students that frequent the store and that they did not want them to be confused with or mistaken for brothel workers. That appears to be a concern founded on the trading name "Asia Aroma" that is proposed for the premises.
Mr Baird submitted to us that it was not a proper basis for consideration and we agree that concerns about (and deriving some form of Asian personnel related inference concerning) Asian customers or staff of Ms Zhang's premises, is not a matter that would detain us in these proceedings.
However, we are satisfied that, because of the nature of the use of both the McDonald’s restaurant and the Hot Bargains premises, the premises fail the fifth point of general principle in the planning principle in Martin, being that it is adjoining, and very immediately adjoining, premises where children and adolescents regularly gather, and in considerable numbers.
We therefore consider that the proposal should be refused on that separate ground. It probably goes without saying that if we are wrong about those two grounds providing separate bases for refusal, we are certainly satisfied that, in the aggregate, they constitute a single ground supporting refusal.
At this point, we should note that we had the benefit of extensive social planning evidence from Dr Berg, on behalf of the applicant, and from Dr Stubbs, on behalf of the council. We have not failed to consider this evidence during our deliberations, but we concluded that it was not necessary to deal with the differences in approach that were taken by them, nor with the differences in conclusions which they reached. Given that we have arrived at what we consider to be appropriate bases to refuse the application on planning grounds, that does not require a detailed analysis of all conclusions in this evidence.
If we are wrong in reaching the conclusions that we have as bases of refusal, and such a view were established pursuant to s 56A of the Land and Environment Court Act, we have considered it appropriate to turn to and deal with the merits of the proceedings.
We have done so, not because we consider it is appropriate to offer gratuitous advice to some future decision maker, because that would be contrary to the expression to the reasons given for the undesirability of such a process by Bignold J in Manzie v Willoughby City Council [1996] NSWLEC 26. We do so because to do so is consistent, in our view, with the objectives set by s 56 of the Civil Procedure Act of 2005 to enable the just, quick and cheap resolution of the issues that are genuinely in dispute between the parties.
As a consequence, we have determined to undertake a proper merit assessment so that if we are wrong on our grounds of refusal, a further remitter on the merits would not be required, and the matter would be capable of being dealt with between the parties in light of our determination of the merits or be dealt with in comparatively short compass by us on remitter.
This is consistent with what has been described on a number of occasions both in decisions and in academic papers as the ‘amber light approach’ to be taken to a development application that is not one where the matter is determined to be acceptable in its entirety as proposed. This is discussed in Ali v Liverpool City Council [2009) NSWLEC 1326 at para 120:
"If a proposal is not appropriate to be given approval in the form being considered but, with minor and identifiable amendments consistent with the application before the Court, it would be capable of approval, the Court should make a determination:
• setting out the changes that are required to render the proposal acceptable;
• requiring the applicant to make those changes, whether by preparation of amended plans or by Court imposed conditions settled between the parties; and
• when such modifications are incorporated (thus rendering the proposal acceptable), approval should be given to the amended proposal.”
Mr Robson submitted that too much would require changing and that we should simply reject the proposal on its merits if the other hurdles were not passed. We do not accept that, as it is both contrary to s 56 of the Civil Procedure Act and it is contrary to the Court policy established under the former Chief Judge, McClellan CJ, of seeking the best community outcome, a community outcome that is consistent with s 56 of the Civil Procedure Act.
We have concluded, if our bases for refusal of the application as earlier enunciated were not correct, then the application is capable of approval with changes being made to it in response to the other three areas of concern expressed by the council.
The first of those relates to parking. At the present time parking is available from Wade Lane in a space that is to be shared between Hot Bargains and the proposed brothel. There are a number of defects with the present layout. The first of those is that it is not possible, as a consequence of the restriction on the length of the layover on the kerb, to access four parking spaces on the site.
Second, there is no marking of (and certainty for) those four parking spaces if they are found to be suitable. Mr Zybler, town planner, who gave evidence for the applicant, prepared overnight a revised parking layout. A copy of that was tendered as Exhibit L and, at least impliedly, is responsive to the concerns, except for the question of access across the kerb. It demonstrated that, although not strictly numerically compliant with the Australian Standard or with council's controls, sufficient space was available for the parking of four, 85th percentile vehicles on the site, with area being allocated for access to the emergency exit door from the premises, an appropriate area for waste bin storage and an access alleyway to reach that common area from Wade Lane.
We are satisfied that the car parking can be rendered satisfactory if there were a number of matters to be required by condition. Those conditions would require that:
• the applicant to extend the kerb crossing so that there would be satisfactory access across the entirety of the width of the rear of the site;
• there be appropriate paint marking of the four tandem car parking spaces, being two for Hot Bargains and two for the proposed brothel;
• there would be the installation of bollards at the western end of the parking area to separate the common access and waste storage area from the parking; and
• there would also be the necessity to deal with the inadequacy of the lighting of that area.
We understood that Mr Baird, on instructions, indicated that the applicant would be prepared to accept conditions dealing with three of those matters; that is the delineation of parking area, the kerb and lighting and we would also consider it likely that the applicant would accept a requirement for bollards to separate the common area from the parking space.
The consequence of that is that, as resulted from the discussions between Ms Hawken, being the development engineer for the council, and Ms Marshall-McClelland, the applicant's traffic and parking expert, that there would a shortfall of one parking space on the site. They agreed that this could be dealt with in one of two ways either by a reduction in the number of day time staff between 10.30am and 2pm or the leasing of a car parking space from the council on the lower ground floor of the Wade Lane car park, being an area that is available for leasing for specific, identified commercial tenants.
We are satisfied that the conditions of consent, if there were to be a consent, could deal with that by requiring that the second of those conditions be met, and, if it was not fulfilled prior to the issuing of any occupation certificate, then the first, that is, the restriction on staffing, would apply until such a space was able to be obtained, if it were able to be obtained.
That also resolves the question of s 94 contributions, as we understood it, as Mr Baird accepted that if there were to be held, as we have so held, only to be a shortfall of one parking space, (that is a s 94 contribution of approximately $17,000 but a little less than that number), this would be acceptable.
We turn to the question of safety and security. The safety and security matters were ones that were raised, in part, by Senior Constable Cleary and in part by us. The first number of those related to concerns of Senior Constable Cleary, including the use of the front entrance area only by staff on a regular basis and not using the rear doorway, except for emergencies. We understand that to be accepted.
Second, that the closed circuit television cameras not capture images of those passing by and not seeking to enter the premises. We understand that to be accepted by the applicant and that there would be no rear CCTV. We also understood, and we accept, that this would resolve any reasonable basis of concern that Ms Zhang might have for viewing of her or her staff accessing the premises from the rear, as any observation would be on a fleeting and casual basis.
We also understood that the concerns that the Senior Constable expressed relating to lighting of the car park to avoid entrapment opportunities were accepted by the applicant as Mr Baird indicated. Those matters, we believe, are capable of resolution by a condition of consent.
We also raised internal matters concerning the separation of staff from clients. There are two basic requirements in this regard that would require redrawing of the plans. If the plans were redrawn, and there is to be a development consent because we are wrong for the earlier enunciated grounds of refusal, two major changes need to be made to the internal layout, but they are changes, we are satisfied, are capable of being accommodated within the scope of the present development application.
The first is that the waiting area for clients is to be separated entirely from the workroom areas so that the receptionist has control over who accesses the workroom areas. Second, the staff facilities, including access to the staff facilities, must be segregated completely from any interaction with clients and client facility areas.
Both of those matters are necessary, in our view, to ensure the safety of the women who might work in the premises. If the matter were to come back to us on remitter and the plans reflected this, there would be no security issues remaining, in our assessment.
The final matter concerns disability access to the facilities. Dr Berg, at pages 17 and 18 of her statement, dealt with the value, amongst other things, of the provision of sexual services to persons in our community who have disabilities and who may not otherwise, in the course of normal relationships, have access to such activities in their relationship. The building, we accept, is capable of providing access to some persons with a disability, but is incapable of providing access to persons who have a significant mobility disability and who would not otherwise be able to use the staircase to access the premises.
We accept the evidence of Mr Relf, given on behalf of the applicant, that it would not be possible to fit some form of stair climbing platform or chair to the stairs to enable such access to be provided. Dr Berg proposes that there would be an action plan as is contemplated by the Commonwealth Disability Discrimination Act 1992 to address those issues.
Part of the effectiveness of such a plan would require, as we canvassed with Mr Baird during the course of the proceedings, an additional closed circuit television camera so that those persons who enter, and had such a disability, and discovered that they were unable to use the stairs, would be identified by the receptionist.
Secondly, an intercom would be necessary to enable those persons to communicate with the receptionist, such identification and communication being a necessary (and indeed fundamental) element of the nature of the action plan proposed by Dr Berg. That would enable such persons to be informed of where they could be able to achieve access to such sexual services premises as could cater for them.
We have contemplated whether it would be reasonable, under the circumstances, to require the installation of a lift of the nature that was set out in one of the appendices to Dr Berg's statement (based on information provided to her from one of the persons involved in the proposed establishment).
We have considered, on balance, that it would be unreasonable to require, as a deferred commencement condition, the installation of such a lift, although we are satisfied that such a lift could comparatively easily be installed and removed and taken to other premises if required. This is a matter of very fine balance, but, given the constraints of the premises and Senior Constable Cleary's evidence, it is clearly preferable that all access to the premises, both by workers and by customers, be from the front of the premises and the installation of such a lift at the front of the premises is entirely impractical. As a consequence, we accept that the action plan proposed by Dr Berg would be an appropriate way of addressing those disability issues, provided the communications and CCTV matters were addressed and we did not understand that those matters were resisted by the applicant.
The final matter to which we turn is condition 45 proposed by the council. Condition 45 would have the council engage a private investigator to attend and partake of the services offered by the sex workers at the premises and to inspect a number of other matters. All of that is, on our assessment of council's enforcement roles (save and except to the extent canvassed by the Independent Commission Against Corruption, where a rogue council employee of that nature went off the rails at Parramatta City Council somewhat recently), nonetheless, the legitimate role for the council to undertake by enforcement, if the council, as a matter of its public policy, chooses to do so.
The controversial element of condition 45 in these proceedings is the proposed requirement that the applicant should reimburse the council, not only for the costs of hiring the private investigator, but to reimburse the council for the cost of the provision of sexual services to the private investigator during the course of the inspection. It was suggested that that matter was dealt with by Pearson C in Cheung v Ku-ring-gai Council [2009] NSWLEC 1408. Our reading of that decision discloses that Pearson C did not need to deal with that issue and make any determination about the merits of such a condition, as the other elements of her decision caused that matter to fall away.
There is, as we understand it, therefore, no other decision that has contemplated such a condition. We propose to make a balanced but brutal statement of what we consider to be the public policy position that ought be applied by this Court. That is, we are of the view that it would be contrary to the public policy for us to impose such a condition requiring payment by the applicant for such activities. We do so as a matter of basic public policy. We offer no case law, nor other reasons, in support of it. We consider that it is such a self-evident proposition that neither case law nor other reasons are required to justify it.
The consequence of all of the foregoing is that the orders of the Court are:
1. The appeal is dismissed;
2. Development Application 0423/09 for consent to use the first floor of 763 Pacific Highway, Gordon as a sex service premises is determined by the refusal of development consent; and
3. The exhibits, other than exhibits 1, A, B and C, are returned.
_____________________________
Tim Moore
Senior Commissioner______________________________
Sue MorrisCommissioner of the Court
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