Procopiadis v Marrickville Council

[2009] NSWLEC 1241

Land and Environment Court

of New South Wales

CITATION:

Procopiadis v Marrickville Council [2009] NSWLEC 1241

PARTIES:

APPLICANT
Procopiadis, Nicholas

RESPONDENT
Marrickville Council

FILE NUMBER(S):

10190 of 2009

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- brothel; suitability of location; proximity to recreation area; amenity; impact on neighbours; traffic/parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001

CASES CITED:

Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126
Zhang v Ashfield Council [2004] NSWLEC 259
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
BGP Properties Limited v Lake Macquarie City Council [2004] NSWLEC 399
New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154

DATES OF HEARING:

30 June 2009, 1 July 2009

 
DATE OF JUDGMENT: 

24 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green (Solicitor)
SOLICITOR
Pikes Lawyers

RESPONDENT
Mr I Hemmings (Barrister)
SOLICITOR
Mr G Christmas (Solicitor)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 July 2009

10190 of 2009 Nicholas Procopiadis v Marrickville Council

JUDGMENT

Background.

1 This appeal was lodged against the deemed refusal of a development application for alterations to an existing building to facilitate its use as a brothel and art/gallery workshop. The property is located at 66 Railway Street, Sydenham.

2 The issues identified for the appeal are summarised as follows:

• Inappropriate location.
• Unsatisfactory hours of operation.
• Inadequate parking and off-street loading/unloading facilities.
• Public interest considerations.

The site

3 This site is described as Lot 159 in DP 750. It has a total area of 306.6sq m, a 9.1m frontage to Railway Road and also a 9.3m frontage to the rear Park Lane.

4 The existing improvements on the site include a one part two storey brick and metal roof shop and dwelling with associated outbuildings to the rear.

5 The site is situated within the general business zone that comprises a number of commercial premises along with various residential properties. A part one, part 2-storey house (No 68 Railway Road) adjoins to the north and there is a 2-storey shop and residence (No 64) with brick parapet adjoining to the south.

6 Sydenham Green is located opposite the site across Railway Road. It contains a children’s play area, picnic tables and various pathways. Adjacent to this park area is a basketball area.

The proposal

7 This development application is for alterations and additions to the building so as to enlarge the street front art gallery/workshop area and use the remainder for a brothel. The proposal incorporates 6 on-site car parking spaces.

8 The brothel is primarily on the first and second floors and involves:

• 8 working rooms, 2 waiting rooms and reception area.
• Utilisation of 4 of the on-site car spaces, in stacked formation with access from Park Lane. These spaces to be available for use outside the operating hours of the gallery.
• Access is via a covered 1.5m side entry, which fronts Railway Road and is adjacent to No 68 Railway Road.
• Operations within the scope of a plan of management (POM) that includes 2 managers on the site at all operating times, one being the Door Manager and the other the Floor Manager.
• There is to be a maximum of 8 sex workers, 5 full-time sex workers and 3 part-time workers.
• Admission is by telephone appointment only.

9 The hours of operation initially proposed are from 6.30pm to 2.30am on the following day on Monday to Wednesday, Friday, Saturday and Sunday and 8.30pm to 2.30am on the following day on Thursday.

Planning controls

10 The following controls are relevant:

• Marrickville LEP 2001; under which the site is within the General Business 3(A) zone and the proposal is permissible with consent.
• Marrickville DCP No 37; Brothels and other premises used for Prostitution.
• Marrickville DCP No’s 19, 27, 28, 31, 32 and 38.
• Section 94 Contributions Plan.

The evidence

11 Detailed evidence was presented by:

• Ms H Atwal; Council town planner.
• Mr G Boston; Applicant’s town planner.
• Mr C Hallam; Council’s traffic consultant.
• Mr J Coady; Applicant’s traffic consultant.
• Mr G Crumblin; Intelligence analyst operative.

12 In addition to this, a considerable number of written objections were lodged and they have been considered in conjunction with the oral objections expressed at the view.

13 This application follows a previous application for a brothel at these premises, which was refused by the Court on appeal. However this revised application varies in that it is of smaller scale (14 work rooms reduced to 8), it has reduced operating hours that don’t allow opening before 8pm, the main access way is now covered to provide a more discrete entry to the premises and the brothel is to operate under the provisions of a more restrictive POM. Also, the applicant is willing to accept a condition requiring a trial period for 12 months to demonstrate the brothel can operate without causing adverse amenity impacts on the neighbourhood.

14 The main issue concerns the appropriateness of the location of the brothel, in terms of the existing controls and amenity impacts on the area. As I have noted, suitable brothels are permitted in the general 3(A) business zone. Clause 44 requires the consent authority to take into consideration the following matters:

44(4)(a) The location of the brothel and its proximity to any child care centre, community facility, educational establishment, hospital, place of public worship, recreation area or residential building or any place regularly frequented by children.
44(4)(d) Whether the operation of the brothel or dwelling house would interfere with the amenity of the neighbourhood.

15 More specific development controls are then contained in DCP 37, wherein Objective 01 requires that:

“brothels and other sex services premises are located in appropriate areas where they do not impact adversely on the environment, and in particular upon residential occupancies or other sensitive uses.”

16 Part 3.1 dealing with the locational constraints for brothels provides in C2 (ii) that brothels should not be located next to a range of uses including recreational areas, or places regularly frequented by children. The following note allows for some discretion regarding the location of residences.

ii) next to or directly opposite: a child care centre, community facility, educational establishment, place of public worship, recreational area, or any place regularly frequented by children (excluding shopping areas), whether these are within the Council area or within an adjoining Council area.
NOTE 1 (for brothels and other sex services premises): Aside from the above control at (ii), Council will also consider the proximity of the above sensitive uses within the wider neighbourhood in which the brothel or other sex services premises is proposed and not just in its immediate vicinity.
NOTE 2 (for brothels only): Notwithstanding the absence of “residences” in point (ii) above, Clause 44(3)(a) of the MLEP 2001 requires Council to consider “the location of the brothel and its proximity to any.residential building”. In the Business and Industrial zones in Marrickville in which brothels are permitted with development consent, there may be instances where a brothel is proposed to be located next to or directly opposite a residence, e.g. a brothel above a shop which is next door to a flat above a shop. In such situations Council will consider the potential impacts of the brothel upon the residence, having regard to such matters as: the size of the brothel and number of staff; the design, construction and internal layout of the brothel; the proposed hours of operation including whether these are in accordance with other approved late night venues in the immediate vicinity of the site and other details of the use as contained in the Plan of Management.

17 Ms Atwal does not consider the site is suitable because of:

• its close proximity to the (Sydenham Green) recreational area, which she regards as a sensitive area frequented by children.
• its proximity to the adjoining residential dwellings.
• its relatively close proximity to the slot car shop at 60 Railway Road, which is used by children.

18 Against this, Mr Boston considers the site is suitable for this development based on the intensity of the proposed use, the discrete nature of the use and associated access arrangements in the subject context and the ability to appropriately manage potential impacts through the POM.

19 Furthermore, he does not consider that any adverse environmental or amenity impacts have been identified that would result in the failure of the application. Insofar as the site is located near residential properties, Mr Boston says that there would be very few, if any 3(A) zoned properties that would not be appropriately described as being next to, directly opposite or generally surrounded by residentially zoned land and this control should not act as a prohibition. Instead, consideration should be given to the provisions on NOTE 2.

20 With particular reference to the proximity of the 6(A) open space area – Sydenham Green, Mr Boston says that its location should not result in the refusal of this application because:

• A distance of approximately 80m separates the enclosed children’s playground.
• There is also a considerable separation of 140m to the basketball court and approximately 150m to the SES facilities.
• This open space is also separated by Railway Road, which is a busy, “State” classified road.

21 In support of this position, Mr Boston attended the area on 6 June 2009 between 7.30pm and 9.30pm to observe the usage of Sydenham Green. His observations were:

• The use characteristics of Sydenham Green changes significantly at sunset;
• At no time after sunset is any area of the park surveyed frequented by either accompanied or unaccompanied children in the way the term “regular” is defined by the dictionary: constant or occurring at short intervals;
• After sunset a majority of usage is confined to the northern areas of the Park and associated with the dog exercise area, access through the Park along Reilly Lane and the basketball court;
• Having regard to the data it is considered reasonable to assume that Sydenham Green would not be regularly frequented by children, or for that matter by adults, during the proposed operating hours of the brothel as amended (8:00pm to 2:30am Monday, Tuesday, Wednesday, Friday, Saturday, Sunday and 8:30pm to 2:30am Thursday) at any time throughout the year;
• The hours of operation proposed for the brothel will not conflict with the hours of use of Sydenham Green to the point where the amenity of the recreational area was impacted upon to a determinative extent.

22 In further support of this position, Mr Boston also relies in part on the results of the “Sydenham Green Usage Survey”, undertaken by Mr Crumblin on consecutive days over the period of 18 June – 29 June 2009. This survey found that during this 10 day period:

• There were 42 accompanied child (0-18 years) attendances and
• 40 unaccompanied child attendances. Of the 82, this resulted in 13.8% of all visitors before sunset and 8% of all visitors after sunset.
• A very high majority of visitors to the park are adults as opposed to children - (86.2% adults).
• A majority of child visitors visited before sunset, which is noted to be between 1653 - 1656 hours on the days concerned - (57.3%).
• A majority of child visitors were accompanied by adult supervision - (51.2% accompanied).
• The two primary uses of the park appear to be use as a thoroughfare (46.2%), and dog exercise - (29.4
• The two least uses of the park appear to be child play (8.4%) and adult supervisors of those children - (2.7%).
• A very high majority of visitors to the park, entered via quadrants ‘5A’, ‘5B’ and ‘Area 4’ – (85.5% combined). These areas are located at the northern end of the park, and are the furthest locations in the park away from Railway Road.

23 With regard to the proximity to the slot car shop where children attend, Mr Boston says its hours of operation finish at 6pm on weekdays, except Thursdays when it closes at 8pm. Accordingly, the later operating hours of the brothel have been adopted so as to avoid any conflicts with the respective hours of operation.

24 Consequently, Mr Boston says that all the other matters of concern can be addressed by way of the updated POM. This requires brothel clients to make telephone bookings for appointments, so as to minimise disturbances at the site and provides for supervision of the premises and specific directions to clients to respect the residential amenity of the surrounding area.

Traffic/parking

25 Mr Hallam and Mr Coady, assessed this issue in terms of the DCP 19 – Parking strategy requirements, DCP No 37 provisions and on the basis of a parking survey of the area. Application of the DCP controls would require the provision of 6 parking spaces, comprising 2 x workforce + 4 x patrons for the art gallery area. There is capacity in the rear car park for the 2 workforce spaces and also space to accommodate 3 patrons cars, with 1 space being also allocated for a loading dock for use of both the gallery and brothel.

26 However, Mr Hallam and Mr Coady agree that the art gallery patrons are more likely to park on street. In these circumstances, the on street car parking demand generated by the gallery will be up to 4 spaces. They undertook a parking survey of the surrounding area and agreed that there is adequate on-street car parking to accommodate the additional parking demand potential to serve the gallery.

27 With regard to the overall development, these experts identified the following assumptions about the access modes for the staff and clients of the brothel and art gallery. This includes that the travel mode characteristics of brothel patrons will be:

• Car drivers 40%
• Car passengers 10%
• Taxis 25%
• Public transport/walk 25%

28 From this, the traffic experts have also assumed that:

• The average duration of stay of brothel patrons will be 45 minutes.
• On the busiest trading nights (Friday and Saturday), all of the 8 rooms will be in use for at least part of the time that the brothel is open, most likely between 12.00 midnight – 2.30am.
• On other nights (Monday – Thursday, and Sunday) a maximum of 5 - 6 rooms are likely to be in use at any one time, mostly between 10.00pm - 1.00am.
• The maximum level of patron activity (ie arrivals and departures) generated by the brothel is likely to be 16 persons/hour on the busiest trading nights (Friday and Saturday), and 10 - 12 persons/hour on other nights.
• The maximum patron parking demand on the busiest trading nights (Friday and Saturday) is likely to be 5 cars (8 patrons x 40% car driver x 1.5 overlap). On other nights, the maximum patron parking demand is likely to be 3 – 4 cars.
• The total maximum parking demand (including workforce) is therefore likely to be 8 –9 cars on Friday and Saturday nights, and 6 - 8 cars on other nights.
• The maximum traffic generation on busy nights (Friday and Saturday) is 15 vehicle trips per hour (cars – vtph; taxis – 5 vtph). On other nights, the maximum traffic generation is likely to be 12 vtph.

29 The parking surveys consequently indicated that:

• There is ample on-street parking available in the vicinity of the site to accommodate the parking demand generated by the brothel;
• This on-street parking is available in the section of Railway Road between Henry Street and Rowe Lane.

30 Consequently, Mr Hallam and Mr Coady agree that there is capacity in the rear car park to accommodate all of the workforce parking demand of the brothel and that the brothel patron parking demand can be accommodated on-street. This on the basis that maximum demand will be on the busiest nights Friday and Saturday and is likely to be 5 cars. On the other nights the parking demand is likely to be for 3-4 cars.

31 These experts also considered the potential amenity impacts from additional traffic in the area, particularly the residential sections. Insofar as most of the traffic will use Railway Road, it is a state road, which has a daily traffic volume in the order of 20000vpd. This comprises approximately 217-417 vehicles per hour in the 11pm to 2am period. They do not consider the incremental traffic changes due to the brothel will result in any material impacts in Railway Road.

32 However, they acknowledge that some patrons may choose to park in Park Road, Henry Street or Rowe Lane, to achieve some greater discretion. There was no agreement as to the possible impacts from this outcome, with Mr Coady maintaining that this would most likely be of a minor nature.

Conclusions

33 Having carefully considered the evidence presented in this case, it is firstly apparent that this proposal is of a significantly smaller scale and with reduced operating times to that previously refused by the Court and other amendments have also been made. Other important considerations are that the brothel is to operate in accordance with the revised POM, which contains controls to minimise any neighbourhood disamenity. Also, I am particularly mindful that the applicant has proposed the brothel be allowed to operate for a 12-month trial period, to ensure that it can be a on a “good neighbour” basis.

34 The location of brothels is restricted, but they are permitted in the General Business 3(A) zone, as in the subject case. Pursuant to cl 44 (4) (a) of the LEP, I have considered the proximity of the proposal to sensitive areas that may be regularly frequented by children. The main concern is the proximity to Sydenham Green, which I accept is a relatively large recreation area opposite the brothel and consequently is an area that should be considered in this regard.

35 Whilst it contains various components and attractions, including a fenced children’s playground, this is a distance of some 80m from the brothel. Mr Crumblin surveyed the usage of this playground, together with the rest of the recreation area over a 10-day period.

36 Consequently, whilst some children use the recreation area, this level of usage over the period appears relatively small and the results do not indicate to me that children frequent it. In this regard I accept that the survey has limitations because it was undertaken in the winter when usage would be expected to be less. Nevertheless there was no other substantive evidence to show children regularly frequent this area, particularly during the proposed later operating hours of the brothel.

37 Furthermore, it appears to me from the view that in addition to this 80m separation to the playground, there is an effective barrier imposed by the intervening, heavily trafficked Railway Road (20000 vpd). This presents an effective separation and limits access to this area. In this regard, I note the Senior Commissioner considered a similar situation in the matter of Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126, wherein he stated:

74 It is appropriate, first, to deal with a broad general issue concerning all three classes of young persons who might be on the eastern side of Old Northern Road. Old Northern Road, at this point, is a major arterial road carrying significant volumes of traffic. It is extremely unlikely, given the width of the road, traffic volumes and the comparatively short distances (some 50 m or so as a maximum to the north or south) to signalised pedestrian crossings, that there is any likelihood of any significant numbers of persons, whether young persons or otherwise, making a crossing of the road other than by the signalised crossings. It is therefore reasonable, in my view, to consider any young persons who might be passing the premises and being sourced from the eastern side of Old Northern Road, to be aggregated with those who might be passing the premises, in either direction, on the western side of Old Northern Road

75 The spatial separation and the nature of the road effecting that separation are relevant matters in my consideration of this impact. Taking them into account, there is no impact of any significance possible on these young persons simply by them being in the vicinity of (but separated by a major arterial road from) the proposed brothel.
76 As a consequence, I do not consider that there is any basis for concern about young persons who are simply walking along the eastern side of Old Northern Road from any of the three sources about which concern was expressed. A similar concern was expressed and similar conclusion should be reached, in my view, concerning users (of any age) of the park or the community facilities adjacent to it, to that with respect to young persons walking on the eastern side of Old Northern Road.

38 In the subject matter, Railway Road is busy road, with a relatively narrow 2m wide footpath along its southern side adjacent to the subject premises. It seems reasonable that any park users would generally avoid using this footpath and instead cross the road at either the traffic lighted intersection at Henry Street or Unwins Bridge Road, which would be a safer and more likely convenient access. In these circumstances, I consider there is unlikely to be any material impact on children in the vicinity of the proposed brothel.

39 I also note Mr Boston’s evidence that the ‘Sydenham Green Plan of Management’ provides for planting along Railway Road to create a visual barrier between the road and park, with such works having a high to medium priority. Presumably these works would further screen the various play areas, thereby reducing any impacts on users. Accordingly, taking into account the usage survey results and the times of operation of the brothel, I do not consider that this recreation area is such that children regularly frequent it, even though some use it, to an extent that its location warrants refusal of the application.

40 In this regard, I note Mr Boston’s reference to another nearby park - Tillman Park, which is fenced and contains attractions facility for children. From the view, it appears the facilities in this park provide an attractive alternate recreational area children and this may explain in part why the usage of Sydenham Green by children does not appear to be on a regularly frequented basis, according to the ‘user survey’ details.

41 With regard to the proximity to the slot car shop, it seems to me that this shop sells specialised products, some of which would be relatively expensive and it would have limited attraction, as compared to a café, which may be more regularly frequented by children. Whilst I accept children are likely to attend this shop, there was no substantive evidence to show that children regularly frequent it. Notwithstanding this, the brothel operating hours are outside those of the shop, and I therefore do not consider it reasonable to refuse the application due to its proximity to the slot car shop.

42 The provisions of cl 44 (4) (d), as to whether the operation of the brothel would interfere with the amenity of the neighbourhood are also a relevant matter for consideration. Concerns in this regard were well expressed by the residents who live in proximity of the proposed brothel. These concerns are that the brothel would detract from the character of the area, resulting in disturbances when patrons mistake directions and also encourage late-night parking in the surrounding residential streets, namely Park Road, which would result in noise disturbance and a loss of amenity.

43 With regard to the first aspect, this type of concern was addressed by Bly C in the matter of Zhang v Ashfield Council [2004] NSWLEC 259, where he accepted that:

In reality brothel patrons are ordinary members of the community, and there is no reason to imagine that they behave in public any differently than other members of the community, or indeed that they could be distinguished from other people using the area … they represent a cross-section of the people in an area.
It is hard to see why there should be any interaction between passers-by and patrons, especially given the desire of most patrons for discretion as they enter or leave.

44 One of the objections was that previously an illegal brothel operated from the premises and some patrons caused disturbance to other nearby neighbours when seeking the brothel location. It seems to me that this problem should be substantially addressed with the discrete identification of the premises and attendance is by prior appointment, with the operations being in accordance with the POM provisions.

45 Another significant concern raised by neighbours is that there will be late-night disturbances caused by patrons who choose to park in Park Road, or Rowe Lane. In determining this aspect, I rely on the traffic expert’s assessment that this site has good access to public transport and approximately 40% of patrons are likely to be car drivers. This results in a maximum parking demand of 5 cars on the busier Friday and Saturday nights.

46 This matter was subject of some discussion by the traffic experts and planners, particularly the likely parking location preferences of patrons. It was accepted that the usual practice is for drivers to park as close to their destination as possible. If this practice occurs, there is ample on street parking close to the brothel in Railway Road and Henry Street, as identified by the traffic experts and therefore any disturbances to the residents would be negligible.

47 If the patrons otherwise choose to park in Park Road in order to seek more discretion, it seems that such event would cause minimal disamenity considering the relatively small number of vehicles likely to park in this vicinity and the limited availability of on street spaces. I do not consider this speculation about parking preferences should be given such weight so as to refuse the application.

48 In this regard, I have considered the evidence of Ms Atwal who expressed some concerns about the cumulative loss of amenity from the aircraft noise until the 11.00pm curfew and likely further disturbances from patron parking and associated disturbances after this time until approximately 2.30am. As this was a factor in the refusal on the earlier application, she considered this objection should be maintained.

49 However, I am now satisfied that that this current proposal is of significantly reduced scale and based on the traffic experts assessment of likely parking demand, I do not consider the patrons, or associated parking should result in undue disturbance of the neighbourhood or interfere with its amenity.

50 In this regard, I give some weight to the evidence of both Mr Coady and Mr Boston that patron parking in the surrounding streets is likely to be relatively unattractive because of poor lighting and safety risks.

51 Another aspect of the traffic arrangements concerns the adequacy of off-street loading/unloading. According to the traffic experts, with the provision I space in the rear parking area for a loading dock, it can be conditioned to operate only during business hours (8.00am – 6.00pm). Accordingly, I rely on their agreement that compliance with these conditions of consent means that the brothel can operate without any unacceptable effect on the nearby community.

52 Overall, I note the council’s submissions regarding the applications non compliance with the DCP No 37 parking requirements in Part 3.3. But in the circumstances of this case, I consider it reasonable to rely on the agreement of the traffic experts that on street parking is an acceptable alternative and exercise the discretion allowed under section C3.

53 With regard to the adjoining residential property and other nearby residences, the controls require consideration of any impacts, rather than acting as a prohibition. It seems to me that the level of amenity experienced by the occupants of No 68 is somewhat compromised by its proximity to other commercial premises and the impacts from Railway Road. Consequently its front and side areas adjacent to the subject property are relatively well compounded. This reduces external impacts in my assessment.

54 However, the proposal involves enclosure of the side lane/brothel entry along the common boundary with No 68. Provided this enclosure incorporates reasonable sealing to mitigate noise transmission, and the brothel entry is carefully controlled in accordance with the POM provisions, which includes the use of CCTV entry control, I am satisfied that there should not be unreasonable amenity impacts on the adjoining residential properties. Under the circumstances it is appropriate to exercise the discretion allowed in the DCP in Part 3.1 - Note 2.

55 As previously noted, I place significant reliance on the POM being effective. In this regard I note Mr Hemmings submissions regarding the appropriateness of plans of management as detailed in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315, as follows:

54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:
1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
6. Is the Management Plan to be enforced as a condition of consent?
7. Does the Management Plan contain complaint management procedures?
8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

56 I am satisfied that the proposed mitigation works to be undertaken and compliance with the revised POM provisions reasonably address these questions.

57 I have also considered the submissions made regarding the judgement of McClellan CJ in BGP Properties Limited v Lake Macquarie City Council [2004] NSWLEC 399 revised 05/05/2005, wherein he stated:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

58 Whilst particular uses that are permitted (such as brothels) are not specified for the General Business 3(A) zone, and only those uses that are prohibited specified, nevertheless the intent of the zone is reinforced by the provisions of Part 3 of the DCP, which allows brothels subject to the provisions of clause 44 of the LEP. In accordance with the aforementioned reasons, I am satisfied this proposal satisfies the relevant section 44 consideration matters and the associated DCP controls.

59 In the ultimate, I am satisfied that this site in the commercial zone is suitable for a brothel of the proposed scale, which operates in accordance with amended later opening times and the provisions of the POM.

60 I also give considerable weight to the proposed 12 month trial period to enable an assessment of the magnitude of the impacts perceived by the neighbours. In some cases trial periods may not be appropriate due to the costs associated with the purpose built use. However in this case, the Court was informed that the completed building could otherwise be used for some form of residential use/serviced apartment that are attached to other permissible uses, as may be permitted in the zone.

61 The difficulties in relying on perceptions regarding impacts was addressed by Lloyd J in New Century Developments Pty Ltd v Baulkham Hills ShireCouncil [2003] NSWLEC 154 as follows:

61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.
62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]).
63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that “… the demonstrable social effect of a particular …use is relevant under s 90(1)(d) [now section s 79C]” (see also Dixon at [48]).

62 The condition restricting the use for the 12 month trial period, allows an effective review mechanism via the POM complaints register, including the opportunity to provide any other objective survey details on user characteristics, which would allow those currently before the Court to be reviewed, prior to allowing any continuation of the consent.

63 For these reasons, based on the evidence before the Court, I am satisfied this brothel merits conditional consent, for a 12 month trial period.

64 The Court orders:

1. The appeal is allowed.

2. Development consent is granted for building alterations to the property at No 66 Railway Road, Sydenham subject to the conditions in Annexure A, to permit its use as a brothel for a 12 month trial period.

3. The exhibits may be returned except 2, 3, 4, A and F.

________________________
R Hussey
Commissioner of the Court
al/ljr