Procopiadis v Marrickville Council

[2008] NSWLEC 1318

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Procopiadis v Marrickville Council [2008] NSWLEC 1318

PARTIES:
APPLICANT
Nicholas Procopiadis

RESPONDENT
Marrickville Council

FILE NUMBER(S):
10426 of 2006

CATCHWORDS:
Development Application :- Alterations and additions to accommodate brothel use, proximity to sensitive uses, parking, public interests

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2007

CASES CITED:
Zhang v Canterbury City Council [2001] NSWCA 167
Queen v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 323

CORAM:
Hussey C

DATES OF HEARING:
28/07/2008

JUDGMENT DATE:
13 August 2008

LEGAL REPRESENTATIVES

APPLICANT
Dr S. Berveling, barrister

RESPONDENT
Mr I. Hemmings, barrister
Instructed by Mr G. Christmas
of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 August 2008

10426 of 2008  Nicholas Procopiadis v Marrickville Council

JUDGMENT

Background

1. This appeal was lodged against council’s refusal of a development application for building alterations and the construction of a new building for use as a brothel at 66 Railway Road, Sydenham. During the appeal process, amendments were made to the application, resulting in the following outstanding issues:

   Whether the site is appropriate for a brothel,
   Proximity to other sensitive uses,
   Impact on surrounding neighbourhood,
   Car-parking, loading facilities,
   Public interest.

   The Site

2. This site is described as Lot 159 in DP 750 and is situated on the south- western side of Railway Road, between Rowe Lane and Henry Street. It has a total area of 306.6 sq m, a street frontage of 9.145m and a rear boundary frontage of 9.345m to Park Lane.

1. There is an existing one and part 2-storey brick and metal roof shop and dwelling with associated outbuildings to the rear. An art gallery currently operates in the ground floor commercial area and it has direct access to Railway Road. Vehicular access is obtained from Park Lane.

1. A single storey brick and corrugated dwelling house (No 68) adjoins to the north.

1. A park (Sydenham Green) is located on the opposite side of Railway road. It contains play areas, a children’s playground and off-lead area for dogs.

The Proposal.

1. This development application is for alterations and additions to the premises to:

   enlarge the art gallery/ workshop,
   demolish the rear part of the existing building and undertake construction of a new part 1 and part 3 storey building,
   the brothel is to be located on the first and second floors and contain 14 working rooms, 9 workers, 2 staff and up to 11 clients at any one time, i.e. a total of 22  persons,
   access to the brothel is via an entry gate adjacent to Railway Road and alongside No 66. It incorporates an open passageway of approximately 1.5m width and length 11m to access the foyer.
   4 car parking spaces for the brothel are provided at the rear of the site, in a basement garage off Park Lane.

2. The proposed operating times for the brothel are:

   Monday – Wednesday, Friday, Saturday and Sunday – 6.30pm to 2.30am the following day.
   Thursday – 8.30pm to 2.30am the following day.

3. It is proposed to operate the brothel in accordance with a detailed plan of management (POM).

Planning Controls.

1. Marrickville LEP 2001. Under which the site is zoned General Business 3(A) and the proposal is permissible with consent.

1. Clause 33 prescribes a maximum FSR of 2:1. Clause 44 deals with premises used for prostitution and relevantly includes:

   (4)Before granting consent of the use of premises for prostitution, the consent authority must take into consideration such of the following matters as of relevance to the application:

   (a)the location of the brothel or dwelling house and proximity to any child-care centre, community facility, educational establishment, hospital, place of public worship, recreational area or residential building, or any place regularly frequented by children,

   (b)whether the operation of the brothel or dwelling house would cause a disturbance in the neighbourhood because of its size or operating hours, or the number of people working in it,

   (d)whether the operation of the brothel for dwelling house would interfere with the amenity of the neighbourhood,

   (e)whether suitable access is available, proposed to be provided, to the brothel or dwelling house,

   (f)whether a suitable waiting area is provided in the brothel or dwelling house so as to prevent clients loitering outside the premises,

   (g)whether sufficient off-street parking is available or proposed to be provided, if appropriate in the circumstances,

2. Marrickville DCP No 37 – Brothels and other premises used for prostitution. This DCP provides detailed guidelines for the regulation and design requirements for brothels.  The resulting aims include:

   1.ensure that brothels and other sex service premises are appropriately regulated;

   2.specify planning controls which will be used by Council  to appropriately regulate and control brothel and other sex services premises uses to minimise amenity impacts on adjoining land uses, particularly residential and other nearby sensitive land uses;

   3.provide more certainty in the development control process and assist the community and other applicants to understand Council’s requirements relating to brothels and other sex services premises;…

3. Section 3.1 deals with the location of brothels, with the following stated objectives:

   01To ensure brothels and other sex services premises are located in appropriate areas where they do not impact adversely on the environment, and in particular on residential occupancies or other sensitive uses.

   02To ensure that brothels and other sex services premises are discreetly situated, sensitively located and are no prominent within an area…

4. Section 3.3 deals with car parking on the basis of the following objectives:

   01To ensure that adequate parking is provided for people working on the premises and clients/patrons using the facility so that the establishment of a brothel for other sex services premises does not give rise to car parking congestion in the street.

   02To ensure that the location of parking does not adversely affect the surrounding locality, particularly residential properties.

   03To ensure the safety and security of car parking areas.

5. The car parking controls in AC1 require on-site parking at the rate of one (1) space to two (2) working rooms. Part AC2 allows for a reduction in car parking requirements if it can be demonstrated that adequate on street car parking, public car parks and/or public transport services exist close to the premises. 

6. Marrickville DCP  No 19 – Parking Strategy

   The Evidence

7. Detailed evidence was presented by:

   Mr J Erken, councils senior planner,
   Mr M Ball, applicants consulting planner,
   Mr G Pindar, applicants traffic consultant.

8. This evidence was considered in conjunction with oral evidence given by residents at the site and also written submissions tendered. The concerns raised by the objectors include:

   The site is unsuitable because of its proximity to residential premises and the park opposite that contains a children’s playground, which is used extensively.
   The brothel is of excessive scale and there is a likelihood of increased crime and anti-social behaviour in the neighbourhood.
   There is inadequate parking provided which will result in competition for limited on-street car spaces. This is likely to cause noise disamenity when patrons and staff leave the premises, in the early morning hours.
   There will be increased security risks.

   Scale and location

9. Insofar as this development application attracted a significant number of objections, the major concern is the appropriateness of the scale of the proposal in the locational context.

1. It is apparent to me from the view that the site is located within a relatively small commercial area, within the surrounding residential neighbourhood. It also appears to me that the scale of the proposal is relatively large in this context. This is due to the new building maximising the height at the rear of the property fronting Park Lane and it also maximises floor space, with the FSR in the order of 1.93:1.

1. Consequently, the new building element for the brothel is to contain 14  work rooms, together with other ancillary rooms. As such, I accept the evidence of the residents that it is likely to generate significant night-time patronage, which is not characteristic of this small centre. This scale of operation for the brothel will result in a significant increase in pedestrian traffic along Railway Road and surrounding streets, thereby reducing the residential amenity at night-time.

2. An associated concern is that the brothel is located opposite Sydenham Green. It is apparent to me from the view that this is a relatively large recreational area that contains a number of attractions for users. They include walking paths, picnic tables, secured children’s playground, off-lead dog area and active sporting areas.

1. I then accept the evidence of Mr Erken, which consistent with that of the objectors and neighbours, that this area contains sensitive uses frequently used by children. In this regard, I give less weight to the applicant’s park users survey, which covers a limited period mainly ending at 6.30pm. The evidence is that this park is extensively used after 6.30pm, particularly in the summer time.

1. The entry gate to the brothel will be clearly visible from many positions in this recreation area and I consider there is a strong likelihood of patrons, taking into account the scale of the brothel, using the footpath and congregating at this public entry point. Accordingly, I do not consider this proximity to the park is consistent with the locational restrictions stated in cl 44 (4) (a) of the LEP.

2. Another locational restriction is the existing slot car shop located nearby in Railway Road (2 doors away). The operator of this store said that it attracts many younger persons, together with family events on some Wednesdays and Saturdays nights and the brothel would be incompatible with this use. The applicant has sought to address this use by generally restricting the brothel opening hours, particularly on Thursdays, until after the shop has closed. Whilst there was some uncertainty about the status of the shop, nevertheless it has been operating for some time and appears to be a place frequented by children. On this basis, the proximity of the shop to the brothel is a negative aspect of the proposal, in my assessment.

1. In this regard, I have considered Mr Hemmings submissions regarding the weight to be given ti the DCP provisions. He referred to the matter of Zhang v Canterbury City Council [2001] NSWCA 167, wherein it was stated:

   72In one such statutory context in the Queen v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 323 AT 329, Mason J said: “When sub-s (7) directs the Permanent Head to ‘have regard to’ the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination” (Emphasis added).

   73In the case of a stature which empowered the court to make such order “as to it seems just and equitable having regard to: (a) … and (b) …”, Gleeson CJ and McLelland CJ in Eq said in Evans v Marmont (1997) 42 NSWLR 70 at 79-80: “…par (a) and (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made.  They are not merely two matters, or groups of matters, which take their place amongst any other relevant consideration.” (Emphasis added).

   74A development control plan is not an “environmental planning instrument”. see definition in s 4.  Accordingly, the requirement in s 80(2) that a consent authority “must refuse” an application that would “result in a contravention of” such an instrument does not apply to a development control plan.  Furthermore, the proscription, by s 76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan.  Nor can such a plan contain a “non-discretionary development standard” which, if complied with, would take away a consent authority’s discretion under s 79C(2).

   75The consent authority has a wide ranging discretion - one of the matters required to be taken into account is ‘the public interest’ - but the discretion is not at large and is not unfettered.  DCP 23 had to be considered as a “fundamental element” in or a “focal point” of the decision making process.  A provision so directly pertinent to the application for consent before the Coucnil as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.

2. Accordingly, the DCP identifies the proximity of a brothel to any recreational area frequented by children as a fundamental element. I understand that some discretion may exercised in determining the critical proximity distance and impact on the park users, particularly if it is little used. But in this case, I accept the evidence of Mr Erken and the residents that the brothel is in close proximity to this significant recreation area, which children use frequently and therefore give significant weight to the control, contributing to the failure of the application.

   Impact on neighbourhood

3. The owner of the neighbouring residential property expressed concerns about the scale of the brothel in close proximity to his residential property, loss of privacy and possible overlooking from the new building. Insofar as Mr Ball says this residential use is a prohibited use in this General Business zone, which can be expected to be converted to a permissible use in the future, nevertheless the residential improvements on the property appear substantive and I consider this proposal would have negative effect on the amenity of this property. In particular, the entry of patrons along the side, unroofed passageway.

   Parking

4. The other significant issue concerns the parking arrangements. Application of the DCP controls would require the provision of 7 car spaces. However the proposed building design only incorporates 4 on-site spaces, accessed from the rear Park Lane. These spaces allow a stacked configuration for staff parking.

5. Insofar as the DCP allows some discretion in cl 3.3 to reduce on-site car parking, that is subject to demonstration by the applicant that there is adequate on-street parking, car parks or reasonable access to public transport. The applicant’s proposal was reviewed by the traffic consultant and council planner. Considering the scale of the proposed 14 room brothel, they say:

   The parking space demand is likely to be focussed on Railway Road, Henry Street, Rowe Lane and Park Lane and it is likely that customers prefer to park reasonably remote from the site in order to avoid association with the premises.
   Depending on the length of stay and mode of arrival, then there could be 6-12 car arrivals and departures per hour, which can be dispersed into the surrounding streets. Whilst Mr Pindar considers this satisfactory, Mr Erken says that the impacts associated with customer parking activity would have an adverse impact on residents, particularly between the early morning hours.
   Mr Pindar considers there could be some sharing of the 2 car spaces set aside for the gallery shop, taking into account the different operating hours. However, this is not supported by Mr Erken because the gallery use could change in the future.
   Mr Erken considers the use of the stacked parking is inefficient with unnecessary vehicle movements in the rear lane. As the brothel is to operate into the early morning hours, it is likely that the neighbouring residents will experience noise disturbance.

6. The residents expressed their concerns that the on-street parking in this neighbourhood is very limited and any increased competition for the limited spaces would disadvantage residents. They also requested that consideration be given to the fact that the neighbourhood is severely affected by aircraft noise that generally ceases at the late night curfew time. Consequently, they say that the introduction of further early morning trading to 2.30am and associated traffic and parking would further reduce their amenity.

7. Based on the authority in Zhang, I accept that the provision of on-site parking is a fundamental element for consideration. It is apparent that the brothel in this context will be a sensitive use, where the controls prescribe a reasonable degree of locational discretion. This includes access to the premises. It seems to me that most of the patrons will access the premises by private vehicle and require (discrete and convenient) parking. The DCP seeks to address this by requiring on-site spaces for staff and patrons.

1. Accordingly, my assessment is that the proposed car parking is unsatisfactory for a brothel of this scale because it does not provide any on-site car parking spaces. It would be reasonable in my opinion to provide some on-site car parking for patrons to achieve some level of discretion as required by the controls.

1. Whilst I accept that Part 3.3 of the DCP allows for a reduction in car parking, I consider the inability to provide any patron car parking on-site for this relatively large scale brothel is a negative aspect of the proposal.

1. Insofar as a number of other issues were raised, I consider them of a less critical nature.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view I do not consider this brothel merits consent. The development controls require consideration to be given to the scale of such developments and their compatibility with other sensitive uses.

1. In my assessment this is a relatively large scale brothel, compared to the scale and intensity of the small, neighbouring commercial area. As such it will attract significant patronage to its entrance in Railway Road, which is in close proximity to Sydenham Green recreation area and I do not consider this adequately satisfies the locational restrictions in cl 44 (4) (a) of the LEP or aims of the DCP.

1. I also consider the lack of on-site parking for patrons is a negative aspect of the proposal considering the sensitive nature of the development. Whilst the building component has been maximised for the purpose built brothel, to some extent this is at the expense of parking. Even though the surveys indicate available on-street parking, I accept the residents concerns that it is likely there will be traffic infiltration into the surrounding residential streets and this will diminish the residential amenity.

2. In this regard, I give heightened weight to the location of this neighbourhood within the aircraft noise affected zone. If the patrons chose to park in Park Street/Lane, which is quite probable if they don’t wish to park in the more prominent Railway Road, then I agree the resident’s amenity would be adversely impacted, particularly in the early morning hours, by some patrons and the staff leaving on a regular basis.

1. Consequently I do not consider this proposal demonstrates reasonable compliance with the provisions of cl 44 (4) (b), (d) and (g) and therefore the public interest would not be well served by a brothel of this scale in the proposed location.

Court Orders

1. The Court orders that:

   1     The appeal is dismissed.

   2     Development consent for building alterations and construction and use of the premises at 66 Railway Road, Sydenham for a brothel is refused.

   3     The exhibits may be returned except A and 4.

   ___________________

   R. Hussey
   Commissioner of the Court

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