Qu v Willoughby City Council - [2009] NSWLEC 1058

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Qu v Willoughby City Council [2009] NSWLEC 1058
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Gang Qu
RESPONDENT
Willoughby City Council

FILE NUMBER(S): 11132 of 2008

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Alteration of an existing building to be used as a brothel

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995
Willoughby Development Control Plan

DATES OF HEARING: 10/02/2009

EX TEMPORE JUDGMENT DATE: 10 February 2009

LEGAL REPRESENTATIVES:
APPLICANT
J. Burrell, solicitor
of Burrell Solicitors
RESPONDENT
M. Causer, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10 February 2009

11132 of 2008 Gang Qu v Willoughby City Council
JUDGMENT

Background

1 This appeal was lodged against the councils refusal of a development application for alteration to an existing building situated at 90 Hotham Parade, Artarmon to permit its use as a brothel. This site is within the Artarmon Industrial Area.

2 In the appeal, the only contention raised concerned disabled access, in that the proposal did not provide for disabled customers or persons with a mobile disability.

3 However, the Applicant has responded to this issue by way of further access details in Exhibit 2, which has been assessed by the access expert Mr M. Relf and he now supports the disabled access aspects as proposed.

4 Consequently this has resulted in the party’s agreement to consent orders. Notwithstanding this 2 objections were lodged against the proposal and they concerned:

Inappropriate use of the area.
Inadequate parking for the proposed use and stack parking arrangement.
Generation of additional traffic in Hotham Parade and Sawyer Lane.
Adverse impact on the character of the area.
Attraction of criminal elements and increase in security problems.
Inappropriate proximity to residential areas.

5 There is a full description of the proposed alterations and details of the development and the relevant planning controls contained in the Statement of Facts and Contentions, on which I rely.

6 The application proposes occupation of premises 90 Hotham Parade, Artarmon for use as a brothel. It involves the following works:

7 The proposed brothel would contain three service rooms, each of which would have a shower and basin, a customer waiting area including a toilet facility, a bathroom for staff use, a laundry, an office, and a staff room. The submitted plans indicate the use of the area to the rear for four (4) off street parking spaces comprising two (2) rows of parking spaces with each row containing two (2) parking spaces in a tandem arrangement.

8 The proposed hours of operation of the brothel are twenty-four (24) hours a day, seven (7) days a week.

The Site

9 The site contains a single storey vacant building and four (4) carparking spaces located at the rear accessed via Sawyer Lane within a 229.4 square metre allotment on the southern side of Hotham Parade and backing onto Sawyer Lane at the rear.

10 The site is zoned 4(A) General Industrial and is within the Artarmon Industrial Area.

11 The allotment is about 5.4 metres wide and about 42.2 metres deep and is a level site. The building has a paved front setback of 10 metres from the front boundary to Hotham Parade with a paved rear setback of 12.3 metres from the boundary on Sawyer Lane. The rear setback area is proposed for carparking.

The Locality

12 The subject site is located within the Artarmon Industrial Area and is surrounded by industrial and automotive land uses. This section of Sawyer Lane is one way, from Clarendon Street to Hotham Parade near the Pacific Highway. There is no on street parking on Sawyer Lane.

13 The former existing buildings at Nos. 92-94 Hotham Parade on the western side of the subject site have been demolished and the site is currently vacant. No. 96 Hotham Parade is a new industrial building approved by Council on 12 November 2003. Further to the west on the other side of Pacific Highway, about 130 metres from the subject site, is mainly residential development.

14 On the eastern side of the subject site are conventional type industrial buildings comprising auto and smash repairs and printing companies. On the northern side of Hotham Parade are industrial buildings mostly for auto and smash repairs.

15 The following planning legislation, instruments and plans apply to the site:

Willoughby Local Environmental Plan 1995 ("WLEP")

Willoughby Development Control Plan ("WDCP")

16 I note that the proposed hours of operation of the brothel are 24 hours a day, 7 days a week.

The evidence

17 The main evidence relied upon is the Council development officers detailed s79 assessment in the report dated 10 November 2008. It appears to contain a complete assessment of the relevant matters for consideration, based on the fact that the property is within the 4(A) - General Industrial Zone and is permitted with consent. Furthermore, the site is sufficiently separated from the identified sensitive land uses and is supported on these grounds.

18 This assessment also deals with the Willoughby DCP provisions wherein Part G.4 sets specific controls for brothels and associated objectives to ensure that:

Brothels are sensitively located so that they do not create adverse social impacts on the amenity of the places in which they are situated.
Do not cause offence to the community at large.
Do not result in any other adverse environmental effects.
Do not form clusters within areas where they are permitted.

19 These matters were dealt with by the assessment officer on the following basis.

1. Brothels must not be located within pedestrian view from a place of worship, school, community facility, hospital, medical centre, or any place in the vicinity of the premises regularly frequented by children for any reason,

2. Brothels must not be located within a 100 metre radius of the centre of a site occupied by any existing approved brothel.

3. In no circumstances should sex workers display themselves in windows or doorways of their related premises.

(Condition 60 of Schedule 1).

4. Development for the purpose of a brothel is prohibited if the brothel is located at ground floor level within a business zone.

5. Development for the purpose of a brothel is prohibited in the residential component of buildings within a business zone.

1. The brothel is not to have an adverse effect on the amenity of the area.

2. The brothel will not have an adverse effect on surrounding and adjoining land uses and businesses in the locality or within the same site.

3. No merchandising relating to the brothel is to be erected, displayed or exhibited at any entry or in an access corridor (including any stairwell) to the premises.

(Condition 64 of Schedule 1).

4. The brothel will be accessed by a separate entrance. This is to prevent staff and clients causing a disturbance to other premises in the same building. This entrance should be illuminated to provide a safe access point.

(Condition 59 of Schedule 1).

5. The operations of the brothel will not utilise the circulation areas common to the building.

6. Council may consent to a brothel at ground level or street level within an ... industrial zone where Council is satisfied that no part of the brothel (including the entrance to the premises) other than an access corridor to the brothel, is visible from a public place.

(Condition 65 of Schedule 1).

premises (Condition 60 of Schedule 1).

Section C

Section D

Section E

Section F

Section G

(Condition 66 of Schedule 1).

Part G.4.3

Provisions relating to cleaning of facilities and washing of linen are set out.
It is required that separate toilets be provided for staff.
It is required that, in addition to the separate staff toilet, each work room be
provided with a toilet, a shower/bath and a hand-basin.
Provisions relating to the storage of contaminated waste are set out.
Requirements relating to sexual health practice and provision/storage of
condoms are set out.
Requirements relating to natural light and ventilation, fire egress and other building-related matters.

(Conditions 53 and 54 of Schedule 1).

Health and Safety Guidelines for brothels

Part G4.3

(Condition 3 of Schedule 1).

20 In the absence of any challenges to this assessment, I rely on it as satisfactory in the circumstances of this case.

21 Insofar as the assessment recognised a deficiency in the provision of facilities for disabled access, this was subsequently remedied by way of the rear access ramp and associated works.

22 The s 79C assessment dealt with matters raised by objectors in the manner set out on pages 11-13 and I rely on that assessment in concluding that the consent orders merit consent.

Conclusion

23 Having considered the evidence and submissions, I am satisfied that the relevant planning controls firstly permit a brothel in this 4(A) industrial area and that the DCP controls are reasonably satisfied.

24 Furthermore, based on the s 79C planning assessment, I do not consider the objections should be given such weight so that the application is refused. Accordingly the consent orders are granted.

___________________

R Hussey

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Gang Qu v Willoughby City Council

GENERAL CONDITIONS (1.)

All construction/demolition work relating to this Development Consent within the City must be carried out only between the hours of 7 am to 5 pm Mondays to Fridays and 7 am to 12 noon on Saturdays. No work is permitted on Sundays or Public Holidays.

An application under Section 96 of the Environmental Planning and Assessment Act for a variation to these approved hours must be lodged with Council at least 3 working days in advance of the proposed work. The application must include a statement regarding the reasons for the variation sought and must be accompanied by the required fee.
Note: This S96 application may require re-notification in some circumstances.
(Reason: Ensure compliance and amenity)

The development must be in accordance with architectural plan numbered 2993-1, Issue D prepared by JF Building Consultants, dated 04-02-2009 and received by Council on 5 February 2009, the application form and any other supporting documentation submitted as part of the application, except for :

a) any modifications which are ‘Exempt Development’ in Willoughby Development Control Plan Part B.2, or as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the Code;
b) otherwise provided by the conditions of this consent.
(Reason: Information and ensure compliance)

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(2.)

The following conditions of consent must be complied with prior to the issue of a construction certificate.

Detailed Drawings (2.1)

Detailed construction drawings, specifications, and other supporting documentation required for a Construction Certificate are to be in accordance with the terms of this Consent and comply with the requirements of the Building Code of Australia.

(Reason: Ensure compliance)

The applicant shall lodge a Damage Deposit in the sum of $2,000 (GST Exempt) against possible damage to Council’s property during the course of the building works.
(Reason: Protection of public asset)

To ensure that adequate provision is made for ventilation of the building, mechanical and/or natural ventilation shall be provided. These shall be designed in accordance with the provisions of:

a) The Building Code of Australia
b) AS1668.1-1998 – Mechanical Ventilation and Air Conditioning in Buildings
c) AS1668.2-1991 – Mechanical Ventilation and Air Conditioning in Buildings
d) The Public Health Act-1991
e) The Public Health (Microbial Control) Regulation 2000
f) AS3666.1 – 2002 – Air Handling and Water Systems in Buildings
g) AS3666.2 – 2002 – Air Handling and Water Systems in Buildings
h) AS3666.3 – 2000 – Air Handling and Water Systems in Buildings

Details of all mechanical ventilation and exhaust systems, and certification provided by an appropriately qualified person verifying compliance with these requirements, shall accompany the application for the Construction Certificate.
(Reason: Health protection)

The existing levels of fire safety within the premises are to be upgraded to achieve an adequate level of fire safety in accordance with the provisions of clause 94 of the Environmental Planning and Assessment Regulation 2000 and a report prepared by a suitably qualified person or accredited certifier, the report is to be submitted to and approved by Council in accordance with Section 80A(2) of the Environmental Planning and Assessment Act 1979 .

The fire safety report must include the following:

a) A Building Code of Australia audit with regards to fire safety and identification of the relevant deemed to satisfy provisions which are not being complied with;
b) A list of detailed fire safety upgrading works including alternative solutions considered appropriate to satisfy the relevant deemed to satisfy provisions and/or the performance requirements of the Building Code of Australia, to protect persons using the building, to facilitate their egress from the building in the event of fire and to restrict the spread of fire.
c) A list of existing and proposed Essential Fire Safety Measures.
The fire safety upgrading works are to be included in the Construction Certificate and be implemented prior to occupation of the new building or part.
(Reason: Safety)

(2.51)

Stormwater runoff from the site must be collected and conveyed to the street drainage system in accordance with Council’s specifications. New drainage line connections to street kerb must comply with the requirements described in Part C.5 of the Willoughby Development Control Plan and Technical Standards. Submit a plan for approval by the Principal Certifying Authority, showing the location, type, size and class of the outlet pipe including a 125mm x 75mm x 4mm thick galvanised Rectangular Hollow Section (RHS) at the kerb.
(Reason: Stormwater control)

Provide a pit within the boundary of the property and run an appropriate number of 100 mm diameter UPVC pipes with 125 x 75 mm RHS adaptor to the kerb. Where these pipes join the kerb, there must be a minimum of 100 mm of kerb between these pipes. Submit to the PCA for consideration full design and construction details showing the method of disposal of all sub-surface, surface and roof water from the site in accordance with Council's specification.
(Reason: Prevent nuisance flooding)

PRIOR TO THE COMMENCEMENT OF ANY WORKS (3.)

The following conditions of consent have been imposed to ensure that the administration and amenities relating to the proposed development comply with all relevant requirements. All of these conditions are to be complied with prior to the commencement of any works on site, including demolition.

This consent IS NOT an approval to carry out any building works (with the exception of demolition work). A Construction Certificate is required PRIOR TO ANY BUILDING WORKS BEING COMMENCED.

A clearly visible all weather sign is required to be erected in a prominent position on the site detailing:
(a) that unauthorised entry to the work site is prohibited;
(b) the excavator’s and / or the demolisher’s and / or the builder's name;
(c) contact phone number/after hours emergency number;
(d) licence number;
(e) approved hours of site work; and
(f) name, address and contact phone number of the Principal Certifying Authority (if other than Council)

ANY SUCH SIGN IS TO BE REMOVED WHEN THE WORK HAS BEEN COMPLETED.

Public access to the site and building works, materials and equipment on the site is to be restricted, when work is not in progress or the site is unoccupied.

A temporary safety fence is to be provided to protect the public, located to the perimeter of the site (unless the site is separated from the adjoining land by an existing structurally adequate fence, having a minimum height of 1.5m). Temporary fences are to have a minimum height of 1.8m and be constructed of cyclone wire or similar with fabric attached to the inside of the fence to provide dust control.

Fences are to be structurally adequate and be constructed in a good and workmanlike manner and the use of poor quality materials or steel reinforcement mesh as fencing is not permissible.

PRIOR TO THE COMMENCEMENT OF ANY DEMOLITION, EXCAVATION OR BUILDING WORKS

provided

On sites involving demolition or alterations and additions to building where asbestos cement is being repaired, removed or disposed of a standard commercially manufactured sign not less than 400mm x 300mm containing the words “DANGER ASBESTOS REMOVAL IN PROGRESS” is to be erected in a prominent visible position on the site. The sign is to be erected PRIOR TO THE COMMENCEMENT OF WORKS AND IS TO REMAIN IN PLACE UNTIL SUCH TIME AS ALL ASBESTOS CEMENT HAS BEEN REMOVED FROM

The applicant/builder is to notify the adjoining residents five working days prior to demolition works involving removal of asbestos. Such notification is to be clearly written, giving the date work will commence, Work Cover NSW phone number 131 050, Councils phone number 9777 1000.

Report Existing Damages on Council's Property

Prior to commencement of any works on site, the applicant shall notify Council in writing of any existing damages to Council's assets fronting the property and the immediate adjoining properties. Failure to do so will result in the applicant being liable for any construction related damages to these assets. In this respect, the damage deposit lodged by the applicant may be used by Council to repair such damages.

(Reason: Protection of Council's Infrastructure)

Vehicular Crossing (4.78)

New vehicular crossing including the replacement of existing layback and gutter is to be constructed in accordance with Council’s specification AUS-SPEC C271, Council Vehicular Footpath Crossing and Kerb and Gutter details, Drawing No. SD105 and as directed by Council’s Engineer. New crossing is to be constructed at right angle to the kerb and construction shall be in plain concrete.

A separate application for the crossing including current fees and charges is to be submitted for approval by Council.

(Reason: Public access)

Property Boundary Levels (5.221)

Prior to commencement of any works on site, the applicant must obtain the levels and street alignment for the vehicle crossing at the property boundary
from Council under a separate application. These levels shall be incorporated into the design of the internal driveway. The suitability of the grade of driveway inside the property is the sole responsibility of the Applicant and the required alignment levels fixed by Council may impact upon these levels.
All adjustments to the nature strip, footpath and/or public utilities’ mains and services as a consequence of the development and associated construction works are to be carried out at the full cost to the Applicant.
(Reason: Public amenity)

(3.42)

Application is to be made to Council's Infrastructure Services Division for the following approvals and permits as appropriate:-

a) Permit to erect Builder's hoarding where buildings are to be erected or demolished within 3.50m of the street alignment. Applications are to include current fees and are to be received at least 21 days before commencement of the construction.
b) Permit to stand mobile cranes and/or other major plant on public roads. Applications are to include current fees and security deposits and are to be received at least seven days before the proposed usage. It should be noted that the issue of such permits may also involve approval from the Police Department and the R.T.A. A separate written application to work outside normal hours must be submitted for approval.

It should also be noted that, in some cases, the above Permits may be refused and temporary road closures required instead which may lead to longer delays due to statutory advertisement requirements.

c) Permit to establish Works Zone on Public Roads adjacent to the Development including use of footpath area. Applications must be received by Council at least twenty-one days prior to the zone being required. The application will then be referred to the Council's Local Traffic Committee for approval, which may include special conditions.

d) Permit to open a public road, including footpaths, vehicular crossing or for any purpose whatsoever. All applications are to include current fees.
e) Permit to construct vehicular crossings over Council’s footpath, road or nature strip.

(Reason: Legal requirements)

PRIOR TO OCCUPATION OF THE DEVELOPMENT (4.)

The following conditions of consent must be complied with prior to the issue of an occupation certificate.

The building/structure or part thereof SHALL NOT BE OCCUPIED OR USED UNTIL AN INTERIM OCCUPATION / FINAL OCCUPATION CERTIFICATE HAS BEEN ISSUED in respect of the building or part.
(Reason: Safety)

The street number at least 100mm high shall be clearly displayed.
(Reason: Information)

Upon completion of the building work or part a Fire Safety Certificate shall be furnished by the owner to Council, and the owner must cause a copy of the certificate (together with a copy of the current fire safety schedule) to be forwarded to the Commissioner of New South Wales Fire Brigades, and must cause a further copy of the certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building in accordance with Clause 172 of the Environmental Planning and Assessment Regulation 2000 in respect to each essential fire safety measure included in the Schedule attached to the Construction Certificate.
(Reason: Safety)

(4.79)

New vehicular crossing is to be constructed in accordance with Council’s specification AUS-SPEc C271, Council Vehicular Footpath Crossing and Kerb and Gutter details, Drawing No. SD105 and the approved long sections (if any). New crossing is to be constructed at right angle to the kerb and construction shall be in plain concrete.
A separate application for the crossing including current fees and charges is to be submitted.
(Reason: Public access)

Wet Area within Work Rooms

The walls and floors on, near, adjacent to and surrounding each wet area within each work room shall be lined in a suitable impervious material that is easy to clean. The floor must drain to an internal floor waste connected to the sewer
(Reason: Health and Amenity)

Discharge of Trade Waste

The applicant shall comply with the requirements of discharge of trade waste to sewer.

(Reason: Compliance)

Bin Storage Enclosure

The applicant shall provide an on-site bin storage enclosure that will be large enough to accommodate enough bins for general waste, recycling as well as contaminated waste.

(Reason: Public health/ensure compliance)

Waste Management Plan

The applicant shall submit a completed commercial/industrial waste management plan to the satisfaction of Council.

(Reason: Public health/ensure compliance)

ADDITIONAL CONDITIONS (5.)

The following conditions have been applied to ensure that the use of the land and/or building is carried out in such a manner that is consistent with the aims and objectives of the planning instrument affecting the land, and relevant legislation.

Council's footpath, nature strip or roadway not being damaged and shall be kept clear at all times.
(Reason: Maintain public safety)

Building materials, plant and equipment and builder’s waste, are not to be placed or stored at any time on Council’s footpath, nature strip or roadway adjacent to building sites unless prior written approval has been granted by Council.
(Reason: Safety)

Rubbish skips or bins are not to be placed on Council’s footpath, nature strip or roadway unless prior written approval has been granted by Council.
(Reason: Safety)

Works involving asbestos must comply with Councils Policy on handling and disposal of asbestos and must also comply with the Code of Practice for Safe Removal of Asbestos (National Occupational Health and Safety Committee 2002).
Demolition is to be carried out in accordance with the applicable provisions of Australian Standard AS 2601 – The Demolition of Structures.
(Reason: Public health & safety/ensure compliance)

All asbestos laden waste, including flat, corrugated or profiled asbestos sheets must be disposed of at a tip recommended by the NSW Environmental Protection Authority.
The person responsible for disposing asbestos waste is to contact the Environmental Protection Authority. Upon completion of the asbestos removal and disposal the applicant must furnish the Principal Certifying Authority with a copy of all receipts issued by the waste disposal site as evidence of proper disposal.
(Reason: Environmental protection/public health and safety)

The four (4) car parking spaces are to be physically identified on site and maintained free of obstruction. Under no circumstances are these spaces to be used for the storage of goods or waste products.
(Reason: Amenity)

Employees are not to be denied the right to use a parking space provided for staff parking purposes in accordance with the Willoughby Development Control Plan Part C.4 subject to such parking space not having been otherwise allocated to another staff member.
(Reason: Ensure compliance)

The hours of operation of the use are as required in the application, i.e.:

Twenty-four (24) hours – Seven (7) days a week.

The number of sex worker, excluding the manager/receptionist, on the premises at any one time shall not exceed three (3).
(Reason: Amenity)

Alterations to and demolition of the existing building shall be limited to that documented on the approved plans. No approval is given or implied for removal and/or rebuilding of another portion of the existing building.
(Reason: Ensure compliance)

All works shall be erected wholly within the boundaries of the property.
(Reason: Ensure compliance)

Attention is directed to Clause 177 of the Environmental Planning and Assessment Regulation 2000 regarding the submission of an Annual Fire Safety Statement in relation to each essential fire safety measure implemented in the building or on the land on which the building is situated.
(Reason: Safety)

Remove all redundant crossings together with any necessary reinstatement of the footpath, nature strip, kerb and gutter. Such work shall be carried out in accordance with Council's specification.
(Reason: Public amenity)

Sweep and clean pavement surface adjacent to the ingress and egress points of earth, mud and other materials at all times and in particular at the end of each working day or as directed by Council's Engineer.
(Reason: Legal requirement)

(5.211)

Establish the size and levels of all utility services in the footpath and road reserve prior to construction of any vehicular crossing and/or drainage lines. Contact “Dial 1100 Before You Dig Service” prior to any road opening for service location.
All adjustments to public utilities’ mains and services as a consequence of the development and associated construction works are to be at the full cost to the applicant.
(Reason: Protection of utilities)

All footings for the boundary fence shall be located within the property and no encroachment on Council’s road reserve is permitted.
(Reason: Ensure no encroachment on Council’s property)

The applicant is responsible for the protection of all regulatory / parking / street signs fronting the property. Any damaged or missing street signs as a consequence of the development and associated construction works are to be replaced at full cost to the applicant.
(Reason: Protection of public assets)

Vehicular Access and Garaging

Driveways and vehicular access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with the minimum requirements of AS2890 “Off-Street car parking”.
(Reason: Vehicular access)

(5.232)

Prior to the release of the damage deposit, any damage to the footpath, nature strip, kerb and gutter or public infrastructure caused as a result of construction works on the subject site must be fully repaired including trimming/topsoiling and turfing of the nature strip to match existing level in accordance with Council’s Specification and AUS-SPEC at no cost to Council.

(Reason: Protection of public assets)

No Interference to Adjoining Neighbourhood

All activity being conducted so that it causes no interference to the existing and future amenity of the adjoining neighbourhood in general by the emission of noise, smoke, dust, fume, grit, vibration, smell, vapour, steam, soot, ash, waste water, waste products, oil, electrical interference, or otherwise.
(Reason: Health and amenity)

Emitted Noise Level

Emitted noise from any plant, machinery or process not increasing the background noise level, nor introducing any tonal component when measured at the nearest boundary.

(Reason: Amenity and compliance)

Storage of Contaminated Waste

Contaminated wastes generated on the premises being properly stored in accordance with the requirements of the NSW department of Health.
(Reason: Health and amenity)

52.

Health Standards for Brothels

The following shall be complied with at all times:

The premises shall be kept clean and in a good state of repair;

All showers, baths and toilets shall be regularly cleaned with hospital grade disinfectant;

Soap and single use towels shall be provided to all hand-wash basins;

Clean linen shall be provided to bedding within each service area and clean towels shall be provided to clients and sex workers. The linen shall be changed after each occasion that sex services are provided;

Separate receptacles shall be provided for clean and used linen;

All hand-basins shall have an adequate supply of potable water at a temperature of a least 40 degrees Celsius delivered through an appropriate mixing device which can be adjusted to enable hands to be washed under hot running water;

Bins lined with plastic bags shall be provided to each service room for wastes such as used condoms, dental dams and other contaminated wastes. Those wastes shall be placed into another plastic bag before being placed into a contaminated waste bin which shall be collected for disposal through a suitably licensed commercial contaminated waste handling contractor;

All linen shall be washed in water having a temperature of at least 70 degrees Celsius including use of a liquid laundry detergent and shall be thoroughly dried before each use;

Any sex toys must be cleaned with detergent and water and then disinfected with a solution of one part bleach to two parts water prior to each use; and

Facilities must be provided for cleaning and disinfecting of sex toys and for the suitable storage of disinfectants and detergents.

(Reason: Health)

53.

Provisions of Products for Safe Sex

The proprietor shall ensure that each service room has available, free of charge, an adequate supply of condoms, dental dams, gloves and any other approved latex products as appropriate and an adequate supply of water based lubricant.

(Reason: Health)

54. Operation of the Premises in accordance with Health and Safety Guidelines for Brothels

The operation of the brothel shall, in all respects, be in accordance with the joint NSW Department of Health and NSW Work Cover Authority publication Health and Safety Guidelines for Brothels or with any equivalent NSW Government authorised guidelines that may replace that publication. Furthermore, sex workers shall be educated in relation to safe sex practises.

(Reason: Health)

55. No Advertising Signs Approved and There Shall be no Explicit Advertising or Marketing in the Locality

No advertising signage has been submitted as part of the present application. Furthermore, there shall be no spruiking or distribution of marketing material in the vicinity of the premises in relation to the proposed use.

(Reason: Minimise social impacts)

56. No Amplified Music or the Like Causing an Offensive Noise

There shall be no amplified music or the like within the premises of a kind likely, at any time, to cause an offensive noise as defined by the NSW Protection of the Environment Operations Act 1997.

(Reason: Amenity)

57. Plan of Management

The operation of the brothel must comply at all times with the Further Amended Plan of Management dated 12 February 2009 (the “POM” Annexure B). The POM is not to be amended without the prior written approval of the Council. If there is any inconsistency between the POM and the conditions of this consent, then the conditions of consent shall prevail to the extent of any inconsistency.

(Reason: Amenity, safety and health)

The proprietor shall ensure that a clearly visible sign is erected at each exit of the brothel displaying the proprietor’s name and a 24 hour telephone contact number for neighbouring residents and property owners to call to register a complaint. The proprietor shall ensure that a Complaints Register is maintained at all times on the brothel premises which records all complaints made and any action taken by the proprietor in response to any such complaints. The Complaints Register is to be made available for inspection upon request from a Council officer or the police.
(Reason: Amenity, security, safety and health)

Security lighting is to be provided on site to ensure all entry, driveway and car parking areas are well lit at night during those times at which the brothel is in operation and until all sex workers, receptionist and clients have vacated the premises. The lighting is to be directed such that it does not cause light spillage or nuisance to neighbouring properties.
(Reason: Safety, security and amenity)

All windows to the premises are to be permanently treated in such a way as to prevent viewing in from the outside. Such treatment should not result in high reflectivity to the surrounding area.
(Reason: Ensure compliance/amenity)

Under no circumstances are sex workers to display themselves in windows or doorways of the premises or any part of the site visible from a public place.
(Reason: Ensure compliance)

The premises is not to be used as habitable accommodation (i.e. no person is to sleep overnight)
(Reason: Ensure compliance)

Bars and food preparation areas are not permitted nor is the serving of food or alcohol.
(Reason: Ensure compliance)

No merchandising relating to the brothel is to be erected, displayed or exhibited at any entry to the premises or any other area visible from outside of the site.
(Reason: Ensure compliance)

Entrance – Staff and Customers

The entrance for staff and customers to the subject premises shall be via Sawyer Lane in all hours and with restricted hours, from 6pm to 7am, for entrance via Hotham parade.

(Reason: Ensure amenity and security)

. Escort Service – Prohibited

________________________

ljr

12/05/2009 - numbering out of order in the conditions for 08/11132 - Paragraph(s) 58 onwards

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Qu v Willoughby City Council [2009] NSWLEC 1058

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CITATION:	Qu v Willoughby City Council [2009] NSWLEC 1058 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Gang Qu RESPONDENT Willoughby City Council
FILE NUMBER(S):	11132 of 2008
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Alteration of an existing building to be used as a brothel
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 1995 Willoughby Development Control Plan
DATES OF HEARING:	10/02/2009
EX TEMPORE JUDGMENT DATE:	10 February 2009
LEGAL REPRESENTATIVES:	APPLICANT J. Burrell, solicitor of Burrell Solicitors RESPONDENT M. Causer, solicitor of Mallesons Stephen Jaques