Simply Healthy v Burwood Council

[2009] NSWLEC 1440

Land and Environment Court

of New South Wales

CITATION:	Simply Healthy v Burwood Council [2009] NSWLEC 1440
PARTIES:	APPLICANT Simply Healthy RESPONDENT Burwood Council
FILE NUMBER(S):	10470 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Brothel
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Burwood Planning Scheme Ordinance Draft Burwood Town Centre Local Environmental Plan 2008
CASES CITED:	Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181 Liberty Investments Pty Ltd v Blacktown City Council [2008] NSWLEC 1154 Martyn v Hornsby Shire Council [2004] NSWLEC 614 Mathers v North Sydney Council [2000] NSWLEC 84 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Walker v North Sydney Council [2000] NSWLEC 211 Zhao v Burwood Council [2008] NSWLEC 1319
DATES OF HEARING:	20 November 2009
DATE OF JUDGMENT:	31 December 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, Solicitor Storey & Gough RESPONDENT Mr A Seton, Solicitor Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

31 December 2009

10470 of 2009 Simply Healthy v Burwood Council

JUDGMENT

1 Commissioner: This is an appeal against the decision of Burwood Council (the council) to refuse approval to a development application (DA 2008/185) for a change of use of an existing two-storey building located at 8 Railway Parade Burwood (the site).

2 The site is occupied by a two-storey building the ground floor of which is currently used as a non-authorised brothel, with three residential units on the first floor. The application was for change of use to a mixed development comprising a shop on the ground floor at the front and a brothel on the first floor and rear ground floor. The brothel is to comprise a reception area, waiting areas on the ground floor and first floor, staffrooms, and six workrooms with individual shower facilities. Access is to be from Railway Parade with separate entrances to the shop and the brothel. The entrance to the brothel is to be located at the end of a corridor, with access to the main reception area up a flight of stairs to the first floor. Access for disabled clients is to be by way of a door on the ground floor, to be opened by the receptionist as required. The hours of proposed operation are from 10.00am to 2.00am the next day, seven days a week. The agreed conditions have the maximum number of persons working on the premises as 8: six sex workers, one manager and one receptionist, together with a security guard to be employed on the premises after 9pm.

3 The issues between the parties are whether the application should be refused as brothels are prohibited under the draft Burwood Town Centre Local Environmental Plan 2008; and whether the location is unsuitable due to its proximity to residential flat buildings, a place of public worship, medical and dental practices, the College of Nursing, and an existing approved brothel.

Planning Controls

4 The site is zoned Business Special (District Centre) 3(c2) under the Burwood Planning Scheme Ordinance (the BPSO). Brothels are not separately defined in the BPSO and fall within the general definition of “commercial premises” and are permissible with consent. There are no specific planning controls for brothels under the BPSO.

5 The site is proposed to be rezoned to Mixed Use B4 under the draft Burwood Town Centre Local Environmental Plan 2008 (the draft Burwood LEP 2008). Brothels are defined under the draft Burwood LEP 2008 and are a prohibited use in the Mixed Use B4 zone.

Evidence

6 The hearing commenced with a site view. Expert planning evidence was given by Mr Richard Smyth on behalf of the applicant, and by Mr Rick Beers on behalf of the Council. Expert evidence on traffic and parking issues was provided in a written statement by Mr Graham Pindar.

7 The Council notified the development application and received eight written objections. Four were from specialist medical practitioners, three with professional offices at 6 Railway Parade and one at 24 Railway Parade; one was from a director of the owner/occupier of premises at 12 Railway Parade; one was from the Strata Managing Agents for 6 Railway Parade; and one was from solicitors acting for the operators of an approved brothel at 1 Elizabeth Street. One objection was anonymous. The objections raised concerns about the proximity of the site to residential apartments, and St Nektarios Greek Orthodox Church in Railway Parade; concerns about the impact of a brothel close to the professional offices in the vicinity, including specialist doctors’ rooms; lack of off-street parking; potential congestion for pedestrians and vehicles; and concentration of such businesses in the area leading to a “red light district”.

Draft Burwood LEP 2008

8 The site is within the Zone B4-Mixed Use under the draft Burwood LEP 2008. The aims of the draft Burwood LEP 2008 are:

1.2 Aims of Plan
(1) This plan aims to make local environmental planning provisions for land in Burwood Town Centre in accordance with the relevant standard environmental planning instrument under section 33A of the act.
(2) The particular aims of this plan are as follows:
(a) to provide a planning framework for the Burwood Town Centre consistent with its status as a major centre.
(b) to increase opportunities for employment.
(c) to manage and increase the range and diversity of residential and non-residential opportunities.
(d) to ensure an appropriate mix of land uses within the Burwood Town Centre.
(e) to conserve heritage.
(f) to provide for development that maximises public transport patronage and encourages walking and cycling.
(g) to encourage architectural design excellence.
(h) to minimise site isolation.
(i) to mitigate any adverse effect on the amenity of existing and future residents within and adjoining the Burwood Town Centre.
(j) to mitigate any adverse effect on the amenity of existing and future open space areas within the Burwood Town Centre.
(k) to promote ecologically sustainable development and encourage the efficient use of energy and resources.

9 Clause 2.3(2) provides that the consent authority must have regard to the objectives for development in the zone when determining a development application in respect of land within the zone. The objectives of the Zone B4 Mixed Use zone are:

-To provide a mixture of compatible land uses.
-To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
-To encourage the provision of affordable housing.

10 Home occupations and roads are permissible without consent. Development that is permissible with consent is:

Amusement centres; Boarding houses; Business
identification signs; Business premises; Car parks; Child-care centres; Community facilities; Dwellings; Educational establishments; Entertainment facilities; Food and drink premises; Function centres; Funeral chapels; Health services facilities; Home-based child care; Home business; Home industries; Hostels; Hotel or motel accommodation; Information and education facilities; Markets; Mortuaries; Nightclubs; Office premises; Passenger transport facilities; Places of public worship; Public administration buildings; Pubs; Recreation areas; Recreation facilities (indoor); Registered clubs; Residential flat buildings; Retail premises; Seniors housing; Service stations; Shop top housing; Tourist and visitor accommodation; Vehicle sales or hire premises; Veterinary hospitals

11 Any other development is prohibited. The draft Burwood LEP 2008 contains a definition of “business premises”:

business premises means a building or place at or on which:
(a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or
(b) a service is provided directly to members of the public on a regular basis,
and may include without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, Internet access facilities, medical centres, betting agencies and the like, but does not include sex services premises.

12 A “sex services premises” is defined, and “means a brothel, but does not include home occupation (sex services)”. A “brothel” has the same meaning as in the Act. Section 4 of the Act defines “brothel” to mean:

brothel means a brothel within the meaning of the Restricted Premises Act 1943, other than premises used or likely to be used for the purposes of prostitution by no more than one prostitute.

13 The draft Burwood LEP 2008 contains a saving provision:

1.8A Savings provision relating to pending development applications
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had been exhibited but had not commenced.

14 It was common ground that the proposed use as a brothel on the first floor and rear ground floor of the site would be prohibited under the draft Burwood LEP 2008. The issue between the parties was the weight to be given to the draft Burwood LEP 2008. The Council contends that the draft Burwood LEP 12008 is sufficiently certain and imminent, and is entitled to significant weight in the determination of the application. Mr Seton for the Council submitted that in contrast to the position in Zhao v Burwood Council [2008] NSWLEC 1319, the draft is now further advanced: it has been on public exhibition and the Town Centre Planning Panel has resolved to submit it to the Director General with a request that it be reported to the Minister under s69 of the Environmental Planning and Assessment Act 1979 (the Act). Mr Seton submitted that the draft LEP is entitled to significant weight, and that it specifically excludes brothels as a permissible use. Mr Gough for the applicant submitted that the draft LEP is not certain, and that the brothel the subject of this application does not undermine the planning intent of the proposed zone, relying on Liberty Investments Pty Ltd v Blacktown City Council [2008] NSWLEC 1154.

15 Mr Smyth’s evidence was that a brothel was consistent with the aims of the draft Burwood LEP 2008, in particular (d). A brothel is an appropriate land use as a form of commercial business, which would be included within the definition of “business premises” if not specifically defined. The first and second of the objectives of the zone are relevant, and a brothel would be compatible with other uses listed as permissible. In some areas brothels are located in industrial areas which he would not encourage, however there is no industrial zoned land in Burwood where a brothel could be located. The prohibition of brothels reflects a moral attitude. Commercial areas are the most appropriate for brothels because they are safer and because other business is located there. Mr Smyth stated that he had written to the Department of Planning to express concerns about the exclusion of brothels and has received a letter stating that the draft LEP has progressed too far and that the Council would be required to review the Town Centre LEP when it prepares an overall LEP.

16 Mr Beers accepted that a brothel could be consistent with the aims (b) and (c) of the draft Burwood LEP 2008, however queried whether it would be desirable. In relation to aim (d) the issue would be whether a brothel was appropriate in a mix of land uses; in relation to aim (i) it would be a question of management: if well managed then the only amenity impact may be for people walking past. Mr Beers agreed that some of the permissible uses in the B4 zone could potentially have greater impacts on amenity than a brothel, and that the distinction is that a brothel provides sexual services.

17 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 the Court of Appeal approved the line of authority in this Court concerning the weight to be given to draft environmental planning instruments. Mason P held:

46 The cases permit a consent authority to give weight to its perception of the likely (or unlikely) imminence of the relevant provisions of the draft exhibited instrument coming into force; or if it has in fact come into force, to treat it (draft though it is in its direct applicability) as if its provisions were “certain and imminent”. This approach has long been adopted by the Land and Environment Court and its predecessors, the Land and Valuation Court and the Local Government Appeals Tribunal (see Ward v Warringah Shire Council (1963) 10 LGRA 114 at 119-120; Pymble Industrial Village Pty Ltd v Kur-ring-gai Municipal Council (1975) 3 LGATR 161 at 165; Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 201-2; Mathers v North Sydney Council [2000] NSWLEC 84 at [42]; Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49 at [36]-[37]; Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 at [6]; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at 297-8). See also Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 62 LGRA 346 at 353-4.
47 The principles are well summarised by Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138, a decision cited by Cowdroy J (at [14]). Pearlman J said:
33. Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this Court as benchmarks for the attribution of weight in the consideration of a development application (see Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 202 ; Parramatta City Council v Takchi (Stein J, NSWLEC, 17 April 1996, unreported) and Davfast Pty Ltd v Ballina Shire Council and Anor [2000] NSWLEC 128, unreported). As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref’s evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case.

18 The applicant relied on the decision of Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290, where an amending LEP had come into force after the lodgement of the development application, and contained a provision in similar terms to cl1.8A of the draft Burwood LEP 2008. As in these proceedings, the proposed development was permissible with consent under the LEP applicable at the time of the development application; and the amending LEP had the effect of prohibiting that development. Lloyd J held:

30. Whether one applies the test of “significant weight”, or “some weight”, or “considerable weight” or “due force” or “determining weight” to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is “antipathetic” thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).

19 Mr Gough submitted that as was held in Blackmore Design Group, here the proposal is permissible by virtue of cl 1.8A of the draft Burwood LEP 2008; there are no merit issues which would justify refusal of the application; and the expert evidence demonstrates that the proposal is in accordance with and promotes the specific objectives of the zone.

20 Mr Seton submitted that the proposal is inconsistent with the planning intent of the draft Burwood LEP 2008, which is, on its face, to prohibit brothels in the B4 Mixed Use zone. The draft LEP should be regarded as being imminent and certain, and should be given significant weight. The draft Burwood LEP 2008 is based on the standard instrument LEP, under which the council is told what the objectives of the zone are; while one zone objective is to provide a “mixture” of compatible land uses, the draft LEP specifically excludes brothels and identifies what is compatible by inclusion within the table of permissible land uses.

Findings

21 The development application DA 2008/158 was lodged on 7 August 2008 and refused on 18 November 2008. The applicant requested a review under s82A of the Environmental Planning and Assessment Act 1979 (the Act), and was notified by letter dated 20 July 2009 that the determination was confirmed. At the time the development application was lodged the draft Burwood LEP 2008 had been the subject of a certificate under s65 of the Act; by the time it was first considered by the respondent, the draft LEP was on exhibition (the draft Burwood LEP 2008 was exhibited from 2 October 2008 to 19 November 2008). The Town Centre Planning Panel met on 2 June 2009 and resolved to refer the draft Burwood LEP 2008 to the Department; the application to the Court was made on 14 July 2009. I accept Mr Smyth’s evidence (which was not disputed) of his correspondence with Department; and on that evidence there is no indication that the draft Burwood LEP 2008 will not be made. Based on that evidence, I accept that the provision prohibiting brothels in the B4 zone will remain in the draft Burwood LEP 2008. While Mr Smyth’s evidence was that he does not regard a draft environmental planning instrument as certain until it is actually gazetted, that is a cautious approach, and is not consistent with the tenor of his correspondence with the Department as outlined in his evidence. I am satisfied that the draft Burwood LEP 2008 is imminent, and its prohibition of brothels in the B4 zone is certain. On that basis, the draft Burwood LEP 2008 should be given significant weight.

22 As held by Lloyd J in Blackmore, that conclusion is not the end of the matter. If the draft Burwood LEP 2008 had been made, cl1.8A would enable consent to be granted. Even if draft Burwood LEP 2008 has not been made, the authorities discussed by Lloyd J in Blackmore require consideration of the impact that granting of development consent would have on the implementation of its objectives, variously expressed in terms of having regard to the broad objectives which the draft instrument seeks to achieve, and whether what is proposed is inconsistent with the expressed future planning objectives for the area (Edward Listin Properties Pty Ltd v North Sydney Council(No 2) [2000] NSWLEC 181), whether approval would detract from the objectives (Mathers v North Sydney Council [2000] NSWLEC 84), and whether the application is contrary to the planning objectives of the locality (Walker v North Sydney Council [2000] NSWLEC 211).

23 The proposal is not inconsistent with, or contrary to, the objectives as provided in cl1.2(2)(b)and (c) of the draft Burwood LEP 2008. The experts disagreed as to objective (d), Mr Smyth considering that a brothel can be part of an “appropriate” mix of land uses in a business or commercial area; whereas Mr Beers differed. Mr Beers agreed that provided a brothel was appropriately managed, it need not have an adverse effect on residential amenity as addressed in objective (i). In considering the objectives of the B4 zone, the disagreement between the experts related to whether a brothel was a “compatible” land use; there was no disagreement that some of the land uses permissible with consent in the future B4 zone could have a more adverse impact on amenity than a brothel. While accepting that the draft Burwood LEP 2008 is entitled to be given significant weight, I am not persuaded that the proposal is inconsistent with, or contrary, to its planning objectives as expressed in cl1.2(2) and the objectives of the B4 zone. I am not persuaded that the prohibition of brothels in the draft Burwood LEP 2008 is, in the context of those objectives and the provision of cl1.8A, determinative, such that consent should be refused to a land use permissible under the current zoning that is otherwise suitable for the location.

Suitability of the location

24 Annexure A is an extract from the BPSO and shows the location of the site in the context of the current zoning. The site is located on the southern side of Railway Parade between Shaftesbury Road (to the east) and Burleigh Street (to the west), close to Burwood Station. There is a footpath on the northern side of Railway Parade adjoining the railway line, and there are residential flat buildings along the streets on the other side of the railway line to the north. Immediately to the west of the site is the Burwood Professional Centre (No 12), the College of Nursing (No 14) and three blocks of residential flat buildings. Further to the west on the other side of Burleigh Street is a church. To the east of the site is the Burwood Specialist Centre (No 6) and other commercial premises. The land on the eastern side of Shaftesbury Road and around the corner south east of the site is zoned Residential 2(c1) under the BPSO. There is an approved brothel at No 1 Elizabeth Street, which shares a rear boundary with the site.

25 The Council contends that the application should be refused as the location is unsuitable due to its proximity to residential flat buildings, places of public worship, medical and dental practices, and the College of Nursing, and that it is within close proximity to an approved brothel such that the concentration of brothels is likely to have an unacceptable impact on the character of the area.

26 Both parties agreed that the planning principle as stated by Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 is applicable in this matter, as there are no controls specifically for brothels in the BPSO. Mr Gough for the applicant submitted that physical impacts of this proposal are not such as to mean that the location is inappropriate; there is no evidence of crime associated with this application; the site does not adjoin and is not visible from residential zoned areas; the site is not visible from schools and there is nothing to indicate that children might gather there; the site is not visible from the place of worship; while the site is adjacent to another brothel there is no means of passing from one to the other; access would be discreet, and there would be no concentration of people gathering on the street. Mr Seton for the Council submits that the site is located close to residential uses even though it is not directly visible, and that the objections from nearby business and professional premises raise a concern about past impacts and future concerns, meaning that the site is not a location where a brothel is least likely to offend.

27 Mr Smyth’s evidence was that the site was not visible from other land uses as it was on the same side of the road, and it would be possible to walk past it without realising it was a brothel. Brothels are usually discreet. Mr Smyth stated that the residential zoned land currently used as a bible college is on the other side of Shaftesbury Road approximately 85m away. Mr Smyth did not agree that this could be considered to be “near to” the site. Mr Beers stated that Shaftesbury Road is a busy road and it was probably a long bow to say these premises were “near” the site. He would not describe the residential zoned land to the south east of the site as near, as it was around the corner and down the road. Neither Mr Smyth nor Mr Beers considered the residential area across the other side of the railway line to be near, although both agreed that the first floor would be visible. Neither witness considered that there would be anything to cause children to gather near the premises. Both agreed that the medical centre and dental practices and the College of Nursing (which conducts postgraduate courses) would be unlikely to be affected by the proposal as any children attending these venues would normally be accompanied by an adult.

Findings

28 The principles to be considered when assessing the appropriateness of the location of a proposed brothel were set out by Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614. The Senior Commissioner noted that a brothel should be assessed as a sensitive land use, the location of which needs consideration beyond that of mere physical impact, and set out the principles under which a brothel should be assessed in areas where there are no locally adopted guidelines:

18. The following are criteria for locating brothels:

· Brothels are a legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality.
· Brothels should be located to minimise adverse physical impact, such as noise disturbance and overlooking. In this aspect they are no different from other land uses.
· There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application, this should be supported by evidence.
· Brothels should not adjoin areas that are zoned residential, or be clearly visible from them. Visibility is sometimes a function of distance, but not always.
· Brothels should not adjoin, or be clearly visible from schools, educational institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk.
· The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels) is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather.
· There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses.
· Where a brothel is proposed in proximity to several others, it should be considered in the context that a concentration is likely to change the character of the street or area. In some cases this may be consistent with the desired future character, in others not.
· The access to brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shop and strip clubs predominate, signage should be restricted to the address and telephone number.

29 On the basis of the evidence from the site view, and that of the experts, I am satisfied that the site is not directly visible from the areas zoned residential on Shaftesbury Road or Railway Parade to the west; the area zoned residential on Deane Street is on the other side of the railway line, and the site would be visible only from the first floor and at a distance. I am satisfied, based on the site view and the evidence of the experts, that the site cannot be regarded as being near to any of the residential zoned land in the vicinity. The site is not directly visible from St Nektarios Church to the west and on the corner of Burleigh Street. While there is pedestrian traffic along Railway Parade to and from Burwood Station, there is nothing about the site that might attract children or others to linger. Access is discreet, and the proposed entrance to the premises is through a corridor next to the proposed shop. The site adjoins commercial premises, including premises occupied by medical practitioners; the experts were in agreement that any children attending these premises would normally be accompanied by an adult. The written objections included concerns about the appropriateness of brothels as a land use, in particular in an area where there are medical and other professional practices. Two of the objections appear to have been made on the assumption that the proposal is for an additional brothel at 8 Railway Parade, and refer to concerns for a concentration of brothels on the site. One objection refers to the existing authorised brothel at 1 Elizabeth Street, and concerns for a concentration of brothels. While those premises and the site adjoin at the rear, based on the site view it is apparent that there is a considerable distance between these premises in terms of access from one to the other. There is no evidence of impact on the amenity of the commercial and professional premises or the nearby residential premises from the existing unauthorised brothel, or that use of the site for a brothel will result in any adverse amenity impacts. As noted in Martyn, brothels should be located where they are least likely to offend. Having considered the various factors identified in Martyn, I am satisfied that the evidence in these proceedings supports the conclusion that the site is not an inappropriate location for a brothel.

30 The Council in its Statement of Facts and Contentions raised a contention that the proposed development was an unacceptable intensification of the use of the premises, including an issue concerning the unavailability of parking. At the hearing the Council’s solicitor confirmed that there was no issue between the parties relating to traffic and parking. Mr Smyth and Mr Beers addressed this contention in their joint report. Mr Smyth considered that the proposed development would not result in intensification of use, but the opposite, given that the subject property enjoys three development consents which together permit a total of 15 workers on the premises and allow three separate businesses to operate; Mr Beers was of the view that the intensification was not due to staff numbers or parking, but rather to the extended hours beyond 6pm to the proposed 2am. The issue of intensification was not raised in oral evidence or submissions.

Conclusion

31 I am not satisfied that the site is, as contended by the Council, an unsuitable location for a brothel, or that it is likely to have an unacceptable impact on the character of the area. While the draft Burwood LEP 2008 is entitled to be given significant weight, given the inclusion of proposed cl 1.8A and in the absence of factors pointing to unsuitability of the site for the proposal, this would not be of sufficient significance to warrant refusal of the application. The agreed conditions include compliance with the Plan of Management submitted to Council on 7 August 2008, compliance with the recommendations of the NSW Police including provisions relating to lighting, control of access, and CCTV monitoring, and a condition requiring the development to be operated so as not to interfere with the amenity of the surrounding neighbourhood.

Orders

32 The orders of the Court are:

1. The appeal is upheld.
2. Development consent is granted to Development Application DA 2008/185 for the change of use of an existing two-storey building located at 8 Railway Parade Burwood subject to the conditions as set out in Annexure B.

3. The exhibits are returned with the exception of exhibit A.