Song v Hornsby Shire Council

[2011] NSWLEC 1100

Land and Environment Court

New South Wales

Medium Neutral Citation:	Song v Hornsby Shire Council [2011] NSWLEC 1100
Hearing dates:	21 April 2011
Decision date:	21 April 2011
Before:	Hussey C
Decision:	Consent orders granted
Catchwords:	Development application; Brothel, car parking, site suitability, public safety, hours of operation
Legislation Cited:	EP&A Act 1979. Hornsby LEP 1994
Category:	Principal judgment
Parties:	Mr Tim Song (Applicant) Hornsby Shire Council (Respondent)
Representation:	Mr M Staunton (Applicant) Mr A Seton (Respondent)
File Number(s):	10015 of 2011

Judgment

Background

1. This appeal was lodged against council's refusal of a development application for the conversion of the building at 142 George Street Hornsby and its subsequent use as a brothel.

1. The application was subject to a detailed planning assessment that included the relevant planning control provisions and considerations. Reference was also was made to the court's planning principle for brothel location. However a number of objections were lodged against the proposal and the overall merits of the proposal were then assessed.

1. Consequently, the application was recommended for conditional approval but was refused by council. Subsequent to the appeal being lodged, discussions between the parties resulted in their agreement to consent orders.

1. The consent orders were notified to the objectors, together with details of today's hearing. Mr McDonald gave further evidence concerning the location of the brothel and its potential to cause adverse impacts on children who pass the premises. Also its likely adverse impacts on other nearby businesses.

1. Mr C Blyth, the applicant's consulting town planner also provided a position paper, which addressed the concerns of the objectors. Consequently, he supports the conditional approval of the application.

The proposal

1. The proposal seeks approval for the change of use of Units 5 and 6 in Block ' B ' to a sex services premises (brothel) and the erection of two business identification signs on the western and eastern elevations fronting George Street and Hunter Lane , respectively. The proposed development involves internal alterations to link the two units which are over two levels . The proposed development includes:

Lower Floor: Reception , waiting area , two toilets , a kitchen and staff room and two service/work rooms. Upper Floor: Laundry, two toilets, and six service/work rooms.

1. The applicant has advised that the development proposes ten staff , one manager and one receptionist. The proposed hours of operation are 24 hours per day, 7 days a week. The application includes a ' Brothel Management Plan ' for the day to day running of the premises .

The site

1. The 911.8sq m rectangular site has an east-west axis and is located on the eastern side of George Street between Linda Street and Hunter Lane. It has a frontage to George Street of 20.2 m , a variable depth of 44.7 - 45.9 m and a frontage to Hunter Lane of 20.1 m .

1. The site comprises two, 2-storey buildings known as Block ' A ' and Block 'B' containing six units in total. Units 5 and 6 are located within Block 'B ' and have a gross floor area of 326sq m . Six car parking spaces a re pro v ided to Block 'B ' with two spaces accessed via George Street and four spaces in a stacked configuration accessed via Hunter Lane .

1. Block 'B' is setback approximately 8.5 m from George Street (west), 11.5 m from Hunter Lane (east) and 0.075 m from the southern side boundary.

1. Surrounding development comprises a mix of industrial and commercial uses , including a printing and copying business, a solar energy business, vehicle repair stations, motor vehicle industry uses and the like.

Planning controls

1. The following controls apply:

Metropolitan Strategy - (Draft) North Subregional Strategy .

Hornsby Shire LEP 1994 ; under which the land is zoned Business G (Town Centre Support). As the proposed development is defined as ' business premises' , it is permissible with consent. The relevant objectives of this zone are:

(a) to encourage economic growth and employment opportunities.

(b) to accommodate the commercial, service, housing and social needs of the local and regional community.

(c) to encourage development that supports the Hornsby Town Centre and improves the vitality, cultural environment and social environment of the Centre.

Restricted Premises Act 1943.

SEPP No 64 - Advertising and Signage.

Business Lands DCP ; including controls on car parking, acoustic impacts, waste minimisation and management, signage and advertising.

The evidence

1. As I have noted previously, the application was subject to a detailed planning assessment. In the circumstances that the parties have agreed to consent orders, I have carefully considered this assessment in the absence of any other expert evidence or substantive challenge to its approach and conclusions.

1. The assessment concludes that:

The proposal is consistent with the zone objectives and the draft subregional strategy.

Subject to the imposition of suitable conditions, the proposal satisfies the requirements of the Restricted premises Act.

1. In terms of the DCP provisions, the assessment for car parking is:

The proposed development is for a sex services premise (brothel), which is defined as ' business premises ' under the HSLEP. Block 'B' has a total floor area of 326 sq m and there are six parking spaces provided for the proposed development.

The applicant seeks to justify the parking shortfall generally on the grounds that during daytime (business hours) less than six staff/customers would be on site at any one time and that after hours, on-street car parking is less constrained and some staff would share transport and/or use public transport.

Having regard to the applicant's justification, the previous approved uses of the site, the proximity of the site to public transport and the proposed transport arrangements for the staff, it is considered that the car parking of three spaces does not warrant refusal of the application.

1. The acoustic assessment states:

Council's Business Lands DCP prescribes that the hours of operation of commercial activities should be between:

7.00am to 6.00pm Monday to Wednesday and Friday;

7.00am to 6.00pm Thursday;

8.00am to 4.00pm Saturday and

No work on Sundays

The applicant proposes to work outside of these hours, by operating 24 hours a day, seven days a week.

Based on the assessment that peak operation of the business would be at night, the majority of the surrounding land uses do not open late at night and therefore the business is unlikely to cause disturbance in the neighbourhood in that the entry point from Hunter Lane is set back from the street which results in visitors to the premises being less conspicuous, and the surrounding land use being non residential in nature.

The Business G (Town Centre Support) zoned primary objectives are " to encourage economic growth and employment opportunities ". The proposed development is anticipated to provide upward of thirty employment positions and is likely to contribute to the economic diversity of the Shire. However, to achieve a level of viability and sustainability the operating environment must, as with any other business activity, be tailored to the proposed development. In this regard, the variation sought in respect of hours of operation is not considered contrary to the primary objective of the zone for the following reasons:

• Extending the operating times would have no effect on the land use zoning in facilitating further economic activity;
• Extending the operating times would assist in securing the sustainability and viability of the business, which in turn secures employment positions; and
• Extending the operating times of the proposed development is not likely to have an impact on the employment generation capability of other businesses in the locality or the land use zoning.

Council has determined, via the adoption of prohibitive exclusion in other zones as provided by HSLEP, that brothels are only suited to the Business zoned lands (except the Business E zone). In this regard it is considered that unnecessarily restricting the operating hours would act as an impediment to the development which may undermine the zoning objectives.

Having regard to the circumstances of the case it is considered that the hours of operation provided in the DCP are both unnecessary and unreasonable in this instance. Accordingly, it is considered acceptable that the hours of operation be extended to permit 24 hour operation.

1. The waste minimisation assessment states:

The Management Plan for the operation of the brothel submitted with application indicates that each room would have appropriate receptacles for used linen and lined waste containers for contaminated waste. It would be the responsibility of each sex worker to ensure the bagging and removal of contaminated waste at the conclusion of each consultation. Bagged waste removed from the work rooms at the conclusion of each consultation would be deposited in lined garbage receptacles provided within the premises. These receptacles would be emptied in securely tied liner bags and removed to the garbage receptacles provided for commercial waste collection. Appropriate conditions of consent are recommended to ensure compliance with the provisions of the DCP.

1. The planning assessment also includes consideration of the relevant s79C matters as follows:

Natural environment:

The proposed development is confined within the footprint of the existing building and would not impact on the natural environment.

Built environment:

The proposed development would not alter the existing scale and density of development on the site and the proposed signage is located within the faade of the building .

1. In recognition of the sensitive nature of the proposed development, the suitability of the site was assessed in the following manner:

Despite being a lawful business in a zone that permits this land use activity, brothels must be carefully assessed to ensure that they do not result in adverse social impacts. In assessing the social impact of the development, brothels should not adjoin, or be clearly visible from non compatible land uses which may include residential development, places of worship, hospitals, schools, educational institutions for young people or places where children and adolescents regularly gather for recreational or cultural activities. The proposed development is not located near any of these land uses and this matter is discussed further in section 4 of this report.

• Economic Impacts

The proposal would facilitate development of land within the Town Centre Support area of Hornsby, would create employment opportunities in the area and would have a positive economic impact on the locality.

Submissions raised concerns that the proposed brothel has the potential to have adverse economic impacts on adjoining businesses. Whilst an economic impact assessment was not submitted with the development application, no evidence has been provided to substantiate the objectors' claim that the proposal would restrict or impact upon economic activity in the locality.

Whilst children and other young people may visit the adjoining businesses (printing shop and solar energy shop), both businesses have off street parking and most of their clientele travel by car. As a result young children are less likely to attend the businesses alone. Furthermore, the entrance to these business premises are on George Street and the entry to the brothel is on Hunter Land. Given that brothel clientele are likely to be discrete, there would be little if any adverse impact on the adjoining businesses.

Brothels are defined as ' business premises ' under the HSLEP and are only permissible in business zoned land with the exception of the Business E (Service Centre) zone. The proposal is considered to be a discreet establishment and would not be identifiable as a brothel. With the exception of altering the existing business identifications sign to that of a street address sign, there are no external changes proposed to the building. The proposed location is considered to be acceptable, in that the proposal is unlikely to crate an adverse impact on any impressionable groups in the surrounding locality.

• 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.

The proposed brothel is located within 'Building B' of an approved factory unit development. The assessment of the application has not identified any potential noise issues arising from the development. In terms of overlooking, there are no windows on the southern elevation to overlook the adjoining premises and the windows on the western elevation front George Street and the Great Northern Rail Line and on the eastern elevation front Hunter Lane. The windows on the first floor of the northern elevation front 'Building A' on the site. Therefore, noise and overlooking impacts would not arise in this instance.

The subject site is located centrally within an existing commercial centre. The adjoining land use zone to the east is Industrial B (Light) zone. The nearest residential property is approximately 20 metres to the south, this dwelling is located within the Industrial B (Light) zone whilst the nearest residential property in a residential zone is approximately 150 metres to the north. The location of existing industrial/commercial buildings between the nearest residential area and the site results in the proposal not being visible from those residential areas.

The site is not visible from schools, education institutions for young people or places where young people regularly gather. Submissions raised concerns that located to the south of the development on the same street is an AMF Bowling Alley (approximately 90 metres from the site), a gym (approximately 214 metres from the site), and the PCYC (approximately 234 metres from the site), which are generally used by school children in the area. The proposed brothel does not adjoin these properties, nor is it visible from the, which is consistent with the planning principle. Whilst it is acknowledged that some youths may walk past the site on their way to the AMF Bowling Alley, the gym and/or the PCYC on George Street, the access to the premises is considered to be discreet with minimal signage. The planning principle also states that brothels should not be excluded from every street on which children walk.

There is no known place of worship within the vicinity of the proposed brothel.

There are no bus stops of public transport routes along George Street within the immediate vicinity of the subject site.

There are no other brothels in the immediate area. Therefore, the proposed development is not considered likely to change the character of the street or area.

Whilst the proposed brothel has a secondary frontage to a main road, access to the premises for clients and staff is from the frontage in Hunter Lane. The location of the premises would only be disclosed by a small light box sign that would carry the property street number '142' on each street frontage.

Based on the above assessment of the proposal against the planning principles outlined in the Land and Environment Court of New South Wales for the location of brothels, the proposed brothel is considered to be suitable for the subject site.

Conclusions

1. Having carefully considered the planning assessment, the objections and undertaken a view of the site and surrounding area, I am satisfied that the consent orders should be granted.

1. As noted, the planning assessment is thorough and no substantive evidence has been presented to the Court to challenge the assessment process or conclusions. I particularly note that the assessment concludes that the proposal is consistent with the zone objectives.

1. From the view it is apparent to me that the entry to the brothel is discrete from Hunter Lane. In my opinion this lane is not a particularly attractive or safe pedestrian thoroughfare and appears to be very much a secondary access route. Therefore I do not consider it would be used regularly by children.

1. If children do traverse the area as stated by Mr McDonald in an unsupervised manner, it appears to me that George Street would be the preferred alignment. But there is no entry to the premises from George Street and there is only minimal discrete signage proposed.

1. Consequently, I do not consider the level of risk or safety of children is such to refuse the application. In this regard I rely on the conclusion in the assessment that:

The presentation of the development is such that people would not be able to identify the use of the building as a brothel. Suitable off street parking and access is available and an adequate setback provided to ensure that clients would have no need to wait or gather on the street. Furthermore, most of the brothel's trade would occur during hours when other businesses in the street are closed.

1. Insofar as there were a number of other objections, these were mainly concerned with moral issues associated with brothels. However considering the applications compliance with the prevailing controls, I do not consider the objections in this regard should result in the refusal of the application.

1. In summary then I am satisfied that the consent orders should be made.

Court orders

1. By consent the Court orders:

(1)   The Appeal is upheld.

(2)   Development application No 1027/2010 for the use of Lots 5 and 6, 'Block B', SP 6089, No 142 - 144 George Street, Hornsby for the purposes of a brothel and the erection of two business signs on the western and eastern elevations of Block B fronting George Street and Hunter Lane respectively, is approved subject to the conditions in Annexure "A".

(3)   Each party to pay their own costs.

R Hussey

Commissioner of the Court

Decision last updated: 03 May 2011