Studio Relaxation Salon Pty Limited ACN 113 915 870 v Hurstville City Council
[2006] NSWLEC 190
•03/30/2006
Land and Environment Court
of New South Wales
CITATION: Studio Relaxation Salon Pty Limited ACN 113 915 870 v Hurstville City Council [2006] NSWLEC 190 PARTIES: APPLICANT:
Studio Relaxation Salon Pty Limited ACN 113 915 870
RESPONDENT:
Hurstville City CouncilFILE NUMBER(S): 10087 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Whether the proposal is satisfactory in the commercial zone LEGISLATION CITED: Hurstville Local Environmental Plan 1994, (as amended), (HLEP)
State Environmental Planning Policy No 55 - Remediation of Land, (SEPP55)
Development Control Plan No 2 - Car parking, (DCP2)
Development Control Plan No 18 - Crime Prevention Through Environmental Design, (DCP18)
Development Control Plan No 19 - Access and Mobility, (DCP19)
Extended Hours Trading Policy, (Policy)
Environmental Planning and Assessment Act 1979, ss79C and 97CASES CITED: Prosperity Leisure v Hurstville City Council, 10993 of 2005;
Pont v Hurstville City Council [2005], NSWLEC 33DATES OF HEARING: 30/03/2006 EX TEMPORE JUDGMENT DATE: 03/30/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr T Hale, SC, instructed by
Mr C Milne, solicitor
SOLICITORS:
Craig Milne & CompanyRESPONDENT:
Mr P R Rigg, solicitor
SOLICITORS:
Deacons
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
30 March 2006
10087 of 2006 - Studio Relaxation Salon Pty Limited ACN 113 915 870 v Hurstville City Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hurstville City Council (the council) to refuse a development application to use as an erotic massage/ brothel, premises at Lot 4A, DP 12406, being No 359 Stoney Creek Road, Kingsgrove. This judgement was given extempore at the conclusion of the hearing.
2 I visited the land in company with the parties on the morning of the hearing.
3 I have concluded that the application should fail, as it is too close to residential properties at the rear of the premises.
The premises
4 The premises is situated on the southern side of Stoney Creek Road between Patrick and Donald Streets, Kingsgrove, within a local shopping centre known as the ‘Kingsway West Shopping Centre’. The land is a narrow rectangular-shaped parcel with an angled frontage of about 7.415m to Stoney Creek Road, a rear width of 6.705m and an area of 249.5m2.
5 Erected upon the land is a single-storey brick commercial building, presently occupied by a plumbing business. There is storage space at the rear, with three (3), car parking spaces provided (including 1 stacked car space) accessed off Patrick Street.
6 Abutting the premises to the west is a family photography business and to the east is a service station. Located at the rear of the land is a 3.66m wide public lane or right-of-way, which services properties at Nos 357 - 365 Stoney Creek Road. The area to the east, west and opposite the land is commercial in character, with residential properties situated to the rear in Patrick and Donald Streets.
Relevant planning controls
Hurstville Local Environmental Plan 1994, (as amended), (HLEP)
7 Under the provisions of the HLEP, the land is zoned ‘Zone No 3(c) (Business Centre Zone)’ and the proposal is permissible with consent as a ‘business premises’.
8 Of relevance in the HLEP are:
· Clause 8(1)-(3): Zone objectives.
· Clause 8(2): Development control table.
· Clause 9: Council policies.
· Clause 13(2A): Floor Space Ratio, (FSR).
· Clause 15A: Height.
9 ‘Business premises’ in the HLEP “…means a building or place in which there is carried on an occupation, profession, light industry or trade which provides a service directly and regularly to the public, but does not include a building or place elsewhere defined in this clause.”
10 Upon gazettal of Draft HLEP (Amendment No 7), the proposed use as a ‘brothel’ will be prohibited. Of relevance are:
· Definition of ‘brothel’.
· Part 2 - General restrictions on development of land.
· Clause 16A - Objectives and location of sex services premises.
11 Under Amendment No 7, which was gazetted Friday 31 March 2006, the day after the decision made by this Court, the council seeks to locate sex services premises in light industrial zones remote from residential premises. There was no savings clause included in this instrument so its provisions would have applied on the day of gazettal.
State Environmental Planning Policy No 55 - Remediation of Land, (SEPP55)
12 The proposal is to be considered against the objectives of SEPP55, however, this related to an issue that was not to the fore in the proceedings.
Development Control Plan No.2 - Car parking, (DCP2)
13 Under cl 2.1.1 – there is a table of parking requirements. There was no issue between the parties in respect of the adequacy of car parking.
Development Control Plan No 18 - Crime Prevention through Environmental Design, (DCP18)
14 Of relevance is s 1.8 that sets out the aims and objectives of DCP18.
Development Control Plan No 19 - Access and Mobility, (DCP19)
15 Of relevance are:
· Part 2.2 - Assessment Table.
· Clause 2.4 - Unjustifiable Hardship.
Extended Hours Trading Policy, (Policy)
16 Of relevance are Points Nos 1, 3, 4 and 5 under the Policy.
The proposal and its history
17 Development application No 20050691 was lodged with the respondent council on 22 December 2005, and seeks consent to relocate an erotic massage clinic/brothel, which was previously operating from first floor premises at No 1/440 Stoney Creek Road, Kingsgrove, to the subject single-storey property on the subject land at No 359 Stoney Creek Road, Kingsgrove. These properties are located diagonally opposite each other.
18 The proposal includes on one level:
· Access to the premises from Stoney Creek Road through a front security door. A reception area/ waiting room at the front of the property. A staff room containing chairs, lockers and cupboards. Five (5) massage rooms.
· Installation of a smoke detector in each room, with a fire extinguisher located in the reception area.
· One male toilet and female toilet, and one shower at the rear of the premises. Separate areas for the storage of linen and laundry. Provision of waste disposal facilities.
· Hours of operation from 10:00am until 10:00pm Mondays to Saturdays, and from 12 noon until 8:00pm on Sundays.
· Five (5) female sex workers on site at any one time plus a manager/receptionist on site during the operation of the business.
19 The applicant states that sole access to the premises by clients would be through the front entrance off Stoney Creek Road. No access for clients would be permitted off the right-of-way at the rear. An emergency egress is also proposed at the rear.
20 Three (3) car parking spaces are proposed at the rear of the property.
21 The statement of environmental effects submitted with the application includes the following statement:
- The proposed use of the site as a brothel is the same as that use which is currently being undertaken at property No 440 Stoney Creek Road, diagonally opposite. No 440 Stoney Creek Road is approved as a therapeutic massage clinic, but massages have included ‘Swedish/Erotic’ massages. The nature of these massages is such that deem the premises a `brothel'. (Notwithstanding, penetration sex is NOT available to clients). The ‘massage clinic/brothel’ at No 440 Stoney Creek Road is simply relocating its operations to No 359 Stoney Creek Road.
22 Minor building works are proposed at the rear of the premises, including installation of a new aluminium glass sliding door and extension to the roof at the rear, with new ‘Colourbond’ roofing to match the existing, and new guttering is proposed. Structural building works are not proposed for the fitout.
23 The applicant in the statement of environmental effects that accompanied the present application, pointed to recent decisions of the Court where brothels were approved within Hurstville City under the same business zone including at 327A Belmore Road, Riverwood in proceedings No 10993 of 2005, (Prosperity Leisure v Hurstville City Council), and at 184E Belmore Road, Riverwood, (Pont v Hurstville City Council [2005], NSWLEC 33).
Notification
24 The application was notified from 13 January 2006 until 3 February 2006 to nearby owners and occupants and the council received three (3) letters of objection.
The council’s decision
25 In a report to the Development Assessment Committee (DAC) meeting that was to be held on 5 April 2006, council officers had recommended the development application for refusal on grounds:
· The proposed use for erotic massage/brothel purposes is prohibited on the subject land under Draft Hurstville Local Environmental Plan 1994 (Amendment No 7), and the proposed use is inconsistent with the requirements and objectives of Draft Hurstville Local Environmental Plan Amendment No 7 due to its proximity to sensitive land uses.
· The proposal does not comply with the Land and Environment Court Planning Principles relating to the location of brothels.
· Non-compliance with the objectives of Zone No 3(c) (Business Centre Zone) within the Hurstville Local Environmental Plan 1994, as amended.
· The proposed hours of operation of the business are considered to be excessive given the close proximity of the site to a residential area.
· The expectation of increased opportunities for crime in the area expressed by the NSW Police.
· Lack of safety of the rear entrance to the subject site.
· The proposal will cause loss of amenity to the surrounding area by reason of noise emission and disturbances.
· The proposal will lead to increased demand for parking in the immediate area thereby imposing on the existing time-limited parking, with associated security problems should brothel employees and customers park in the right-of-way at the rear of the site.
· The proposal is not in the public interest.
The hearing
26 The appeal was filed on 7 February 2006.
27 Mr D Wood, JP, part owner of the photographic studio at Nos 361-3 Stoney Creek Road, Hurstville gave evidence on site, on behalf of the respondent. Mr Wood whose objection, dated 1 February 2006, was contained in Exhibit 2, p 38, was concerned that his ‘family business’ might be adversely affected were the proposed brothel established next door.
28 Mr N Juradowitch is the Court-appointed town-planning expert who on merit supported the application.
The issues
29 On 10 March 2006 Mr Rigg, solicitor on behalf of the council filed a statement of issues.
1. The proposed use for erotic massage/ brothel purposes is prohibited on the subject land under Draft Hurstville Local Environmental Plan 1994 ("HLEP") Amendment No 7, and the proposed use is inconsistent with the requirements and objectives of Draft HELP, Amendment No 7 due to its proximity to sensitive land uses.
· The intended use as a "brothel" is proposed to be prohibited within the 3(c) Business Centre Zone under Draft Hurstville Local Environmental Plan Amendment No 7 as brothels will only be permissible with consent within Zone No 4 (Light Industrial) pursuant to Draft LEP Amendment No 7.
· The proposed brothel further does not comply with the Draft LEP Amendment No 7, as the premises are located within 100m of Zone No 2 - Residential.
· Due to the proximity of the site to sensitive land uses, including a bus stop frequented by children, neighbourhood shopping centre and residential premises, the proposal is not considered to comply with the objectives of Draft LEP Amendment No 7.
2. The proposal does not comply with the Land and Environment Court Planning Principles relating to the location of brothels.
· The proposal conflicts with the following Land and Environment Court Planning Principles applying to the location of brothels:
- Principle 1 - The brothel is proposed to be relocated to a street level location where it will be exposed to groups such as children and adolescents and is likely offend. The site is within 50m of a bus service used by children, is adjoined by residential premises at the rear and is situated within a neighbourhood shopping centre also frequented by children. Children are likely to be walking past the site on their way to and from local schools. The site is also directly adjoined by a family photography business.
Principle 2 - The proposal has potential to cause amenity impacts including noise and disturbance due to its proximity to residential land.
Principle 3 - Brothel uses can be associated with risky activities such as crime and drugs.
Principle 4 - The proposed location is only separated from residentially-zoned land by a 3.66m right of way and the street level location proposed will increase its visibility.
Principle 5 - Children frequent the bus stop near the site in Patrick Street, walk past the site on their way to and from school, and congregate in the Kingsway West shopping centre.
Principle 7 - The proposed brothel is within 50m of the 452 bus route, regularly used by school children.
Principle 9 - The proposed relocation from a first floor location to street level is less discreet.
3. There is non-compliance with the objectives of Zone No. 3 (c) (Business Centre Zone) within the Hurstville Local Environmental Plan 1994, as amended.
· The proposal is permissible within the 3(c) zoning under the Hurstville LEP 1994, as amended, if considered as ‘business premises’.
· The proposed use while falling within the definition of ‘business premises’, does not meet the objectives of Zone No 3(c).
4. The proposed hours of operation of the business are considered to be excessive given the close proximity of the site to a residential area.
· Council's ‘Extended Trading Hours Policy’ applies.
· The proposed closing time of 10:00pm Mondays to Saturdays is considered to be extended hours.
· Given the proximity of the site to residential premises at the rear, there is potential for noise impacts and disturbances due to movement of customers and vehicles.
5. Increased crime in the area is expected as expressed by the NSW Police.
· The NSW Police have conducted a ‘Safer By Design’ Evaluation on the premises, using the principles of Crime Prevention Through Environmental Design. This assessment resulted in a significant risk rating for crime in the area.
6. There is a lack of safety at the rear entrance to the subject site.
· It is likely that the rear lane will be used for parking, thereby compromising security arrangements in the lane.
7. The proposal will cause loss of amenity to the surrounding area by reason of noise emission and disturbances.
· Factors which are considered likely to contribute to loss of amenity in the surrounding area are the requested extended hours of trading, the number of employees proposed, increased demand on parking, traffic, noise from vehicle and pedestrian movement, noise and vehicular movement later at night that currently existing and the likely crime-related disturbances.
8. The proposal will lead to increased demand for parking in the immediate area thereby increasing demand on the existing time-limited parking, with associated security problems should brothel employees and customers park in the right-of-way at the rear of the site.
· There is only accommodation at the rear of the site for three off-street car parking spaces. The expected number of visitors, coupled with the number of staff in attendance is likely to increase demand on parking in the immediate vicinity of the site, including in the rear lane.
9. The proposal is not in the public interest.
· The proposal is not seen to be in the public interest for the abovementioned reasons, and the reasons referred to the in letters of objection.
30 The salient issue is whether the proposal is satisfactory in the commercial zone.
The evidence and findings
Whether the proposal is satisfactory in the commercial zone
31 Mr Juradowitch was of the opinion that the draft “…Amendment No 7 is both ‘certain and imminent’ and should therefore be given significant consideration” or weight, [Exhibit 1, p 3]. No savings provision in respect of applications lodged but not yet determined was to be included, [Note: Exhibit 4].
32 Mr Juradowitch then assessed the merit of the application and having regard to the current planning controls he concluded that the proposal is “worthy of approval, subject to conditions.” His conclusion:
- …is based on the proposition that the Court's planning principle relating to separation from residentially zoned land can be applied with some flexibility. If this principle is to be strictly applied, the subject land adjoins land, which is zoned residential and hence is inconsistent with the strict interpretation of this principle and could justify refusal of the proposal...
Given the street-level location of the site and the proximity of dwellings to the rear, particularly No 286 Patrick Street, careful consideration must be given to ensuring that the building is not readily identifiable as a brothel. Appropriate measures also need to be applied to minimise noise and security issues, particularly at night, at the rear of the premises, including the right-of-way to Patrick Street.
In the event that the Court determines to approve the application, …I would recommend that any such approval, in addition to conditions imposed by the council, also include the following requirements;
[Note: Exhibit 1 p 20].
33 I accepted the evidence of Mr Juradovitch that the Amendment 7 was ‘certain and imminent’ and that significant weight need be given to its provisions that would render the proposal prohibited. It transpired that Mr Juradowitch’s assessment of the situation was accurate as Amendment 7 was gazetted the day after the Court made its decision. Such certainty and imminence would require the Court to refuse the application, however, I consider also on merit the application should fail.
34 The application failed for reason of its proximity to dwellings at Nos 286 and 284 Patrick Street, Hurstville. Especially No 286 is separated from the rear of the premises by the width of the public lane or right of way that is 3.66m wide.
35 Although I accept the evidence of Mr Juradovitch that sex workers could not be distinguished from others in the street, at night, it might be expected that these workers might talk together as they leave the premises along the rear lane and the amenity of the residents of the nearby dwellings might be adversely impacted upon. The activity associated with sex workers, leaving the premises along the lane at night, might be unlike activity normally associated with commercial premises such as the photographic studio at No 361-3 Stoney Creek Road, owned by Mr Wood.
36 Even if the hours of operation were shortened there, possibly, would be an adverse impact on the residential amenity of Nos 286 and 284 Patrick Street, Hurstville as a result of sex workers leaving the premises. The Court was not provided with detail as to how the applicant might screen the rear of the property.
37 For the above reasons, the appeal is dismissed.
Orders
38 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. Development application No 20050691 lodged with the respondent council on 22 December 2005, for consent to relocate an erotic massage clinic/brothel from first floor premises at No 1/440 Stoney Creek Road, Kingsgrove to the subject single-storey property at No 359 Stoney Creek Road, Kingsgrove, is refused development consent.
3. The exhibits are retained for 28 days and then returned except for Exhibits 2 and 3.
S J Watts
Commissioner of the Court
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