Suzelle Antic v City of Sydney Council

[2006] NSWLEC 276

Land and Environment Court

of New South Wales

CITATION:	Suzelle Antic v City of Sydney Council [2006] NSWLEC 276
PARTIES:	APPLICANT Suzelle Antic (De Cue Pty Limited) RESPONDENT City of Sydney Council
FILE NUMBER(S):	11485 of 2005
CORAM:	Brown C - Tuor C
KEY ISSUES:	Development Application :- alterations and additions to an existing brothel - additional working rooms - impacts on sensitive landuses
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998
CASES CITED:	Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99
DATES OF HEARING:	18,19/05/06 17/06/06
DATE OF JUDGMENT:	06/23/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson SC SOLICITORS Comino Prassas Solicitors RESPONDENT Mr M Craig SC SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Tuor C

23 June 2006

11485 of 2005 Suzelle Antic (De Cue Pty Limited) v City of Sydney Council

JUDGMENT

1 COMMISSIONERS: This is an appeal under s 97(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against conditions imposed by the City of Sydney Council (the council) on Development Application D2005/01841 for alterations and additions to an existing brothel at 3 Tusculum Street, Potts Point (the site).

The site and surrounding development

2 The site has a frontage to Tusculum Street of 7.315 m, a rear lane frontage to Tusculum Lane of 7.32 m and side boundaries of 42.715 m and 42.51 m giving a site area of approximately 358 square metres. The site contains an existing two-storey Federation terrace house currently used as a brothel.

3 Tusculum Street comprises mainly Federation and Inter-war residential buildings. Immediately to the south is a six storey residential flat building. To the north is St Vincent’s Girls College (the College). The main entrance to the College is from Rockwall Crescent although pedestrian access is available from Tusculum Street adjoining the site. The three-storey building within the College grounds and adjoining the site provides dormitory facilities for the College. Immediately to the north-west is a modern multi-storey residential flat building at 1A Tusculum Street known as Rockwall Gardens.

Background

4 In March 1997, a development application was lodged with South Sydney Council seeking approval to use the existing building as a brothel. Development consent was granted on 7 July 1997 subject to conditions (the 1997 consent). The relevant conditions are:

(1) That not more than 10 sex workers should be employed on the site at anyone time.
(4) That the use of the building shall be generally in accordance with the plan submitted with the application.
(5) That the hours of operation shall not exceed 10.00 am to 4.00 a.m. Sundays to Thursdays and 10.00 am to 6.00 am on Fridays and Saturdays.

5 Development Application D2005/01841 was lodged with the council on 1 November 2005 and a Deferred Commencement consent was granted on 23 March 2006 (the 2006 consent).

The proposal

6 The development application seeks a range of alterations and additions to the existing building. A Plan of Management forms part of the proposal. Many of the minor changes sought in the development application have already been undertaken and are accepted by the council. The most significant change was to increase the number of working rooms from 7 to 10. This was to be achieved through the repositioning of walls in different areas on the ground level and the first floor level within the existing building.

7 The 2006 consent placed conditions on the approval that deleted the additional rooms and required the rooms to be in the same configuration as the 1997 consent. These conditions form the basis of the appeal

8 The conditions in dispute are:

Deferred Commencement condition (A)(1)
That all works commenced without consent in relation to the creation of additional working rooms (Bedroom G.07, Bedroom G.13 and Bedroom 1.01) be reversed and the layout of the building is to continue as a seven room brothel.
Deferred Commencement condition (A)(5):
Amended plans be submitted showing retention of seven rooms. The creation of three additional working rooms (Bedroom G.07, Bedroom G.13 and Bedroom 1.01) is not granted and shall be deleted from the plans. The seven rooms in the original approved layout are to be retained. Notwithstanding this, the disabled facilities in the front room on the ground floor are granted consent and shall be incorporated into the original seven room layout.

9 Following the hearing and prior to any Orders being made, we heard a Notice of Motion on 16 June 2006 to reopen the hearing. Following submissions from both parties, leave was granted to reopen the hearing to allow each party to make submissions on proposed Deferred Commencement condition (A)(7). This condition was not included in the 2006 consent but was included in the council’s draft conditions of approval for this appeal. It requires the applicant to surrender the 1997 consent. Notwithstanding that the condition was within documentation provided to the applicant by the council at the time of the hearing, we granted leave for the proceedings to be reopened in the interests of justice as the imposition of the condition, in conjunction with the condition providing for a five-year trial in Part B (2), could significantly impact on the ongoing and legal use of the property as a brothel.

Relevant planning controls

10 The site is within the zone No. 2(b) Residential (Medium Density) under the provisions of the South Sydney Local Environmental Plan 1998 (the LEP). Clause 12 provides objectives for the zone. The relevant objectives are:

(a) To enhance the amenity of the existing medium density residential areas, and
(c) To insure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and
(d) To provide limited opportunities for non-residential development which provides goods, services or employment for residents and is of a type and scale that is compatible with the existing or planned residential development and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and
(f) To facilitate opportunities for small scale local business activity which is compatible with the existing residential areas.

11 Brothels are not specifically defined within the LEP and as such brothels fall within the general classification of "Commercial Premises". The LEP lists forms of development that are permissible with consent. Commercial premises are not identified within the specific forms of development however the use would be included within "Any other developments not included in subclause (2)" and would be permissible with consent.

12 Clause 10 of the LEP states that consent must not be granted, "unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located".

13 City of Sydney Adult Entertainment and Sex Industry Premises Development Control Plan 2006 (DCP 2006) applies. DCP 2006 was adopted by the council on 20 March 2006 and became operational on 18 April 2006. DCP 2006 contains no savings provisions. Clause 2.1 provides objectives. The relevant objectives are:

• to ensure that the design and location of adult entertainment and sex industry premises will minimise any adverse impact on the character or amenity of the area or neighbouring properties;
• to ensure that high levels of both internal and external amenity are provided for adult entertainment and sex industry premises to ensure the safety and comfort of staff, visitors and neighbouring properties;

14 Clause 2.4 addresses Intensification of use. The clause states:

Where an existing adult entertainment or sex industry premises seeks to intensify its use through the introduction of a new "high impact" use, an increase in the number of working rooms, cubicles or booths, an increase in the number or size of performance areas, or increase in floor area, the provisions of this DCP including the location controls, will be applied.

15 Clause 2.6 provides Definitions. Sensitive Land Use is defined as:

includes daycare or childminding centres, primary or secondary schools, churches, parks, playgrounds, or any other place regularly frequented by children.

16 Clause 3.1 addresses Location. The relevant objective in cl 3.1.1 is:

(b) to ensure that adult entertainment and sex industry premises are located in appropriate areas where they do not have an adverse impact on the character or amenity of the area and neighbouring properties, in particular upon residential and sensitive land uses; and

17 The relevant controls in cl 3.1.2 are:

( 1) Adult entertainment and sex industry premises must not be located in areas zoned residential, within buildings containing a residential use, or immediately adjacent to or directly opposite (to any elevation) land developed for residential purposes. Adult entertainment and sex industry premises must be separated from land developed for residential purposes by at least one other non-residential land use.
(2) Adult entertainment and sex industry premises must not be located adjacent to or directly opposite (to any elevation) a sensitive land use defined in this DCP unless separated by at least one other non-sensitive land use. A nonsensitive land use does not include a waterway, un-developed site or road less of than 30 metres in width.

The issues

18 The applicant filed a Statement of Issues containing three separate issues. The issues relating to the conditions imposing a 5-year trial period (Issue 2) was not pressed by the applicant and the restriction on advertising (Issue 3) was not pressed by the council.

19 The remaining active issue (Issue 1) related to the conditions that required that the number of rooms be maintained at the 1997 consent level of 7 rooms.

20 Following the hearing of the Notice of Motion, the Court was required to determine whether council's condition in Part A (A)(7) requiring the applicant to surrender the 1997 consent should be imposed.

The evidence

21 Mr Lawrence Winnacott, a town planner, provided expert evidence for the applicant and Ms Anita Leong, a town planner, provided expert evidence for the council.

22 Mr Winnacott states that he was informed by the applicant that at present the two large bedrooms within the premises contain multiple beds. Three beds are located in the large bedroom at the front of the premises on the first floor and two beds are located in the large centrally located bedroom on the ground floor. He further states that he has been advised that on a regular basis, and at the request of clients and for a discounted fee, concurrent multiple use of these rooms occurs. He notes the 1997 consent provides that not more than 10 sex workers should be employed on the site at anyone time however it does not contain any condition limiting the number of clients who may use the premises at any one time.

23 On this basis, Mr Winnacott concludes that there is no intensification of the use and even in the event that this was found to be incorrect, he states that the package of proposals contained in the development application and in particular the operational arrangements outlined in the Plan of Management and the 5 year trial period, have the effect of minimising any adverse impact on the character or amenity of the area or neighbourhood properties.

24 Ms Leong comes to the opposite conclusion. She states the proposal represents a 43% increase in the number of working rooms. In her view, this is a significant increase considering the context of the site and its surrounds. Even though the existing brothel operates under the 1997 consent, the additional working rooms are inconsistent with a number of requirements in DCP 2006 with regards to intensification, location and amenity. Considered today under DCP 2006, the existing brothel would be inconsistent because of the residential zoning and its location directly adjacent to a sensitive land use (the College). Given the nature of the business, the existing noise and traffic impacts, the anti-social behaviour of brothel clients and management history with regards to managing impacts, compliance cannot be assumed and the conditions in issue should remain.

25 In addition, the council provided further evidence from:

• Mr George Proos of Rockwall Gardens,
• Mr Geoff Baker of Rockwall Gardens,
• Ms Gayle McNeice of Rockwall Gardens,
• Mr Tony Dowling of Rockwall Gardens,
• Mr Fariba Imani of Rockwall Gardens,
• Ms Karin Osterberg of Rockwall Gardens,
• Mr Frank Tefanis of Rockwall Gardens,
• Mr Michael Gorman of Rockwall Gardens,and
• Mr Brett Imlay of 13 Tusculum Street.

26 The consistent evidence of the residents of Rockwall Gardens and Tusculum Street was that since October 2005 the operation of the brothel, under new management, had created unacceptable impacts on the enjoyment of their properties. Prior to this time the operation of the brothel had been largely unnoticeable. Their particular concerns relate to increased traffic, illegal parking, men loitering in the area, intimidating behaviour, urinating in public places, offensive language, noise from cars, car stereos and people entering and leaving the brothel during the early hours of the morning.

• Ms Michelle Hugonnet, Principal of St Vincent’s College,
• Ms Barbara Doolan, Board Member of St Vincent’s College,
• Ms Stephanie Fowler, a student of St Vincent’s College, and
• Ms Emily O’Connor, a student of St Vincent’s College.

27 Ms Hugonnet stated that she had been the Principal since 2002 and that the College accommodates 700 students, 170 of which are boarders using the dormitory accommodation adjoining the site. She expressed a similar view to the local residents that prior to October 2005 the brothel caused no concern however since this time the noise and other activities at the brothel are affecting the students in the dormitory accommodation. Ms Hugonnet indicated that the dormitory rooms are used not only used for sleeping but for studying by the students. She expressed a general concern that the operation of the brothel would affect the operation of the school and the safety of the students. Ms Doolan expressed a similar view.

28 Ms Fowler and Ms O’Connor have lived in the dormitory accommodation and have noticed increased activity at the brothel since October 2005. In more recent times, while sitting on the communal balconies facing Tusculum Street, the students have been subjected to unsolicited and unacceptable verbal comments from men associated with the brothel. Other matters that affected the use of the dormitory rooms are loud music, speeding vehicles and the general noise associated with men congregating outside the brothel late at night.

• Superintendent Mark Murdoch, Commander Kings Cross Local Area Command.

29 Superintendent Murdoch provided a written response to the development application and provided oral evidence. He stated that numerous complaints had been received that relate to the behaviour of not only the clients, but their friends that remain in the vehicle while the clients visit the premises. The complaints include noise from people and vehicles, urinating on walls of surrounding buildings, smoking marijuana, littering and illegal parking. Despite the complaints ceasing for a period of two weeks and attempts by the Kings Cross Local Area Command to address the complaints with the applicant, the unacceptable behaviour has restarted notwithstanding the employment of a security guard. Accepting that the applicant cannot physically control the activities of the friends of clients, Superintendent Murdoch states a more cooperative approach from the operators of the brothel is imperative.

30 Superintendent Murdoch also conducted an internal inspection of the property and made recommendations for additional work, such as duress alarms and the operation of CCTV cameras, which the applicant has agreed to.

The 1997 consent

31 Mr Winnacott places some, but not total reliance on the 1997 consent and specifically condition 1 that limits the number of sex workers employed on the site to 10 at any one time. Ms Leong bases her evidence on the plans accompanying the development application that provides for 7 working rooms. While the council's records did not contain plans that were specifically marked as being the plans referred to in the 1997 consent, there was general agreement between Mr Winnacott and Ms Leong that the plans used by both experts in the preparation of their evidence were those submitted with the development application.

32 The details of the 1997 consent are contained within the council's bundle of documents. From these documents it can be established that the development application lodged in March 1997 followed the council's observation that the premises were being used for a brothel without approval. The development application sought, through the accompanying Statement of Environmental Effects (the SEE), to use the premises for a brothel. The SEE states the building "has seven bedrooms". It further states that "there are reported to be about 26 sex workers based at the premises to cover shift work and working "in-house" and as well as being available for clients at major city hotels"

33 The council officers report on the development application recommended refusal of the application however following further advice, the council approved the development application on 7 July 1997 subject to conditions.

34 On a reasonable reading of the documentation available to the Court, we are more inclined to accept the conclusions reached by Ms Leong that the 1997 consent limits the operation to 7 working rooms (despite the ability to have 10 sex workers on site) for a number of reasons.

35 Firstly, the plans referred to in condition 4 of the 1997 consent show only 7 working rooms. The plans do not show the location of any beds within the rooms and in the absence of any specific details, it would be reasonable to assume that each room would contain one bed. Secondly, there is no mention of the concurrent multiple use of any rooms in any documentation supplied with the development application, the SEE or the council officers report. Thirdly, the original development application sought approval for a number of sex workers well beyond the number of rooms available. This was based on the need to accommodate shift work and clients outside the building and as well as clients on-site. For this reason, the number of sex workers referred to in the 1997 consent do not relate directly to the activities on the site. Fourthly, the limit of Mr Winnacott’s instructions that the concurrent multiple use of rooms occurs on a "regular" basis is vague at best and provides insufficient evidence to support the applicants proposition that there will be no intensification of the use, notwithstanding the existence of the multiple beds in some rooms. Fifthly, the evidence provided by Mr Winnacott on the client frequency does not support the argument that 10 sex workers are used in on a regular basis. He states that the busiest times are Friday and Saturday nights after midnight when generally rooms are used concurrently. The average client frequency at other times does not exceed 7 client visits per hour.

36 For these reasons, we accept Ms Leong’s evidence that the additional rooms have the potential to increase patronage to the brothel.

37 We note that condition 22 of the councils draft condition relates to the number of staff and is in the same terms as condition 1 of the 1997 consent. Because of the uncertainty that the existing condition has created and based on the findings in the preceding paragraphs we propose to amend condition 22 by adding the following words “with no more than 1 sex worker operating in each of the 7 rooms”.

The Plan of Management

38 Mr Winnacott’s support of the development application is based, in part, on the applicant’s compliance with the Plan of Management. The Plan of Management addresses a significant number of issues associated with the operation of the brothel such as safety, security conduct, health, education, information and training. We generally agree with Mr Winnacott’s and Ms Leong’s support of the Plan of Management on the areas that it addresses however it does not and cannot address many of the issues raised by local residents in their evidence.

39 Apart from concerns relating to observations within the brothel from Tusculum Street (and which can be controlled by the Plan of Management) the evidence from local residents, the College and Superintendent Murdoch related almost exclusively to the activities of persons attending the brothel and their companions outside the brothel in Tusculum Street rather than any activities within the confines of the building.

40 Clause 3.3 of The Plan of Management sets out the Conduct Policy. It states, in part, that "all personnel, clients and other visitors are made aware of noise restrictions and are instructed to enter and exit the premises in a quiet and orderly manner".

41 Clause 3.5 of the Plan of Management addresses Control of Anti - Social Behaviour. It states, in part, "any client or visitor that is aggressive, severely affected by alcohol, under the effects of drugs or otherwise suspicious will be politely refused entry and requested to leave the premises. The manager and/or the receptionist are to attend to the matter in as diplomatic a manner as possible. In the event a person refuses to leave the premises, the police will be called immediately and security personnel alerted if on duty".

42 The requirements in cll 3.3 and 3.5 are generally unremarkable and adopt a sensible approach however they do not and cannot address the unacceptable anti - social behaviour of persons attending the brothel and their companions outside the brothel in Tusculum Street. We note from the evidence of Mr Winnacott that the busiest times for the brothel occur after midnight on Friday and Saturday nights. This unfortunately coincides with times when it would be reasonably expected that a residential area would enjoy the some peace and quiet, even considering the location close to Darlinghurst Road.

43 In our opinion, a Plan of Management simply cannot be relied upon to address the concerns expressed by the local residents and the College. We do not accept that some boisterous or overly enthusiastic patrons will be constrained by a direction to "enter and leave in a quiet and orderly manner". Additionally, it would be difficult to imagine that all persons denied access and escorted to the street would leave in a quiet and manner respectful of the residential environment.

44 The Plan of Management also cannot address spontaneous and disruptive outbursts that can disturb local residents and students in the College from persons attending the brothel and their companions in Tusculum Street. Even though a security guard has been employed in recent times, the evidence suggests that the presence of a security guard can, in itself create unacceptable disturbances in the neighbourhood through the security guard directing persons attending the brothel away from the site. In public places, the security guard is limited in his ability to control anti - social behaviour and in the event of any dispute must rely on the police to ultimately address any problems. Despite the comprehensive range of incidents identified by local residents, Superintendent Murdoch stated that the applicant to date had not called the police to attend any incidents.

45 For these reasons, and largely due to the proximity of sensitive land uses, we do not accept that a Plan of Management can address the potential impacts on the adjoining and nearby properties. If the site was a greater distance from sensitive land uses, the activities in Tusculum Street may not be so problematic.

The 5-year trial period

46 Mr Winnacott’s support of the development application is also based, in part, on the applicant’s acceptance of a five-year trial period. In our opinion, this support is misplaced.

47 While trial periods are a legitimate planning tool to monitor impacts that may not readily be known or quantified, we do not accept that a 5-year trial period is appropriate in this case, particularly as the 7 rooms are to retained and the 1997 consent is to be surrendered. In our view, a 5-year trial period is unacceptable because of the excessive time for the trial. Even accepting the likely relatively high expenditure on the alterations and additions, it would still be unreasonable (even putting aside the evidence from the local residents and the College on the current operation) for local residents to have to experience any unacceptable amenity impacts for this period of time prior to any review of the operation.

The planning framework

48 DCP 2006 is a document that the Court is required to consider under s 79C(a)(iii) of the EPA Act. If the application was considered under the DCP 2006 it would the inconsistent with a number of a significant requirements relating to location in cl 3.1. Curiously, similar requirements existed when approval was granted in 1997 with the council officers report indicating that the proximity to the College was a sufficient reason to justify a recommendation for refusal. Notwithstanding this, a valid development consent exists.

49 In Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99, Preston CJ (at 38) states that past use is a relevant consideration provided it is for a proper planning reason, such as evaluating the likely impacts of a prospective use for which consent is sought. The undisputed evidence from local residents, the police and the College was that the brothel had operated with little impact until October 2005. It could be argued that a brothel in this location and operating under the 1997 consent can operate with little impact, however we are not prepared to place any reliance on this scenario without evidence on the specific operating conditions up to October 2005. The 1997 consent establishes the maximum limits of operation in relation to matters such as hours of operation and staffing levels however for the Court to place any reliance on the previous operation of the brothel it would be necessary to establish that it operated in a similar fashion to that proposed in this application.

50 Post October 2005, and coinciding with the applicant in these proceedings operating the brothel, incidents of anti - social behaviour had reached unacceptable levels and had severely disrupted the general amenity of area. At best, the evidence suggests that the applicant has been largely unresponsive and unconcerned over this behaviour with the exception of a two week period following representations from the police. If the use of premises since October 2005 is taken into consideration when assessing the development application, then this would clearly support a refusal.

51 In our opinion, however there is a more fundamental reason why the development application should be refused. We accept the general position put by the council that the brothel is inappropriately located and that the alterations and additions are likely to encourage greater levels of patronage and potentially exacerbate the current unacceptable situation for the local residents. In our view, the opportunities to address the sources of disturbance are extremely limited due to the conditions in the 1997 consent, particularly in relation to the hours of operation, the inability to control potential sources of disturbances in nearby public areas and the close proximity of sensitive land uses.

52 Without the imposition of Deferred Commencement conditions (A)(1) and (5) and considering the existence of the 1997 consent, we find that the alterations and additions are inconsistent with the objectives in cl 2.1 of DCP 2006 in that they will not minimise any adverse impact on the character or amenity of the area or neighbouring properties and will not ensure that high levels of….external amenity are provided for adult entertainment and sex industry premises to ensure the safety and comfort of….neighbouring properties.

53 Without the imposition of Deferred Commencement conditions (A)(1) and (5) and considering the existence of the 1997 consent, we find that the alterations and additions, pursuant to cl 10 of the LEP, are inconsistent with the objectives of the zone, particularly objectives (a), (c), (d) and (f) and as such development consent must be refused.

Conditions

54 For reasons in the preceding paragraphs, Deferred Commencement conditions (A)(1) and (5) should remain. Even though a number of the matters identified in other Deferred Commencement conditions have been undertaken, the requirements should remain and form part of the amended plans required by the Deferred Commencement conditions.

55 Deferred Commencement condition (A)(7) was subject to the Notice of Motion and requires the surrender of the 1997 consent. For reasons set out earlier in the judgement we have found that the 5-year trial period is likely to offer little benefit to local residents of the area. With this condition deleted we accept that Deferred Commencement condition (A)(7) should be retained. This has the dual benefit of providing a more comprehensive range of conditions than those contained within the 1997 consent and removing any potential conflicts between the 1997 consent and the approval granted by this approval while limiting the brothel to 7 rooms.

56 The retention of the 5-year trial period and the surrender of the 1997 consent could ultimately see the brothel operations cease however we are of the view that this mechanism is not an appropriate means of dealing with any amenity impacts created through the brothel operation, considering that it operates under a legally granted development consent. Other, more appropriate avenues are available to the council to address any unacceptable amenity impacts.

57 Originally condition 3(b) of the operational conditions required the submission of a Plan of Management. A Plan of Management was submitted during the hearing that was acceptable to the council and condition 3(b) was amended to require the brothel to operate in accordance with the Plan of Management. The condition and Plan of Management should be amended to reflect the findings in the judgment.

58 Condition 20 of the operational conditions relates to restrictions on advertising. As this was a matter not pressed by the council, the condition can be deleted.

Orders

59 The Orders of the Court are:

1) The appeal is dismissed.
2) Development Application D2005/01841 for alterations and additions to an existing brothel at 3 Tusculum Street, Potts Point is approved subject to conditions in Annexure A.
3) The exhibits are returned except exhibits 4, 7, A and C.
__________________

G T Brown
Commissioner of the Court

___________________
Annelise Tuor
Commissioner of the Court