Thaikiwi Pty Ltd v Sydney CC

[2005] NSWLEC 576

Land and Environment Court

of New South Wales

CITATION:

Thaikiwi Pty Ltd v Sydney CC [2005] NSWLEC 576

PARTIES:

APPLICANT
Thaikiwi Pty Limited

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10794 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- refusal of a brothel in a heritage building with with a mixture of residential flats and professional and commercial units - suitability of the site - amenity - plan of management - public interest.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Central Sydney Local Environmental Plan 1996
Draft Sydney Local Environmental Plan 2005
Sex Services Development control Plan 2003

DATES OF HEARING:

5/10/2005

EX TEMPORE JUDGMENT DATE:

10/05/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr Creighton, agent

RESPONDENT
Mr S. Kondilios, solicitor
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

5 October 2005

10794 of 2005 Thaikiwi Pty Limited v Sydney City Council

JUDGMENT

1 This is a Class 1 appeal, No. 10794 of 2005 between Thaikiwi Pty Limited and Sydney City Council in regard to the refusal of a brothel at Unit 10, Level 4 at No. 44 Bridge Street, Sydney.

2 The building is an Art Deco heritage listed building of eight-storeys. It has three strata units per floor in which there is a mix of residential flats and professional and commercial uses with a restaurant on the ground floor. There is a small entry lobby off Bridge Street with doors at the street and then another door with electronic security and intercom to each unit. Beyond the second door is a corridor to the single lift and to the fire stair and garbage room. Apparently the fire stair used to be unenclosed as a main stair shaft. The lift is relatively new but it gives a slow service speed.

3 The issues are:

(1) Suitability of the Site.
The proposed development is not suitable for the site as the proposed brothel/massage centre is inconsistent with the adjoining uses including
(a) Residential uses within the site, units 5, 6, 7, 8, 9, 20 and 21 and
(b) Residential uses immediately adjacent to the site, No. 38 to No. 48 Bridge Street.
Particulars.
(i) The proposal fails to comply with the locational requirements in the central Sydney Local Environmental Plan 1996 cl 61(c) and the Draft Sydney Local Environmental Plan 2005 Pt 6 cl 29(c) in that the proposal is considered to be detrimental to other uses, which are more consistent with the objectives of the city centre zone.
(ii) The proposal is inconsistent with cll 2.1 and 3.2 of the Draft Regulation of Sex Services DCP 2003.
(2) Amenity.
The proposed development will unreasonably impact on the amenity of the site and adjoining and nearby uses due to the deficiencies in the proposed design of the brothel including
(a) inadequate support for internal security.
(b) Limited internal security.
(c) The peephole which has been described to screen clients is not adequate.
(d) No visual cues have been identified as to signage to ensure clients use the correct intercom to access the premises.
(e) Access to the site is through a common foyer area and lift, which service the rest of the building.
(f) The lobby layouts are confined and are not conducive to achieving the desired degree of separation between visitors to the proposed brothel and visitors to other premises within the site.
Particulars.
(i) The proposal fails to comply with the amenity requirements in the central Sydney Local Environmental Plan 1996 cl 61(a) and Draft Sydney Local Environmental Plan 2005 cl 29(a) and
(ii). The proposal fails to comply with the design requirements and amenity controls in the draft regulation of Sex Services Development Control Plan 2003.
(3) Plan of Management.
The plan of management is not considered to currently fulfil the requirements of the regulation of Sex Services Development Control Plan 2003 as it does not identify the awareness and ability of the proposal to comply with the operation and health standard provisions of the development control plan in that the application fails to:
(a) Clearly identify staff areas from client areas.
(b) Incorporate sufficient amenities for staff or clients in terms of screening areas, waiting areas and staff room including provision of staff bathrooms.
(c) Identify the location of safe sex equipment and soiled linen sites.
(d) Identify security procedures.
(e) Identify working room safety features.
(f) Identifying cleaning systems.
(g) Identify adequate security, sharps bins, linen and linen systems.
(h) Provide for staff education, risk protocols, health clinic protocols, client examination training and refusal and referral systems.
(4) Public Interest.
The proposed development is considered to detrimental impacts upon residential amenity, conflicts with the zone objectives and is poorly designed. In addition the previous operation as a commercial brothel to the same scale had adverse impacts on other tenancies in the premises as described in objections to the current proposal. Having regard to the number of objections it is considered that the proposal will have detrimental effects on the public interest and is inconsistent with s 79(C)(1)(e) of the Environmental Planning and Assessment Act 1 979.

4 The evidence for the respondent was heard from:

• Mr C Corradi, Town Planner for the Council.
• Mr D White on behalf of the Department of Education at No. 35 Bridge Street Sydney.
• Mr P Phillips owner of Unit 19 at No. 44 Bridge Street.
• Mr P Read owner of Unit 8 at No. 44 Bridge Street.
• Ms S Powell employee of the Sarah Key Physiotherapy Clinic at No. 44 Bridge Street.
• Mr J Neale owner of two units on Level 8 also on behalf of K, and H Neil at No. 4 Bridge Street.
• Ms M Anderson Principle of Anderson Knight Pty Limited at No. 44 Bridge Street.
• Mr S Jiriaev owner of Unit 11 at No. 44 Bridge Street.
• Mr and Mrs Deo residential tenants of Unit 11 at No. 44 Bridge Street.
• Ms G Woodbine owner of Unit 21 at No. 44 Bridge Street and principal of Gabrielle’s Philatelic Service,
• Mr D Maurice employee of Gabrielle Woodbine.
• Mr D Kater proprietor of a mining company at Unit 14 at No. 44 Bridge Street and
• Mrs B Place resident of Unit 11 at No. 38 Bridge Street.
• Also Mr Phillips was the secretary of the owner’s corporation of the strata plan at No. 44 Bridge Street and gave evidence on its behalf.

5 The evidence for the applicant was heard from:

• Mr J R Boers, consultant Town Planner.

6 As mentioned in the issues the brothel had been operating in the applicant’s instructions for about 15 years without complaint to the police. There were 4 bedrooms, a small staff room, a sauna, a shower and a bathroom in the unit when seen.

7 The original units had 2 bedrooms and the respondent said the 2 extra bedrooms and staff room had been erected without consent in what had been the living room of the original unit and the sauna and shower had been erected in the space originally occupied by the kitchen. The proposal was to leave the unit substantially as it existed except to delete the sauna and insert a small reception counter in its place.

8 The focus of the evidence was on the amenity impacts of the proposal. The objectors who had been long term in the building said in summary that some had not known it was a brothel until in the late 1990s. Some had known previously, but its operation prior to the late 1990s had been discrete as in their understanding it had only operated as an outcall service whereby sex workers went out to clients mainly at the nearby luxury hotels. No clients came to the premises.

9 The applicant had instructions that it had always operated as a brothel with clients coming to it.

10 Nevertheless, it became noticeable from about 1998 onwards due to the clients coming and going and various incidents that occurred. Examples of such incidents given by the objectors were:

(a) Intoxicated persons loitering in the lobby with newspapers open at the adult services section and enquiring about the location of the brothel.
(b) The street doors and the electronic security door being propped open at hours when the strata plan rules required them shut. And, if closed by a resident or commercial occupant the doors were re-propped open shortly afterwards.
(c) Clients of the brothel pushing intercom buttons of other units to ask about it.
(d) Clients of the brothel walking into other commercial units mistaking them as the brothel. On this point there was a clinical massage consultancy in one unit and a philatelic consultancy as noted in the list of objectors using the name Gabrielle’s. These were often confused by clients of the brothel due to the unfortunate word associations. Since both operated to 6 or 7pm, to see patients or customers after normal working hours when most staff had gone home, it was a security problem for lone female staff and an embarrassment to explain that their premises was not the brothel.
(e) Some businesses employed young female staff and they had been approached in the lifts and lobby by clients of the brothel mistaking them as sex workers.
(f) The owner of Unit 11 on Level 4 next to the brothel had been without residential tenants for up to one and a half years due to the activity of the brothel. The two entry doors that were only about 2 m apart.
(g) The current residential tenant of Unit 11 on Level 4 said, he could not leave his wife alone during the day if the brothel is approved and they would have to move.
(h) Several tenants said the propping open of the street doors after hours had led to thieves hiding in the stairwell and robbing the commercial units late at night.
(i) One of the professional suites treats patients with psychological trauma, such patients are vulnerable. One had been followed by a sex worker to the suite.
(j) Another commercial suite operator had a service contractor invited to the brothel by one of the sex workers. That tradesman was available to come to Court but was not required by the applicant.
(k) The Department of Education whose major office is opposite the proposal objected to the brothel due to the number of children who frequently came to that building and because of the primary and high school contained within the Conservatorium of Music only one city block away up Bridge Street. The proposal was in sight of those premises and the Department of Education said brothels should not be so close.
(l) A person in a residential flat building next door said when the brothel in the subject building was closed prostitutes moved into her building into a unit next to her. She had to deal with clients mistakenly pushing her intercom button and knocking on her door.
(m) The owner of the whole of Level 8 had a development application into council to convert it to a large apartment plus home office but said he would not move his family in if the brothel was approved. He had young daughters who would have to use the lift and lobby unaccompanied in a home use situation.

11 The applicant’s response to this evidence was that conditions of consent would eliminate such amenity impacts.

12 Mr Corradi’s evidence and the conclusion of many of the objectors is that the small entry lobby, the narrow corridor to the lifts, the single lift, the slow service speed, the narrow corridors from the lift to the units on each floor inevitably meant sex workers, residents, brothel clients, commercial and professional suite customers and staff must encounter each other on a regular basis.

13 Also it was put Mr Boers had de facto agreed there could be encounters in his recommendation that sex workers use the fire stair for entry and exit and clients use it for exit to reduce conflict with the various other uses in the building. This would potentially raise security issues again with the rear laneway door being used regularly and not reserved only for emergencies. It would not change the likely encounters of brothel clients entering the building and trying to find the brothel as well as related security risks.

14 Mr Boers agreed that the provisions of the development control plan should be a consideration in the appeal.

15 Mr Corradi said that all these impacts are contrary to the City of Sydney Local Environmental Plan 1996. Objectives in cl 18(d) and 61(c) and cl 29A and C of the Draft City of Sydney Local Environmental Plan 2005 and cll 9.1 and 9.2.3 The Strategy for Location and Use of Brothels in the City Of Sydney Development Control Plan 1996. Also the brothel did not fit the principles established in appeal 10788 of 2004 in that the brothel is not proposed where it is least likely to offend. It does not minimise adverse impacts to an acceptable degree and it directly adjoined a residential apartment and was adjacent other residential apartments both in the same building and adjoining building. The access to the brothel would not be discreet.

16 Overall the weight of evidence must fall on the respondent’s side and the proposal must be refused.

17 Therefore the orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned to the parties except Exhibits 4, 5, 6, 7, 8 and A.

3. No orders as to costs.

___________________

K G Hoffman
Commissioner of the Court
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