TL & TL Tradings Pty Ltd v Parramatta City Council

[2016] NSWLEC 150

Land and Environment Court

New South Wales

Medium Neutral Citation:	TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150
Hearing dates:	24 May, 2 August, 4, 10, 24, 26 and 27 October 2016
Decision date:	28 November 2016
Jurisdiction:	Class 1
Before:	Moore J
Decision:	At [241] and [242]
Catchwords:	MODIFICATION APPLICATION – brothel – expiry of trial period – application for further trial period – clustering – impact of brothel on antisocial conduct profile of vicinity – new planning controls since original approval – new proposed Plan of Management – improvements to new proposed Plan of Management – security guard requirements – translation of Plan of Management into Mandarin and Cantonese to be certified by NATI-accredited translator – further trial period approved
Legislation Cited:	Land and Environment Court Act 1979, s 38(1) Law Enforcement (Powers And Responsibilities) Act 2002, ss 197 and 198 Local Government (City of Parramatta and Cumberland) Proclamation 2016 Environmental Planning and Assessment Act 1979 Evidence Act 1995, s 135 Parramatta Local Environment Plan 2011 Parramatta Development Control Plan 2011
Cases Cited:	1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685 Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 I V Trading Pty Limited v Parramatta City Council [2010] NSWLEC 1170 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Kentucky Fried Chicken v Gantidis (1975) 140 CLR 675; [1979] HCA 20 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; 43 NSWLR 468 Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC 1272 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Segal & Anor v Waverley Council 64 NSWLR 177; [2005] NSWCA 310 Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Category:	Principal judgment
Parties:	TL & TL Tradings Pty Ltd (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Mr A Gadiel, solicitor (Applicant) Dr J Smith, barrister (Respondent)   Solicitors: Mills Oakley (Applicant) Matthews Folbigg Lawyers (Respondent)
File Number(s):	151513 and 151482 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The related proceedings

The evidence at the first phase of the hearing

Objections to this evidence

The need for a site inspection

Planning the second phase

The site inspection

Introduction

The site

Matters observed during the walk

Lighting

The proposed trading hours

The role of the Plan of Management

Bringing the hearings together

Planning controls

Introduction

The LEP controls

The DCP controls

Zoning and the land use table.

Applicability of the controls.

Conclusion on applicability.

Public interest considerations

The issues in dispute

The evidence in the second phase

The lay objector evidence.

The only written objection

The Council's contentions

General observation on the power to modify

Ground 1 – unacceptable location and site constraints

Mr Williams’ evidence.

Ground 2 – the Plan of Management

The broad role of plans of management

The draft Plan of Management.

Ground 3 – The planning controls

Introduction

Consideration of the DCP's provisions

The present character of the area

The desired future character of the area

Ground 4 – the impact on surrounding businesses

The relevance of past conduct

Ground 5 – the 2010 consent trial period

The 2010 development consent

The scope of the present application

Ground 6 - the precautionary principle

Conclusion on recommencement of trading

Determination of the residual issues

Duration of the trial period

Employment of the security guard

Translation of and extracts from the new Plan of Management

Conclusion

Directions – Matter No 2016/151482

Orders – Matter No 2016/147936

Annexure 1

Judgment

Introduction

1. TL & TL Trading Pty Ltd (the Applicant) is the tenant of a two-level unit, Unit 7 (the site), in a small industrial estate located at 1-3 Sutherland Street, Clyde. Sutherland Street is in a small enclave of three north-south-running streets and one east-west-running street (this latter street being Sutherland Street) to the south of Parramatta Road. The enclave is bounded, to the south, by the main western railway line (with Clyde Station being located at the cul-de-sac head of the most eastern of the north-south-running streets). The western boundary of the enclave is the spur railway line from the main western railway line, with this spur leading to the north towards Carlingford and the Camellia industrial area.

The related proceedings

2. The Applicant has commenced three proceedings in the Court concerning the site, Unit 7 at 1-3 Sutherland Street (the site). All of them are Class 1 proceedings and all concern activities or proposed activities to be carried out on the site as a result of its fitout for use as a brothel. The three proceedings all arise as a consequence of development consent being granted by Brown C, in 2010, for use of the site as a brothel (see I V Trading Pty Limited v Parramatta City Council [2010] NSWLEC 1170 (I V Trading)).

3. The development consent that was granted in those proceedings was one which was subject to a three-year trial period after commencement of trading, a period which expired on 6 December 2014. This development consent was granted to the owner of the site, with the owner of the site also acting as the operator of the brothel during its trial period until it was transferred, on 27 October 2014, to the Applicant.

4. The development consent contained a limited holding-over provision that permitted the brothel to continue trading beyond the expiry of the trial period, if a modification application been lodged with Parramatta City Council (the Council) (this being the Council within whose local government area the site remains after the coming into effect of the Local Government (City of Parramatta and Cumberland) Proclamation 2016).

5. However, the holding-over provision only continued to operate until the modification application had been determined and, if, as is here the case, the modification application were to be refused, there was no continuing holding over whilstever an appeal to the Court remains undetermined.

6. The consequence of this was that, after the holding-over period expired with the Council’s refusal of the modification application on 7 December 2015, continuing operation of the site as a working brothel no longer had approval for that use.

7. However, despite the expiry of the active consent as described above, the brothel continued to operate under the management of the Applicant. The Council served a Brothel Closure Order on the Applicant pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act).

8. As a consequence, the Applicant commenced these three related proceedings. These proceedings may be described as follows:

1. The first of the proceedings were an appeal against the Brothel Closure Order;

2. The second of the proceedings seeks modification of the original development consent for a sufficient period of time to permit the brothel to trade until after the third proceedings have been heard and determined by the Court; and

3. The third of the proceedings seeks a substantive modification to the original development consent so that, from the time of those determinations of the proceedings, the brothel would be permitted to trade for a further three-year trial period.

9. The first and second proceedings were listed for hearing before me on 24 May 2016, during the course of which hearing I was advised that the third proceedings had been set down for a conciliation conference before a Commissioner on 28 July 2016.

10. I was also advised that, as the premises had ceased to trade as a brothel in March 2016, the Council had resolved to revoke the Brothel Closure Order. As there was no utility in continuing the Brothel Closure Order appeal proceedings, these proceedings were dismissed by consent but with any issues of costs reserved.

The evidence at the first phase of the hearing

11. Dr Smith, barrister for the Council, indicated, on 24 May 2016, that the Council proposed to rely on three Statements of Evidence that were sought to be tendered in the proceedings. These statements were:

1. An expert town planning report from Mr Fryar (Mr Fryar did not, subsequently, give oral evidence);

2. What was said to be an expert security and risk-related report by Mr Williams, the Council's in-house Crime Prevention Officer; and

3. Leading Senior Constable Ashton, a sworn officer of New South Wales Police.

12. Mr Gadiel, solicitor for the Applicant, indicated that he proposed to read an affidavit deposed by Mr Lin, the guiding mind of the Applicant.

Objections to this evidence

13. Much of the first portion of the proceedings on 24 May 2016 comprised consideration of objections by Mr Gadiel to the proposed evidence for the Council. It is unnecessary, for discussion of the first phase of the proceedings, to deal with those objections at length but it is necessary to provide a brief outline of them.

14. Although, in Class 1 proceedings, the rules of evidence are expressly set aside as a consequence of s 38(1) of the Land and Environment Court Act 1979 (the Court Act), nonetheless there remains an obligation to provide procedural fairness and natural justice in the conduct of such proceedings. In giving fulfilment to these broad obligations, it may be appropriate to have regard to the rules of evidence, although not be bound, strictly, by them.

15. This latter position arose with respect to two elements contained in Mr Fryar’s Statement of Evidence where he commented on matters that can only have come to his attention as firsthand (or possibly second-hand) hearsay concerning criminal activities and the attitude of New South Wales Police (including results of covert police operations).

16. In this context, particularly given that the Council proposed to rely on evidence from Leading Senior Constable Ashton on police-related manners, I considered it appropriate to have regard to whether or not the probative value of permitting those elements of Mr Fryar’s statement to be admitted would be outweighed by the prejudice to the Applicant if I were to do so (having regard to but not being bound by s 135 of the Evidence Act1995). In the circumstances that there was proposed to be evidence for the Council from a sworn police officer, I rejected those elements of Mr Fryar’s statement.

17. Mr Gadiel also objected to Mr Williams’ statement on the basis that it had been provided to the Applicant's legal representatives on the Friday evening prior to the hearing (the hearing commencing on the following Tuesday morning), with this being a week later that the deadline set in the directions made by the Registrar, by consent, for preparation for the hearing. Mr Gadiel submitted that this late provision of the material, well outside the timetable set by consent, amounted to ambush of the Applicant and its legal advisers and that this should result in the rejection of the material. Mr Gadiel also had a range of specific objections to material that was contained in Mr Williams’ statement.

18. Mr Gadiel also foreshadowed objections to elements of the Leading Senior Constable’s statement (a statement that had been provided to the Court by e-mail on the morning of the hearing).

19. I observed to Mr Gadiel that, with the limited exception of a few sentences in Mr Williams’ statement, the document otherwise appeared to be a comparatively conventional vehicle to provide admissibility for the wide range of documents that had been annexed to it. However, I did indicate to him that I would, at that time, defer ruling on the specific sentences until a later point in the proceedings. For reasons that are dealt with later, this evidence was further expanded at a subsequent stage of the proceedings.

The need for a site inspection

20. The proceedings had commenced at 10.00 am in court. My prehearing examination of the proposed evidence made it clear that that which was proposed to be elicited, both in written and oral form, from Mr Williams and Leading Senior Constable Ashton in combination dealt with two significant aspects of the case, both in these interim proceedings and, if not resolved during the conciliation conference process, the proceedings seeking the longer term resumption of trading of the brothel.

21. The first of those matters, not engaged in this first phase of the interim proceedings but needing to be dealt with later, was to what extent, if any, operational deficiencies at other brothels associated with Mr Lin were relevant to determinations required for this brothel.

22. The second limb of the Council's opposition to both temporary or longer term recommencement of trading of the brothel was focused on what might be described as community security risks associated not only with the site but, as I understood the position, in the vicinity of the site within the enclave where it is located.

23. However, it was quite clear to me that it would be impossible to understand the community security issues pressed by the Council without undertaking an inspection, internal and external, of the site itself and of the enclave within which it is located.

24. As a consequence, I indicated to Dr Smith and Mr Gadiel that I considered that a site inspection was necessary and made arrangements with them to meet them at the site at 3.00 pm on the first day.

Planning the second phase

25. An examination of the Court diary revealed that I would not be available to undertake a continuation of the interim hearing until early August 2016. It was also obvious from the Court diary that, if dates were not set for a substantive hearing of the longer term application (against the possibility that the conciliation conference on 28 July 2016 would fail to facilitate an agreement), there might well be a significant delay in it being set down for hearing if such hearing was made necessary.

26. The outcome of these two considerations was that the resumption of the second application was set down for a resumed hearing in court on 2 August 2016, whilst the longer term proceedings were set down for hearing on 26 and 27 September 2016 before a Commissioner (commencing on site at 9.30 am in the event that the conciliating Commissioner was not agreed to by the parties or the purposes of determining that matter).

27. As a consequence, I indicated to Dr Smith that the delay would afford the Council an opportunity to revise its present proposed evidence in light of the matters that had been raised by Mr Gadiel and me concerning matters dealt with by Mr Williams or Leading Senior Constable Ashton in their statements that had been filed at that stage. Dr Smith indicated that the Council would revise the statements and file and serve them at a later date.

28. As a further consequence, I set a mention of the matter for 16 June 2016, after the filing and serving of revised statements, to permit Mr Gadiel to press any objections that might remain and for me to deal with them prior to the second phase of the hearing.

29. I also directed the parties to settle Short Minutes of Order to establish a timetable leading up to the second-phase hearing, including provision for town planning evidence on behalf of the Applicant (if this remained desired - as foreshadowed by Mr Gadiel) and, if so, joint conferencing and joint reporting of the two town planning experts. The in-court proceedings that day then adjourned for the site inspection.

The site inspection

Introduction

30. I have earlier briefly described the enclave within which the site is located. We met outside the site and undertook an inspection of the premises and then walked around the enclave by going east on Sutherland Street, north on Berry Street to Parramatta Road, west along Parramatta Road to George Street, then turning south along George Street back to Sutherland Street before turning to the west along Sutherland Street to the elbow where it turns to the north and becomes Marsh Street.

31. During this process, Mr Williams and Leading Senior Constable Ashton were permitted to point out matters of concern to me but were not permitted to express any opinion about them.

The site

32. Before dealing with matters looked at during the course of the walk-around inspection, it is appropriate to set out a brief description of the site itself.

33. As earlier noted, the site comprises a unit within a small complex on the southern side of Sutherland Street. With the exception of the fast-food/convenience store on the south-western corner of Sutherland Street and Berry Street (premises that form part of the building within which the industrial units are located but which addresses, by its entrance, the intersection of the two streets), the remaining units were located in an elongated U-shape around a series of forecourt parking spaces. These parking spaces were separated from the Sutherland Street footpath by vegetation that appeared to be approximately one metre or so high along the frontage of the whole of the complex.

34. The site of the brothel, at the western end of the complex closest to the road, has a side wall addressing the street with the primary orientation of the site being to the east into the forecourt. The vegetation continues along that side wall to the end of the allotment upon which the complex is constructed. The complex is two-storey with the site having a grill-gated entrance to an undercroft parking area that appeared to have space for approximately six vehicles.

35. Although used, at the time of the site inspection, for some elements of casual storage of bedding and other items, Mr Gadiel pointed out that this storage use was purely temporary and would cease when the brothel recommenced trading, if it were permitted to do so.

36. The upper level of the site is L-shaped, with the east-west-running element of the “L” providing, at its eastern end, an entrance portico to the ground-floor doorway.

37. When entering the premises through a security door monitored by closed-circuit television (a topic discussed in more detail below), there was a workroom for a sex worker on that level, with this room be designed to be able to cater for disabled clients. Such disabled clients would have access to that workroom through a ramp and door where that door was behind the metal grill securing the car-parking area.

38. Upstairs, there was a complex of a number of further workrooms for the sex workers to be engaged at the brothel, together with a number of waiting spaces. At the point of the elbow in the “L” at this level, there is a reception space where a staff member can operate, receiving money and observing a computer monitor receiving feeds from a number of closed-circuit cameras located inside and outside the premises.

39. The closed-circuit cameras were demonstrated, showing that, in maximum split-screen mode, images were able to be displayed by live feed from all 12 cameras monitoring external and internal aspects of the brothel. Mr Lin also demonstrated that it was possible to rearrange the display by selecting a different operating model within the data-feed software so as to create a single, larger image in the centre of the screen by limiting the number of locations from which the feed was taken.

40. Doing so still permitted smaller images to be displayed around the perimeter of that larger image. The larger image was the equivalent in size to four of the smaller images when the maximum number of cameras were feeding to the monitor. In response to an enquiry from me, Mr Lin advised that data was recorded and stored, when a continuous live feed was being harvested, for a period of nine days but that a longer period of data storage was possible if some or all of the cameras were sent to a mode where the feed only became activated if the cameras detected movement within their field of vision capture.

32. There was a small safe on the receptionist’s counter, with that safe appearing to be firmly fixed to that counter, whilst, in an inner office accessible from the reception area and only able to be entered after keying a code into an electronic keypad, we observed a somewhat larger safe in the corner of that inner room, a safe that appeared to be less securely fixed (but nonetheless fixed) and located in the corner of that room.

Matters observed during the walk

42. I have earlier set out the route that was walked during the course of the site inspection. The matters that were pointed out to me in streets other than Sutherland Street were:

1. Two other operating brothels in Berry Street, one on the eastern side at approximately 100 metres from the site and one on the western side, approximately 90 metres from the site;

2. At the corner of Berry Street and Parramatta Road, the location of a brothel, some 140 metres to the north-east, across Parramatta Road. This brothel was described as having 20 workrooms. It is approximately 350 metres from the site (including utilising pedestrian signals to cross Parramatta Road);

3. At the intersection of George Street and Parramatta Road, I was pointed to the location of another brothel to the north across Parramatta Road. These premises were approximately 310 metres from the site, with this estimated distance incorporating the detour necessary to cross Parramatta Road at the pedestrian signals;

4. Whilst walking down George Street, the location of a church and its adjacent brothel to the south was pointed out, with it being acknowledged on behalf of the Council that this brothel had been operating at the time that the church had moved into its premises. This brothel is approximately 120 metres from the site;

5. At the elbow at the western end of Sutherland Street where it turns north and becomes Marsh Street, the location of a further brothel was pointed out. This final brothel location observed during the course of the site inspection was approximately 150 metres from the site; and

6. Leading Senior Constable Ashton pointed out the location on the southern side of Sutherland Street in close proximity to this elbow where he had recently recovered a used syringe from the gutter, an item that he had been required to dispose of safely.

43. In addition to these locations being observed during the walk around this enclave, the Leading Senior Constable also pointed out a number of locations where he considered, during the hours of darkness, there were features in the streetscape where it would be possible for a person to hide if they were contemplating some unlawful act.

44. These included a number of locations behind the vegetation across the frontage of the industrial complex within which the site is located; a number of recessed doorways along the southern side of Sutherland Street or within the complex itself and the setback entrance area of the fast-food/convenience store on the corner of Sutherland and Berry Streets. During our observation of this latter location, it was pointed out that this outlet provided a service to industrial premises in this enclave, closing in the late afternoon and not trading during the proposed temporary and longer term trading hours of the brothel as earlier described.

Lighting

45. I was also asked to observe the location of one floodlight on the upper southern facade of the industrial complex within which the site is located, with that floodlight being aimed downward into the forecourt in the elongated U-shape of the building within which the site is located.

46. Although it was not pointed out to me at this time, I subsequently observed, and drew to the attention of Dr Smith and Mr Gadiel, the location of a further floodlight on the west-facing facade of the eastern wing of the complex, with that floodlight appearing to be pointed, also, into the forecourt area.

47. The street-lighting observable in the area was limited with streetlights being provided a little to the west of the site at the intersection of Sutherland and Berry Streets and in George Street, a little to the north of its intersection with Sutherland Street.

The proposed trading hours

48. The trading hours of the brothel for which the consent is sought to be revived on both a temporary and long-term basis were set, in the conditions of consent arising out of the earlier approval, as being from 6.00 pm to 7.00 am, seven days per week. The hours that are sought for the interim and long-term resuscitation of the operation of this brothel are not sought to be extended in these proceedings or in the proceedings the subject of the conciliation conference that was to be held in late July.

The role of the Plan of Management

49. I spoke to Dr Smith and Mr Gadiel after the site inspection and prior to leaving the site to indicate to them that I would expect that any Plan of Management that might come out of the town planning evidence (including any joint conferencing) would have regard to the matters that had been observed during the course of the site inspection.

50. I reminded them that, in Class 1 proceedings, it was not unusual for the presiding member of the Court to conclude that it was appropriate to take an “amber light” approach and, in proceedings involving premises where issues of antisocial behaviour (real or anticipated) were pressed as matters of concern, if a Plan of Management was proposed, its extent and possible measures to strengthen it were routinely considered as part of the question of whether or not a consent could be granted including with Court-imposed changes to the development or its Plan of Management.

Bringing the hearings together

51. It subsequently became apparent to me that, if the conciliation process to be conducted by a Commissioner was unsuccessful and the conciliation conference was terminated, it would not be appropriate for there to be separate hearings on the short-term and long-term recommencement of trading applications.

52. I formed this opinion as it would not be appropriate for two members of the Court to be determining, essentially, exactly the same proposition on exactly the same set of facts and submissions in separate hearings when the only difference between them was whether, in the short-term proceedings, the brothel should recommence trading pending the outcome of the longer term application for a further three-year trial period.

53. As a consequence, after the conciliation conference on 28 July 2016 presided over by Dixon C was terminated, I had the longer term proceedings listed before me on the next occasion when the short-term proceedings were listed to be considered. On that occasion, I indicated to the parties that the appropriate course of events, in my view, was for me to hear the long-term application as expeditiously as possible and to do so on the basis that that which had taken place to date, in the short-term proceedings (including that which had been observed and pointed out during the course of the site inspection on 24 May 2016), should be taken to be evidence in the long-term proceedings. On this basis, I indicated that it would then be appropriate, in my decision on the long-term application, also to dismiss the short-term proceedings.

54. The legal representatives of the parties agreed to this course of action. As a consequence, at the conclusion of this decision, orders are made in the short-term proceedings dismissing that application with no order as to costs.

Planning controls

Introduction

55. The Council has planning controls dealing with sex service premises, such as this brothel, contained in its Parramatta Local Environmental Plan 2011 (the LEP) and Parramatta Development Control Plan 2011 (the DCP). It is appropriate to note that, at the time Brown C granted the development consent sought to be modified by these proceedings, these were not the applicable planning controls and the controls that applied were contained in earlier planning documents.

56. As consequence of submissions made by Mr Gadiel as to the extent to which the provisions of either the LEP or the DCP are applicable to the matter with which I am dealing, it will be necessary to return to consideration of that issue after setting out the relevant controls.

The LEP controls

57. The relevant provisions contained in the LEP dealing with brothels are contained in cl 6.9, a provision in the following terms:

6.9 Location of sex services premises

(1)   Despite any other provision of this Plan, development consent must not be granted to development for the purposes of sex services premises unless the premises are located:

(a)   at least 200 metres (measured from the closest boundary of the lot on which the premises are proposed) from any residence or any land in a residential zone, and

(b)   at least 200 metres (measured from the closest boundary of the lot on which the premises are proposed) from any place of public worship, hospital, school, child care centre, community facility or recreation area.

(c)   (Repealed)

(2)   Development consent must not be granted to development for the purposes of sex services premises in a building that contains a dwelling if any part of the access to the sex services premises is shared with the dwelling.

(3)   In deciding whether to grant development consent to development for the purposes of sex services premises, the consent authority must consider the following:

(a)   whether the operation of the sex services premises will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it,

(b)   whether the operation of the sex services premises will be likely to interfere with the amenity of the neighbourhood,

(c)   whether the operation of the sex services premises will be likely to cause a disturbance in the neighbourhood when taking into account other sex services premises operating in the neighbourhood involving similar hours of operation,

(d)   the impact the proposed development would have on any place that is regularly frequented by children for educational, recreational or cultural activities that adjoins or is in view of the proposed development.

The DCP controls

58. The relevant provisions of the DCP are contained in Exhibit 5, folios 199 to 213. This portion of the DCP contains extensive introductory material to provide context to the various provisions that follow. For the purposes of consideration of this application, it is appropriate to note that the DCP provides broad guidance on these aspects and includes a specific element under the heading “Sex Service and Restricted Premises”. That explanatory material is in the following terms:

5.6 Sex Services and Restricted Premises

The purpose of this section is to provide detailed provisions to guide the preparation and assessment of development applications for sex services premises, restricted premises and business and entertainment premises providing adult entertainment. The planning controls in this section are designed to ensure that sex services and restricted premises are operated in appropriate locations so that they do not give offence to the community or result in a loss of amenity for residents.

Objectives

O.1   Regulate and control sex services premises, restricted premises and business and entertainment premises providing adult entertainment in appropriate locations so as to minimise amenity impacts upon adjoining land uses in the zone.

O.2   Discourage a concentration of sex services premises, restricted premises and business and entertainment premises providing adult entertainment in close proximity to each other.

O.3   Ensure high levels of both internal and external amenity are provided for sex services premises and restricted premises to ensure the amenity and security of staff, and users or occupiers of the respective premises as well as neighbouring properties.

O.4   Ensure that restricted premises and similar establishments such as massage parlours are designed in such a way as to prevent either the easy conversion or use as sex services premises without obtaining development consent or operating outside their development consents.

O.5   Provide an appropriate framework to effectively regulate the operation of sex service premises and restricted premises, through detailed provisions of development consent in the provision of plans of management and coordination with other relevant government agencies.

O.6   Support the health and safety initiatives of NSW Health and WorkCover NSW in regard to sex workers and their clients.

O.7   In accordance with Section 5.6.2, prescribe the information to be submitted with a development application for sex services premises and restricted premises.

59. The DCP then turns to setting out a series of provisions under a range of headings. The headings are:

• Development to which this section of the DCP applies

• Submitting a Development Application

• Guide to Plans of Management

• Planning Controls

60. Of particular potential relevance in these proceedings are the matters set out under the heading “Location”. That element of the DCP is in the following terms:

Location

The locations where sex services premises restricted premises and adult entertainment premises are permitted are generally prescribed by land use zones in the Parramatta LEP 2011 and Parramatta City Centre LEP 2007. This section provides additional provisions associated with the location of sex services restricted premises and adult entertainment premises in relation to existing residential and sensitive land uses and to existing approved sex services premises, restricted premises and adult entertainment premises.

61. It will be later necessary to return to consider the extent to which the Council's reliance upon them could found a proper basis for refusal of this modification application.

Zoning and the land use table.

62. The enclave within which the premises are located is zoned IN1 – General Industrial in the Land Use Table of the LEP. The Land Use Table is set out in the conventional framework adopted by local environmental plans that follow the framework of the Standard Instrument Template. The IN1 zone, therefore, has provisions setting out the zone objectives; development permitted without consent (relevantly, in this instance, there is none); development permitted with consent (an extensive list is included, with that list concluding with the notation that, effectively, any development not nominated as prohibited is permissible with development consent); and a list of development that is prohibited within the zone.

63. Before setting out the zone objectives, it is appropriate to note that sex service premises, the defined use within which a brothel falls, are not included in either list of uses in the third and fourth elements of the IN1 portion of the Land Use Table. The consequence of this is that the concluding element of the provisions dealing with development permitted with consent are called up and use of premises in the zone as a brothel is to be regarded as an innominate permitted use.

64. Although the objectives for the IN1 zone play a limited role in these proceedings, nonetheless, they are relevant as cl 2.3(3) of the LEP requires that the Council (and in this instance, the Court standing in the shoes of the Council) must be satisfied that any proposed development is consistent with the objectives of the zone within which it is sought to be located. The zone objectives for the IN1 zone are in the following terms:

1   Objectives of zone

�   To provide a wide range of industrial and warehouse land uses.

�   To encourage employment opportunities.

�   To minimise any adverse effect of industry on other land uses.

�   To support and protect industrial land for industrial uses.

�   To facilitate a range of non-industrial land uses that serve the needs of workers and visitors.

Applicability of the controls.

65. Mr Gadiel proposed that I should pay no heed to the controls in the LEP or in the DCP. He put this proposition on the basis that cl 6.9 of the LEP, expressly related to the granting of development consent, whilst the explanatory material for cl 5.6 of the DCP, as earlier set out, is expressly addressed to the preparation and assessment of development applications for sex services premises. Under these circumstances, as this application was an application for permitting a further trial period by modification of the existing development consent granted as a consequence of Brown C's decision in 2010, I was not mandated to have regard to the relevant provisions of the LEP or the DCP and I ought not do so.

Conclusion on applicability.

66. As Mr Gadiel submitted, that with which I am dealing is not a development application but is an application made to modify the development consent arising from Brown C's decision in I V Trading. The basis for the application is to be found in condition 2 of the conditions of development consent, a condition earlier set out. In terms, cl 6.9 of the LEP only applies to granting of development consent. It is, therefore, not mandated to be applied to this modification application. A proper reading of the totality of the relevant provisions in the DCP leads to a similar conclusion with respect to those provisions.

Public interest considerations

67. However, I am satisfied that that is not the end of the matter. I have earlier referred to the breadth of the matters to which I am permitted to turn in my consideration of the public interest, that being a matter requiring to be addressed as a prescribed element in s 79C of the EP&A Act.

68. The scope of what may be considered in this context is not confined to those matters that are otherwise specifically mandated to be considered by s 79C(1)(e). This was made clear by the Court of Appeal in Terrace Tower Holdingsv Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289, at [81].

69. In this regard, although the relevant provisions in the LEP and the DCP do not apply to this application (as it is an application to modify a development consent rather than being a fresh development application), those provisions may nonetheless be relevant as matters arising in the public interest.

70. In this instance, having regard to the fact that development control plans are not Environmental Planning Instruments, and are not to be regarded as drafted with the care and precision applicable to such an instrument, I am satisfied that it is appropriate to have regard to relevant aspects of the DCP that would have applied had this been a development application rather than a modification application. However, for the reasons that are later set out, I am satisfied that, in the circumstances of these premises as now proposed to be operated under the terms of a Plan of Management to be revised in light of matters canvassed during the course of the concurrent evidence given by Mr Mead, Mr Williams and Mr Daintry, the provisions of the DCP do not stand as an impediment to approval of this modification application in the fashion I have determined is appropriate.

The issues in dispute

71. There are, in essence, three issues in dispute in the long-term proceedings, one of them being fundamental, whilst the others would only arise for determination if I were to conclude that the brothel should be permitted to recommence trading. The fundamental issue, of course, was whether or not such recommencement should be permitted by modifying the relevant conditions attaching to the development consent granted by Brown C in 2010.

72. The two contingent issues, in the event that the brothel was to be permitted to recommence trading, were:

1. Whether the further trial period should be for two years (as proposed by the Council and consistent with the relevant provisions of the DCP) or for three years as contended by the Applicant; and

2. What should be the days and hours of duty of a security guard in circumstances where those days and hours would be mandated by the terms of the modification being made to conditions attaching to the 2010 development consent.

73. With respect to this latter issue, the position adopted by the Council was that a security guard should be on duty throughout all periods when the brothel was trading, whilst the position put on behalf of the Applicant was that a security presence was only necessary during the late night and early morning trading hours (to a maximum of an eight-hour shift) on what were acknowledged to be the likely busiest trading evenings of the week, being Thursday, Friday and Saturday nights.

The evidence in the second phase

74. Evidence was given in the proceedings on behalf of the Applicant by:

• Associate Professor Ryan, an expert social planner;

• Mr Daintry, a town planner; and

• Mr Lin, as the proposed operator of the brothel on behalf of the Applicant.

75. Evidence was given on behalf of the Council by:

• Leading Senior Constable Ashton (during the course of the site inspection, and by affidavit, but who was not able to be present to give oral evidence);

• Mr Williams, the Council's Crime Prevention Officer; and

• Mr Mead, a consultant town planner.

76. Mr Fryar, the town planner engaged by the Council for the first phase of the hearing, was not retained for the second phase and took no part in the substantive evidentiary process.

77. Evidence was also given on behalf of the Council by four lay objectors to the proposal. It is unnecessary to name them and their evidence is discussed in the immediately following section.

The lay objector evidence.

78. The lay objector evidence led by the Council came from four persons, all of whom were associated with the management of one or other of the other various permitted brothels operating in this enclave. As the fourth of these witnesses conceded, the three sets of brothel premises represented by these four witnesses were associated - in the sense that there was cross-ownership, to some extent, of these enterprises.

79. Each of these witnesses gave evidence that they had had customers attending their brothel seeking to purchase drugs, and that attendance, either expressly or by inference, was because the brothel that is the subject of these proceedings was no longer operating and, as a consequence, could not operate as a merchandising point for illegal drugs as had been the position in the past.

80. Either expressly or by implication, each of these witnesses disavowed giving evidence in order to prevent the reopening of a commercial competitor and each of them expressed the view that the requests for provision of drugs operated as a disruption to the business with which they were associated.

The only written objection

81. It is also appropriate, at this point, to note that a written objection had been received to this proposal from the Granville Baptist Church but that it was conceded, during the oral joint planning evidence, that this church was not the church that had established itself in the enclave at a location to the north-west of these premises (and only one door removed from one of the other existing brothels in the enclave).

The Council's contentions

82. As required in proceedings such as these, the Council provided a Statement of Facts and Contentions, a document that set out, inter alia, the bases upon which the Council submitted that the modification application should be rejected. In his written outline of closing submissions, Dr Smith crystallised the bases upon which the Council says that the proposal to recommence trading as a brothel should be rejected. There were six such grounds:

1. Unacceptable location and the site constraints;

2. Absolute compliance with the Plan of Management is required;

3. DCP and LEP considerations;

4. Impact on surrounding businesses;

5. The requirements of the trial period in the 2010 consent; and

6. The precautionary principle.

83. The Council submitted that each of these grounds, in itself, warranted refusal of permission to recommence trading of the brothel on the site.

General observation on the power to modify

84. Before turning to consider, in detail, each of the six bases upon which the Council says that this modification application should be rejected, it is appropriate to observe that the power given by s 96 of the EP&A Act to modify a development consent, is one to be regarded as beneficial and facultative (see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 per Mason P).

85. In this regard, it is clear that there is an implied shift in the persuasive burden to the Council to demonstrate why the proposed modification should not be regarded as appropriate.

Ground 1 – unacceptable location and site constraints

Mr Williams’ evidence.

86. Mr Williams commenced his evidence on 10 October 2016. Three affidavits which he had sworn had earlier been read only subject to some minor deletions upon objections raised by Mr Gadiel. I rejected a number of other objections to material in Mr Williams’ affidavits but noted that its admission was subject to my assessment of what weight should be given to various matters about which he gave evidence.

87. Mr Williams commenced his oral evidence, but it was not concluded by the adjournment of the hearing on 10 October 2016. His giving of evidence was, therefore, carried over to continue on the hearing on 24 October 2016.

88. During the course of his evidence on 10 October 2016, I had expressed concern about the nature of some of that to which he referred in circumstances where Mr Williams was unable to provide detail of the material providing a foundation for his evidence. For example, in his affidavit of 17 June 2016, he said:

For the purpose of this statement, I have reviewed the following nine criminal incidents that have occurred in or near the subject premises at 7/3 Sutherland Street Clyde.

89. Thereafter followed a list of nine police reference numbers and the dates of the nine incidents relied upon by Mr Williams, with the earliest date being 10 December 2012, and the latest being 1 November 2014. Mr Williams then said:

I base my comments on each on my 28 years of policing experience, particularly my experience in the investigation of crime; together with my six years of experience concentrating on crime prevention.

90. The first of the incidents in the nine listed by Mr Williams is one described as “person search”. His affidavit concerning this incident reads:

At 4.41 am on 10 December 2012 police observed a male person in a motor vehicle parked outside the brothel and conducted a search of the vehicle and the person. No items were found. Police were specifically patrolling that area due to the incidence of crimes associated with brothels in that area. It is clear from the narrative that the clustering of brothels in the area was the major contributor to crime in the vicinity. The concentration of brothels, therefore, requires policed to direct resources to proactively patrol the vicinity. (Annexure 1).

91. When asked by me what the nature of the incidents were to which he referred and where I found the evidence to enable me to obtain an understanding of the nature of those incidents, Mr Williams advised me that the source material was not readily available on that occasion and that the descriptive information had been drawn by him from his reading of the relevant COPS reports. I had indicated my concern about the lack of detail about the incidents upon which he relied as, in his affidavit of 17 June 2016, he had set out the detail of one such incident in the following terms:

Steal from motor vehicle

28. On 1 November 2014 an unlocked vehicle was entered into outside the brothel and a wallet containing cash and credit cards were stolen. While the fact that the vehicle was unlocked was a primary contributor to this offence, the physical characteristics of the location did assist offenders to remain undetected. By physical characteristics I refer specifically to the topography of the surrounding area, poor lighting and lack of natural surveillance. (ANNEXURE 12)

92. A copy of the COPS report upon which the first of the above extracts from Mr Williams’ affidavit is drawn is at Appendix 1 to this decision. A reading of the extract from Mr Williams’ affidavit reproduced above, and the COPS material upon which it is based, makes it crystal clear that there would be absolutely no foundation whatsoever to draw any inference, let alone an adverse inference, concerning the operation of the brothel then operating at the premises for which this further trial period is sought.

93. The person whose activities are discussed in the report was entirely innocent and his connection with the brothel merely that of a customer. In addition, the police search of his vehicle discovered absolutely nothing of an untoward nature.

94. Indeed, even had anything adverse been discovered during the course of the search of this vehicle, it is extremely problematic to contemplate postulating that any adverse inference might be drawn against the operators of the brothel (a matter, given the complete absence of any incriminating discovery or adverse admission arising from this incident that does not arise).

95. For the “steal from motor vehicle” incident, the only commonality between the incident and the brothel is that of location. The COPS report makes no reference (actual or implied) of any connection with the brothel other than location.

96. The sixth incident relied upon by Mr Williams occurred at 12.40 am on 20 March 2014. It is described as a “vehicle search”. The relevant portion of Mr Williams’ affidavit is in the following terms:

About 12.40 am on 20 March 2014, police were patrolling in the vicinity of the brothel due to armed robbery attempts at that location where offenders are parked in front of the brothel. Police observed a vehicle parked there and spoke to the occupant. While they were doing so, one of the staff came down to the vehicle with $80 to pay the occupant for $25 worth of McDonald's food. Police spoke to the worker who stated she owed the occupant the money. Police made observations of the occupant consistent with intravenous drug use and search the vehicle but did not find any illegal drugs.

It is important to note the reason the police were in this area was stated to be the incidence of armed robberies and the area being well-known for drug activity. In other words, the location around this brothel is known to police to be a hotspot for drug and violent crime. The location of this brothel as well as the cluster of other brothels was clearly viewed by the police as attracting drug in violent crime.

97. In disaggregating this incident, there are two observations to be made. First, with respect to the particular vehicle search, the police found nothing of any incriminating nature involving either the person employed by the brothel or the occupant of the vehicle. In that regard, absolutely nothing adverse is able to be drawn from this incident concerning the brothel.

98. Second, to the extent that there were drug-dealing activities undertaken from the premises of the brothel, under the previous operators of the brothel (who are, as noted elsewhere, currently in custody), arise as a consequence of the criminality of that activity and not from any permitted trading activities of the brothel as a brothel.

99. In his affidavit of 22 August 2016, Mr Williams dealt with the police intelligence and incident reports covering a period between November 2011 and November 2014. In particular, in [23] of this affidavit, Mr Williams said:

A review of the recorded incidents relating to this premises corroborate the intelligence reports. A police event report can consist of one or multiple incidents. Thirty-three incidents were recorded between January 2012 and September 2014. A breakdown of the incidents show nine business inspections by police, eight person or vehicle searches and two “move on” directions were given; two robberies, two goods in custody/receiving, two stolen property incidents, one personal violence incident, one located vehicle and other miscellaneous matters. Three drug matters were recorded at these premises; including one drug detection and the execution of a search warrant on the 3 July 2014.

100. The final mention of the search warrant on 3 July 2014 was part of the major police operation addressing the criminal drug-supply activities being undertaken at the brothel by the former proprietors.

101. The details of the 33 incidents at the site noted in the above extract from the main body of Mr Williams’ August 2016 affidavit are further dissected in figure 2 appended to that affidavit. It makes it clear that the 33 incidents to which he refers comprise the following (adopting his categorisation in his table):

Drug	3
Person searches	8
“Move on” directions	2
Robbery	2
Business inspection	9
Goods in custody	2
Personal violence	1
Stolen property (inc vehicles)	2
Located property (inc vehicles)	1
Others	3

102. At this point, it should be noted that the Council had been afforded the opportunity to put on any further detailed evidence that it wished to provide that would assist in the understanding of the propositions sought to be advanced as said to be derived from Mr Williams’ evidence. In this regard, no further detail was provided that would give me any ability to understand why I should draw any adverse inference against the use of this site as a brothel from the fact that the police undertook a significant number of person searches (with no detail provided save for that extracted earlier in this section from Mr Williams’ affidavit of 17 June 2016 - an extract which demonstrates that the search of the person disclosed nothing adverse to either the person or to the brothel). I also observe that, in the earlier set out material, the sixth incident (on 20 March 2014) is described as a “vehicle search” by Mr Williams, yet his table of incidents at the site set out above does not show any vehicle searches to have taken place during the relevant period.

103. Further, the reliance on “move on directions”, “business inspections” and “others” (of an entirely unspecified nature) provides no assistance whatsoever in support of the propositions advanced by the Council, suggesting that policing matters specific to this brothel (disregarding, entirely, matters of criminality associated with drug dealing) can provide any support for an adverse finding against the now proposed recommencement of trading of the brothel (particularly in light of the deficiencies in Mr Williams’ evidence on this point).

104. However, there are other matters of more substance arising under this ground that also require consideration. As Dr Smith observed, in his written submissions, the experts agreed:

The locality has many attributes which make it relatively unsafe at night. This includes poor street lighting, lack of pedestrian footpaths, high numbers of vehicles parked on street at night reducing visibility, very little passive surveillance and a high number of escape routes.

105. Amongst the matters raised by Dr Smith were those arising from specified and nominated criminal activity of drug supply (irrelevant for reasons dealt with elsewhere) and armed robbery (where, on 5 September 2014, the brothel was robbed by two males who gained entry posing as customers). Mr Williams noted that:

The offenders claim to be armed but no weapon was sighted.

106. The COPS report (Annexure 11 to Mr Williams’ affidavit) makes it clear that these offenders had not only performed this robbery at the site but had also committed four robberies at other brothels in the enclave during a period of approximately a fortnight, being a week on each side of the robbery at the site.

107. Mr Williams observed, in this regard:

It is clear that the two offenders were targeting brothels in the area and, in fact, robbed one nearby brothel on two occasions within that period. The clustering of brothels, the location within industrial areas offering poor natural surveillance, multiple escape routes and predominantly cash business, provides an attractive target for criminals. The presence of trained and licensed security personnel can act as a deterrent to some extent but the risk of being a target of armed robbery is high for most brothels due to the hours they operate in the factors I have articulated.

108. It is appropriate to note, at this point, that the reason that this brothel (and the other brothels) are located in industrial areas is as a consequence of the specific determination by the Council, in structuring the permitted uses in the various zones within the Land Use Table, confining sex service premises to such industrial areas.

109. During the course of his questioning of Mr Williams, Mr Gadiel asked Mr Williams several questions concerning the circumstances under which police might give an individual what is known as a “move on” order. In light of Mr Williams’ responses, Mr Gadiel handed up a copy of ss 197 and 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 in his closing submissions. These sections deal with circumstances under which police officers are permitted to make “move on” orders. The terms of these sections demonstrate that, in several respects, Mr Williams did not accurately understand the nature of the powers available to the police (one example being the power pursuant to s 198(1) setting out the circumstances under which a police officer could give such an order to an intoxicated person - Mr Williams, having indicated that his understanding was that no such power existed).

110. Dr Smith proposed that there were six particular aspects of the site's location that warranted consideration in assessing the locational acceptability or otherwise of the site as a brothel. These were:

1. Regular parking of vehicles on the street overnight;

2. Surrounding hedges being 1.5 metres in height;

3. Lack of passive surveillance;

4. Very poor street lighting on Sutherland Street and at the southern end of Berry Street;

5. Unlit doorways and recessed entrances to buildings within the subject unit complex and surrounding businesses; and

6. Multiple streets leading off Sutherland Street which provide multiple escape routes.

111. These matters of detail pressed in these proceedings do not appear to have been raised in the hearing before Brown C. In the Commissioner's decision concerning the acceptability of the location, he dealt with several specific matters that do not arise in these proceedings under this heading. Although some are matters relevant to be considered in the context of the matters arising from the LEP and the DCP, as neither of these applied at the time of the Commissioner's decision, he did not need to consider them. As a consequence, no issues, with respect to this ground, arise in any sense of being a principal contested issue that had been dealt with in the Commissioner's decision (Segal & Anor v Waverley Council 64 NSWLR 177; [2005] NSWCA 310). Dr Smith submitted that these risk factors (including, as observed during the course of the site inspection), in conjunction with the evidence concerning incidents in the vicinity, should lead to rejection of this modification application on this ground. His written submissions on this point were in the following terms:

8.   Council submits that the impacts which occurred during the Trial Period are direct and sufficient evidence connecting crime to the Premises (regardless of the operator). The Council further submits that these impacts would be considered unacceptable by the Court (see Town planners Joint Report Exhibit 14 at [2.2.4]). These impacts are a product of the immediate area and location of the Premises and are relevant considerations under section 79C(1)(c) of the EP&A Act.

9.   The Applicant has attempted to provide a new POM to address the above impacts. Consistent with Exhibit 13 the evidence of Constable Ashton at [30] and Exhibit 9 Mr Williams at [29], compliance with the POM is unlikely to mitigate the impacts to an acceptable level. Consistent with Jonah, past use would therefore be of relevance for proper planning reasons.

10.   In light of this evidence the Court would be satisfied that ongoing use of the Premises as a Brothel would not be able to be cured by the conditions of the development consent as it would require works to be carried out in the surrounding area.

11.   This is also consistent with the application of the Planning Principles established by the Court in Martyn v Hornsby Shire Council [2004] NSWLEC 614 for the location of brothels (see Exhibit 12 Mr Mead Statement filed 25 August 2016 at [2.2.13]). In particular, at [18] (dot point 3), in relation to crime or drug use, the Principle provides:

“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.’

12.   The evidence provided by Mr Williams and Mr Ashton, as accepted by both Mr Daintry and Ms Ryan in cross-examination, clearly establishes that the subject brothel has been associated with crime and drug use.

13.   Accordingly, where the evidence of crime and drug use is established, it would appear that the Principle requires a second step, namely to identify whether locality has contributed to that crime and drug use. Again, this is clearly the case here as agree by the experts (Town planners Joint Report Exhibit 14 at [2.2.3]).

112. I am unable to accept that I should reach the conclusion advocated by Dr Smith. I do so for the following reasons:

1. First, as I have set out at some length, I consider that the evidence of Mr Williams was significantly unsatisfactory in a number of aspects and that the various matters he relied upon were either irrelevant as not disclosing any proper basis for adverse inference or, to the extent that the past drug dealing by the former operators of the brothel could found adverse inferences, those inferences were to be derived from the criminal activity of drug dealing, rather than from the brothel activities permitted pursuant to the consent granted by Brown C;

2. Second, although Mr Williams devoted a good deal of attention to a comparison between brothel activity in this enclave and brothel activity in other enclaves within the Council’s area where multiple brothels were located, I am required to deal with the facts and circumstances of this brothel at this location. There was no suggestion made, for example, that it would be appropriate to undertake some excursion for evidence gathering and inspection to those other locations in order to found some basis for the comparative material provided by Mr Williams. I am satisfied that this material provides no assistance to the Council’s case in these proceedings;

3. Third, to the extent that it might be understood that, inferentially, despite the acknowledgement by Dr Smith that there was no such test, material concerning the operation of brothels at other locations by Mr Lin provided some foundation for me concluding that he was not a fit and proper person to conduct this brothel would take me into territory not permitted by the EP&A Act. This is entirely inappropriate and irrelevant. Development consents operate in rem and not in personam. The established presumption is that when a development consent is granted subject to conditions whatever individual or entity has the benefit of that consent, from time to time, will observe the conditions that are attached to it. When this does not occur, enforcement can be undertaken through other legislative processes, not those relating to assessment of modification applications;

4. To the extent that past conduct is to be taken into account where the impacts of that conduct have been unacceptable, the appropriate planning response is to consider whether or not those impacts can be addressed appropriately by alterations or additions to conditions of consent (Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 (Jonah)). If they cannot, only at that time do those impacts provide a basis for refusal; and

5. Finally, as the power to modify is to be regarded as beneficial and facultative, it is appropriate for the Court, in seeking to assess and determine a modification application, to explore what remedial measures might be able to be imposed (either by agreement between the experts; agreement between the parties; or imposition by the Court utilising the undoubted “amber light” approach powers available to it).

113. I am satisfied that the matters that are pressed by the Council in this ground are sufficiently capable of being dealt with by a new (and to be) revised Plan of Management as emerging from the concurrent evidence of Mr Mead, Mr Williams and Mr Daintry and the addition of the matters I have imposed, dealt with later in this decision, concerning the presence of, and patrolling activities for, a security guard at the site.

114. To the extent that Leading Senior Constable Ashton’s evidence canvasses the same ground as Mr Williams covers, I do not need to deal with it further. To the extent that the Leading Senior Constable’s evidence dealt with physical matters of layout, lighting and the like, I am satisfied that they are appropriately dealt with by the combination of a new Plan of Management and the security guard provisions I have determined are appropriate.

115. This ground fails.

Ground 2 – the Plan of Management

The broad role of plans of management

116. The court has published two planning principles dealing, in general terms, with the roles that plans of management play in the granting of development consents. The first planning principle was set out by Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 and was in the following terms (at [54]):

54)   In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:

1.   Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

2.   Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3.   Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

4.   Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

5.   Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

6.   Is the Management Plan to be enforced as a condition of consent?

7.   Does the Management Plan contain complaint management procedures?

8.   Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

117. This planning principle was subsequently revised in a decision given by Pearson C in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72], a decision which modified the decision in Renaldo Plus 3 as follows:

…. The sixth question in Renaldo asks whether there is a condition of consent requiring compliance with the Plan of Management. Such a condition assists in enforceability of the provisions of the Plan of Management. The analysis required by Renaldo assumes that the terms of the Plan of Management are known at the time of assessing whether a Plan of Management is appropriate for a particular use and situation. Requiring that the Plan of Management be annexed to the conditions of consent would also achieve certainty as to its terms, and accessibility to any member of the public. The sixth question in Renaldo should be re-worded to read:

Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent?

118. Those propositions are equally applicable, by analogy, in circumstances such as these where there is an existing Plan of Management that is applicable as a consequence of the 2010 decision of Brown C and where, as is now acknowledged by the Applicant:

1. that 2010 Plan of Management is inadequate; and

2. that a proposed new Plan of Management should be adopted to replace it after further refinement as discussed in this decision.

119. The adequacy or otherwise of the present proposed new Plan of Management and what might be done to address its shortcomings is discussed below.

The draft Plan of Management.

120. Mr Daintry had prepared a draft new Plan of Management, a plan that had undergone a deal of revision after Mr Daintry's consideration of material contained in the expert witness statements of Mr Mead and Mr Williams and as a consequence of his joint expert conferencing with them.

121. As is customarily the position in merit proceedings in the Court when issues of the adequacy of a Plan of Management are involved, a deal of the time of the concurrent evidence of Mr Mead and Mr Williams, on one hand, and Mr Daintry, on the other, was devoted to the question of what improvements might be required to be made to the proposed Plan of Management. This course was followed, not in anticipation that an improved Plan of Management would cause the Council to agree to my approval of the proposal, but on the basis that, if a further trial period were to be the result of these proceedings, the proposed Plan of Management should be the best possible to address such shortcomings of the proposal as were able to be covered by its terms.

122. During the course of the concurrent evidence given by Mr Mead, Mr Williams and Mr Daintry, there was extensive questioning and discussion of matters that were identified as deficiencies in the proposed Plan of Management.

123. First, amongst those criticisms was that made by both Mr Mead and Mr Williams that the proposed appending to the Plan of Management of a range of technical documents produced by external bodies would render the Plan of Management virtually incomprehensible. This was particularly the position in their opinion, given that, because of the ethnicity of those persons anticipated to be employed as sex workers at the premises, it was agreed by Mr Daintry that it would be necessary to translate the Plan of Management into both Mandarin and Cantonese. As a consequence, the inclusion of a range of technically-based appendices was completely inappropriate.

124. A single example is sufficient to understand the inappropriateness of the approach originally advocated by Mr Daintry. One of the documents proposed to be appended was a document that had been prepared, primarily for licensed premises, on preventative measures appropriate to be taken to avoid or deal with incidents of armed robbery at such premises. The document had been prepared by a group of interested organisations, including NSW Police, and ran to 13 pages.

125. The totality of the matters from this document, said by Mr Daintry to be relevant to this proposed brothel’s trading, comprised a little over one page of text (spread across two facing pages), dealing with money-handling in the premises and during transit to a bank or other external secure location.

126. It would be clearly inappropriate to translate the whole of that document into the two mandated languages, as the vast majority of it would be irrelevant and would not assist anybody who needed to read the confined elements that were relevant.

127. Further, the relevant portion of Mr Daintry's Plan of Management proposed that there be a cash-handling policy developed that was consistent with that set out in the document entitled “Armed Robbery Prevention”, but a policy that was not to be disclosed to the Council because of the risk that it might become public.

128. Mr Daintry conceded, when pressed on this point, that incorporating a number of the cash-handling provisions (the requirement for a time-lock safe, the combination of which was not to be known by any person employed on the premises on a regular basis, being but one example of this) and advertising the fact that such a safe had been installed might, in itself, act as a deterrent (as well as the prophylactic effect of the safe, itself, doing so).

129. The concurrent evidence by Mr Mead, Mr Williams and Mr Daintry (primarily the contributions by Mr Mead and Mr Daintry) led to agreements on a range of matters which, if incorporated in a revised Plan of Management, would significantly improve the nature of an operating regime that would be imposed if the brothel were to recommence trading under the terms of such a new Plan of Management. It is unnecessary, at this time, to note all the matters that were subject to agreement, but it is appropriate to record that, if I were to reach the conclusion (as I have) that recommencement of trading for a further trial period was appropriate, a revised, settled Plan of Management should be developed (including incorporating any matters determined by me in this decision relating to its terms or structure) and that that document should be translated into Mandarin and Cantonese.

130. The experts also agreed that, for individual classes of employee of the brothel, the relevant parts of the Plan of Management should also be extracted into simple instruction sheets applicable to their duties and responsibilities (with these to be made available to any new employee at the time they commence employment at the brothel). Those, too, would need to be translated into Mandarin and Cantonese.

131. I have also concluded that the necessary translations into Mandarin and Cantonese should be completed prior to any recommencement of trading of the brothel. In order to ensure that such translation is accurate, I propose to require that the translations that are to be provided shall be accompanied by an affidavit from a NATI-accredited translator as to their accuracy.

132. Although Mr Mead and Mr Williams accepted that such a Plan of Management would be well-founded and robust, it nonetheless remained their position that, even with such a plan, it could not provide appropriate support for permitting the brothel to recommence trading. I will return to this proposition after dealing with further matters raised by Dr Smith in his written submissions. In addition to the matters already traversed under this heading, several other matters were raised in Dr Smith’s written submissions. These were:

17.   In light of the evidence arising from the trial period and the significant reliance placed on the POM by Mr Daintry to mitigate impacts, Council submits that a single breach or small number of breaches of, for example, the POM’s access protocols, attendance of the security guard, or the cash handling procedures would create seriously unacceptable impacts. The Court would not be persuaded that those potential impacts can be appropriately managed by the PoM as strict compliance with the PoM would be required to minimise the impacts of the site constraints (see FOR EXAMPLE IN Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC 1272 at [82]) Accordingly the application should be refused.

18.   A further relevant principle from Renaldo is at [54]:

Point (2) “Do the requirements of the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?”. In this regard consistent with the oral evidence of Mr Willimans it would be unlikely that the Manager would be able to successfully attend to monitoring of the CCTV as well as all the other roles prescribed by the POM. In addition Council submits that in would be unreasonable to expect the receptionist to undertake the access protocols (which would otherwise be performed by the security guard when on duty).

Point (5) that “Can the people the subject of the Management Plan be reasonably expected to know if its requirements>” Both Mr Mead and Mr Williams are of the view that the volume and complexity of the POM is such that it is unlikely to be properly implement (see Exhibit 15 Second Joint Report at [1.15]).

19,   Finally, Council submits that the POM is significantly deficient in limiting the employment of a security guard to Friday-Saturday. As identified by Exhibit 10 the Second Supplementary Statement of Mr Williams at [26] crime is not limited to Friday-Saturday. The Applicant’s expert Ms Ryan concedes at page 4, fourth bullet point of Exhibit 17 the Joint Expert Report, that “Due to variability of patronage, it is not feasible to restrict the operation of a security guard to specific hours or days”. Accordingly, the Court would find that compliance with the POM proposed by the Applicant will not result in a sufficient reduction in impact to warrant approval of the application.

133. I turn, first, to the matters contained in [17] and [19] as they are linked. They raise common matters of generality and specificity.

134. Dr Smith refers to the decision of Pearson C in Prajna Monastery Australia Inc v Georges River Council [2016] NSWLEC 1272 as providing a foundation for a general rejection of this proposed Plan of Management. It is, however, for my analysis, appropriate to commence at an earlier point in the Commissioner’s decision where, at [76], she noted that an expert witness questioned whether the proposed Plan of Management in that case was reasonable; enforceable; practical; or workable. It was in that context that the learned Commissioner then turned, having accepted that a holder of consent would comply with the conditions of that consent, to note that:

The critical issue in the context of this appeal is whether absolute compliance with the POM is required to achieve an acceptable outcome (Renaldo [4]).

135. The Commissioner’s conclusion, at [82], was that, with respect to several matters, strict compliance with the POM would be required and that she was not persuaded that the relevant potential impacts could be appropriately managed by the POM. There are two observations to be made in that regard. The first is that the detailed prescriptive nature of the Plan of Management that will be mandated for this brothel when it recommences trading will require compliance, as is the legal presumption, by the operator of the brothel. However, failure to observe provisions of the Plan of Management may be minor or technical (and potentially warranting either a warning or the issuing of a penalty notice) or may warrant more substantive enforcement measures. Several aspects of the Plan of Management, if breached, are far more likely to fall within the second category rather than the first. However, matters such as the employment and method of operation of a security guard (being of a more serious nature and of the specific complaint in [19] in Dr Smith's submissions) can be sufficiently detailed in their prescription in the Plan of Management (and will be, as later set out in this decision) that there can be sufficient confidence that, on the presumption that the provisions of the Plan of Management will be complied with, that the potential impacts will be appropriately mitigated. I am satisfied that, contra Prajna as earlier noted, the Plan of Management that will apply to these premises will be reasonable; enforceable; practical; and workable.

136. With respect to the two specific matters raised by Dr Smith, in [18], I note that the first element is adequately addressed by my determination of issues, as later set out, as to the hours and days of employment of a security guard at the premises, whilst the second matter was addressed during the course of the joint expert evidence and has been expressly addressed and its resolution set out earlier in this portion of my decision.

137. This ground fails.

Ground 3 – The planning controls

Introduction

138. At the time of the 2010 determination by Brown C, the planning controls earlier set out, contained in the LEP and the DCP, were not in force. Although changes to the DCP controls were in contemplation at that time, the Commissioner expressly stated that he was not having regard to them in his determination of that development application (I V Trading at [11]).

139. I have earlier set out why it is appropriate to have regard to the current controls, for the purposes of consideration of this modification application, as they arise for consideration under the rubric of the public interest (assuming that Mr Gadiel’s submission that they are not strictly applicable, as this is a modification application and not a development application, was to be accepted).

205. The obvious long-term objective of the Applicant is to seek, at the end of a further trial period, an enuring consent to permit the brothel to operate on an ongoing basis without limit. By implication, the longer the trial period, on the assumption that the Plan of Management arising out of these proceedings operates effectively in the fashion anticipated by Mr Daintry (particularly with the agreed and imposed revisions), the operation during the trial period will provide a sufficiently substantial basis for the Council (or if not the Council, the Court, whether on appeal or direct application) to be satisfied that the granting of such an enuring consent was appropriate.

206. There are three matters which, on fine balance, lead me to conclude that a two-year trial period would be appropriate rather than a three-year one.

1. First, on this point, some weight should be given to the terms of the DCP, even though, strictly, it applies only to development applications and proposes a two-year termination point for such new approvals. This guidance, in the current version of the Council’s planning controls, was not available to be taken into account by Brown C when he determined that a three-year trial period was appropriate when he dealt with these premises.

2. Second, to some extent, the applicant has had the advantage of portion of the trial period granted by Brown C. Even though, as is now conceded (by implication, if not expressly) the Plan of Management that operated during the trial period following Brown C's determination was significantly inadequate, nonetheless, there was, even on Mr Williams evidence, some modest improvement in outcomes after the police intervention that led to the Applicant becoming the operator. Such improvement is not only a factor relevant to my consideration in these proceedings but will also be a factor (at least to some extent) should some further operating period for the brothel require to be considered in the future.

3. Finally, given the comparatively limited and modest capital investment that will be necessary to give effect to matters arising from the Plan of Management that will be the outcome of these proceedings, I do not consider that there is any cost imposed unreasonableness in limiting the further trial period to 2 years from the date when the brothel recommences trading.

Employment of the security guard

Introduction

209. As I have earlier noted, the dispute between the parties is as to whether a security guard should be required to be employed at the premises whilstever the brothel is trading or whether security guard should only be required to be present on a more limited basis. The “limited basis” contended by the Applicant to be appropriate is that the security guard should be employed during the late evening and early hours of the morning (for a maximum of an eight-hour shift) on the peak business nights anticipated when the brothel recommences trading (those nights being Friday and Saturday nights between 8pm and 5am).

210. In this regard, it is to be noted that there is no relevant express provision in either the LEP or the DCP dealing with this issue. As a consequence, the matter falls to be determined after having regard to what can be gleaned from the available evidence. In this regard, I consider it appropriate to have regard to:

• the limited extent of the evidence given by Mr Williams that I have accepted is relevant in these proceedings;

• those matters in the vicinity of the premises that were pointed out to me during the course of the site inspection and are relevant on this issue;

• the necessity to provide a safe work environment for the sex workers engaged at the brothel in circumstances where, to the maximum extent possible, risk to those women should be eliminated;

• the role designated for the security guard, when on duty, set out in the draft Plan of Management for the premises prepared by Mr Daintry (in circumstances where that portion of the Plan of Management was not needed to be revised, significantly, as a consequence of the concurrent evidence given by Mr Mead, Mr Williams and Mr Daintry);

• balancing economic costs of provision of security services with the risks sought to be addressed by the provision of such services; and

• the extent to which the current operative development consents for the other brothels within or near the enclave mandate any provision of security guard services, the requirements in that regard (if any).

211. At this point, I should observe that, although there was not extensive discussion of the role to be performed by a security guard, it remains open to me to consider to what extent (if any) I might wish to impose additional specificity with respect to the role of the security guard, whilstever such a guard is present at the premises. Although I will return to this point later in this section in more detail, I note that the draft Plan of Management prepared by Mr Daintry does not mandate any external patrolling, let alone frequency for it, nor does it specify what should be the route of any external patrolling that might be required.

Hours to be required

212. The position with respect to security guard requirements for each of the other permitted brothels within or near the enclave are set out in the following table:

Premises	Number of sex workers	Times of operation	Level of security
10 Marsh Street Clyde	12 workers (6 workers between 7.00 am and 6.00 pm Monday to Friday)	24 hours, 7 days a week	No requirement for a security guard
21 Berry Street, Clyde	2 workers	10.00 am to 11.00 pm	A requirement for a single person in addition to the two massage workers, being a ‘receptionist/ security’
32 Berry Street, Clyde	2 workers	9.30 am to 12.00 am	No guard required
7 Cowper Street, Granville	5 workers	Monday to Friday 10.00 am to 3.00 am Saturday to Sunday, public holidays 10.00 am to 4.00 am	No requirement for a security guard
26 George Street, Granville	6 workers	24 hours, 7 days a week	No requirement for a security guard
45 George Street, Clyde	9 workers between 5.30 pm and 8.30 am and 8 workers between 8.30 am and 5.30 pm	24 hours, 7 days a week	Security guard on the premises 9.00 pm to 5.00 am.

213. It is self-evident from the above table that there is a wide disparity in the requirements that have been imposed by the Council in development consent conditions for brothel approvals in the enclave. It is clear that the broader policy position adopted by the Council (at least for this enclave) has been to tighten the security requirements over time.

214. It is also settled, as a consequence of 1643Pittwater Road v Pittwater Council [2004] NSWLEC 685, that if there were to be some future modification application to any of the development consents for these existing approved brothels, the Council could revisit the question of security at such premises should it choose to do so at that time.

215. Whilst I do not accept the submissions made by Mr Gadiel as to the economic costs that would be occasioned if the brothel were required to have a security guard present throughout its actual trading hours (whatever those hours might be within the permitted span of 6.00 pm until 7.00 am the following morning, seven days a week), I do accept his submission that it is appropriate to regard a standard security guard shift as being one of eight hours’ duration.

216. This fact, taken in conjunction with the limited acceptable evidence from Mr Williams and Leading Senior Constable Ashton on what might be the relevant risk profile during those operating hours, leads me to conclude that that risk period, doing as best I can on the limited evidence, should be regarded as being an eight-hour period between 9.00 pm and 5.00 am on any evening when the brothel is trading. This, coincidently, happens also to reflect the period of a standard security guard shift. It also coincides with the time period for security at the only other brothel where this is mandated. As a consequence, I am satisfied that the period for which a security guard should be present would appropriately be 9.00 pm until 5.00 am the following morning.

217. I now turn to the question of the frequency with which the presence of a security guard should be mandated for these premises.

218. Whilst I acknowledge, in this context, that there may well be a higher patron frequency at the brothel on the nights accepted as appropriate for a security presence by the Applicant (Friday and Saturday nights), it is appropriate to have regard to the vulnerability of the sex workers who will be employed at the premises, vulnerability inherent by the nature of their occupation.

219. Whilst I have earlier rejected the submission by Dr Smith that I should adopt a precautionary approach as a basis for refusal to permit recommencement of trading of the brothel, I do consider that such an approach is appropriate to be applied in order to eliminate, as much as is possible, the risk exposure to those sex workers employed at the premises. Whilst, in all likelihood such a security presence will not entirely eliminate those risks, it is reasonable to assume that such a security presence during the potentially heightened risk periods of 9.00 pm to 5.00 am will provide a visible deterrent.

220. As consequence, I have concluded that it would be appropriate to require the employment of a security guard (holding a Class 1 C security guard’s licence as envisaged by Mr Daintry’s draft Plan of Management) at all times between 9.00 pm and 5.00 am when the brothel is trading. Such a precautionary approach mandates that such requirements are appropriate to be imposed on a risk assessment and avoidance basis.

Patrolling by the security guard

221. I now turn to consider whether there should be an external patrolling requirement mandated for the security guard and, if so, what should be that patrolling requirement.

222. It is well-established from cases which have come before the Court, where there have been requirements for employment of security guards, that such security guards should be visible (including wearing a fluoro vest identifying the fact that the person is a security guard) and undertake a degree of external patrolling of the premises involved (and sometimes on a wider basis).

223. In this case, in light of the matters pointed out during the course of the site inspection, it is appropriate to require that there be active external security patrolling by walking the length of the frontage of the industrial unit complex within which the premises are located (from the access doors to the fast-food/convenience store at the eastern end of the complex along the southern footpath of Sutherland Street to the western boundary of the industrial unit complex within which the site is located).

224. The patrolling path should commence with the security guard leaving the door of the premises, turning to the right and following the façade of the complex within the car park and, at the north-eastern corner of the car park, turning to the east along Sutherland Street to the access doors to the fast-food/convenience store; turning to walk along the southern footpath of Sutherland Street to the western boundary of the complex within which the site is located; and then turning to walk along that footpath until the eastern façade of the undercroft area is reached, to return to the entrance door of the brothel.

225. Such patrolling is to be mandated in the conditions of consent and set out in the Plan of Management, and is to be required to occur at 20-minute intervals during the period when the security guard will be on duty. The guard is to wear a fluoro vest saying “Security” whilst on duty.

226. The security guard is to be provided, by the brothel, with a sufficiently powerful, rechargeable torch to enable the security guard to provide adequate surveillance of vehicles and doorway recesses during the course of the guard’s patrolling. It is to be the responsibility of the manager to ensure that the charging unit is to be kept in the reception area and that the torch is to be provided to the security guard in a fully charged state at the commencement of each shift. It is also to be the responsibility of the manager to ensure that the torch is put in its charging cradle between each security guard patrolling session to ensure that the torch remains fully charged for each patrol.

Translation of and extracts from the new Plan of Management

227. I have also concluded that the necessary translations into Mandarin and Cantonese should be completed prior to any recommencement of trading of the brothel. This, as earlier noted, is to include the shorter documents to set out the roles of the various classes of employee at the brothel. In order to ensure that such translation is accurate, I propose to require that the translations that are to be provided shall be accompanied by an affidavit from a NATI-accredited translator as to their accuracy.

Conclusion

228. For the reasons I have set out, I am satisfied that there was sufficient improvement in the operation of the brothel under the management of the Applicant during the period since late 2014 until brothel operations were suspended in early 2016 that, when coupled with the physical and operational improvements that will flow from the implementation of a new Plan of Management based on that prepared by Mr Daintry but to be revised and tightened, extensively, based on the agreements during the oral evidence of Mr Mead, Mr Williams and Mr Daintry and matters required by this decision, it is appropriate to permit the brothel to reopen for a further trial period.

229. As I have explained, none of the matters pressed by the Council in opposition to such a further trial period provide, either individually or cumulatively, any sufficient basis to found absolute rejection of such a trial period. As also earlier explained, however, there is no magic in a three-year trial and, in circumstances where it is appropriate to have regard to the terms of the DCP, generally, in my assessment of this application, the provision in the DCP proposing that the maximum consent and, hence, here trial, period should be two years is entitled to appropriate weight.

230. Absent any compelling reason why a three-year trial should be permitted rather than the more limited period proposed by the DCP, I am satisfied that it is appropriate to adopt two years for the purposes of a further trial.

231. As a consequence, the appropriate approach to adopt is to modify the existing consent in a fashion that permits a further modification application to be made by an Applicant within the permitted further trial period, so that, at the election of the then Applicant, consent could be sought from the Council or the Court for either a further trial period or for an ongoing and enuring consent.

232. That condition should contain, as also earlier discussed, a transitionary provision so that if such an application is made, but not determined by the Council, or, if refused by the Council, an appeal is finally determined by the Court, the brothel can continue to trade during that prefinalisation period.

233. Such a provision, when coupled with the ability of the Council to use Order 15 in the Table of Orders contained in s 121B of the EP&A Act and/or enforcement proceedings, provides an appropriate basis for permitting the ongoing trading of the brothel at the conclusion of any trial period whilst any further application remained to be determined, whether by the Council or by the Court on appeal.

234. To progress the matter further, it is necessary to provide a period of time within which further revision of the proposed Plan of Management can be effected. Such revision will need, as earlier discussed, to address not only the addition of the various further measures agreed as appropriate to be incorporated but will also need to summarise the relevant parts of the various documents originally proposed by Mr Daintry to form appendices to the Plan of Management and which, it was also agreed, were more appropriate to have the relevant elements extracted and incorporated in the Plan of Management, rather than importing a very large volume of irrelevant verbiage into the Plan of Management and, hence, into the conditions of development consent.

235. The changes mandated by this decision will also need to be incorporated.

236. The additional short summary documents identified for the information of persons performing the specific functions identified during the course of the expert evidence will also need to be prepared.

237. I have also considered the second of the operational matters in contention, that being on what days and for how long should the modified conditions of consent require the presence of a security guard at the site after the brothel recommences trading. As part of that consideration, I have also turned my mind to whether there should be mandated external patrolling by such security guard when present and, if so, where and at what frequency that patrolling should take place.

238. On these security guard issues, I have reached the following conclusions, conclusions to be incorporated, relevantly, in the modified conditions of consent and/or Plan of Management for the brothel (as appropriate):

• a security guard is to be present at the site on each day when the brothel is trading and is to be identifiable, readily, whilst on duty;

• the hours during which that security guard is to be present are 9.00 pm until 5.00 am the following morning; and

• the security guard should undertake a short, external patrol every 20 minutes along a defined route covering the Sutherland Street frontage and external elements of the complex where the brothel is located.

239. The external patrolling is to be conducted in order to provide both a limited method of addressing some of the external issues pressed by Mr Williams and Leading Senior Constable Ashton and also to provide a visible demonstration of the presence of the security guard as a deterrence element.

240. I have reached these conclusions concerning the necessity for, and the manner of operation of, a security guard for a variety of reasons, the principal two of which are:

241. First, the deterrent potential concerning external, antisocial behaviour in the vicinity of the site; and

242. Second, the necessity to eliminate, as much as is possible, any risk to the vulnerable women who will be employed as sex workers at the brothel.

243. Finally, with respect to the Plan of Management and the shorter documents, these will also need to be translated into Cantonese and Mandarin prior to the recommencement of trading. All translations are to be certified by a NATI-accredited translator.

244. It is, therefore, appropriate to allow a period of time for those drafting matters to be attended to, as well as for the various physical adjustments, both internal and external, to be undertaken at the premises. The further trial period should not commence to run until those matters have been dealt with to the satisfaction of the Council, or, if the Council is not satisfied, to my satisfaction.

Directions – Matter No 2016/151482

245. It is, therefore, appropriate to give directions to enable Matter No 2016/151482 to be progressed. Those directions are as follows:

1. The Applicant is to file and serve:

1. A revised settled Plan of Management reflective of this decision and matters agreed to during the expert evidence of Mr Mead, Mr Williams and Mr Daintry;

2. Settled documents based on the Plan of Management setting out the responsibilities arising under the Plan of Management for each of the following:

1. the manager who will be on site during any hours of operation of the brothel;

2. the receptionist who will be on-site during any hours of operation of the brothel;

3. the security guard who will be present during the hours specified as appropriate whilst the brothel is operating; and

4. sex workers providing services at the brothel during its hours of operation

by 4.30 pm on Tuesday 13 December 2016.

2. The Respondent is to file revised settled orders and conditions of consent in a form consistent with the requirements of the Court for the approval of development consent modification applications (including the revised consolidated conditions of consent mandated by those requirements), with that filing to be accompanied by the provision of an electronic copy of these documents, in Microsoft Word format, by e-mail to my Associate;

3. The Applicant is to file and serve copies of the documents required by (1) translated into Mandarin and Cantonese with an affidavit from an NATI-accredited translator confirming that the Mandarin and Cantonese translations are accurate;

4. The documents required by (2) and (3) are to be provided by 4.30 pm on 13 December 2016;

5. Matter No 2016/151482 is listed for mention before me at 9.00 am on 15 December 2016;

6. If Directions (1), (2), (3) and (4) are complied with, I will make orders in chambers to finalise the matter and will vacate the mention in (5);

7. In the event of any dispute between the parties as to the terms of the documents provided for in (1) and/or (2), the parties are to relist the matter before me at 8.30 am on two days’ notice for a short hearing of no more than 1.5 hours’ duration.

Orders – Matter No 2016/147936

246. As discussed during the course the proceedings, to dispose of Matter No 2016/147936 (the short-term recommencement of trading proceedings), the orders of the Court are:

1. The appeal is dismissed; and

2. Modification application to permit the temporary further operating period for a brothel at Unit 7, 1-3 Sutherland Street Clyde, pending determination of the outcome of proceedings in Matter No 2016/151482 is refused.

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Appendix 1 - TL - 25 Nov 16 (104 KB, pdf)

Decision last updated: 28 November 2016