Uky Huang v Parramatta City Council

[2009] NSWLEC 1331

Land and Environment Court

of New South Wales

CITATION:	Uky Huang v Parramatta City Council [2009] NSWLEC 1331
PARTIES:	APPLICANT Uky Huang RESPONDENT Parramatta City Council
FILE NUMBER(S):	10085 of 2009
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- alterations and use of an existing building as a brothel - whether locational requirement a prohibition or a development standard - adequate and safe off street parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001 State Environmental Planning Policy No 1
CASES CITED:	Vassallo v Blacktown City Council (1999) NSWLEC 267 Weynton v Rockdale City Council (1999) 106 LGERA 213 Marpet Enterprises v Eurobodalla Shire Council (2000) 108 LGERA 432 North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) [1990] 71 LGR 222 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] 150 LGERA 130 Agostino v Penrith City Council [2009] NSWLEC 76 Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827 Martyn v Hornsby Shire Council (2004) NSWLEC 614 Zhang v Parramatta City Council [2004] NSWLEC 199
DATES OF HEARING:	27, 28 July 2009
DATE OF JUDGMENT:	8 October 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle, barrister AGENTS Australian Town Planning Consultants 2 Pty Ltd RESPONDENT Mr P Marincowitz, solicitor SOLICITORS DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 October 2009

10085 of 2009 Uky Huang v Parramatta City Council

JUDGMENT

1 This is an appeal against the refusal by Parramatta Council (the council) of a development application (DA5/2008) under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and use of an existing building as a brothel at 1 Nirvana Street, Pendle Hill (the site).

2 The key issues in dispute between the parties are whether:

1. i. the proposal is prohibited under cl 24(1)(a) of Parramatta Local Environmental Plan 2001 (LEP 2001) as it is within 200m of residences.
2. ii. adequate and safe off street parking is provided to meet the needs of the development.

Site and its locality

3 The site is occupied by a two storey commercial building set back from Nirvana Street with at grade parking. It is located in a cul-de-sac, which contains light industrial uses including smash repairers and a meat distributor.

4 The surrounding area is light industrial with the closest residential use located approximately 140 m from the site. Other uses in the area include Pendle Hill Primary School and High School, an Anglican Church and another brothel located near the corner of Nirvana Street and Ballandella Road (1/112 Ballandella Road).

5 Pendle Hill railway station is within walking distance and the Pendle Hill Tavern is located nearby.

Statutory Controls

6 The site is zoned Employment 4 under LEP 2001. Brothels are permissible with consent in the zone. Council contends that proposal is prohibited under cl 24(1)(a), as it is located within 200m of residences and this is not a development standard and cannot be varied. The applicant has submitted an objection under State Environmental Planning Policy No 1- Development Standards on the basis that cl 24(1)(a) is a development standard and that compliance is unreasonable and unnecessary in the circumstances of the case. The different submissions are discussed further.

7 Parramatta Development Control Plan 2005 (the DCP) is also relevant.

Evidence

8 The hearing commenced on site and the Court heard from residents who objected to the proposed brothel as being inappropriate for the area. They stated that Ballandella Road was used by school children walking to and from Pendle Hill Public School and that children also used the businesses in Nirvana Street. They were also concerned about the increase in traffic and inadequate parking arrangements that currently exist in the street, which will be exacerbated by the proposal. The adjoining owner was particularly concerned about the impacts as his business including loss of customers, increased insurance premiums, impact on staff (including their children who visited on occassion) and young apprentices.

9 The Court heard expert evidence:

For the Council:
• Mr Mamouzelos, crime and security
• Ms D Fernandez, planning
• Mr R Searle, traffic
For the Applicant:
• Ms P Crofts, crime and security
• Mr L Winnacott, planning
• Ms E Marshall-McClelland, traffic

10 Senior Constable G Neal provided evidence on behalf of the NSW Police. He gave concurrent evidence with Ms Crofts and Mr Mamouzelos.

11 Ms Fernandez and Mr Winnacott agreed that the brothel is not within view of the residential area, Toongabbie Hill High School, Toongabbie Primary school and the church (located at the corner of Binnalong Street and Burrabogee Road). They also agreed that the brothel was not “near” any church, hospital, community facility or public open space or from any other place regularly frequented by children for recreational or cultural activities. Toongabbie Hill High School and the church being located more than 500m from the brothel.

12 However, Ms Fernandez considered the brothel to be “near” Toongabbie Primary school, which is located 497.1m, measured in a straight line from the northern rear boundary of the brothel. Mr Winnacott held the contrary view and considered that the separation distance between the school and the brothel would limit any interaction between these uses and not result in any adverse amenity impacts. Further, he did not consider school children passing along Ballandella Road would result in conflict, particularly as the brothel is not visible from this street. I accept Mr Winnicott’s evidence, so the proposal therefore complies with cl 24(1)(b) of LEP 2001.

Is cl 24(1)(a) a prohibition or a development Standard?

13 Clause 24 of LEP 2001 provides:

24 Brothels
(1) Regardless of any other provision of this plan, premises shall not be erected or used for the purpose of a brothel where they are located:
(a) on any land zoned residential or within 200 metres (measured from the boundary of the allotment upon which the brothel is proposed) of residences or any land zoned residential, or
(b) near or within view from any church, hospital, school, community facility or public open space or from any other place regularly frequented by children for recreational or cultural activities, or
(c) within 50 metres (measured from the boundary of the allotment upon which the brothel is proposed) of a public transport facility, being a railway station entrance, bus stop, taxi rank, ferry terminal or the like, or
(d) in the following areas of the 4 Employment Zone, as shown marked with diagonal hatching on the zoning map:
(i) Wellington Road, South Granville,
(ii) Everley Road, South Granville,
(iii) Factory Street, Clyde,
(iv) Edgar Buggy Street, Guildford,
(v) Ruby Street, Guildford,
(vi) Cowper Street, Granville,
(vii) Ferndell Street, South Granville.

(2) In determining an application to carry out development for the purpose of a brothel, the consent authority must consider the following matters:
(a) whether the operation of the brothel 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 brothel will be likely to interfere with the amenity of the neighbourhood,
(c) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood involving similar hours of operation,
(d) any other environmental planning instruments that the consent authority considers relevant,
(e) whether any signage related to the premises will be of a size, shape and content that interferes with the amenity of the locality,
(f) whether part of the brothel, other than an access corridor to the brothel, is visible from a public place or shopping centre.

14 Ms Fernandez and Mr Winnacott agreed that the brothel is 140.8m when measured from the northern rear boundary of the site to the southern boundary of the residential zone of Burrabogee Road measured in a straight line. The proposal therefore does not comply with cl 24(1)(a). The experts disagreed whether this is a prohibition or a standard. The experts also disagreed, if cl 24(1)(a) is a standard, whether the SEPP 1 objection is well founded.

15 Before moving to the merits of the SEPP 1 objection to cl 24(1)(a) it is first necessary to address the question of whether cl 24(1)(a) is a prohibition or a standard. If it is the latter then SEPP 1 enables consent to be granted if compliance with the development standard is unreasonable or unnecessary given the circumstances of the case. Mr Doyle, for the applicant, submits that cl 24(1)(a) is a development standard and Mr Marincowitz, for the council, submits that it is not a development standard but a prohibition.

16 Clause 4 of SEPP 1 provides that “development standard” has the same meaning as in s 4(1) of the Act which states:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:
(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work…

17 Mr Doyle submits that:

if Clause 24(1)(a) and (b) are found to be "requirements ... in respect of ... the distance of any land ... from any specified point" or "requirements ... in respect of ... the location ... of a building or work", then it must be held to constitute a development standard within the meaning of SEPP1. It can be varied under that instrument in this case because a written SEPP 1 objection has been lodged. If that much is accepted, it must follow that Clause 24 does not impose a prohibition in this case.

18 Mr Doyle referred to decisions of the Court to support his submission. He submits that these cases address similar locational clauses relating to brothels and the question of whether they are a prohibition or a development standard.

19 In Vassallo v Blacktown City Council (1999) NSWLEC 267 Pearlman CJ held at [23] that a clause in Blacktown LEP which specified a minimum distance from an arterial road within which brothels are to be located to be a development standard because:

It sets, as a standard against which the development is to be measured, a requirement that the development be located, sited or distanced not less than 100 m from an arterial road or a local road. It does not prohibit the use of identified land for a purpose which would otherwise be permissible under the zoning table.

20 In Weynton v Rockdale City Council (1999) 106 LGERA 213 Pearlman CJ considered a similar locational provision and found at [33]:

"... cl 46B(1)(b) sets a location, siting or distance standard against which development for the purposes of a brothel is to be measured, that is, it provides that a brothel must not be located or sited "within 50 m of land used for residential purposes" or "near or within view from any church or ... place regularly frequented by children for recreational or cultural
activities". These matters relate, not to whether the development of a brothel on the site may be carried out at all, but to an aspect of that development when it is being carried out. It is therefore a development standard.

21 In Marpet Enterprises v Eurobodalla Shire Council (2000) 108 LGERA 432, Bignold J considered a similar provision and found at [12]:

In my opinion, the purpose of cI 31(1)(b) of the LEP is the specification of locational constraints on the development of a brothel on land within Zone No 4(a) Industrial where such constraints are based upon a spatial or geographic relationship (physical proximity or visibility) between (i) the site of such proposed brothel development; and (ii) the existence of any of the enumerated types of development (eg a church).

22 Mr Marincowitz refers to a number of authorities including North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) [1990] 71 LGR 222, Blue Mountains City Council v Laurence Browning Pty Ltd [2006] 150 LGERA 130 and Agostino v Penrith City Council [2009] NSWLEC 76, which state that in dealing with the question of a prohibition versus a development standard each case must depend upon the particular provisions of the LEP in issue so that comparisons with similar provisions in other cases is of little assistance.

23 Further, Mr Marincowitz submits that the cases referred to by Mr Doyle are prior to the decision of the Court of Appeal in Browning and that an application of the principles in Browning would lead to a conclusion that cl 24(1)(a) is a prohibition not a development standard. He makes this submission on the basis that cl 24(1)(a) must be considered in the context of the LEP as a whole and that it establishes a zoning criterion. He refers to Browning where at [79] to [81] Basten JA states:

79 if an LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. Self-evidently, the drafter of an LEP may be able to achieve the desired result either by a zoning provision, or by a development standard: the way in which it is done will be important, because of the need to distinguish a development standard from other forms of prohibition. A legitimate concern about substance and form should not be allowed to blur the distinction between result and means. 80 The approach required by the definition, so understood, places considerable weight on the degree of specificity with which the proposed development is defined. If the proposed development is very broadly defined, even its essential elements will become external standards. On the other hand, to include within the identification of the proposed development all aspects of the proposed use of the land is likely to incorporate what should properly be seen as aspects regulated by development standards, because external to the essential elements of the development. The correct approach depends on the terms of the planning instrument in the particular case. Thus, if an LEP distinguishes by zoning between residential flats and dwelling houses, an application to erect a block of flats should not be treated simply as an application to erect a building, or an essential distinction between a dwelling house and a block of flats will be obscured. The reason why that distinction is important (on the present hypothesis) is that the relevant LEP distinguishes between a dwelling house and residential flats for zoning purposes. 81 The appropriate course is said to depend on what are the essential elements of a development. The use of the (non-statutory) phrase “essential element” seems to have gained acceptance as a reflection of the principle set out above: see Poynting at [36] (Giles JA). So understood, it is a convenient label. It is not disputed that classifications required for the purposes of zoning define essential elements of the development. However, it does not follow that only those elements which are included in the zoning table and map which form part of the usual LEP, are to be included as essential elements of the development. There may be other elements in a particular LEP which should properly be treated in the same way as the zoning table. Whether a particular requirement will so qualify in a particular case will depend not only on the nature of the requirement, but also on the drafting of the LEP.

24 Mr Marincowitz submits that cl 24 deals specifically with Brothels and cl 24(1) states that Regardless of any other provisions of this plan, premises shall not be erected or used for the purpose of a brothel where they are located :…. He submits that this permits only brothels of a particular kind. Therefore, as the proposal does not meet the zoning criterion in cl 24(1)(a), it acts as a prohibition not as a standard.

25 Mr Marincowitz supports this submission by reference to LEP 2001 (Amendment No 13) which was gazetted on 1 June 2007 and introduced the current wording of cl 24(1)(a) as well as cl 24(1)(c) and (d) and cl 24(2)(e) and (f).

26 The aims of Amendment 13 are relevantly:

(a) to clarify controls on, and increase, the distance provided for in that plan between brothels and residential areas,
(b) to prohibit brothels in the 3A Centre Business Zone and in certain areas of the 4 Employment Zone.

27 Mr Marincowitz submits that aim (b) includes cl 24(1)(a) and is therefore intended as a prohibition whereas Mr Doyle submits that aim (a) refers to cl 24(1)(a) and is therefore a clarification of a control, which is a development standard. Mr Doyle submits that aim (b) refers to the specific streets in the 4 Employment Zone identified in cl 24(1)(d) and acknowledges that brothels could be prohibited in these streets.

Findings

28 In Browning, Ipp JA reviews the tests undertaken to determine the “enigmatic quagmire” of what is a development standard and what is a prohibition. He states at [19] and [20]:

19 Another test that has found favour depends on whether zoning criteria are applicable. If the relevant provision is a zoning criterion, and if the developer’s proposal contravenes that criterion (irrespective of how “development” is defined), the provision is regarded as an outright prohibition and not a standard. This, in essence, is the basis of the decision in Woollahra Municipal Council v Carr (1987) 62 LGRA 263 and is also the basis of the reasoning of Basten JA and (partly) that of Tobias JA in this case. 20 The zoning criterion test is a beacon of certainty and simplicity in the Wonderland of s 4(1), inhabited as it is by the shifting sands of words used contrary to their ordinary meaning, indeterminate abstract concepts and vague, complex notions that are incapable of ready resolution.

29 To establish whether cl 24(1)(a) meets the zoning criterion test it is necessary to examine it within the context of LEP 2001 as a whole. The term “brothel” is separately defined in LEP 2001 as:

Brothel means premises habitually used for the purpose of prostitution or that are designed for that purpose. Premises may constitute a brothel even though used by only one prostitute for the purposes of prostitution.

30 Clause 16 of LEP 2001 provides:

16 What development is allowed or prohibited by zoning?
(1) For land within each zone, the Table to this clause identifies the development that:
(a) may be carried out without development consent, and
(b) may be carried out only with development consent, and
(c) is prohibited.
(2) The Table to this clause also states the zone objectives for each zone.
(3) Consent must not be granted to the carrying out of development on land to which this plan applies, unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

31 The "zoning table" provides:

(a) Zone objectives;
(b) The method of identifying the zone on the zoning map;
(c) Development which "does not require consent" and is accordingly exempt development;
(d) Development that is "allowed only with consent"; and
(e) "Prohibited development" .

32 In the Employment 4 zone "brothel' is specifically identified as "development allowed only with consent". Brothel is not identified as a permissible use in the residential or commercial zones and, as an innominate use it is prohibited.

33 Clause 24 refers specifically to Brothels. Amendment 13 introduced cl 24(1)(a) and other subclauses. The specific aims of this amendment, which was made after Browning, include:

a) to clarify controls on, and increase, the distance provided for in that plan between brothels and residential areas,

34 I accept Mr Doyle’s submission that this refers to cl 24(1)(a) and is a provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development. It is therefore a development standard that specifies locational aspects for the development of brothels which are permissible within the 4 Employment Zone.

35 Browning has reviewed the various approaches to the question of a prohibition versus a development standard and stated that the zoning criterion test is a beacon of certainty and simplicity.

36 In Vassallo, Pearlman CJ considered a similar clause (cl 42A(1)(d) in Blacktown Local Environmental Plan 1988) which provides:

42A(1) Despite any other provision of this plan, development for the purpose of a brothel must not be carried out if the relevant premises are:
(a)….
(b)….
(c)….
(d) within 100 metres from a road zoned Special Uses - Arterial Road and Arterial Road Widening or Special Uses - Local Road and Local Road Widening.

37 Her Honour did not accept the proposition that the words Despite any other provision of this plan is a land use or “zoning” requirement and therefore a prohibition. Rather Her Honour stated that the proper approach is to consider if the provision relates “to whether development may be carried out at all, or whether it relates to what occurs in the carrying out of the development". Her Honour refers to Mayoh where Mahony JA discussed the meaning of the definition of “development standards” at p232 as:

If the definition is to be construed according to its terms, three things may be said. First, the definition applies, in the first instance, only to provisions which are “provisions … in relation to the carrying out of development”. Therefore that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed. And the requirements or standards are to be those fixed “in respect of
that development.

Secondly, the use of the phrase “requirements are specified or standards are fixed” proves some (though, of course, not conclusive) support for the view that that with which the definition deals is the details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all.

And, thirdly, the matters detailed in subpars (a) to (n) of the definition, in so far as a pattern can be seen from them, provide further support for this view …. They deal, for example, with the “siting” of a … building which is to be erected on the land and “the distance of” relevant things from any specified point.

38 Her Honour also refers to p 236 in Mayoh, where Clarke JA states that there is “… a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development”.

39 Her Honour then concludes at [23] that:

23. Having regard to all these matters, I have formed the opinion that cl 42A(1)(d) is a development standard. It sets, as a standard against which the development is to be measured, a requirement that the development be located, sited or distanced not less than 100 m from an arterial road or a local road. It does not prohibit the use of identified land for a purpose which would otherwise be permissible under the zoning table (cf Clarke JA in North Sydney Council v Mayoh at p 235), that is, it is not a provision relating to whether development may be carried out at all. Rather, it operates to set a standard in relation to the siting, or location, or distance from a specified point of the proposed development. These particular matters relate, not to whether the development may be carried out at all, but to an aspect of the development when it is being carried out.

40 While reference to different provisions in other cases can be of limited assistance, I am satisfied that there is no reason not to follow the reasoning of Pearlman CJ in Vassallo or that I should reach a different conclusion.

41 In reaching this conclusion I have also taken a common sense approach to the interpretation of cl 24(1)(a). Exhibit F illustrates the area in this part of the 4 Employment Zone which meets the 200m requirement in cl 24(1)(a). It is a very small area and would effectively prohibit brothels within this part of the zone. The 4 Employment Zone is the only zone in which brothels are permitted. I do not consider that it was the purpose of the drafters of cl 24 to prohibit brothels but rather to ensure that potential conflict between residential and brothel uses are minimised through locational criteria.

42 The northern side of Nirvana Street does not meet the 200m requirement in cl 24(1)(a). However, the southern side of Nirvana Street does. There is no material difference between the connection or likely impacts of a brothel located on northern side of the street as opposed to a brothel located on the southern side of the street.

43 Based on the finding that cl 24(1)(a) provides locational criterion for brothels, a variation to the standard is possible through SEPP 1.

SEPP 1

44 SEPP 1 applies with the stated aim of providing flexibility in the application of planning controls arising out of development standards in circumstances where strict compliance with those standards would "in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in Section 5(a)(i) and (ii) of the Act".

45 The manner of dealing with a SEPP 1 objection is set out in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked.

…… it seems to me that SEPP No 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the policy, and in particular, does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) of the EP & A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.) Fifth, is the objection well-founded?

46 Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states that the Court must be satisfied of the following three matters:

38 First, the Court must be satisfied that “the objection is well founded” (clause 7 of SEPP 1). The objection is to be in writing, be an objection “that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case”, and specify “the grounds of that objection” (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.

39 Secondly, the Court must be of the opinion that “granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3” (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 “and is also”). The aims and objects of SEPP 1 set out in clause 3 are to provide “flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act”. The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:

“(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and coordination of the orderly and economic use and development of land.”

40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are:

“(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument”.

47 At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard…

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

48 Mr Winnacott considered cl 24(1)(a) of LEP 2001 to be a development standard and prepared a SEPP 1 objection as part of the Statement of Environmental Effects that accompanied the application. He stated that cl 24 includes specific provisions relating to brothels but does not include any aims or objectives for the standard. He referred to the principles established by Roseth SC for the location of brothels in Martyn v Hornsby Shire Council (2004) NSWLEC 614 to ascertain the underlying object or purpose of the standard in cl 24(1)(a), which in his opinion is:

to require a suitable level of separation from residential land so as to protect the amenity of the residents of the area.

49 Mr Winnacott stated that the proposal met the underlying objectives of the standard and that compliance with the standard was unreasonable or unnecessary because:

• The subject premises are not located near or within view of any school, church, hospital or place frequented by children
• A literal interpretation of Clause 24(1)(a) of the LEP requires the distance of separation from residential zoned land to be measured as the shortest distance in a direct line. If such a measurement is taken from the rear northern boundary of the subject property to the residential zoned land on the northern side of Burrabogee Road the distance is approximately 141 metres. However located between Burrabogee Road and the subject property is a large industrial property developed with factory buildings. Having regard to this development is not possible to view the subject property from residential properties in Burrabogee Road.
• If the measurement of separation is taken as walking distance west along Nirvana Street and along north along Ballandella Road the distance of separation from the subject property to the closest residential zoned land is approximately 233 metres. The distance measured in this manner exceeds the separation development standards contained in the Clause 24(1)(a) of the LEP.
• The subject property is located approximately 50 metres from Ballandella Road and within a dead-end cul de sac.
• The proposed development satisfies the planning principles for the location of brothels as referred to in Martyn v Hornsby Shire Council which refers to brothels not adjoining areas zoned residential or clearly visible from such zones. The subject premises are located in an industrial area and surrounded by properties developed for industrial and non-residential purposes.
• The operation of the brothel will be conducted entirely within the building on the subject property. Adequate car parking will be available for staff and clients within the property and the surrounding street system. The business will be conducted in a discreet, orderly and inconspicuous manner and there is no indication that there will be any adverse impact on the amenity of the residential area to the north of Burrabogee Road.

50 Ms Fernandez did not consider cl 24(1)(a) to be a development standard. On the assumption that it was a standard she considered that:

…given the nature and scale of the proposed use it is undesirable for this activity to be located in close proximity to residential properties.

In this instance, strict compliance with the standard is necessary given the proposed hours of operation, and the inconsistencies with the objects of the Act, and as the subject site is within close proximity to residential properties.

51 Ms Fernandez did not articulate what the underlying purpose of the standard is nor did she provide evidence of the amenity impacts or conflict likely to arise from the proximity of the two uses. Further she provided no guidance as to whether there would be a material difference in amenity resulting from a brothel on located on the southern side of Nirvana Street (outside the 200m distance) and one on the northern side (within the 200m distance).

Findings

52 I accept Mr Winnacott’s evidence that the underlying purpose of cl 24(1)(a) is to provide adequate separation between brothels and residential uses to protect the amenity of residents in the area. There is no evidence that the use of the site for a brothel will result in any adverse amenity impacts such as noise, overlooking, privacy or that patrons using the brothel would also utilise the residential area to park or walk through. I accept that compliance with the standard is unreasonable and unnecessary and the SEPP 1 objection is well founded.

Safety and security

53 Senior Constable Neal’s principle concern in relation to the brothel location is that it is in a light industrial zone, which is generally not used at night and is isolated from other activities. He also expressed concern about the distance from the railway station and its proximity to the other brothel in Ballandella Road. He was also concerned that the area is already a “crime hot spot” and in not near a police station.

54 Senior Constable Neal stated that the proximity to residential areas was of concern because it did not meet the requirements in LEP but in his opinion the principle impacts on residential zones related to parking and, due to the separation distance, there were unlikely to be other amenity impacts resulting from the brothel use.

55 Mr Mamouzelos shared these concerns. In particular he was concerned about the brothel being a target for armed robbery, which had occurred at the brothel at Ballandalla Road. Both his and Senior Constable Neal’s principal safety concern was that the car parking arrangement facilitated entry into the premises where people, guns etc could be concealed within a car and where contact with staff could occur without adequate safety arrangements.

56 Ms Crofts recognised that brothels, as with other uses such as petrol stations and jewellery shops, may be targets for armed robbery due to the large amounts of cash or valuable items on the premises. Although she stated that there is no statistical research to support this proposition. She considered that brothels were a permissible land use and it was important that controls were not so restrictive that the use would be forced ”underground” and to operate illegally without approval and without regulation. She stated that there are greater profits to be made by illegal brothels, which encourages links to organised crime. Issues such as exploitation of sex workers also increased if brothels were an illicit activity. She recognised the need for safety but considered that this needed to be realistic.

57 The experts all agreed that the proposed Plan of Management was adequate.

Findings

58 The issues raised by Mr Mamouzelos and Senior Constable Neal relate largely to the location of the brothel within an industrial area rather than to any particular characteristics of the brothel for which approval is sought. Their concern centred on the isolated nature of the area and its limited usage at night. However, these are characteristics why industrial zones are identified a being area where brothels can be located to avoid potential conflict with other land uses, particularly residential uses. The general concerns raised by these experts are matters more appropriately dealt with through strategic planning than through an individual development application. They are issues that would apply to any application for a brothel within this part of the 4 Employment Zone.

59 I note the specific concern of Mr Mamouzelos and Senior Constable Neal in relation to the car park providing a concealed access to the premises that could pose a safety risk. However, given the safety arrangements proposed including; CCTV, a security guard, and secure entry, I do not consider that this potential risk would, of itself, warrant refusal of the application. Given the limited areas that are available for brothels and the permissibility of the use, it would seem that the views of Mr Mamouzelos and Senior Constable Neal should be addressed through the Plan of Management where all possible measures are taken to minimise potential safety risks.

60 It is not unusual for parking to be provided in an internal car park arrangement. The initial comments of the Police in response to the application did not raise this as an issue, however, I accept the concerns about staff entering the car park and have included a condition that the access door to the worker's lounge area be deleted. I have also included a condition that the Plan of Management and the Parking Plan of Management should be amended to ensure that staff and patrons are not in the car park at the same time. The Plan of Management should also include requirements that the train timetable be displayed and that the Manager order a taxi if required by patrons to address concerns about patrons walking to the station at night and there being no trains.

Parking

61 Ms Marshall-McClelland and Mr Searle agreed that 8 car spaces were provided on site, which complied with the requirements of the commercial rate in s 4.5.1 of the DCP of 1 space per 50sqm of gross floor area (GFA). They agreed that the GFA of the proposal was 366.7sqm, being the area used for the brothel, excluding the internal carpark.

62 The proposed parking arrangement provides internal parking for 4 visitors and external parking for 2 visitors, 1 staff and one disabled space. The internal arrangement proposes parallel parking and it is intended that parking be assisted by the on site manager to ensure that the vehicles enter and leave the premises in a forward direction. An on site parking Plan of Management has been prepared which reflects this arrangement.

63 Ms Fernandes considered that GFA to be greater based on the definition of “floor space area” in LEP 2001, which excludes only “basement car parking”. Ms Marshall-McClelland stated that neither LEP 2001 nor the DCP include a definition of GFA. The DCP does not include specific parking requirements for brothel uses. In her opinion the industrial rate of 1 space per 70 sqm of GFA was appropriate which would require 5 spaces. However, as 8 spaces could be provided she had agreed to apply the commercial rate.

64 Ms Marshall-McClelland noted that Moore C in Zhang v Parramatta City Council [2004] NSWLEC 199 applied the industrial rate to the approval of the nearby brothel at Ballandella Road.

65 Further, Ms Marshall-McClelland stated that the Roads and Traffic Authority Guide to Traffic Generating Developments refers to the Environmental Planning and Assessment Model Provisions 1980 which include a definition of GFA that excludes car parking needed to meet the requirements of council. She also stated that, based on other brothels, a rate of 1 space/two workers was generally applied and she considered this to be appropriate. This would result in a demand for 4 spaces based on the maximum of 8 workers proposed. Mr Searle considered that during peak times 6 spaces for patrons should be provided which is met by the proposed arrangement.

66 Both Ms Marshall-McClelland and Mr Searle agreed that there was available on street parking at night, which corresponds with the peak operating time of the brothel. During the day there is limited on street parking in Nirvana Street due to the operation of the other businesses, including the car repairers.

Findings

67 The objectives of s 4.5.1 are:

O.1 To ensure that the location and design of driveways, parking spaces and other areas used for the movement of motor vehicles are efficient, safe, convenient and are integrated into the design of the development to minimise their visual impact.
O.2 To ensure that adequate off-street parking is provided to serve the needs of development.

68 The relevant design principles are:

P.5 On site parking is to be provided at a rate sufficient for residents, employees,

69 The DCP does not specify the number of spaces to be provided for a brothel use nor does it specify the breakdown between spaces required for staff and patrons. The proposal provides the required number of spaces for a commercial development based on the GFA of the brothel use. I accept that the car parking area within the building should not be included in the GFA calculation as this does not generate a demand for parking and is consistent with the approach used by Ms Marshall-McClelland and Mr Searle. These experts agreed that the proposed number of spaces, the distribution between staff and patrons and the parking arrangement meet the requirements of the DCP. I accept this evidence.

Conditions

70 The main conditions in dispute relate to a trial period and the hours of operation.

71 Condition 2 seeks impose a two year trial period. The applicant opposes this on the basis that it proposes substantial works to the premises, which involve significant expense. If the condition is not deleted, the applicant proposes a period of one year and alternate wording. Council opposes this alternative.

72 I accept that a trial period is warranted given the concerns about the safety aspects of the car park the hours of operation. The operation of the brothel is reliant on compliance with the conditions of consent and implementation of the Plan of Management and the Parking Plan of Management. A trial period will enable these documents to be reviewed and further refined if necessary. If the brothel operates in accordance with the consent it is unlikely to result in adverse impacts or reasons why its use should not continue.

73. Conditions 28, 29 and 30 seek to impose hours of operation between 11am to midnight. The applicant seeks 24 hour operation. As the brothel is located in an industrial area, it is unlikely that 24 hour operation will result in adverse amenity impacts and the safety concerns do not warrant a restriction on the hours. Given the trial period, I consider it appropriate to allow the 24 hour operation.

74. Condition 28 also seeks to limit the number of workers to 7. The applicant proposes a maximum of 8 workers to provide rest periods. The Statement of Environmental Effects and the Plan of Management are based on 8 workers and there is no reason to reduce this maximum to 7, especially as the number of workers room is restricted to 7 by condition 29. I have also amended condition 29 to limit the use of these rooms to 1 worker and 1 patron.

75. Condition 39 imposes noise criteria of 5 dB(A) above background for the operation of the brothel. The applicant seeks the deletion of this condition. The brothel is in an industrial area and potential noise impacts was not raised as an issue. 5 dB(A) above background is an appropriate criteria in a residential area. I have amended the condition to require compliance with the Industrial Noise Policy.

76. The orders of the Court are therefore:

1. The appeal is upheld.
2. The objection under State Environmental Planning Policy No 1- Development Standards is well founded.
3. Development application DA5/2008 for alterations and use of an existing building as a brothel at 1 Nirvana Street, Pendle Hill, is approved subject to the conditions in Annexure A.
4. The exhibits, except exhibits 3, 9 and J, are returned.

___________________

Annelise Tuor
Commissioner of the Court

Order 3 has been amended pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 (“the Slip Rule”) on 8 October 2009.