Wang v Blacktown City Council

[2009] NSWLEC 1044

Land and Environment Court

of New South Wales

CITATION:	Wang v Blacktown City Council [2009] NSWLEC 1044
PARTIES:	APPLICANT Shao Ling Wang RESPONDENT Blacktown City Council
FILE NUMBER(S):	11060 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- use of an existing factory building for a brothel - SEPP 1 objection - whether unacceptably near and visible to a place of public worship
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1988 State Environmental Planning Policy No 1
CASES CITED:	Weyton v Rockdale City Council 106 LGERA 213 Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 Marpet Enterprises v Eurobedalla Shire Council [2000] NSWLEC 156
DATES OF HEARING:	16/02/09
DATE OF JUDGMENT:	24 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor SOLICITORS Storey & Gough RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 February 2009

11060 of 2008 Shao Ling Wang v Blacktown City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Blacktown City Council (the council) of Development Application 08-1617 for the use of an existing factory building for a brothel at 15 Bearing Road, Seven Hills (the site).

2 The sole issue raised by the council was that the proposed brothel is unacceptably near and visible to a church at Unit 3/20 Bearing Road.

3 The following owners and occupiers of industrial premises provided evidence on the site view:

• The Reverend Heather Wright of the Hope Wesleyan Methodist Church (the Church), Unit 3/20 Bearing Road,
• Mr Peter Sterling, 13 Bearing Road,
• Mr Jason Dymoch, Unit 1/13 Bearing Road,
• Ms Patricia Wilson, Unit 1/9 Bearing Road,
• Mr Rod Higgens, 16 Bearing Road, and
• Ms Lorraine Colquhoun, Unit 1/11 Bearing Road.

4 They objected to the development for one or more of the following reasons:

• a brothel is incompatible with the existing church,
• devaluation of properties,
• incompatibility with family run businesses,
• unacceptable impact on young apprentices,
• security,
• increase in traffic,
• feeling of unease at having to walk past the premises,
• damage to reputation of companies in the area,
• attraction of undesirable persons, and
• conflict with council's planning controls.

5 Reverend Wright provided the following details of the use of the Church:

We own two of the three warehouses in our complex and have a valid DA approval to use 3/20 Bearing Road for Church Ministry. We will have been in Bearing Road for 4 years in March 2009, and expect to be in this area for many years to come.

Our congregation consists of 25 regular attendees, and a further 14 in a clear relationship with the church and receiving ministry from the Church.

Our DA allows for 48 and we have plans that will assist our growth to that number. Further, we hold mid week functions on a regular basis, and Saturday programs on a fairly regular basis.

Our current program consists of the followinq :
Sunday - Morning Worship Service 9am to noon weekly
Sunday School (during the service)
Monthly evening program 6pm to 9pm
Monthly Board Meetings noon to 3pm
Monthly Lunches 11.20am to 2.00pm

Monday 5pm to 7pm Counselling Appointments
Monday, Wednesday, Thursday, Friday 9am to 5pm Office Hours
Wednesday - 6pm to 9pm Bible Study
Thursday - 5pm to 7pm Counselling Appointments
Friday - 10am to noon Pastor's Prayer Meeting

Twice a year we run a 10 week Bible Training Program (Government Accredited Degree level Course) from 9am to 1 pm on a Saturday, called Kingsley Community.

Eight times a year we host District Committee meetings on Fridays and Saturdays 9am to 9pm.

Approximately 6 times a year we host Occasional Private Functions like Anniversaries, Birthdays or Worship Events on the premises... these events 'spill' into the car park area .
Twice a year we hold a garage sale/sausage sizzle or similar event, in the car park on a Sunday

6 Reverend Wright further states that the proximity of the brothel is keenly felt by her congregation and staff and while it is somewhat difficult to separate moral objections from social objections, it is fair to say that the presence of the brothel across the street will negatively impact to the enjoyment of their property, and the sense of liberty in developing the ministry. For example if the brothel is approved it would be necessary to reconsider plans to run an "after-school club" for primary schoolchildren as it would involve activities in clear view of the brothel.

7 The Court also had the benefit of the submissions received by the council when the development was advertised.

The site

8 The site is Lot 8 in DP 248829. It has a street frontage of 27.43 m and a depth between 50.865 m in 53.03 m and a site area of 1424 sq m. The site is developed with a brick industrial building with on street parking and manoeuvring areas.

9 The surrounding area is predominantly industrial, comprising a mix of factory units and single factory/warehouse developments with a take-away food shop located on the opposite side of Bearing Road and the Church located to the north east and on the opposite side of Bearing Road.

The proposal

10 The proposal provides for the use of the existing industrial building as a brothel. This involves some internal alterations to accommodate 8 working rooms, 7 waiting rooms, a reception area, storage areas and staff amenities. A total of 16 car parking spaces are to be provided on-site for staff and clients. The proposed hours of operation are 24 hours per day and 7 days per week.

Relevant planning controls

11 The site is zoned 4(a) General Industrial under Blacktown Local Environmental Plan 1988 (LEP 1988). Brothels are a permissible use within this zone with consent. Clause 42A deals specifically with brothels. Amendment 199 to LEP 1998, gazetted on 7 November 2008, amends cl 42A by providing further requirements to avoid a concentration of brothels by including cll 42A(1)(aa) and (ab). Clause 42A relatively states:

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:
..
(c) near or within view of any church, hospital, community facility or public open space or any place regularly frequented by children; or
..

12 There was agreement that the proposed brothel was near or within view of the Church. There was also agreement that the requirement in cl 42A(1)(c) was a development standard (see Weyton v Rockdale City Council 106 LGERA 213, at 31) and for the proposal to succeed the Court would need to find that the State Environmental Planning Policy No 1-Development Standards (SEPP 1) objection was well founded.

13 The proposal does not satisfy cl 42A(1)(ab), in that it is within a straight line distance of 200 m of another brothel however the council accepted that the SEPP 1 objection to show why strict compliance with the development was unreasonable and unnecessary was well founded.

14 Blacktown Development Control Plan 2006 (the DCP) applies. Clause 6.0 in Part E provides requirements for brothels in industrial zones. Clause 6.6.1 refers to maps in this clause that show "those industrial areas where brothels are permissible with boundaries set out to omit any property which falls fully or partially within the area in which brothels will be excluded…" The site falls within an area shown on the Seven Hills map as an area where brothels are permissible. Clause 6.6.1 contains an identical provision to cl 42A(1)(c).

The SEPP 1 objection – the evidence

15 Mr Glenn Apps provided evidence for the council and Mr Nigel White provided evidence for the applicant. They agree that the Church will have a view of part of the side wall and a limited view of the front facade of the subject building but this view is oblique and obscured by a building, trees and landscaping. Also, the entry to the brothel and car parking area will not be visible from the Church and visitors to the Church will not see patrons of the brothel entering or leaving the premises or the property or inside the premises.

16 The SEPP 1 objection of Mr White adopts the approach in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46. As LEP 1988 does not contain objectives of the development standard Mr White states that the underlying objective is:

to ensure young children/families are not unreasonably exposed to the brothel activities, noise emanating from the brothel or have direct contact with clients/working girls of the brothel.

17 He states that strict compliance with the development standard is unreasonable and unnecessary for the following reasons:

• the brothel is the first brothel in the precinct and as such the approval will not lead to a proliferation of similar uses,
• the site is highly appropriate for the use as a brothel because viewing into the site is restricted because it is below street level with established trees across the frontage and the location of the entry and the design of the building provide discreet parking and access,
• the parking area and front door is not visible from the Church,
• the brothel will operate for most part outside typical operating hours of the Church and other industrial uses,
• the appearance of the industrial building will be unchanged,
• the proposed security measures will provide safety for workers and clients,
• there will be no direct contact between clients of the brothel and the Church congregation, and
• there will be no noise emanating from the brothel.

18 For these reasons, and as the development appropriately responds to the provisions of LEP 1998 and the DCP, Mr White concludes that the strict application of the development standard is unreasonable and unnecessary.

19 Mr Apps does not accept that the SEPP 1 objection is well founded. He states that the underlying objective of the development standard is:

to separate disparate land uses, or ideologically opposed land uses so as to remove the potential for offence or conflict, and to eliminate contact between staff and clients of the brothel with patrons of sensitive land uses.

20 He states that the locational relationship between the brothel and the Church is not a matter that can be overcome. The uses are diametrically opposed in terms of ideology and the requirements of cl 42A(1)(c) are designed to separate sensitive land uses such as the Church and the brothel. The location of the brothel and its ability to be viewed by patrons of the Church, even if only in part, is likely to be offensive and potentially may lead to reduced patronage, particularly as Bearing Road has only one access and that requires all patrons of the Church to pass the brothel.

The SEPP 1 objection – findings

21 Winten asks a number of questions in the consideration of a SEPP 1 objection. The first question asks whether the subject planning control is a development standard. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides 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 and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act .

22 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:
(a) 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.

23 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

24 There was agreement that the proposed brothel was near or within view of the Church so cl 42A(1)(c) is activated. Where Mr Apps and Mr White disagree is on the underlying objective of the development standard. In the opinion of Mr Apps, the underlying objective of the development standard does not require a consideration of the physical or tangible impacts of the brothel (as advocated by Mr White) but a different question dealing simply with the physical relationship and visibility between the Church and the brothel.

25 Some direction on the underlying objective of the development standard can be gained from comments in Weyton and Marpet Enterprises v Eurobedalla Shire Council [2000] NSWLEC 156. Even though Weyton involves Rockdale local government area, the words “near or within view” are identical to those in cl 42A(1)(c). The words form part of a local environmental plan and as such any variation needs a SEPP1 objection. As with the subject appeal, the words in Weyton are to be considered as part of the assessment of a development application that addresses the relationship between sensitive land uses (in Weytons case, a church and land used for residential purposes) and a brothel. In Weyton, Pearlman CJ (at par 36) identifies the purpose of the development standard as "to protect sensitive uses from the potential impact of a brothel". Her Honour gives no weight to the applicant’s arguments that the variation to the development standard could be supported because of a lack of physical impacts and a lack of a common boundary between the two uses. Her Honour describes these considerations as irrelevant as they ignore the purpose of the development standard. Her Honour concluded that the SEPP 1 objection was not well founded.

26 In Marpet Enterprises, Bignold J addresses the words “within view of.” The words are slightly different to those used in Weyton and this case and come from a different local government area but are a requirement of a local environmental plan and require a SEPP1 objection for variation. The words “within view of” are used in the same context as Weyton and this case to address the relationship between sensitive land uses and a brothel, although in a 4(a) Industrial zone. His Honour refers to the decision in Weyton and describes the purpose of the development standard as being "the specification of locational constraints on the development of a brothel on land within Zone No 4(a) 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)".

27 His Honour finds that the expression "within view of" means "in sight of" and consequently it is necessary to determine what precisely is within view from the nominated land use. If the brothel is within sight of any of the nominated land use, then the locational constraint is activated. His Honour further states that it does not matter, in terms of the activation of the locational constraint, that if only some part of the property is visible rather than the entire property, subject to the possible application of the de minimus principle.

28 In this case, there was no dispute that the brothel is near or within view of the Church. The distance between the buildings was in the order of 70 m diagonally across Bearing Rd. From the site view, it was observed that part of the side and front wall of the building could be seen from within the Church near the entry. The building is partly below street level and that part of the front wall that could be seen was interrupted by some sparse trees in the front setback area. The area of the building housing the brothel increased when moving outside the Church, through the external car park and closer to Bearing Rd from the Church. I am satisfied that the extent of visibility, even at the lower end of the range of visibility described above would not invoke the de minimus principle.

29 Even though the Church has a relatively small congregation at present, there is little doubt from the evidence of Reverend Wright that the Church is used regularly outside Sunday worship and that the close proximity of the brothel was unacceptable. While no members of the congregation provided evidence at the site view, I accept the evidence of Reverend Wright that the close proximity of the brothel to the Church was a commonly held concern of most, if not all the congregation.

30 While cl 42A(1)(c) refers only to specific land uses, such as church, hospital, community facility, I accept that a reference to the land use is a reference to the site and the building located on the site in much the same way that His Honour uses the words “the property” in Marpet Enterprises. If cl 42A(1)(c) was meant to refer to the visibility of the entry to the building, the entry to the car park or visibility of certain parts of the building such a the windows, then the clause would have been more expansive and included specific areas where an assessment of visibility was required.

31 In the light of the findings in Weyton and Marpet Enterprises, the underlying objective of the development standard formulated by Mr Apps must be preferred. The reasons in the SEPP 1 objection that there will be a lack of impact from the brothel does not address the underlying objective of the development standard. The consequence is that there is no basis for a finding that strict compliance with the development standard is unreasonable and unnecessary in this instance. It follows that the SEPP 1 objection is not well founded and the appeal must fail.

32 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application 08-1617 for the use of an existing factory building for a brothel at 15 Bearing Road, Seven Hills is refused.
3. The exhibits are returned.
___________
G T Brown
Commissioner of the Court