Wei v Parramatta City Council No 2

[2010] NSWLEC 1107

Land and Environment Court

of New South Wales

CITATION:

Wei v Parramatta City Council No 2 [2010] NSWLEC 1107

PARTIES:

APPLICANT
Xing Xing Wei

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10827 of 2009

CORAM:

Fakes C

KEY ISSUES:

DEEMED REFUSAL - DEVELOPMENT APPLICATION :- Brothel - intensification of use

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1993
Sydney Regional Environmental Plan No 28 – Parramatta
Parramatta Local Environment Plan 2001

CASES CITED:

Wei v Parramatta City Council [2008] NSWLEC 1157
Wei v Parramatta City Council [2010] NSWLEC 1046
Martyn v Hornsby Shire Council [2004] NSWLEC 614
Huang v Parramatta City Council [2009] NSWLEC 1401
Boers v Parramatta City Council [2010] NSWLEC 1071
Segal and Anor v Waverley Council [2005] 64 NSWLR 177

DATES OF HEARING:

08/03/2010
04/05/2010

 
DATE OF JUDGMENT: 

7 May 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Baird, barrister
INSTRUCTED BY
Mr B Barrak,
Barrak Lawyers

RESPONDENT
Mr P Marincowitz, solicitor
Mr C Drury, solicitor
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

10827 of 2009 Xing Xing Wei v Parramatta City Council

JUDGMENT

: This is an appeal, made under s 97 of the Environmental Planning and Assessment Act 1979 (the Act), against the deemed refusal by Parramatta City Council (the council) to grant consent for Development Application 513/2009 to extend an approved existing brothel at 19 Brodie Street Rydalmere.

The proposal

2 The applicant seeks to extend the existing brothel by:

a. Increasing the number of customer service rooms from two to eight including a ground floor room for disabled clients;
b. Increasing the maximum number of sex workers on site at any one time from two to twelve;
c. Increasing the maximum number of receptionists from one to two; and
d. Maintaining one cleaner as approved in DA 54/2007, but amending such cleaner from part time to full time.

3 The use of the premises as a brothel was approved by the Land and Environment Court in proceedings Wei v Parramatta City Council [2008] NSWLEC 1157 (26 May 2008). These proceedings were a Class 1 Appeal in regard to council’s refusal of DA 54/2007 relating to a change of use of an existing first floor massage clinic to a commercial brothel.

The issues

4 The council contends that the development application should be refused for the reasons that relate to:

• Car parking (contentions 1-4) – the number and design of on site car spaces is insufficient and inadequate;
• Streetscape (contentions 5-6) – the building lacks articulation and will not make a positive contribution to the streetscape;
• Advertising (contention 7) – the proposed signs are inconsistent with the character of existing advertising;
• Sustainable design (contention 8) – the development will not be water and energy efficient; inadequate information on materials and finishes;
• Safety and security (contentions 9-10) – of clients; location of CCTV
• Plan of management (contention 11) – inadequate detail
• Social impact/public interest (contentions 12-15) – fear of increased crime; public safety, particularly of nearby workers
• Inadequate documentation (contention 16) – levels, setbacks, boundaries, elevations, external finishes, finished levels, landscaping, stormwater, entry and exit point, fire safety schedule
• Objectors(contention 17) – moral concerns, inappropriate location (shops, railway station, University of Western Sydney), traffic, clustering of brothels in the vicinity

5 In the period leading up to the hearing, the applicant, as requested by council, provided the council with more detailed plans and documentation. As a consequence of these revised plans and documents, each party’s planner and traffic consultant conferred and agreed that, subject to appropriate conditions, the following contentions have been addressed:

• Car parking
• Streetscape
• Advertising
• Sustainable design
• Safety and security
• Plan of Management
• Adequacy of documentation

As a result, these contentions are no longer pressed by council. The contentions relating to social impact, the public interest and the concerns of objectors, remain.

The site

6 The premises comprise a two-storey building with a take away food shop on the ground floor and an approved two workroom brothel on the first floor. Apart from the workrooms, the first floor comprises staff facilities, waiting rooms and bathrooms. Access to the first floor is via a staircase from Brodie Street. The rear of the premises backs onto an unnamed, ‘dead-end’, laneway. At the rear of the ground floor is a single garage with a roller door and a hardstand area capable of holding two cars. The present car-parking arrangements are for staff of the shop and the brothel.

7 The premises are located in a strip of shops and commercial premises on the eastern side of the section of Brodie Street that runs in an approximately north-south direction parallel to the railway line on the southern side of Victoria Road. The nearby commercial premises include two other food bars, a carpet warehouse, upholstery repairer, training centre and supplier of cleaning products. There is time-limited parallel parking along this section of the street.

8 On the western side of Brodie Street is Rydalmere Railway Station and commuter carpark (approximately 100m to the northwest of the subject premises) and a number of well-spaced commercial premises including those involved with transport. There are a number of unrestricted 90 parking bays on the western side.

9 The surrounding streets are dominated by other commercial and light industrial businesses. Rheem Australia Pty Ltd is the largest enterprise in the area and is located at the southern end of Brodie Street. To the south, Brodie Street ends in a cul-du-sac near the Parramatta River.

10 There are no schools, churches, residential areas or areas likely to be frequented by children within view of this site. The University of Western Sydney Rydalmere campus is located on the western side of the railway line and there is no direct access from the university to the site. Pedestrian access to the railway station from the university is via a set of stairs off the Victoria Road overpass. Students and others using those stairs would not walk past the subject premises if they were heading directly to the station.

Planning controls

11 The relevant statutory controls are the Sydney Regional Environmental Plan No 28 – Parramatta (SREP 28) and Parramatta Local Environment Plan 2001 (PLEP) however, SREP 28 is the primary control.

12 The site is located in Precinct 5 – Rydalmere Precinct under SREP 28 and is zoned Business and Transport Centre. With development consent, brothels are a permitted use within this zone. There are five other approved brothels and 2 proposed brothels within a radius of 500m of the subject premises.

13 Clause 79 – Brothels – of SREP 28 states:

In determining an application to carry out development for the purpose of a brothel, the consent authority must consider the following:
(a) whether the operation will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation or 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.

Whilst this is an existing approved brothel, the application is for an intensification of its use and the matters for consideration still apply.

14 Other relevant clauses of SREP 28 raised by the council in their Statement of Facts and Contentions (SF&C) which are no longer pressed by council as a result of actions by the applicant are:

Clause 40O – Building Design. Objective (1)(b). Provisions (2) (b),(c),(f),(g),(h),(k)
Clause 40U – The Rydalmere Station and Environs Special Area. Consideration 2(a)

The substance of these clauses has been met, to the satisfaction of council, by the provision of detailed plans showing elevations, finishes and signage and through the imposition of relevant conditions of consent.

15 Council tendered the Parramatta Development Control Plan for Sex Services and Restricted Premises (PDCP –SSRP). This DCP was adopted by council on 23 November 2009 and came into effect on 9 December 2009. This repeals the Parramatta Regulation of Brothels Development Control Plan 1997 (PRBDCP), a document that council, in its contentions, considers relevant but was not tendered. In addition, the council tendered an internal report to the Council dated 8 March 2010 which seeks to amend the PDCP-SSRP to amend the document to apply to all land within the Parramatta LGA (see para 18 below). This proposed amendment is based on advice from the Department of Planning that under s 74(C)(1) of the Act, council is able to prepare a DCP for all land within its LGA if it considers it necessary or desirable. That said, the proposed changes to the DCP are only relevant to this matter in so far as they may reflect the future intent of the council.

16 In a further complication, council also tendered the Draft Parramatta Development Control Plan 2010 – Version for Public Exhibition March 2010. This is intended to repeal the PDCP – SSRP. The relevant section in this draft document is 5.6 – Sex Services and Restricted Premises and appears to have incorporated the same information contained in the PDCP-SSRP.

17 The applicant, in the ‘response to statement of facts and contentions’, does not consider the DCP to be relevant. However, s 79C(a)(iii) of the Act requires the consent authority to consider any DCP.

18 Relevantly, in the PDCP-SSRP, Clause 1.2 – ‘Where this Development Control Plan Applies’ states:

This plan applies to all land within the Parramatta Local Government Area (LGA) with the exception of the Government Centre, Harris Park, Camellia and Rydalmere areas covered by Sydney Regional Environmental Plan No. 28 – Parramatta.

19 Therefore it would appear that the PDCP-SSRP does not apply to this application.

20 However, despite this fact, council’s contentions refer to sections of the PRBDCP that relate to location, access and layout to premises, parking, hours of operation, size of premises, signage, health and building. The revised plans submitted by the applicant as well as the revised conditions of consent determined during the hearing have resolved these contentions to the point where they are no longer pressed by council.

21 The council in its SF&C also refers to the Policy for Sex Services and Restricted Premises (Policy) (the Policy) that was adopted by council on 14 September 2009. In particular, Part 5.6.3 – Guide to Plans of Management. From what I understand from the proceedings, this information is now Part 4 – Guide to Plans of Management in the PDCP-SSRP but the Policy was not tendered.

22 If I am wrong about the applicability of the PDCP-SSRP, it is relevant to evidence given in relation to the contentions regarding the public interest and social impact to consider clause 5.1 of the PDCP-SSRP regarding the location of brothels. Location controls state that:

Sex services, restricted premises and adult entertainment premises must not be sited:
S.1 within a radius of 100m of existing sex services, restricted premises and adult entertainment premises. Council will limit the congregation of sex services, restricted premises and adult entertainment premises.

S.2 within shopping malls/arcades

S.3 within a radius of 100m of a licensed premises being a hotel, public bar nightclub or the like.


The council tendered a map showing the buffer zones for approved/proposed brothels located in Rydalmere. There are no other approved or proposed brothels within 100m of 19 Brodie Street nor were any licensed premises indicated in any evidence.

Evidence

23 The hearing commenced on site with a view of the premises, the rear lane and Brodie Street from near the northern end of Mary Parade and south to the intersection with Muriel Avenue. There were no resident/ local objectors. However, Mr Michael McDermott, the Parramatta City councillor for the Ward, was given leave to speak. He voiced his concerns and those of his constituents as to what he considers to be an unacceptable change in the character of the area due to the number of brothels.

Planning

24 Planning evidence was given by Mr D. Jones, Town Planning Consultant for the applicant and Mr P. Fryar, Town Planner for the respondent. In response to particular contentions raised by council, Mr Jones’ statement of evidence included an amended Plan of Management for 19 Brodie Street.

25 In their joint experts’ report based on the respondent’s Statement of Facts and Contentions, there was agreement on all contentions except the sufficiency of on-site car parking. The experts agreed that the provisions of PDCP-SSRP did not apply to the site as it is land affected by the provisions of SREP 28 and that whilst the council had resolved to apply the PDCP-SSRP as a policy to lands under SREP 28, the council has not prepared a specific ‘policy document’ for brothels.

26 The experts agreed that contentions 5 and 6 relating to streetscape should be addressed by further refinements and details to be shown on the amended plans. Similarly contention 7 relating to advertising signs required more detail and no sign should be erected at the rear of the building. With respect to contention 8 on sustainable design, the experts agreed that more information was required and that there was an opportunity to provide skylights for solar access.

27 On contention 9 – safety and security, the experts agreed that client access should be from Brodie Street and not the rear lane, that the amended plans now adequately showed the location of the CCTV cameras and that the amended Plan of Management (POM), as prepared by Mr Jones, provided adequate information in relation to safety and security matters relevant to the operation of the proposed expanded brothel. Contention 11 is similarly satisfied by the amended POM.

28 With respect to contention 16 and the adequacy of documentation, the planners agreed that the amended plans satisfactorily address the majority of the issues with others capable of being dealt with by appropriately framed conditions of development consent.

29 In relation to matters concerning the public interest and social impact, contentions 12-15, the planners agreed that this would be dealt with by a separate joint experts’ report. Similarly, contention 17 – matters raised by objectors should be dealt with by separate evidence.

30 The one point of disagreement between the planners in their joint report related to whether the proposed intensification of the brothel provides sufficient on-site car parking. However, that matter was resolved before the hearing with input from the parties’ traffic and parking experts, Ms R. Barretto for the respondent and Ms E. Marshall-McClelland for the applicant. The traffic and parking experts were not required to present evidence although some of the data collected by Ms Marshall-McClelland on available car spaces in the immediate area and their rate of occupancy was discussed by Mr Baird for the applicant. As a result of the discussions between these experts, the contentions relating to car parking, contentions 1-4, have been resolved.

31 As a result of the recommendations from the planners, the revised plans now show:

• A disabled workroom and associated bathroom on the ground floor accessible from both the front entrance and from the designated disabled car space at the rear of the premises.
• Storeroom, kitchenette and laundry for staff use only and accessible from the front and rear entrances and from an internal staircase.
• Rear of premises on-site parking for 2 staff and one disabled client – accessed through a roller door/ intercom system. A paved 5 minute parking space for deliveries.
• The ground floor plans also show a proposed shop area, the use of which is not subject to this application.
• Apart from disabled clients using the on-site parking space, all other clients will access the premises from the front entrance off Brodie Street.
• The first floor plans now show the two existing workrooms with changes to doorways, internal layout, shower and bathroom facilities; five additional workrooms and associated bathrooms/ showers; new waiting rooms, reception area, staffroom and staff facilities.
• Location of CCTV cameras, signage, skylights, finishes, elevations, and other details as required by council.

32 The planners were cross-examined on specific clauses in the POM and council’s draft conditions of consent.

33 Draft condition 1A states:

This consent is valid for 2 years from the commencement of the use. Prior to the completion of the 2 years, if the applicant wishes to continue the use, a development application to continue the use of the premises as a brothel should be lodged with Council.

Mr Fryar considered that this was appropriate to ensure that the operation is consistent with the POM. Mr Jones stated that there was nothing on file regarding complaints about the operation of the current brothel and that council has other mechanisms available to it to ensure compliance and as such, a time-limit consent is unreasonable in the circumstances of this application.

34 Clause 2.4 of the POM refers to ‘Record Keeping’. It was agreed that staff rosters should only be required to be kept for a period of 6 months. The question of whether the operator should be given 48 hours written notice for the purpose of inspection of business and employment records by council was raised. This question arose due to draft condition of consent 18 which states, in essence, that business and worker records ‘shall be kept on the premises at all times and made available on request’. The implication of this appears to be that no notice should be required. Both experts agreed that 48 hours written notice is reasonable, although when pressed by Mr Marincowitz for the council, Mr Fryar considered that at least 24 hours notice should be given but that 48 hours was reasonable. Mr Baird presses the deletion of draft condition 18 as he contends that the substance of the condition is covered in the POM and is thus superfluous.

35 There was considerable discussion about draft condition 5 relating to the number of sex workers, the number of other staff – receptionists, cleaner and security guard, and the days and times of operation. It was agreed by the planners that some of the issues raised by objectors and the council with respect to demand for off-site parking could be addressed by limiting the number of rooms and staff between the hours of 9.00am to 5.30pm from Monday to Friday. The agreed maximum number of workrooms at these times is 4 to be staffed by 4 sex workers and one receptionist. This is draft condition 5(a).

36 Condition 5(b) remains in dispute. Between the hours of 6.00pm on Friday to 6:00am on Monday, the applicant seeks a maximum of 8 sex rooms, 12 sex workers, 2 receptionists, 1 cleaner and 1 security guard. Mr Jones considers that 12 sex workers should be permitted to allow adequate rest breaks and for rostering purposes. Mr Fryar considers that there should be a maximum of 8 sex workers. There was no issue with the number of other staff. The applicant’s position is that there are no parking problems during these hours. Condition 5(c) is not in dispute.

37 The only other draft condition in dispute of relevance to the planning experts is 19. This states: No sale or provision of alcohol to clients/customers/patrons shall take place on the premises at any time. The applicant seeks to delete the words ‘or provision’. Mr Fryar considers that the general principle of the brothel being a ‘workplace’ makes alcohol, even for workers, as being undesirable. It was considered that availability of alcohol might increase risks to workers.

38 In concluding their evidence the planners agreed that if the POM is implemented as amended there would be no impact on amenity. Mr Fryar supports the application subject to the number of sex workers (draft condition 5(b)).

Social impact/ public interest/ safety and security

39 The Court heard evidence from Senior Constable S. Carne, Crime Prevention Officer, Rosehill Local Area Command. SC Carne’s opinion is that an intensification of the use will lead to more ‘opportunity’ crime, within the area as well as the increased risk of armed robbery of the premises. He considers that the subject premises are out of sight of Victoria Road and the surrounding industrial and commercial premises are mostly closed at night so there is less general surveillance. In oral evidence he stated that based on his experience, it is his opinion that people who use brothels are often involved in criminal activity.

40 SC Carne’s attention was drawn to clause 2.5.2 of the Sex Services Premises Planning Guidelines (Final Version) – December 2004, prepared by the Sex Services Premises Planning Advisory Panel for the (then) NSW Department of Infrastructure Planning and Natural Resources. This clause pertains to ‘clients of sex workers’ and refers to research undertaken on such clients. A breakdown of relevant factors was given with the conclusion being…”None of these groups of people fall under the label of ‘undesirables’, which community groups often assert are attracted to a sex services premises. As with sex workers, clients of sex workers are often portrayed negatively…” SC Carne was not aware of this document and maintained his previously stated opinion.

41 When cross-examined on his evidence, SC Carne conceded that he had not been called to the subject premises on any police matters nor were there any police records of any incident on the premises since its approval as a brothel. SC Carne had not read the POM so was unable to comment on any specific matters of potential concern.

42 Further evidence on safety and security issues was given by Mr D. Jones, Consultant Planner, for the applicant and Mr M. Mamouzelos, Crime and Safety Expert, for the respondent. In their joint experts’ report there was no agreement between the experts on any matter and they agreed to rely on their individual reports. In their joint report:

Mr Mamouzelos: considers the subject site is completely unsuitable for a brothel use and that there are no modifications to the proposal or the Plan of management that would adequately resolve his concerns relating to the crime and safety in the Rydalmere area. The application should therefore be refused.
Mr Jones: considers that the site is suited to a brothel use and that matters relating to safety and security as shown on the plans and contained in the amended plan of management are appropriate. The matters identified in the contention do not warrant refusal of the application.

43 Mr Mamouzelos is most concerned about what he sees as the clustering of brothels in the area and his beliefs that the presence of brothels attracts criminals which will then lead to increased criminal activity in the area. His statement of evidence contains no substantiated evidence on matters concerning safety and security issues for the subject property apart from a reported public finding made by the Independent Commission Against Corruption against one of the owners of the property but not the applicant. I do not consider the ICAC finding to be relevant to this application.

44 The majority of Mr Mamouzelos’ written and oral evidence was unsubstantiated, but very strongly held, opinion on the undesirability of the intensification of the use of the brothel. He wrote in his report that he had been informed by the Chief Executive Officer of Rheem that a group of female staff in a walking club ‘ have been alarmed and affronted on a number of occasions by males entering and leaving the brothel at 19 Brodie Street Rydalmere’. When cross-examined on this statement he could give no explanation as to why he did not suggest reporting this to the police. In his oral evidence he stated that he had complaints made to him by local business owners who felt intimidated by parties associated with the brothel however, no records of this are on police files.

45 As stated in para 23, there were no objectors apart from the local councillor. There were written submissions from 5 local organisations. The Parish Priest from the Holy Name of Mary Catholic Church raised issues of morality and the apparent proliferation of brothels in the area. Dundas Public School’s Parents and Citizens’ Association raised concerns about the proximity of the premises to residential areas, that students walk to and from school through the streets where prospective clients for the brothel will be travelling, concerns about drug and alcohol abuse they say is often associated with clients and workers in brothels and the proliferation of brothels in the area. Similar concerns were voiced by the proprietors of nearby businesses. The local business operators also raised issues about parking during the day and perceived risks to a workshop staffed by disabled people some of whom reside in specialised accommodation on the northern side of Victoria Road.

Findings

46 The issues remaining in contention are:

• The appropriateness of a time-limited consent
• Availability of records and business information
• The number of workers over the weekend
• The provision of alcohol
• Issues raised about safety and the public interest.

Another issue raised in submissions is council’s draft condition of consent requiring the payment of an Annual Monitoring Fee for Restricted Premises and Sex Services Premises. This issue is discussed later in this judgement.

Planning matters

47 The council seeks to impose the following condition of consent:

1A This consent is valid for 2 years from the commencement of the use. Prior to the completion of the 2 years, if the applicant wishes to continue the use, a development application to continue the use of the premises as a brothel should be lodged with Council.

Reason: To ensure the proper management of the brothel and to protect the amenity of the surrounding residential properties.

48 In this matter I find that there is no evidence to support this condition. The premises have operated as an approved brothel with no record of complaints to the Police or any other incidents specifically relating to its operation. The planners agreed that the amended Plan of Management (POM) (appended to this judgement) will provide the basis for the safe and orderly operation of the premises. Condition 14 engages both the POM and the Parking Management Plan. The council did raise issues of traffic and parking as another reason for the imposition of this condition, however those issues have been generally resolved. In a planning sense, these are commercial premises to be developed in accordance with council standards in a zone which permits the use. The principle of certainty of operation of a permitted use, after a substantial capital investment, would be considered reasonable for any permitted commercial use. Hence, for the reasons given above, I find that this condition should be deleted.

49 Condition 5(b) is contended by the parties. The council requirement is for a maximum of 8 sex rooms, 8 sex workers, 2 receptionists, 1 cleaner and 1 security guard during the period 6 pm Friday to 6 am Monday. The applicant seeks approval for 12 sex workers on the basis that this provides flexibility with rosters and enables rest time for workers. It would seem reasonable that at least 10 sex workers be permitted during what is said to be the busiest operational period. This would enable the scheduling of rest periods and provide some flexibility in rosters. Parking should not be an issue at these times. Therefore condition 5(b) is to be modified to reflect this finding. Conditions 5(a) and 5(c) are to remain as drafted.

50 With respect to the availability of employment and business records, the council seeks to impose the following condition.

18 Details of Business Registration/ABN No [sic] , Workers Compensation and Public Liability Insurance and employee rosters for the previous 6 months shall be kept on the premises at all times and made available within 48 hours of notice being given that the documents be produced.

Reason: To ensure the development complies within legal requirements.

51 The applicant contends that this condition is unnecessary as condition 14, on which there is no disagreement, states that the premises shall be operated in accordance with the Plan of Management. The amended POM deals with employment records in clause 2.4 and clause 2.5 deals with provision of information to council. However, clause 2.5 omits any requirement for the business records to be kept on the premises and made available within 48 hours notice. Therefore either the POM should be amended to include this information or condition 18 be applied.

52 With respect to condition 19 and the sale or provision of alcohol to patrons. This should stand as drafted for the reasons of worker safety as given by Mr Fryar.

53 The applicant seeks the deletion of the words at the end of the last sentence in condition 29A “upon demolition work being substantially completed” and replaced with “upon the issue of an occupation certificate”. The council’s reason is ‘to ensure consistency of approvals’. It would appear from ss 109I,109H and 109M of the Act that it is not inconsistent with approvals to apply this condition to the issuing of an occupation certificate. The condition should be redrafted to reflect this and should consider whether the occupation certificate is to be a ‘final’ occupation certificate as per s 109H(b) of the Act.

54 Condition 38 states that:

38 An Annual Monitoring Fee for Restricted Premises and Sex Services Premises must be paid to Council. The Annual Monitoring Fee will be the amount stated from time to time in Council’s adopted Fees and Charges. The first payment of the Annual Monitoring Fee must be paid to Council prior to:

• A Construction Certificate being issued if this consent authorises the conduct of works for which a construction certificate is required,; or
• The premises being used in accordance with this consent if this consent does not authorise the conduct of works for which a construction certificate is required.
And each subsequent annual payment must be made on each anniversary of the date on which the first payment was due to be paid.
Reason: To comply with Council’s adopted Fees and Charges document and how to ensure compliance with conditions of consent.

55 This exact condition was raised in the matter of Wei v Parramatta City Council [2010] NSWLEC 1046 (as condition 13) and heard by Commissioner Pearson regarding an application relating to the same premises subject to this application. The advocates in that matter were the same advocates in this matter and hence, the arguments put by both are the same.

56 In summary, the council relies on s 608 of the Local Government Act 1993 (LG Act) and the condition satisfies the Newbury test, that is, it is for a planning purpose; fairly and reasonably relates to the development; and is not so unreasonable that no consent authority would have imposed it. The applicant contends that there is no power to impose the condition and it is not relevant to the application.

57 I have no reason to form an alternative opinion to the one arrived at by Commissioner Pearson in Wei v Parramatta City Council [2010] NSWLEC 1046. Paragraphs 37-45 of that judgement, some of which are reproduced below, provide a detailed analysis of the issue.

39 The Council submits that s608(6) requires that the monitoring fee be included as a condition of any development consent granted for the premises. The Council submits that the word “approval” in s608 should be interpreted to include development consents under the EPA Act, a construction that promotes the purpose of the LG Act, in particular that set out in s7(d) of the LG Act; and that the condition satisfies the Newbury test. The applicant opposes the imposition of the condition, on the basis that there is no power to impose the condition and it is not relevant to the application.

42 Section 608(2) of the LG Act includes as a service for which an approved fee can be charged “providing a service in connection with the exercise of the council’s regulatory functions”, which includes “making an inspection”. The services for which the fee can be charged include services provided under the LG Act “or any other Act”. Section 608(3) makes specific provision for the charging of an approved fee for inspecting premises that are reasonably required to be inspected in the exercise of the council’s functions. Section 610 addresses the relationship between fees determined under the LG Act and fees determined under other legislation.

43 Whether or not the charging of an annual monitoring fee for inspection of premises such as a brothel is authorised under the LG Act or under other legislation, I am not persuaded that s608(6) operates in the way contended for by the Council. Section 608(6) is concerned with the charging of a fee “if inspections are reasonably necessary to determine if an approval has been complied with”. The term “approval” is defined in the Dictionary to the LG Act to mean “an approval that is in force under this Act”. This does not include in terms a development consent granted under Part 4 of the EPA Act. Section 608(2) states that a council may charge a fee for a service provided under legislation other than the LG Act. The applicant submits that the annual monitoring fee does not fall within s608(2); the Council submits that it does. The parties’ written submissions on s608 did not provide assistance as to whether, if s608(2) does confer power to charge a fee for monitoring compliance with a development consent, this would be the sole source of power to charge such a fee. It is not necessary to reach a conclusion on either question, however, as in my view s608(6) has a more limited operation than contended by the Council. Subsections 608(4) and (6) refer to “an approval”, and both operate to restrict the council’s ability to charge a fee for inspection if that is reasonably necessary to determine if an approval has been complied with (or, in the case of s608(4), for non-commercial premises in connection with an application for an approval). There is no indication in the context or subject matter that would enable a broader meaning to be given to the term “approval” than that given to it by the LG Act, such that it could include a development consent granted under the EPA Act. The purposes listed in s7 of the LG Act do, as submitted by the Council, include in s7(d) giving councils “the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public”; that does not in my view necessitate an interpretation of s608(6) otherwise than in accordance with its terms. If an annual fee for monitoring can properly be charged by the Council, s608(6) does not provide a basis for concluding that condition 13 must be imposed on a development consent granted in these proceedings for the fee to be recoverable. If I am wrong on this interpretation of s608(6), a condition in the form of condition 13 would still have to be a condition that could properly be imposed on a development consent.

44 On the assumption that there is power to impose an annual charge for monitoring the premises, the issue is whether a condition can or should be imposed requiring the applicant to pay it. The Council submits that the condition satisfies the Newbury test in that it is for a planning purpose, fairly and reasonably relates to the development, and is not so unreasonable that no consent authority would have imposed it. The applicant submits that the Court has no power to impose the condition, and it is not relevant to the application under consideration.

45 Clause 79 of the SREP requires consideration of whether the operation of the brothel is likely to interfere with the amenity of the neighbourhood or cause a disturbance in the neighbourhood. The conditions of consent, including in particular that requiring compliance with the Plan of Management, are intended to ensure that impact on amenity or disturbance to the neighbourhood do not occur, or are addressed appropriately. It was not in dispute that there is a planning purpose in ensuring compliance with conditions of development consent. There was no evidence before me that condition 13 is required to enable the Council to inspect or monitor the premises to ensure compliance, or if it is, how it would assist. I am not persuaded that condition 13 fairly and reasonably relates to the development the subject of this application, and it should not be imposed.

58 For the reasons given above, in the matter before me, draft condition 38 is to be deleted.

59 I consider that the planning matters originally raised by the council as being in contention have been adequately addressed by the provision of revised plans, additional information and the detailing of the Plan of Management. Therefore I find no reason, on those grounds, to refuse the appeal subject to this application. However, the case then turns on the remaining issue of whether the application should be refused on the grounds of safety and the public interest.

Safety and the public interest

60 Section 79C(1)(e) requires that I consider the public interest. It is noted that whilst there were 6 written submissions against the development, none of those who made those submissions made oral submissions at the on-site hearing. The majority of the issues raised in those submissions are based on fears or a moral position. Whilst these are generally strongly held opinions, the facts of this matter are that the use is permitted within the zone, it is not a residential area, there is no evidence to link criminal activities and the abuse of drugs or alcohol to these premises, the area is unlikely to be frequented by children going to and from school as there are no nearby schools or houses.

61 The Planning principle: location of brothels given in Martyn v Hornsby Shire Council [2004] NSWLEC 614, is relevant in this matter:

Brothels are a legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be to locate brothels where they are least likely to offend. However, criteria for locating brothels should not be so onerous as to exclude them from all areas of a municipality.
Brothels should be located to minimise adverse physical impact, such as noise disturbance and overlooking. In this aspect they are no different from other land uses.
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.
Brothels should not adjoin areas that are zoned residential, or be clearly visible from them. Visibility is sometimes a function of distance, but not always.
Brothels should not adjoin, or be clearly visible from schools, educational institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk.
The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels) is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather.

There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses.
Where a brothel is proposed in proximity to several others, it should be considered in the context that a concentration is likely to change the character of the street or area. In some cases this may be consistent with the desired future character, in others not.
The access to brothels should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shop and strip clubs predominate, signage should be restricted to the address and telephone number.

62 In relation to the issues raised by the objectors, these premises are not in view of or proximity to schools or churches or near a bus stop likely to be used by children. The proximity of the university and the railway station, in my view, are not reasons to refuse the application. Whilst there are a number of other brothels in the general vicinity, the council has no specific anti-clustering policy.

63 With respect to the evidence from Senior Constable Carne and Mr Mamouzelos, there is no evidence that the fears and concerns of these witnesses have been realised with respect to these premises. Mr Mamouzelos gave similar evidence and voiced the same concerns in Huang v Parramatta City Council [2009] NSWLEC 1401 regarding a development application for a brothel at 22 Brodie Street. In that judgement Commissioner Dixon, at para 41, states:

I have no doubt that council’s crime prevention officer’s [as Mr Mamouzelos then was] conclusion that a clustering of cash businesses such as a brothel invites a criminal element but he only offers informed general views with no specific connection to this site. I appreciate it is very difficult if not impossible to link criminal behaviour to a particular site however, without such site-specific evidence I have no basis to accept that approval of this application will result in more crime in this area. The fact that this brothel is within the vicinity of 4 approved brothels is not of itself unacceptable when council has no specific policy or control, which precludes this level of clustering. Even applying council’s PDCP the control in that instrument only precludes brothels within 100m of each other and there is no brothel 100m from this site.

64 It is relevant at this stage of the judgement to note that after the hearing of the matter subject to this appeal but prior to the judgment being handed down, Senior Commissioner Moore, in Boers v Parramatta City Council [2010] NSWLEC 1071, dismissed an appeal against the refusal of a development application for a change of use of a two storey industrial warehouse building at 16 Muriel Avenue Rydalmere to permit it to be used as a brothel. Muriel Avenue runs off Brodie Street and is subject to the same planning controls. In the interests of procedural fairness, the parties (ie in this matter - 10827 of 2009) were invited to make further submissions on the relevance of Senior Commissioner Moore’s findings to the matter at hand.

65 The basis of Senior Commissioner Moore’s finding was that he considered that the addition of another brothel to an area in which several already exist was “sufficiently likely to commence a change incompatible with the desired future character of the area” and therefore did not adequately satisfy cl 79(b) of the SREP, that is “whether the operation of the brothel will be likely to interfere with the amenity of the neighbourhood”.

66 With respect to the Court of Appeal decision in Segal and Anor v Waverley Council [2005] 64 NSWLR 177 and the desirability of consistency in decision-making, a Commissioner is not bound to adopt the same findings. Indeed, each case must be determined on its particular facts and circumstances.

67 In the circumstances of this case, the evidence before the Court showed that this is an approved and existing brothel in a zone in which this is a permitted use. This was not the case in Boers as the application was for a change of use from a warehouse to a brothel. All of the relevant planning contentions pressed by the council have been resolved. There was no evidence presented to suggest that the operation of the existing brothel has interfered with the amenity of the neighbourhood. The expert evidence with respect to the public interest was unsubstantiated opinion and the written objections generally reflect moral issues, fears or concerns without supporting facts.

68 Based on the information presented and the circumstances of the matter before me, I do not consider that there is sufficient evidence to reject the application on the grounds that it is not in the public interest.

Conclusions

69 The application before is a permissible use. For the reasons outlined above, I am satisfied that the revised plans and the amended Plan of Management satisfy the relevant provisions of SREP 28.

70 The Orders of the Court are:

1. The appeal is upheld.
2. Development consent is granted for Development Application 513/2009 in accordance with the revised plans tendered as Exhibit A.
3. The final conditions of consent and, if necessary, the Plan of Management are to be amended to reflect the findings in this judgement and are to be lodged electronically with the Court by close of business 15.05.2010 and both the conditions and the Plan of Management will be appended to the Orders.

4. All exhibits except Exhibit A are to be returned.

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J Fakes
Commissioner of the Court