Wheeler v Waverley Council - [2004] NSWLEC 479

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Wheeler v Waverley Council [2004] NSWLEC 479

PARTIES:
APPLICANT
Ann Wheeler
RESPONDENT
Waverley Council

FILE NUMBER(S): 10169 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Application :- Refusal of a brothel - amenity of locality - security - parking and traffic - location in a transitional zone - hours of operation

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley and Woollahra Joint Local Environmental Plan 1991

CASES CITED:

DATES OF HEARING: 26-27/05/2004

EX TEMPORE
JUDGMENT DATE : 07/29/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Berveling, barrister
SOLICITORS
Michell Sillar
RESPONDENT
Mr S Brockwell, barrister
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

29 July 2004

10169 of 2004 Ann Wheeler v Waverley Council

JUDGMENT

1 This was a class one appeal 10169 of 2004 between Ann Wheeler and Waverley Council regarding the deemed refusal of a brothel at 104A Ebley Street, Bondi Junction. The premises were on the whole first floor of a two storey commercial building that had rear access to Grays Lane.

2 All customer access to the brothel was to be via Grays Lane. At the start of the hearing a chairlift disabled persons access was to be installed at the Ebley Street entrance but this was deleted during the hearing.

3 There were existing showers and basins in the existing rooms, the premises had previously been used for a health and beauty therapy service operated with its main entry off Ebley Street. As a result, there were to be some internal changes to locate the reception area near the rear lane doorway.

4 There was to be illumination and security cameras in the laneway. There were three ground floor rooms incorporated into the proposal adjacent to the rear lane doorway and they were to have a spa bath each. Staff amenities were to be near the Ebley Street door and it would be used for emergency access only. There would be eight work rooms.

5 The area was zoned 3(a3) Business Secondary under the Waverley and Woollahra Joint Local Environmental Plan 1991 for the Bondi Junction commercial area. The proposal is in the category of commercial premises in the statute and is permissible with consent.

6 South across Ebley Street is a Residential 2(c1) zone and contains terrace houses, two and three storey flats and, due to another change in zone to Business on the south side and just west of the site, there are more commercial and retail premises and the Cock ‘N’ Bull Hotel.

7 On the same site on Ebley Street, on the ground floor, is a parcel courier service. On the west side of the site a commercial premises electrical goods on the ground floor, and a coaching college on its first floor, and then a laneway between Ebley Street and Gray Street called Ann Street.

8 On the east side of the proposal there was a two storey commercial premises, two mobile phone shops, then an Asian food restaurant that was said to have footpath seating in summer months. Commercial premises were above it. Next east was a video store with commercial premises above.

9 Grays Lane is a dead end off the east end of Gray Street. Opposite the site in Grays Lane is the multi storey blank wall of a new Westfield building under construction. At the dead end of the lane is a truck bay entry to Westfield and a set of steps up to a right of way that connects to Hollywood Avenue. The Court was told the steps and lane are used by residents east of the shopping centre to walk back and forth.

10 Gray Street west of the lane is a one block long street that T-intersects with Bronte Road. In Gray Street is the local RSL Club. Opposite the club in Gray Street is a 24 hour convenience store and above it is another brothel called Unique that was approved by council on 20 May 2004. At the T-intersection opposite Gray Street is an entry to the Easts Leagues Club and around the corner from Gray Street in Bronte Road is the Tea Gardens Hotel.

11 The applicant had originally sought operating hours of 10 am to 1 am seven days a week but after council’s refusal had amended the hours sought to 24 hours a day seven days a week. The previous use was 9 am to 9 pm.

12 The issues in the appeal are:

Waverley and Woollahra Joint Local Environmental Plan 1991 - Bondi Junction Commercial Centre

Particulars

(i) The proposed use does not improve the environmental amenity of the centre and adjacent areas and unreasonably affects the amenity of residential areas adjoining and surrounding the centre.

Local Environmental Plan 1991

Particulars

Amenity

Security

6. Whether the proposed entrance from the Ann Street right-of-way is appropriate in terms of patron and employee security, having regard to the physical environment of the right-of-way.
Parking and Traffic

Public interest and issues

13 The respondent’s evidence was heard from:

§ Professor M Howell for himself and on behalf of Dr L Zee, objectors of unit 7/95 Ebley Street, that was apartments called Kiora opposite the site.
§ Mr P S Bull, town planner for the council,
§ Mr T McLaren, traffic engineer for the council.

14 The applicant’s evidence was heard from:

15 The traffic engineers had prepared reports in reply and produced a joint statement in Exhibit H. The planners had produced a joint statement in Exhibit 12.

16 Professor Howell said he had lived in Kiora for some years and family had been there for 30 years. He acknowledged the area had changed a lot but not necessarily for the better. He said he only found out about the brothel called Unique three months ago when a guest of his walked to the RSL thinking it was a good place to catch a taxi. Unfortunately the guest was assaulted and robbed. He thought a second brothel in Gray Street would make it more dangerous.

17 He was concerned that the proposed brothel would be only 20 m from his front door. There were all ages from children to the elderly living in Kiora. The brothel must attract more activity than existing late at night. The amenity of Ebley Street had been affected by the growth of the shopping centre and late night quieter amenity was precious due to the constant noise and activity at other times.

18 If the disabled access to Ebley Street had remained, it would have appeared as an entrance and other customers would use it too, so its deletion was an improvement, Dr Howell said. But it did not overcome other facts such as about 10 m from the Ebley Street door was the tutor college used by HSC students. He did not think it was a suitable use opposite residential and near other premises frequented by school students. There would be a decline in property values, he said. He agreed all access being from Grays Lane was an improvement. He agreed the school students were in the 16 to 17 year old age bracket and said it was an impressionable age. He agreed brothels should be allowed in suitable locations but not in mixed commercial/residential areas.

19 Mr Bull noted the brothel called Unique is in the Zone 3(a2) Business area whereas the site is in Zone 3(a3) Business Secondary area. The latter is regarded as a transitional zone between the high rise business and retail areas and residential. The proper place for a brothel was in the 3(a2) Zone, Mr Bull said.

20 He disliked the rear lane entry as it was a neglected rear lane access with places anti-social persons could hide. For example, the garbage bin recesses at the rear of buildings fronting Ebley Street. Mugging and drug use would be facilitated.

21 He thought the security lights and camera proposed by the applicant demonstrated the potential dangers. He said the proposal had not been referred to the police because council staff and council sought to refuse it.

22 The rear lane was not easy to find, even if the advertised address was Grays Lane customers of the proposal who may have been drinking or shopping nearby would not easily find it.

23 There was currently work on a revised Development Control Plan for brothels but it was not near the exhibition stage and Mr Bull could not say if it would have provisions to limit brothels in the 2(a3) Zone.

24 He noted the peak traffic activity of brothels was shown in Mr Hallam’s report to be mid-evening to early morning. That seemed to correspond with the closing hours, or the end of popular hours, for local pubs and clubs that created the quieter period currently for local residents. Mr Bull recommended control on hours of the brothel from 9 am to 9 pm 7 days a week to take its operating hours away from the peaks and so preserve the quieter period. It was the extended hours of operation sought by the applicant that made the proposal too intense and not comply with objective 2 of the 3(a3) Zone which stated:

To allow for development at a less intense density and scale than that permitted in the core business zone.

25 And because of that, the proposal would not fulfil objectives three and four, he said, and they stated:

(3) To promote a transitional zone between the core business zone and the surrounding residential areas.

26 He agreed that brothels were a permissible use in the 3(a3) Zone whereas other intense forms of entertainment such as cinemas, clubs, hotels, amusement parlours had to be in the 3(a2) Zone. He agreed that apartments were permitted in the 3(a2) Zone where he said the brothels should be, the same as apartments were permitted in the 3(a3) Zone.

27 He did not agree that this eliminated his opinion of brothels not being appropriate close to dwellings.

28 He did not accept that the change to all customer access from Grays Lane would stop increased activity in Ebley Street. He thought customer parking late at night would focus on Ebley Street. Mr Bull agreed if the hours of operation remained 9 am to 9 pm, it would be the same hours as the previous use, and parking demand would remain the same as for the previous use.

29 Mr Falzon said once the construction works and scaffolding related to the Westfield development were taken away from the rear lane it would be open and airy. The activity of the truck loading bay in the lane would give added security, as the lane would not become a place where anti-social persons could lurk.

30 The entry to the proposal would be discreet and because it was opposite the high blank wall of the Westfield development it would offend no one and cause no amenity impacts to other properties in the lane.

31 By contrast he noted the brothel called Unique at the corner of Bronte Road and Gray Street shared the upstairs of the building with other tenants. The lobby tenant signboard of the Unique building showed it had other tenants that women and children were likely to attend and pass by customers of the brothel called Unique.

32 The council had approved that brothel apparently aware of that situation and apparently concluded it would not cause offence or have amenity impacts. The other tenants included the Brazil Australia Student Service, the AJJM Basketball Australia, a modelling agency and a valuation organisation. The proposal must have much less of an impact than that brothel would have, said Mr Falzon.

33 In regard to disabled persons’ access via the Grays Lane door proposal, he said a chairlift could be installed but it was not mandatory as the regulations only required it on premises exceeding 400 sq m area. The proposal was much less than that at 274 sq m area.

34 He did not see a reason to prevent 24 hours a day, 7 days a week operation. He produced Exhibit J showing a number of the other nearby commercial and entertainment facilities open either 24 hours or closing between midnight and 3 am. As a fall-back, the original hours sought for the proposal of 10 am to 1 am were more than acceptable. He did not think a trial period was needed as the draft conditions and management plan gave council ample controls to enforce and stop nuisance if it occurred.

35 In cross-examination Mr Falzon was taken to the traffic report of Mr Hallam in Exhibit D, Appendix B, a traffic generation survey for a brothel at Brookvale. It was put to him it showed the busiest arrival/departure of customers was between 9 pm and 2 am totalling 37 and that 27% came by car.

36 He said it was only a one day survey and did not necessarily indicate the normal turnover at that brothel. He found each brothel had different characteristics. Those near industrial areas usually peaked between 4 pm and 7 pm, and Bondi Junction was a much bigger centre than Brookvale so brothels at Bondi may have a constant turnover for more hours of the day and night.

37 It was put to him closing at midnight then would only cut out two peak hours. He thought to close at midnight was unnecessary with the Grays Lane entry.

38 It was put to him parking would occur in every street and cause a nuisance. He thought turnover of customers using cars would not be distinguishable from normal car movements. Based on Brookvale there were only ten cars between 9 pm and 2 am, most people either walked, used public transport or a taxi.

39 It was put to him only the uses in the 3(a2) Zone went to 3 am or 24 hours. In a 3(a3) Zone, in which the proposal was located, the last place to close was the video store at midnight.

40 He said Ebley Street was the ring road for Bondi Junction and in the locality some pubs and clubs and one convenience store and three supermarkets opened till 3 am or 24 hours. There would always be some people walking or cars moving in Ebley Street. Ten more cars over a five hour period would not be noticeable, and the Grays Lane entry was virtually in the 3(a2) Zone so the operational access of the brothel was next to compatible uses not next to residential.

41 In any case Ebley Street being next to the central business area and being on the ring road could never expect to have a quiet suburban amenity. Mr Falzon said he noted in the joint conference with Mr Bull in Exhibit 12 in regard to issues one and two Mr Bull agreed that, given the amended plans to use only the Grays Lane access, that the objectives of the 3(a3) Zone were satisfied.

42 Mr Falzon said Grays Lane meant most customers of the brothel would arrive from and disperse in many directions, most of them through the central business 3(a2) Zone and not past residential uses.

43 It was put to him the lane had recesses that could facilitate criminal activity. He agreed there were recesses on one side of the lane, but the Westfield wall was blank and offered nowhere to hide. The proposal’s external lights and video camera would dissuade would be wrongdoers, and the proximity to the RSL and the 24 hour opening Leagues Club and the convenience store would mean sufficient numbers of people nearby, late at night, to give public surveillance of the lane and deter anti-social behaviour.

44 He agreed if the Westfield loading dock was only open 5 am to 10 pm it was outside the hours most likely to give any benefit to security of persons in the lane.

45 The applicant tendered some draft conditions in Exhibit G and a draft management plan in Exhibit L with opening times of 24 hours a day, 7 days a week and sought to have the deferred commencement aspect deleted from the council’s condition Pt A No. 1 in Exhibit 9 and make it a standard condition.

46 Mr McLaren, the traffic engineer for the council, had looked at an 11 day survey of comings and goings from a brothel at Edgecliff in Exhibit M. He said it was a better indicator than a one day survey at the Brookvale brothel which was in Exhibit 13. The Edgecliff one was in the same customer locality as the proposal, the same number of work rooms, it required on-street parking for customers and staff and operated 18 hours a day, six days a week. None of that data was known about Brookvale.

47 He agreed for normal business hours the proposal would not increase parking compared to the previous use, it was the out of hours parking demand that increased. The Edgecliff survey showed the majority of customers came by car, and parked near the brothel in the street, and the peak period was 9 pm to 4 am.

48 The range of cars parked in the area was between one and ten per hour with peak being between 10 pm and 2 am. Mr McLaren thought at the subject proposal, a new customer who drove, would circulate the area using Ebley Street in order to sight the Grays Lane entry, and then find a carpark. Customers who had been before would go directly to a parking space and use Ebley Street if space was available.

49 He agreed that the parking survey of the locality around Ebley Street and Gray Street showed often at night there were no parking spaces available, and more cars parked than there were spaces available. Illegal parking occurred such as using “No Stopping” or “No Parking” zones or squeezing into corners.

50 Mr Hallam said the Edgecliff brothel customer parking survey was done by the brothel owner. The traffic engineer involved only supplied a methodology and survey check-sheet. His own survey at Brookvale was done professionally with his staff.

51 In any case there were important differences between the Edgecliff brothel and the proposal such as it had 13 sex workers attracting between 25 and 62 customers between 7 pm and 4.30 am. Mr McLaren had agreed that the main factor in customer turnover was the number of sex workers on site. The proposal only had six sex workers. The eight work rooms of the proposal were there to provide a choice of exotic decor.

52 On a proportional basis compared to Edgecliff the proposal would only attract 12 to 29 customers in the same period or one to three per hour. That would mean one or two cars per hour if the Edgecliff travel modal split was accepted.

53 Mr McLaren had estimated four to five cars per hour so Mr Hallam was happy to accept the Edgecliff figure. It supported Mr Falzon’s contention that the number of car movements at night related to the brothel would not be discernible from the normal traffic and parking on Ebley Street.

54 Mr Hallam added that the evidence was, customers of brothels usually preferred to be discreet and parked away from the site. The Grace Brothers carpark was adjacent and the Eastgate carpark was only a block away and they provided public parking up to midnight five days a week and 10 pm on weekends. Up to two hours was no charge at Grace Brothers and one hour no charge at Eastgate. Mr McLaren had not included these in his survey of local parking but they were obvious options for brothel customers.

55 Mr Hallam had looked at Mr McLaren’s survey of on-street parking on Friday 7 May, Saturday 8 May and Thursday 13 May in 2004 between 8 pm and midnight in streets close to the site. There were always two or more vacant legal carparking spaces available which meant even on Mr McLaren’s evidence there was sufficient parking for the out-of-hours periods he and Mr Bull were concerned about.

56 Mr Hallam agreed with Mr McLaren that first time customers would drive by Gray Street but on repeat visits would go direct to a parking spot in Grace Brothers or Eastgate centre or nearby streets but not so close as the Ebley Street or Gray Street frontages of the site. He thought probably in Llandaff Street, West Ebley or Bronte Road.

57 Mr Hallam thought most customers on his modal split would already be in the area either shopping or at the nearby hotels or clubs and so would walk to the brothel from those places and not increase parking near the site.

58 Mr Hallam agreed the draft plan of management said a maximum of six sex workers at any time, that did not exclude others being on the site. He agreed his calculations were based on only six workers being on site at any one time. He agreed that a receptionist and a manager may also be on site in addition to the six workers but they did not increase customer turnover.

59 Mr Hallam agreed it was the out of hours parking at the brothel that was additional to the previous use on the site, that is, outside the hours of 9 am to 9 pm. He agreed his survey at Brookvale was on a Saturday night because that was the night the brothel owner said was the busiest. So whilst his survey might have been professionally done, it could be flawed if the brothel owner had not been correct.

60 He agreed Mr McLaren’s survey of on-street parking on Thursday, Friday and Saturday nights showed that the local streets in the hours showed surveyed were 77% to 96% parked out, and Gray Street up to midnight was 150% parked out due to illegal parking, but Mr Hallam did not believe brothel customers would park in Gray Street in any case. He agreed that wherever they parked there would be door slams, engine starts, alarm beeps in locking and unlocking the car, et cetera. But he said, at two per hour that would not be discernible from normal activity in the area, nor would his calculation of a maximum of four to five per hour because they would be spread out amongst the local streets and not concentrated near the same dwellings.

61 He was asked if there would be more than six workers on site at change of shift, he said he thought they staggered staff to suit demand so they would not all change over at the same time. The applicant submitted it did need some flexibility at changeover.

62 In considering the evidence the Court has come to the following conclusions. The proposed use for a brothel is permissible with consent in the 3(a3) Zone. The legislation has been in place since 1991 with the recognition of brothels as being in the commercial use category not too long after that.

63 Professor Howell’s objections are in two parts. The first is the principle of having brothels near residential and that is really an objection to the use being permitted in the zone. Residential dwellings are also permitted in the 3(a3) Zone. The council has had ample years to exclude brothels from the 3(a3) Zone if it did not want them there, so Professor Howell’s objection on that aspect is a matter for council, the Court does not determine zonings.

64 The other part of Professor Howell’s objection is about the effects a brothel might have, and that is the basis of the dispute between the applicant and the council. The question before the Court therefore is whether this particular brothel would cause impacts that would make it unacceptable.

65 Part of that is Ebley Street being the zone boundary between Business Secondary 3(a3) Zone and the Residential 2(c1) Zone, and Grays Lane being the boundary between the 3(a3) Zone and the General Business 3(a2) Zone.

66 The 3(a3) Zone is said to be a transitional zone between the central business area and the residential. Mr Bull’s evidence, that objective 2 of the Zone 3(a3) means the brothel is too intense to be permitted, does not bear scrutiny. That objective is about less intensity in scale of buildings compared to the core business area. The building the proposal is in has only two storeys and that is not changing.

67 The other two objectives Mr Bull relies on are Nos. 3 and 4 and they are the important ones, they identify the zone as transitional for uses that are compatible physically and operationally with surrounding residential areas. “Physically” seems to refer to the building again, and is unchanged, and at two storeys is compatible with two and three storey residential flat buildings opposite.

68 So it is the operational aspect of the brothel on which the respondent’s evidence relies. In this case residential uses do not surround the proposal, they are on the south side only, on the other side of Ebley Street. It is fairly clear from the evidence that the change in the proposal of all access for customers and staff being from Grays Lane, and only emergency exit to Ebley Street, must mean most concerns of the residents in Ebley Street will be reduced to acceptable levels, but not necessarily 24 hours a day.

69 The traffic and parking evidence shows that between 9 am and 9 pm no difference to the existing activity will occur. From then on there will be more cars in the locality than before. But the increase would be only between two and five extra per hour, and not all of them would use Ebley Street where the dwellings are, and some would use the two large shopping centre carparks close to the site.

70 As a consequence it would be most unlikely residents would notice any discernible difference between the core business area ring road traffic and parking activity on Ebley Street up until midnight, thereafter it might be noticeable in Ebley Street as the very busy carparking period ceases and unoccupied parking spaces become more numerous.

71 The nearby Unique brothel recently approved by council also lodged an objection to the proposal saying, in summary, the brothel is inconsistent with the 3(a3) Zone. The Court’s opinion on this has already been stated. Unique brothel also objected on traffic and parking grounds including that the proposal would cause congestion especially since it was adjacent to the new Westfield carparking access and truck loading dock. Considering the evidence on traffic and parking, the Court cannot give that objection significant weight. The objection also included reference to the council’s draft development control plan for brothels but Mr Bull, the council’s planner, agreed it had not even reached the stage where public exposition was contemplated, so the Court could not give it significant weight.

72 In regard to the concerns of nearby persons, the evidence was that 74 notifications were sent out by the council and only four objections came in, two from the same source, meaning three objectors in all. Mr Malovic, the third objector, when he found the entry was to be from Grays Lane withdrew his objection.

73 On the security aspects the council had not referred the application to the police for comment, so the Court had nothing from that source either for or against the proposal.

74 On the Grays Lane entry, the Court formed the opinion that lighting and a security camera in the lane would be a deterrent to anti-social behaviour compared to the existing situation. The experience of the guest of Professor Howell indicates that the security of pedestrians can be uncertain in city areas late at night. The activity of cars and pedestrians in Gray Street, and any pedestrians who walk through Grays Lane to Hollywood Avenue, must be less prone to anti-social behaviour if potential wrongdoers know the lights and camera are recording their actions. The camera should be set to scan the whole lane not just focus on the entry to the proposal.

75 The Court accepts the evidence that the Grays Lane entrance will mean the most noticeable external activity of the brothel will only be perceived from the 3(a2) Zone in the core business district. Customers of the proposal will arrive and depart from multiple directions via Spring Street, Bronte Road, Ebley Street, Ann Street, Gray Street, Hollywood Avenue and the right of way, thus further reducing the likelihood of any discernible difference in local activity being noticed by local residents except in the hours after midnight.

76 Midnight is the latest closing hour of existing commercial premises in the 3(a3) Zone and the quiet period of the night should not be further reduced for nearby residents.

77 The Court has concluded that subject to appropriate conditions, including that operating hours of the brothel shall be only between 10 am and midnight seven days a week, the proposal has no impacts sufficient for refusal.

78 On the other conditions the Court retains the deferred commencement condition to ensure that the council is satisfied with the arrangements for management. Even the applicant sought a change to enable more than six sex workers on site at shift changeover time. The Court has no evidence on that so it is best to leave it to the detailed negotiations of the plan of management.

79 Part B Condition 1 needs updating to reflect drawings in Exhibits A and B. Condition 2 needs setting of the approved opening hours. Condition 4 sought a trial period and the applicant sought a similar condition to that granted by council for the brothel called Unique, that condition is number two in Exhibit F and the Court substitutes it. Condition 5 the applicant sought deletion of the bond for construction damage to council property. This is a normal condition of consent where the proposal necessitates building works on site as this proposal does, therefore the condition remains. Condition 16 was agreed to be deleted by the respondent. Condition 28 is superfluous and is deleted. Condition 29 shall read “Number of sex workers on the premises is limited to six, arrangements at changeover of shifts to be as set down in the amended plan of management in part A hereof”. The applicant’s additional conditions in Exhibit G are adopted also.

80 Therefore the orders of the Court are:

1. The appeal is upheld.
2. Deferred commencement consent is granted for a brothel at 104A Ebley Street, Bondi Junction, but with all access, except in emergency, and all advertising of its address to be from its rear frontage only, known as Grays Lane. The proposal to be as shown on drawings DA01B, 02B and 03B by Solid-Void Design in Exhibits A and B of this appeal all as amended by and in accordance with the conditions in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits A, B, F, G, H, J, 2, 6, 8, 9 and 12.

___________________
K G Hoffman
Commissioner of the Court
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Wheeler v Waverley Council [2004] NSWLEC 479

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CITATION:	Wheeler v Waverley Council [2004] NSWLEC 479
PARTIES:	APPLICANT Ann Wheeler RESPONDENT Waverley Council
FILE NUMBER(S):	10169 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Refusal of a brothel - amenity of locality - security - parking and traffic - location in a transitional zone - hours of operation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley and Woollahra Joint Local Environmental Plan 1991
CASES CITED:
DATES OF HEARING:	26-27/05/2004
EX TEMPORE JUDGMENT DATE :	07/29/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr S Berveling, barrister SOLICITORS Michell Sillar RESPONDENT Mr S Brockwell, barrister SOLICITORS Pike Pike & Fenwick