Wong v Parramatta CC

[2005] NSWLEC 557

Land and Environment Court

of New South Wales

CITATION:

Wong v Parramatta CC [2005] NSWLEC 557

PARTIES:

APPLICANT
Kiong Jin Wong

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10314 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Appropriate location for brothel - amenity impacts - unauthorised use.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (SREP No. 28)
Parramatta City Council Regulation of Brothels - Development Control Plan and Health Standards

DATES OF HEARING:

05/09/2005

 
DATE OF JUDGMENT: 

10/13/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannaford Lawyers

RESPONDENT
Mr C. Gough, solicitor
of Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey

13 October 2005

10314 of 2005 Kiong Jin Wong v Parramatta City Council

JUDGMENT

Background.

1 This appeal is against council's refusal of development application for a brothel at 6 Union Street, Parramatta. The brothel has apparently been operating on unauthorised basis for about two years and council has initiated Class 4 actions in this regard.

2 The outstanding issues for the appeal concern:

• Suitability of the location
• Compliance with the Brothels D.C.P.
• Amenity impacts
• Car parking
• Public Interest
  

The site.

3 The subject site is located on the northern side of Union Street, Parramatta between Charles St and Argus Lane and is identified as Lot 1 in DP 801388.

4 At present the site improvements comprise a double storey face brick commercial building with a number of entries onto Union Street.

5 The surrounding area is characterised by a mix of commercial and residential land uses. The subject site is within the Parramatta central business district where there is a variety of building forms and styles, particularly as a result of recent development in the area.

6 Adjoining the site to the west is a vacant block, utilised for commercial parking purposes. Adjoining the site to the east is a development site. On the opposite side of Union Street to the south is a 9 storey residential flat building and Parramatta Public School is located approximately 100 ms the south east of the subject site.

The proposal.

7 The proposed brothel is to occupy the first floor premises and contain 2 working rooms, a lounge area, waiting room and 2 bathrooms. Controlled entry to the first floor is gained by a stairway from the front of the subject building and there are metal security gates at the top of the stairs to restrict entry.

8 The proposed operation of the brothel is for:

• Opening hours from 10 a.m. to 10 p.m., 7 days a week;
• 2 working rooms;
• 2 sex workers and anyone time 1 manager/receptionist;
• 3 offstreet car parking spaces at the rear of the subject site.

Planning Controls.

9 Sydney Regional Environmental Plan (SREP No.28) - under which the site is zoned "City Core" and brothel is permitted with consent.

10 The following causes of SREP 28 are applicable to the proposed development:

• Cl 14 -- Planning aims for the Parramatta Primary Centre;
• Cl 79 -- Brothels;
• Cl 57 -- Car parking provisions.

11 Also relevant are the following causes of the Parramatta City Centre plan:

• Cl 4.2 -- Objectives for the Parramatta City Centre;
• Cl 5.1 -- Compatible Landuses;
• Cl 9.1 -- Pedestrian access and mobility;
• Cl 12.6 -- George Street special area..

12 Parramatta City Council Regulation of Brothels -- Development Control Plan, and Health Standards. The following cls of this DCP are applicable to the proposed development:

• Cl 2.1 -- Location;
• Cl 2.4 -- Hours of operation;
• Cl 13.0 -- Entrances, Exits and Fire Safety.

13 For the council detailed evidence was presented by Mr A. Bas, Councils Planning Team Leader (exhibit 2). A number of written objections contained in exhibit 1 were considered, together with the oral evidence of objectors given on-site. The main issues raised by the objectors can be summarised as follows:

• close proximity of the brothel to residential premises;
• the brothel will encourage undesirable characters to the area;
• the brothel is located in close proximity to schools and therefore within view of schoolchildren;
• moral and ethical objections;
• the brothel will increase traffic flow in the street;
• the increasing crime due to break-ins, theft and assault;
• the brothel will attract undesirable people using drugs and alcohol.
  

14 Mr C. Blyth, consulting town planner, provided detailed report on behalf of the applicant, supporting the proposal. He notes that the proposal was referred to the NSW Police Service and that no objection was received.

15 The planning framework contained within SREP 28 provides the following objectives for the City Core zone:

(a) to encourage Parramatta's role and growth as a focus within the Greater Metropolitan Region for finance, commerce, tourism, cultural activities, entertainment and government services,
(b) to provide a consolidated commercial core to the Parramatta City Centre and concentrate commercial development around the Parramatta Railway Station,
(c) to encourage and protect accessible city blocks by providing active frontages to streets, and a network of pedestrian-friendly street, lanes and arcades .

16 Clause 79 refers to brothels as follows:

In determining an application to carry out development for the purpose of brothel, the consent authority must consider the following:

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

17 In accordance with the planning controls, specific requirements for the location of brothels are contained in the Parramatta City Council Development Control Plan: Regulation of Brothels (DCP). Its objectives are to:

Ensure brothels are sensitively located so that they do not create adverse social impacts; do not cause offence to the community at large; and do not result in any other adverse environmental effects.

18 The associated standards provide that brothels must not be sited:

• on any lands zoned residential;
• within 100 m of any land zoned residential;
• within 100 m of any church, hospital, school, community facility, public open space or any place regularly frequented by children for recreational or cultural activities;
• in a prominent position or at an intersection;
• within 100 m of an existing brothel. Council will not permit "congregation" of brothels so as the form of potentially form "red light districts";
• within enclosed shopping malls/arcades ;
• within 100 m of a licensed premises being a hotel, public car, nightclub or the like :
• within or with frontages or the access to the Church Street Mall ;
• within 50 m of a public transport facility being a railway station in entry, bus stop, taxi rank or a ferry terminal.

19 According to the evidence presented to the Court, this brothel has operated illegally for the past two years. However there does not seem to have been significant public awareness of its presence or any record of adverse impact on local amenity.

20 However Mr Bas opposes the proposal because:

• it would not contribute in a positive fashion to the quality of life for existing and future residents, visitors, workers, primarily because the site is inappropriate;
• it is located in close proximity to several sensitive land uses. Immediately south across Union Street is a large residential flat building located approximately 60 m from the entrance of the proposed brothel. The entrance will be visible from the front of this building;
• the potential noise impacts from patron using the brothel will cause disturbance;
• public schools are located in the relatively close proximity.

21 With specific reference to the Brothels DCP locational standards, Mr Bas is dissatisfied because it is "within 100 m from land zoned residential, and within 100m from Parramatta Public School. The site has a visual presence when viewed from residential premises and as such is likely to detract from the residential amenity."

22 Against this, Mr Blyth supports the proposal, on the basis of a limited term consent, because:

• the subject use is permissible in the zone and may be regarded as an entertainment use and as such achieves the intent of objective (a);
• the brothel is to be located on the first floor and it has its entry setback by the existing footpath colonnade, which restricts direct viewing;
• windows are to have drapes or window coverings in order to restrict views into premises.

23 In view of the disparate positions adopted by respective planners, they conferred and prepared a joint report, exhibit A, which assessed the proposal relative to the brothels locational principles set out in Martyn v Hornsby Shire Council (2004) NSWLEC. These principles were developed mainly due to the absence of any specific locational criteria for brothels in Hornsby.

Findings.

24 Insofar as the planners undertook this further assessment of the proposal relative to the planning principles, it seems to me that less reliance should be placed on them, where there is specific, locational criteria for brothels adopted, as in the current matter. Firstly, SREP 28 permits brothels within this City Core zone and then the Brothels DCP contains the complimentary locational criteria for this area. Under these circumstances, I consider that generally more weight would be given to the local controls.

25 However there appears to be a fundamental inconsistency between these local controls because the application of the DCP provisions, create exclusion zones for brothels. On the evidence before the Court, apparently no exercise has been undertaken to ascertain the cumulative effect of these exclusion zones, with the possible outcome the brothels could be excluded completely. As this is contrary to the primary controls in SREP 28, which permits brothels, I accept that the application of the DCP provisions allows the exercise of some discretion, providing the brothels location in such as to not create undue social impacts or offence to the community at large.

26 Accordingly, it seems to me that due recognition has to be given to the amenity of the neighbourhood, in terms of development within the City Core Zone. This zone allows a mix of commercial, business type activities at street level, together with residential units above. It is likely that the resultant residential amenity will be somewhat different from that experienced in predominantly residential zones. This point was made by Mr Blyth, who says that a different level residential amenity might be expected to a purely residential area, because the zoning permits and encourages the coexistence of residential and commercial use.

27 Furthermore he says that;

"if separation distances of the order sought to be set by the council's DCP are applied, it would have the effect of making it very difficult or impossible to establish either use due to the location of an existing establishment. In the subject case because it has been operating by the two years this is sufficient time to determine whether there is likely to be any adverse amenity impact and I'm not aware of any recorded event of adverse amenity impact to residential use. The use is discreet and does not draw attention to itself…"

28 Reference then to the fundamental controls in cl 79 (a) of the SREP 28 requires consideration of the location and resultant impacts of brothels. In this case the proposed brothel is of relatively small size, comprising 2 work rooms and ancillary rooms and it is discreetly located at the first floor level. Taking into account that this brothel has operated (illegally) for the past two years and there is no record disturbance, I consider this a relevant factor, that its continued operation on a similar basis, for a limited time, is unlikely to cause disturbance to the neighbourhood.

29 Next cl 79 (b) requires consideration of any likely interference with the amenity of the neighbourhood. Again this outcome has been tested over the past two year period, with no substantive adverse amenity impacts put before the Court. Insofar as its presence may now be recognised, the entry is discreet, being setback from the street by a colonnade approximately 3 m wide and it is proposed to appropriately screen/curtain the two windows facing Union Street. Accordingly both planners agree that there is unlikely to be any disturbance from noise or overlooking.

30 Within this ambit of merit consideration, I have considered the other locational restrictions identified in the planning principles, in conjunction with the objections raised by the neighbours. Whilst there are residential flat buildings in the vicinity of the brothel, but on the opposite side of Union Street, I consider the separation distances in the order of 60 m is acceptable within this City Core zone because the brothel is discreetly located behind the colonnade and its external windows will be screened. In my assessment the location of the brothel is unlikely to cause such disturbance to warrant rejection.

31 The site is also in proximity to Arthur Phillip High School and Parramatta Public School. However the existing commercial buildings substantially screen the relatively discreet entry to the brothel from the school properties. While some schoolchildren may walk along Union Street, it is not a primary pedestrian route as other pedestrian routes are available. Accordingly I do not consider this brothel should be refused because some children may choose to walk along Union Street or possibly see the brothel building.

32 Some of the other objections were in relation to antisocial behaviour by brothel clients. However no substantive evidence was produced in this regard, and whilst some nuisance has recently occurred from patrons of the hotel in Harris Street, there is no substantive link to the operation of the brothel. Therefore I do not consider it reasonable to refuse the application on this basis.

33 Another concern relates to decrease in property values due to the operation the brothel. However no substantive evidence was presented in this regard and I do not consider it reasonable to reject this proposal based on speculation of the property values.

34 Insofar as some objections were raised to the draft conditions, particularly the requirement for upgrading to provide disabled access and alteration of one of the workrooms to include an en-suite, I do not consider this is reasonable in this case. Instead I rely on Mr Blyth’s evidence that this is a small scale operation, which can be effectively maintained with the proposed room configuration to achieve reasonable standards of privacy and public health standards. Furthermore it is not viable to warrant the expense to provide disabled access for this small development, which only has a 12 month operation permit.

35 The question of appropriate on-site parking was raised in relation to the provisions of cl 57 of SREP 28, which prescribes only 1 car parking should be provided on-site for this type of development. The question arises because the existing development contains 3 car parking spaces. Mr Blyth has addressed this matter by way of a SEPP 1 objection to the development standard. He refers to the objectives in cl 56(1) for car parking controls and submits the following reasons in favour of a variation:

(i) The car parking area is a feature of the existing development of the site and is understood to be in existence with the approval of Council;
(ii) the existing development on the site and provision of three parking spaces occurred at a time prior to the coming into effect of Sydney Regional Environmental Plan No. 28 on 20 Aug 1999 and as such represents a feature of the site development that was already in existence pursuant to the requirements of an earlier planning regime;
(iii) as an existing characteristic of the site development the provision of an additional 2 car spaces does not defeat the objective (a), (b), (c), of cl 56 because these objectives relate to the desired future situation beyond 20 August 1999;
(iv) upon redevelopment of the site pursuant to the current development consent the provision of car parking will presumably be in accordance with the requirements of cl. 57 of the REP and the existing excess provision will be removed ensuring future compliance with the development standard;
(v) interim use of the three spaces that exist does not create any adverse impact within the precincts but rather provide desirable parking for clients and staff of the brothel.

36 From this, he concludes that strict compliance with the development standard restricting on-site car parking 1 space is unnecessary and a reasonable in the circumstances of this case. Taking into account the limited time for the proposed consent and associated use of these car parking spaces and the fact that Council supports the SEPP 1 Objection, I accept it is well founded and should be allowed.

Conclusions.

37 Having considered the evidence, the submissions and undertaken a view, I consider this proposal merits conditional consent.

38 The brothel is permissible within the City Core zone where a mix of commercial and residential development is allowed. Consequently there will likely be a higher level of activity, resulting in a different level of amenity for the residents, than expected in the predominantly residential zones. The expectation for a brothel in this zone is not unreasonable according to the provisions of SREP 28, providing it can operate without undue disturbance or disamenity to the neighbourhood.

39 Sometimes where there are concerns about the future operation of sensitive developments, they are approved on the basis of time-limited consent, to enable their operation to be monitored initially. In this case, the sensitive land use as a brothel has operated (illegally) for 2 years and over this period has not caused undue disamenity. As the proposal is to continue with substantially the same size of development and operating hours, albeit with some minor alterations/improvements to the site, my conclusion is that the considerations in s 79 of SREP 28 are reasonably satisfied, to permit consent. In this regard, I particularly note that no objections to its operation have been made by NSW Police.

40 In granting this consent, I have given particular attention to the fact that development consent has been recently granted for the demolition of the subject building and its overall redevelopment in conjunction with adjoining land. Accordingly to Mr Hannaford submissions, this redevelopment is planned in the near future so that the applicant accepts the 12 month time-limited consent, which will coincide with closure of the brothel for demolition.

41 Insofar as I consider the SREP 28 matters are satisfied, I have also considered the planning principles in conjunction with the Brothel's DCP, and I am satisfied that the objectives of the DCP are reasonably satisfied because the proposal should not create adverse social impacts which cause offence to the community at large or other adverse environmental impacts, based on the evidence presented to the Court.

1 The appeal is upheld.

2 The SEPP 1 Objection to the development standard in cl 57 of SREP 28 relating to provision of car parking spaces is allowed.

3 Development consent is granted to DA 1467/2004, for the operation of a brothel at 6 Union Street, Parramatta for a period of 12 months, subject to the conditions in Annexure A.

4 The exhibits may be returned except for 2,4,5,A, B and C.

5 No order as to costs.

________________________
R Hussey
Commissioner of the Court
ljr