Zhang v Ashfield Council - [2004] NSWLEC 259

Land and Environment Court

of New South Wales

CITATION: Zhang v Ashfield Municipal Council [2004] NSWLEC 259

PARTIES:
APPLICANT
Hai Hang Zhang
RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S): 10027 of 2004

CORAM: Bly C

KEY ISSUES: Development Application :- Brothel - inappropriate location - social impact - management

LEGISLATION CITED: Ashfield Local Environmental Plan 1985
Environmental Planning and Assessment Act 1979
Restricted Premises Act

CASES CITED:

DATES OF HEARING: 03-04/05/2004

DATE OF JUDGMENT: 06/01/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D J Galpin, barrister
RESPONDENT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10027 of 2004

Bly C

1 June 2004

Hai Hang Zhang
Applicant

Ashfield Municipal Council

Judgment

Introduction
1. This appeal relates to a development application for the use of the first floors of the two adjoining premises at Nos. 293 and 295 Liverpool Road, Ashfield, as a brothel. The applicant has conceded that the premises above No. 295 have been operated without the necessary development consent as a brothel for a number of years. These premises are to be extended into No. 293 by making openings in the party wall. There are to be six working rooms with associated waiting, service and amenity rooms. Other minor internal building works are proposed.
2. The site is located at the north-eastern corner of Liverpool Road and Chessel Lane in the Ashfield shopping/commercial centre. Development in the vicinity of the site comprises a wide mixture of retail, commercial, residential and community activities and facilities including an apartment building, hotel, schools and a church. The heavily trafficked Liverpool Road has two bus stops in close proximity to the site. The Ashfield Railway Station and bus interchange is located a short distance to the north.
3. There are to be no more than six sex workers and one manager/receptionist on the premises at any one time. The proposed hours of operation were to be 24 hours per day seven days per week but on the advice of the applicant’s consultant town planner this has been changed to exclude Sundays between 8 a.m. and 8 p.m. and all-day on Good Friday and Christmas Day.
4. The entrance to the brothel is via a single doorway and stair off Liverpool Road. There are stairs at the rear providing access to Chessel Lane. Again, on the advice of the applicant’s town planner, the use of this rear access is to be limited to staff and emergency egress.
Statutory provisions
5. The site is situated in Zone No. 3(a) General Business Zone of Ashfield Local Environmental Plan 1985 ("the LEP") in which zone the proposal, being commercial premises, is permissible with development consent. There are no objectives for this zone but the respondent says that, in this case, the relevant objective of the LEP is to:

Promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment.

6 . Council prepared draft Amendment 59 to Ashfield Local Environmental Plan 1985 which seeks to prohibit brothels in the entire local government area. The Department of Infrastructure Planning and Natural Resources (“the Department”) opposes this amendment which has not progressed beyond being a draft. It is certainly not certain or imminent and attracts no weight at all in the determination of this application.

7 . Also applicable is Council's Development Strategy ("the strategy") and the Ashfield Town Centre Development Control Plan ("the DCP"). Relevant aspects of the strategy include Objective 3.2, which indicates a need to accept the existence of the main highway (Liverpool Road) and use it to advantage. In particular, properties that have the highway as their main address for passing trade should present quality signage and building frontages.

(i) the need to value and support: existing businesses and therefore the premises in which they operate; the existing desirable pedestrian scale of the street and buildings; and heritage buildings and facades;

(ii) the need for new development to replace underutilised buildings with new floorspace for contemporary needs; to infill vacant parts of properties; to create more residential units; and to achieve opportunities for new open spaces and increased activity in secondary streets and lanes.

Advertising and council's decision

The Ashfield town centre is changing from being a purely general business area to a mixed-use area consisting of businesses and residential accommodation.
There is a new residential development containing 98 apartments in close proximity to the proposed brothel.
Ashfield does not need a brothel and especially not in the town centre where there are many schoolchildren from the nearby schools.
Brothels are associated with crime, illegal drug use and undesirable behaviour.
Brothels should not be located where there is a high volume of pedestrian traffic particularly children who are attracted to the shopping mall, the library, McDonalds and a church as well as the shops.
A brothel would be out of character with the local retail shopping area being more appropriately located in an industrial area.

the whole community

Brothels attract "the wrong kind of people” and schoolgirls may be tempted to work in the brothel and men using brothels may be tempted to approach schoolgirls for sex.
Brothels should not be located in the same street as churches.
Brothels are inappropriate on moral and sociological grounds. It is inappropriate to have to explain to small children what a brothel is.
The proposed brothel would result in an excessive increase in noise and traffic in the locality and would result in a general degradation of the area.

A more liberal attitude to this type of business is required. It is better to have lawful brothels which can be the subject of appropriate conditions than to have illegal brothels. Simply saying “no” is hypocritical especially given the number of illegal brothels around the Ashfield shopping area.
The brothel has been well established for a long time with no major hassles in the vicinity. Few people are aware of its existence. The need for expansion however is questioned.
Brothels are a fact of life. In any clamping down on illegal brothels will just result in the illegal ones. One properly managed brothel in the business centre and which is subject to appropriate controls is better than having them in residential areas. The location is discreet.

The subject premises is in close proximity to numerous internet cafes and a shopping centre. These areas are predominantly frequented by schoolchildren at all hours of the day and night. Although the shopping centre closes in the evening, the internet cafes generally stay open until late in the night. The premises is also in close proximity to a church that is situated at the intersection of Liverpool Road and Knox Street, Ashfield.
The subject premises has been subject to police intelligence reports that refer to the use of illegal immigrants working in the premises. There is also mentioned in one report that the females working in premises linked to this address have worked in "slave" style conditions.
In the development application, there is potential for health risks to any person using this facility. This area will need to be addressed by the New South Wales Health Department

The proximity of the proposed brothel to a number of schools and other places frequented by children.
The proposed brothel will be offensive to a large part of the community on social, moral, cultural and religious grounds and would have an adverse social impact on people using the locality generally.
The brothel is not discreet and is located in a prominent location.
It would have an adverse impact on the amenity of nearby residents, businesses and the travelling public and would not contribute to the social, economic and moral well being of the community.

The evidence

14 . On behalf of the respondent Council expert evidence was given by Mr J. Moody -town planner and Miss B Castor - sociologist. Senior Constable S. Elsom of the New South Wales Police also gave evidence.

15 . Miss Castor provided details of social surveys ("the social surveys") which had been undertaken under her supervision: a random sample of 100 residents located within 1 km of the site; and a random sample of 10 businesses and community organisations within 50 property numbers of the site.

16 . The hearing began onsite when evidence was given by: Mrs S Viccari who operates a chemist shop at 1 Hercules Street Ashfield; Rev. P Hastie of the Presbyterian church at the corner of Knox Street and Liverpool Road; Mrs D Kokkalis, the principal of Ashfield Boys High School; and Mr N Wilde the acting principal of Ashfield Public School.

17 . On behalf of the applicant expert evidence was given by Mr L Winnacott - town planner and Mr D Porter - social policy consultant.

The issues

18 . A statement of issues containing ten issues was filed and served although several of these issues were either not pressed or were resolved by proposed conditions of consent. The principal issue as pressed by the respondent council was, in essence, that the proposed brothel is in an inappropriate location and would have an adverse social impact on the community in part at least because it will not be appropriately managed.

19 . It was submitted on behalf of the respondent council that the issue of the numbers of objections and the public interest were effectively embraced by the principal issue.

20 . Other issues including disabled access and on-site parking were either not pressed or were not considered to be of sufficient significance to warrant refusal of the application. It was agreed that matters associated with the Building Code of Australia including fire safety measures can be dealt with by deferred commencement conditions of consent.

Social impacts and the location of the proposed brothel

21 . In 1995 the Department informed councils that brothels would be most suitably located in commercial and industrial areas that are not adjacent to schools or facilities frequently used by children and where there is more scope to nominate areas suitable for this land-use. It was pointed out that the Government would not object if brothels were restricted to industrial areas, if that is appropriate, and if there are concerns for example, about the possibility of brothels being located in shopping centres.

22 . In this case however, brothels are permissible with development consent in the 3(a) Zone and it is not to the point to suggest that this brothel might be better located in an industrial area. Instead this application must, like any other application for permissible development in the Ashfield shopping centre be dealt with on its own merits and the fact of its permissibility must be given some weight.

23 . To the extent of their relevance the provisions of the LEP and the DCP must be applied to this application. There are however no specific provisions in these instruments to assist in determining whether or not any particular location (within the zones where brothels are permissible) is suitable for a brothel. Nor are there any specific provisions for brothels as such.

24 . Mr Moody was of the opinion that due to its prominent location in the Ashfield shopping centre the location of the brothel is not discreet and is therefore inappropriately located. The almost complete absence of any signage would effectively draw attention to the premises by being different to what is common in the locality. Other premises with a single door access/frontage typically have extensive signage.

25 . Mr Winnacott disagreed. He explained that the doorway now providing the only public access to the brothel from Liverpool Road is, apart from having fewer signs, indistinguishable from other such doorways in other commercial buildings in this locality. There are to be no signs or other indications that a brothel will be operating at the first floor level. The only signage to be provided will be the indication of the address of the property. Moreover there will be no feature of the property which, when viewed from Liverpool Road Chessel Lane, other public roads to the rear and adjoining properties, that there is a brothel being conducted within the building. He did not accept that the absence of advertising signs would draw attention to the premises.

26 . I agree with Mr Winnacott that even though there will be no advertising of the brothel on the building, unlike other businesses that advertise their existence, these premises and in this context the brothel itself, will be no more prominent than any other premises or business in this locality.

27 . It now being agreed that access will be restricted to the entrance off Liverpool Road and recognising that most patrons will attend in the evenings I heard no persuasive evidence that patron numbers would be such as to draw any unreasonable attention to the premises, especially taking into account the existence of other late night land uses in the vicinity.

28 . In these circumstances I am satisfied that the brothel will be sufficiently discreet and that refusal on this basis is not warranted.

The brothel is within 120 metres of the entry to Ashfield Mall, council chambers and administration building, various retail outlets such as restaurants, clothing stores and computer stores including places where children frequent for recreational or cultural activities.
The subject site is visible from the Ashfield Presbyterian Church on the corner of Liverpool Road and Knox Street. The distance between the church and the subject site is less than 100 metres.
The subject site is within 100 metres to three bus stops frequently used by children to travel to schools. Two of these bus stops are along Liverpool Road with the third stop on Brown Street.

1. Bethlehem Ladies School (14-20 Bland Street).
2. De La Salle High school (24 Bland Street).
3. St Vincent's Presbyterian Church (1-9 Bland Street).
4. Baptist church and child-care centre (1 Holden Street).

31 . The site is very close (approximately 30 m to the rear) to the multi storey mixed/residential development in Markham place containing 94 residential units.

32 . Liverpool Street and Chessel Lane have high volumes of pedestrian traffic at peak times, Chessel Lane providing an access link between Liverpool Road and the Ashfield Railway Station/Bus Interchange.

33 . Mr Moody stressed that his greatest concern was in relation to the school-aged children who would pass by the premises from time to time. Senior Constable Elsome had a similar opinion. These children are those who might walk to and from the schools in Bland Street and from the railway/bus interchange via Chessel Lane to the bus stops, retail and other facilities in Liverpool Road.

34 . In this context he argued that some brothel patrons might, by comparison with the general community, have a greater propensity to behave in an antisocial manner for example by or after using illegal drugs or by committing various forms of assault. He based this conclusion on his experience (family/working) in hotels.

35 . However no research was provided to support Mr Moody's contentions in relation to the likely behaviour of brothel patrons. (Miss Castor’s survey to which I later refer does not do this.) Also, Senior Constable Elsome conceded that there was no record of illegal or antisocial activities by patrons or management or workers associated with the brothel. I do not accept that the subpoenaed intelligence reports provided by the NSW Police (Exhibit 9) provide any substantive evidence of this. Moreover if the contention were correct, given that the brothel has operated for some years now one might have expected reports of associated illegal or antisocial activities.

In reality brothel patrons are ordinary members of the community, and there is no reason to imagine that they behave in public any differently than other members of the community, or indeed that they could be distinguished from other people using the area … they represent a cross-section of the people in an area.

It is hard to see why there should be any interaction between passers-by and patrons, especially given the desire of most patrons for discretion as they enter or leave.

People entering and leaving the brothel are indistinguishable from anyone else entering or leaving doorways to upper-level commercial premises on Liverpool Road. In addition, the handful of patrons during daylight hours represents a tiny proportion of the many hundreds using the area.

37 . Some of the students attending the primary and secondary schools in the locality will of necessity continue to walk past the premises, proceeding to and from bus stops in Liverpool Road, before and after school. Some students will walk from school to the shops and other facilities in Liverpool Road during their lunch break and after school. Many of these journeys will be via Chessel Lane and although these are past the premises a lesser number will involve walking past the entrance to the premises. These journeys have been made during the several years’ existence of the brothel without incident.

38 . Many students from all of the schools will have no reason to walk past the premises at all, particularly its sole entrance in Liverpool Road because they either walk home or catch public transport utilizing the railway station and bus stops other than those in Liverpool Road in the vicinity of Chessel Lane.

39 . Mr Winnacott said that only a small percentage of school students would walk past the brothel. He also explained the main period of patronage of the brothel is during the evening, well after school students are likely to have left the area and returned home. Conversely when children are likely to be in the locality, on their way to school in the morning or after leaving school in the afternoon this is the time of low patronage when even on busy days only approximately two clients per hour are expected.

40 . In terms of how brothel patrons might interact with school students who might pass by the premises I believe Mr Porter to be correct and accept as a matter of principle that the patrons are ordinary members of the community. One simply cannot assume that passers-by, including school aged children would be at increased risk as a consequence of the existence of this proposal. There is no evidence that this has happened in the past or that it is likely to occur in the future.

41 . Whilst it is difficult to know the likely extent of any opportunity for contact between school students and brothel patrons I nevertheless accept that it will be quite low. However that is not to the point. If it had been established that there was a serious threat to any student and where the threat could be shown on to arise as a result of the brothel, then no matter how few passing students there were, the brothel would be unacceptable. But because I have not been persuaded that there is any such threat, refusal of the application in this context does not arise.

42 . Miss Castor's social surveys revealed that few people were aware of the existence of the brothel and that most of this awareness came via the notification of the application. The majority of residents did not expect that the brothel would have any major impact on them personally. Some two thirds of respondents thought that there would be some or a significant impact on Ashfield generally, for reasons relating to expected deterioration of amenity and impacts on children and the attraction of undesirables to the area.

43 . Some residents indicated that they might change their patterns of behaviour and that of their children, particularly by avoiding Chessel Lane and this part of Liverpool Road. Such behavioural changes in some instances would be due to strongly held cultural or religious views.

44 . It is clear that many people dislike brothels. Just as some people do not like hotels and casinos, dislike is not a reason to reject a development application. Nor are the general concerns that Ashfield is not a satisfactory place for a brothel.

45 . The likely extent of behavioural changes was not quantified but even if such changes do occur I have not been persuaded that this would form a basis for the rejection of the application. In reaching this conclusion I accept that some passers-by, in being aware of the existence of the brothel, and who are offended by it, would suffer from some, but not determinative, loss of amenity in this public place.

46 . Miss Castor's survey was in part about community perceptions and one of the main concerns was that the brothel would attract illegal drug dealers and gangs and might utilise illegal immigrants as sex workers. Whilst I can understand such perceptions it must be recognised that the Court is dealing with an application for a brothel which can, under the laws of New South Wales including the LEP, be approved. Any consent for a brothel cannot be said to be condoning unlawful activities which are matters for law enforcement agencies.

47 . In all of the circumstances I cannot accept that the existence of this brothel would cause a risk to the community or would so affect the amenity of the area as to warrant the refusal of the application.

Management of the premises

48 . As a matter of principle a consent authority can anticipate that lawful conditions of development consent will be complied with. In this matter council has provided a set of without prejudice conditions which make reference to the plan of management provided by the applicant. Whilst I agree that the plan of management needs improvement, once it effectively becomes a condition of consent it can be assumed that it will be complied with.

49 . However concerns were expressed on behalf of the respondent, based on the history of the management of this brothel, that it would be unlikely to be properly managed. This would be to the detriment of the community and the amenity of this locality.

50 . The brothel has been operated unlawfully for a number of years, not having the benefit of development consent. Also there is no evidence that it has been operated in accordance with appropriate building regulations, health standards and the like and I accept that non-compliances with these requirements did occur.

51 . In this context the question was asked, on the assumption that management personnel would remain unchanged, whether it would be appropriate to grant the consent as sought in other words. How can compliance with reasonable conditions be anticipated given the history of unlawful operation.

52 . These are reasonable concerns, however it is to be recognised that the applicant now seeks to regularise the illegal use having taken legal advice and advice from expert consultants.

53 . Although non-compliance with proposed conditions of consent is possible, it is to be recognised that whilst the brothel has operated unlawfully, the owners must now accept, that by the lodgement of this application, any recommencement of the use of the premises must be in accordance with the law, including compliance with conditions of consent. Should any conditions of consent not be complied with, action under the Environmental Planning and Assessment Act 1979 , to require compliance can be taken.

54 . In addition, under s 17 of the Restricted Premises Act, action can be taken to prevent the owner or occupier of a brothel from using the premises for that purpose if residents or occupiers of premises in the area complain to the council. Indeed such action could have been taken any time since the brothel first opened if such complaints had been made.

55 . Finally here, concerns were expressed that illegal immigrants may have been or may in the future be employed on the premises. No evidence was provided to confirm Police intelligence that this has happened in the past and nothing turns on this contention. Also whilst recognising the illegality of certain persons in this country this is to be distinguished from land-use considerations.

Other general issues raised by the respondent

56 . I agree with Mr Winnacott there is no evidence that the operation of the brothel over recent years has had any adverse impact on the economic development of the Ashfield town centre which continues to thrive with a wide range of retail and commercial uses. In the circumstances and taking into account my earlier conclusions I am satisfied that the proposal would not be inconsistent with the objective of the LEP in relation to the promotion of the orderly and economic development of the local government area of Ashfield and the protection of its environment.

57 . One of the strategies of the DCP is to encourage residential development in the Ashfield town centre. This proposal will prevent, for the time being at least, the utilisation of the first floor of these buildings for residential purposes. However, I do not accept that this strategy should be given determinative weight such as to deny an application for commercial premises, being one of the principal purposes permitted in the 3(a) Zone. More generally as I concluded above, I do not accept that the brothel will be contrary to the objective of promoting the orderly and economic development of the area.

58 . It was contended that the brothel would change the character of this area in an unacceptable fashion. Again I do not accept that this is a critical issue bearing in mind that the brothel has existed on this site for several years and notwithstanding that as a land use, it will be intensified. As Mr Winnacott said there is little to distinguish these premises from other premises at first floor level in the area. Similarly concerns were expressed that the use of the building as a brothel would result in a deterioration of the amenity of the area. Conditions of consent can and will be imposed in relation to the presentation of the building. Insofar as the behaviour of brothel patrons might affect the amenity of the area, again, as I earlier noted, brothel patrons should be considered as ordinary members of the community. Hence any concerns about safety and security cannot be justified by assertions that brothel patrons are, in this regard, different to the rest of the community.
Conditions of consent

59 . In all of the circumstances I have decided that the appeal should be upheld and conditional development consent granted. The tendered without prejudice conditions of consent were accepted with the exception of Conditions A(1), B, C(2) and C(3).

60 . Condition A(1) was only opposed if it did not effectively incorporate the plan of management in the statement of environmental effects. This concern is subsumed into the consideration of Condition B.

The interior of the premises is to be renovated including doors, windows, walls, stairs and floors.

Orders

1. The appeal is upheld.

2. Development application No. 200.037 for the use of the first floor of the premises at 293 and 295 Liverpool Road, Ashfield, for the purposes of a brothel is determined by the granting of development consent subject to the conditions in Annexure ‘A’ hereto.

3. Exhibit F is retained.

Annexure “A”

Conditions of Consent

Hai Hang Zang v Ashfield Municipal Council

DA 2003.37.1

A General Conditions

(1) Development consent is granted for the use of premises known as Levels 1, at 293A and 295A Liverpool Street, Ashfield (“the premises”) as a brothel in accordance with the plans and specifications set out on drawing numbers 02:35:DA02 dated 5 November 2002 and 02:35:DA03a dated 20 March 2004 prepared by Philip C. North and date stamped by Council 17 January 2003 and the Statement of Environmental Effects by Australian Town Planning Consultants dated January 2003, except as amended by the conditions specified hereunder, subject to deferred commencement B(1) below.

B Deferred Commencement Condition

(1)

(a) A Plan of Management shall be submitted to Council which addresses in writing the following matters:

(i) compliance with the Occupational Health and Safety Act 2000;

(ii) outline of the length of sex workers shifts and rest breaks;

(iii) outline of the secretarial and management staff that will be provided for each shift;

(iv) measures for the “screening” of clients on admission to the premises to minimise violence on the premises;

(v) installation and operation of security cameras on the entrance/exit of the premises and within the premises;

(vi) installation of security systems within the work rooms such as “panic buttons” so that sex workers are not at risk of harm though violence from clients;

(vii) details of which staff are to deal with violent clients and the training that such staff shall have to deal with such incidents;

(viii) details of training of sex workers for the physical examination of clients to detect visible evidence of sexually transmitted infections (“STIs”);

(ix) details of training of sex workers on the right to refuse to engage in a sexual practice where such worker believes that they are at risk of acquiring a STI;

(x) details of training of sex workers and information provided to enable them to perform their work in a manner that is safe including: safe sex practices, STIs avoidance including HIV infection and hepatitis A and B, blood borne infections including hepatitis C, cleaning of equipment and first aid;

(xi) access by sex workers to the Sex Workers Outreach Project (“SWOP”), sexual health services or other relevant health services.

(xii) supply to sex workers at all times of condoms, dams, gloves, water based lubricants and other personal protective equipment such as towels and linen free of charge to workers;

(xiii) changing of bed linen and towels for each new client and for the laundering of such items after use.

(xiv) waste management including the disposal of condoms after use, use of sealed waste containers, details of the regular maintenance and cleaning of rooms, showers and toilets, spas, sex aids and bondage equipment;

(xv) compliance with section 13(1) and (2) of the Public Health Act 1991;

(xvi) details of regular staff health monitoring including medical check ups of sex workers by doctors of their choice or sexual health centres and whether this is to be paid for by the operator. Sex workers should attend such check ups as frequently as advised by their medical advisors;

(xvii) Provision of adequate cleaning fluids and systems together with training of staff for use on any client of equipment in any practice subject to contact with bodily fluids;

(xix) measures to address injuries sustained by sex workers on the premises;

(xx) a drug and alcohol policy based on harm reduction principles;

(xxi) risk management procedures for pregnant staff including limits on shift work, allocation to non-smoking areas and exemption from certain duties;

(xxii) provision of first aid;

(xxiii) accident reporting to NSW Work Cover;

(a) maintenance and policies of workers’ compensation insurance;

(b) records of all employees and wages maintained for 7 years, including records of tax deductions for all employees including contract sex workers;

(c) registers of injuries;

(d) register of customer and community complaints;

C Conditions that must be satisfied prior to issuing/releasing a Construction Certificate

(1) Health & Safety Guidelines for Brothels

A full copy of the Health and Safety Guidelines for Brothels 2001 is to be obtained and kept on the premises at all times. These Guidelines address the key occupational health and safety responsibilities for those involved in the sex industry. A copy of the Guidelines can be obtained from WorkCover NSW by phoning 1800 658 134 or log on to . The use of the premises as a brothel shall comply with the above guidelines at all times.

(2) Deleted

(3) Set of Plans

Detailed plans showing the ground floor, the first floor and all elevations of the building are to be submitted to Council or the accredited certifier with the Construction Certificate application.

(4) Construction and Site Management Plan

Prior to the issue of a Construction Certificate the applicant shall submit to Council or the accredited certifier a Construction and Site Management Plan that clearly sets out the following:

(a) what actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,

(b) the proposed method of loading and unloading, building materials, formwork and the erection of any part of the structure within the site,

(c) the proposed areas within the site to be used for the storage of construction materials and waste during the construction period.

Where it is proposed to:
· pump concrete from within a public road reserve or laneway, or
· stand a mobile crane within the public road reserve or laneway,or
· use part of Council’s road/footpath area,
· pump stormwater from the site to Council’s stormwater drains, or
· store waste and recycling containers, skip, bins, and/or building materials on part of Council’s footpath or roadway,

An Activity Application for a construction zone, a pumping permit, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee shall be submitted to Council and approval obtained before a Construction Certificate is issued.

Note: A separate application to Council must be made for the enclosure of a public place (hoarding).

(5) Fire Separation Requirements of the BCA

(i) Deleted.
(ii) The Construction Certificate should take into account the fire separation of the downstairs occupancy to the upstairs occupancy. In particular, the space under the stair that exists to Liverpool Road must not be enclosed to form a cupboard or room unless constructed of fire resistant construction. The necessity of upgrading the existing fire safety measures within the building should be considered in conjunction with the Construction Certificate.
(iii) The rear doors at first floor level shall not be used by patrons and employees and shall only be used for fire egress purposes.

(6) Ventilation

Details of mechanical ventilation complying with Part F4 of the BCA and AS 1668.2 are to be submitted with the Construction Certificate. This shall include full details and location of any plant and equipment.

(7) Fire Safety Measures

A schedule of the existing and proposed fire safety measures in the building is to be submitted with the Construction Certificate. This shall include full installation and design details, be fully itemised and be accompanied by floor plans indicating the location of each measure. The fire safety measures shall comply with all relevant requirements, including the BCA.

On completion of the building works and prior to occupation of the building and commencement of the use the owner of the building shall furnish to Council a Fire Safety Certificate for each fire safety measure in the building.

The owner of the building shall then furnish Council with a Fire Safety Statement annually for each Fire Safety Measure in the building.

D Conditions that must be complied with before work commences

(1) Requirement for a Construction Certificate

In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 the erection of a building and/or construction works must not commence until:

(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by:

(i) Council; or
(ii) an accredited certifier; and

(b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and

(c) at least two days notice, in writing, has been given to Council of the intention to commence work.
The documentation required under this condition shall show that the proposal complies with all development consent conditions and the Building Code of Australia.

Note: If the principal certifying authority is the Council, the appointment will be subject to the payment of a fee for the service to cover the cost of undertaking building work and / or civil engineering inspections.

WARNING: Failure to obtain a Construction Certificate prior to the commencement of any building work is a serious breach of Section 81A(2) of the Environmental Planning & Assessment Act 1979. It is a criminal offence that attracts substantial penalties and may also result in action in the Land and Environment Court and orders for demolition.

(2) Inspections required by Principal Certifying Authority
If Council is selected as the Principal Certifying Authority (PCA) inspections will be required and must be paid for in accordance with the following fees:
(i) Footings and Slabs $136.50
(ii) Foundations, including piers $136.50
(iii) All framing (floors, walls and roof) $136.50
(iv) Stormwater drainage lines before backfilling of the trenches $136.50
(v) Completed structure $136.50
(vi) Pool steel/excavation $136.50
(vii) Pool fencing prior to filling of pool $136.50
Note: The above fees are only valid until 30 June 2004 following which the charges will be reassessed. If additional inspections are required, an additional fee is payable for each inspection. A minimum of 24 hours notice is required to be given to Council to obtain an inspection. Work is not to proceed until the works or activity covered by each inspection is approved.
(3) Sanitary facilities - demolition/construction sites
Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

(4) Asbestos and/or lead removal certification

The existing structures/land on the site potentially contain asbestos and/or lead. Following removal of any asbestos/lead located on site a clearance must be provided to the Principal Certifying Authority certifying that no such asbestos/lead remains on site from a suitably qualified person.

A copy of the clearance Certificate must be forwarded to Council before any other demolition work is commenced.

(5) Structural engineer’s details

To ensure compliance with the provision of Section B of the Building Code of Australia structural engineer’s details of all structural elements shall be submitted to the Principal Certifying Authority prior to commencement of work, including:

(i) pier and beam footings;
(ii) reinforced concrete slabs;
(iii) stairs, including patio steps;
(iv) retaining walls
(v) all structural timber including floors, walls and roof; and
(vi) all structural steel.

E Conditions that must be complied with during construction

(1) Storage of building materials

Building materials and spoil are to be located wholly on site and not placed in a position that may result in materials being washed onto the roadway or into the stormwater system.

(2) Demolition/excavation/construction – hours of work

Demolition, excavation and construction work, including loading and unloading of materials and machinery, shall be restricted to between the hours of 7.00am to 6.00pm, Monday to Saturday inclusive. Work is prohibited on Sundays, and on public holidays.

F Conditions that must be complied with before the building is occupied and use commences

(1) Final Site Inspection

Prior the issue of the Occupation Certificate and the commencement of the use, a final site inspection relating to the public area shall be arranged by the applicant, and shall be undertaken by the applicant’s supervising engineer and Council’s authorised officer. The purpose of the inspection is to ensure that notwithstanding the submission of any certifications required by an approval that all impacts within the public area from the development have been satisfactorily addressed. A fee of $150 is payable for this inspection.

(2) Approval to use/occupy building

The building or any part thereof must not be used or occupied and the use shall not commence until an Occupation Certificate has been issued for the class 2-9 buildings, or until a completion inspection has been satisfactorily carried out for class 1&10 structures.

(3) Lighting

The premises shall be provided with artificial lighting to provide a level of illumination appropriate to the function or use of the building to enable safe use and movement of occupants in accordance with Part F4 of the Building Code of Australia.

(4) Sanitary facilities

Adequate sanitary facilities shall be provided for the use of both sex workers and clients. All required wash hand basins shall be provided with an adequate supply of potable warm water under mains pressure, mixed through a common outlet.

G Conditions that are ongoing requirements of development consents

(1) Approved use

The premises shall not be used for any purpose other than that stated in the Development Application, i.e. as a brothel, without the prior consent of the Council.
(2) Number of employees
The maximum number of employees on the premises is not to exceed 7 at any one time. This includes 6 sex workers and 1 Manager/Receptionist.
(3) Plan of Management
The use shall at all times comply with the approved Plan of Management prepared in accordance with deferred commencement condition B(1) of this consent.
(4) Retain amenity
The premises shall be maintained in a clean, sanitary condition and kept in a satisfactory state of repair at all times. The use is to be conducted without interference to the amenity of the area.
Any activity carried out in accordance with this approval shall not give rise to offensive odour, offensive noise or pollution of land and/or water as defined in the Protection of the Environment Operations Act 1997.
The interior of the premises is to be renovated including doors, windows, walls, stairs and floors.

(5) Lighting overspill – amenity
No security or other lighting shall cause light overspill to adjoining property owners, occupiers or residents.
(6) Waste
All hazardous waste including sharp waste shall be stored in an appropriate container and disposed of in accordance with the Environment Protection Authority’s requirements.
Adequate facilities shall be provided for the disposal of used condoms, soiled paper and other waste products of sexual activity in all rooms, cubicles, booths or the like where sexual activity occurs.
(7) Sign-advice to patrons leaving premises
A clearly visible sign shall be permanently erected immediately adjacent to the entry/exit doors indicating that patrons are to leave in an orderly fashion and shall leave the vicinity of the premises in a manner that does not disturb the quiet and good order of the neighbourhood. The sign shall also indicate that all entry/exit movements is to be by way of the Liverpool Road entrance and not by the rear doors.
(8) Use confined within premises
The use for purposes of a brothel is to be confined within the building and no such activities are to be carried on external to the building. No materials associated with the use are to be stored outside the building.
(9) Intensity of Use
No more than six (6) bedrooms are to be provided for the use of a brothel within the building.
(10) Hours of Operation
The approved hours of operation are 24 hours, 7 days per week except for the following:
(i) the use shall not operate on Good Friday and Christmas Day;
(ii) the use shall not operate between 8:00am to 8:00pm on Sundays.
(11) Clean linen, towels and coverings
Clean linen and towels shall be provided for the use of each client. The proprietor shall ensure that all linen, towelling and bed coverings which come into contact with clients shall be changed immediately after each use.
Adequate receptacles with close fitting lids shall be provided for the separate storage of used and clean linen.
The proprietor shall enter into a commercial contract to launder linen, or install and use a commercial washing machine capable of washing at a temperature of not less than 71 degrees Celsius.
(12) Safe sex, sex toys and equipment
The proprietor shall provide an adequate supply of condoms, dental dams and water based lubricant free of charge for sex workers and their clients.
All chains, attachments and the like associated with sexual activity equipment shall be capable of being easily cleaned. Any equipment or sex toys which have contact with another person’s body fluids should be covered by a new condom for each partner. The condom must be removed and discarded after each use, and the equipment cleaned using detergent and water, and then disinfected. All sex workers and staff must wash hands thoroughly after disposal of condoms.
Equipment that cannot tolerate immersion must be cleaned by wiping with detergent and water, and then disinfected by wiping with either a solution of one part bleach to two parts water or 70% alcohol, rinsed and allowed to dry prior to use. Cleaning and disinfection should be compatible with the manufacturer’s instructions.
(13) Training of workers and health checks
The proprietor shall provide written information (pamphlets and brochures) for sex workers and clients on sexually transmitted diseases in a variety of languages, including those of any sex worker who has difficulty communicating in and/or reading the English language.
The proprietor shall ensure that sex workers receive appropriate induction, are adequately trained and continually being provided with updated information to examine clients for any visible evidence of sexually transmitted diseases, and that examinations are conducted before any sexual contact.
The proprietor shall also ensure that all sex workers undertake regular health check-ups.
Note: The proprietor’s attention is drawn to the provisions of Section 13 of the Public Health Act 1991, which makes it an offence to knowingly permit sex workers suffering from a sexually transmitted disease to have sexual intercourse with other persons unless the client has been informed of the risk and voluntarily agrees to accept the risk.
(14) Deliveries
Any deliveries associated with the use of the premises are to be loaded/unloaded from the rear access lane only.
(15) Subject to Condition (14) above, the rear doors to the premises shall be restricted to emergency egress only and the fencing around the rear yard is to be made secure so as to prevent access to the rear doors of the premises.
__________________
T A Bly
Commissioner of the Court
rjs

CITATION:	Zhang v Ashfield Municipal Council [2004] NSWLEC 259
PARTIES:	APPLICANT Hai Hang Zhang RESPONDENT Ashfield Municipal Council
FILE NUMBER(S):	10027 of 2004
CORAM:	Bly C
KEY ISSUES:	Development Application :- Brothel - inappropriate location - social impact - management
LEGISLATION CITED:	Ashfield Local Environmental Plan 1985 Environmental Planning and Assessment Act 1979 Restricted Premises Act
CASES CITED:
DATES OF HEARING:	03-04/05/2004
DATE OF JUDGMENT:	06/01/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D J Galpin, barrister RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike and Fenwick