Zhou v Sutherland Shire Council

[2008] NSWLEC 1147

Land and Environment Court

of New South Wales

CITATION:	Zhou v Sutherland Shire Council [2008] NSWLEC 1147
PARTIES:	APPLICANT Su Qiau Zhou RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10131 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- brothel - adequate seperation to sensitive land uses
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2006 Interpretation Act 1987
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	15/04/08
DATE OF JUDGMENT:	23 April 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr M McMahon, solicitor SOLICITORS M E McMahon & Associates RESPONDENT Ms J Amy, solicitor SOLICITORS Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 April 2008

10131 of 2008 Su Qiau Zhou v Sutherland Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA07/1452 by Sutherland Shire Council (the council) for the use of Unit 2/167 Taren Point Road Caringbah (the site) as a brothel.

2 The principal issue in the proceedings was whether there was an appropriate separation from a number defined sensitive land uses and how this separation should be measured.

The site

3 The site has a frontage to Taren Point Road of 12.24 m, a depth of 60.96 m and an overall site area of 756 sq m. The proposed brothel is located within one of two industrial units located on the site. It is located at the rear of the site with in a battle axe configuration with vehicular access running along side Unit 1. Parking is provided directly adjoining Unit 2. The character of the area is principally industrial in nature with other land uses such as a hotel and fast food outlets located near the site.

The proposal

4 The proposal provides for the use of Unit 2 as a brothel between the hours of 5.00 p.m. and midnight daily. Two sex workers are to operate from the premises. Some alterations are proposed to the existing internal layout of Unit 2 including modifications to an existing bathroom, new ceilings and the installation of showers within the working rooms. A mezzanine area has been constructed within the building but not with the approval of the council. The application proposes to deny access to the mezzanine area through the construction of a new internal stud wall.

Relevant planning controls

5 The site is within Zone 11 - Employment under Sutherland Shire Local Environmental Plan 2006 (LEP 2006). Brothels are a permissible use with consent within this zone.

6 Sutherland Shire Development Control Plan 2006 (DCP 2006) applies. Part 5 Chapter 9: Specific Land uses provides specific controls for brothels (and sex shops). The relevant objectives in Pt 5.a.1 are:

a. To ensure that the development of brothels and sex shops does not adversely affect the existing and future amenity of surrounding development, land uses and residents.
b. To ensure brothels and sex shops are located away from land uses that may be adversely affected by their operation.
c. To limit the cumulative impact of several brothels and sex shops establishing in a single area

7 The relevant requirements for siting and location Pt 5.b.1.1 of DCP 2006 are:

Development under this clause must not be carried out if it is located:
a. within 200 m of any form of residential, open space or special uses zone or land where the activity is identified as a sensitive land use. Sensitive land uses include, but are not limited to, place of public worship, churches, schools, transport nodes, residential dwellings, child-care centres, family health centres, senior citizens centres, licensed premises (licensed under the Liquor Act 1982) and facilities and places typically frequented by families and children.
b. within 200 m of the boundary of an existing legally operating brothel.

8 In relation to Pt 5.b.1.1 of DCP 2006 there was no dispute that the relevant "sensitive land uses" were the Taren Point Hotel, a Red Rooster and a McDonald's fast food restaurant. An existing legally operating brothel is located at 2/85 Paraweena Road. An appeal has been lodged to use the premises at 1/85 Paraweena Road for a sex shop however the appeal has not been heard and as such it is not appropriate to consider this development as an approved use in the assessment of this application.

The evidence

9 Mr Kerry Nash provided town planning evidence for the council, and Mr Bob Tillot provided town planning evidence for the applicant. Additional evidence for the council was provided by:

• Mr Chris Feros from the Taren Point Hotel,
• Mr J West of Yowie Bay,
• Ms Q Yang, the operator of a brothel at 2/85 Paraweena Road and
• Ms K Qiu, the operator of a brothel at 23 Paraweena Road.

10 Mr Feros advised the Court that the activities at the hotel involved children's days during the year and that the proposed use was inconsistent with these activities. The hotel was inspected on the site view and as I understand Mr Ferros’s evidence, a significant concern was removed when the direct access from the site to the hotel car park was denied.

11 Mr West also raised concern about the proximity of the proposed development to the hotel and the increasing numbers of brothels within the area.

12 Ms Yang and Ms Qiu expressed concern at be increasing number of brothels within the area and the potential impact on the viability of their existing businesses.

The 200 m separation distance

13 A significant difference in the conclusions of Mr Nash and Mr Tillot resulted from how the 200 m distance in Pt 5.b.1.1of DCP 2006 should be measured. Mr Nash used a 200 m radius to conclude that the identified sensitive land uses were all within 200 m of the site. Measuring from the nearest boundary of the site to the nearest boundary of the sensitive land use, the separation distances were:

• Taren Point Hotel - adjoining rear boundary,
• Red Rooster fast food restaurant – approximately 90 m,
• McDonald's fast food restaurant – approximately 125 m, and
• existing brothel 2/85 Paraweena Road – approximately 160 m.

14 Mr Tillot based his 200 m distance on a pedestrian path of travel from the front door of the Unit 2 to the front door of the sensitive land uses. The distances were certified by a registered surveyor and the separation distances were:

• Taren Point Hotel – 245 m,
• Red Rooster fast food restaurant – 287.4 m,
• McDonald's fast food restaurant – 333 m, and
• existing brothel 2/85 Paraweena Road – 390.4 m.

15 Mr McMahon, for the applicant, submits that as DCP 2006 is silent on the method of measurement, the proper interpretation of the distance requirement in DCP 2006 can be obtained from s 38 of the Interpretation Act 1987 where it states:

38 Measurement of distance
In the measurement of any distance:
(a) for the purposes of any Act passed before the commencement of this Act, or any instrument made under such an Act, the distance shall be measured according to the nearest route ordinarily used in travelling, and
(b) for the purposes of any Act passed after the commencement of this Act, or any instrument made under such an act, the distance shall be measured in a straight line on a horizontal plane.

16 He further submits that as DCP 2006 was made under the Environmental Planning and Assessment Act 1979, it therefore predates the Interpretation Act 1987 so s 38(a) applies. The measurement of distance advocated by s 38(a) is consistent with the approach taken by Mr Tillot and as such his evidence should be accepted.

17 Ms Amy, for the council, submits that DCP 2006 is a recent planning document that post dates the Interpretation Act 1987 so s 38(b) applies. This is consistent with Mr Nash's approach to the management of distance between be site and the sensitive land uses.

18 I accept that the submissions of Mr McMahon on the appropriate means of measurement based on the Interpretation Act 1987 although I am not satisfied that this should be the definitive approach to the consideration of the issue of the separation of sensitive land uses from brothels. In this context (that is, the assessment of amenity impacts brought about by the proximity of the brothel to sensitive land uses) a more thorough merit assessment is required.

19 The emphasis to be given to a development control plan is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

20 The relevant requirements for siting and location in Part 5 Chapter 9 of DCP 2006 have qualitative requirements (that is, the objectives) and a quantitative requirement (that is, the 200 m separation distance). Both must have a purpose and both must be considered in the consideration of the site and location of a brothel. To simply adopt only the quantitative requirement, as suggested by Mr Nash, is not to allow the provisions of a development control plan …to be considered as a fundamental element in, or a focal point to, the decision-making process.

21 The relationship of the brothel to the Taren Point Hotel is a good example. In quantitative terms, their location is clearly in breach of the 200 m separation distance as both uses share a common boundary. In qualitative terms, there was no evidence to suggest that the brothel would adversely affect the existing and future amenity of surrounding development (Objective (a)) once the opportunity for direct access to the Taren Point Hotel from the brothel site was removed by the bricking up of door in the rear wall of Unit 2. From the evidence given on-site by the owner of the Taren Point Hotel, Mr Feros, the lack of direct access largely overcame his concerns with the proposed development notwithstanding a clear breach of the 200 m separation requirement. In my view, and putting aside the Interpretation Act 1987, greater help is gained in determining any potential amenity impacts through the assessment used by Mr Tillott (that is, a distance people are likely to use) rather than a more artificial and contrived approach of a 200m area surrounding the site that does not recognise the actual relationship between the different land uses.

22 A proper consideration of the objectives cannot be undertaken without an assessment of the particular characteristics of the proposed use and in its immediate area. In this case, Unit 2 is in a discrete location behind an existing building and some 50 m from Taren Point Road. The building is only visible by looking directly down the access driveway. It is also located on the heavily trafficked Taren Point Road and in a area of predominantly industrial development. The particular characteristics of the proposed development are also relevant. In this case, the proposed development is a small scale operation with a maximum of two sex workers that operates from 5.00 p.m. to midnight.

23 In balancing the quantitative and qualitative requirements in DCP 2006, I am satisfied that the proposed development will not unacceptably impact on the existing and future amenity of the Taren Point Hotel and the Red Rooster and McDonald's fast food restaurants because the adequate separation distances. In my view, the proposal is consistent with objectives a. and b. in Pt 5.a.1 of DCP 2006.

24 The existing brothel at 2/85 Paraweena Road, in my view, is also sufficiently distant from the site to not raise issues of agglomeration of sex orientated facilities. In my view, the proposal is consistent with objective c. in Pt 5.a.1 of DCP 2006.

25 The concerns of competition from Ms Yang and Ms Qiu over the increasing number of brothels within the area and the potential impact on the viability of the existing businesses are not matters that are relevant to the consideration of this development application.

Conditions

26 The following conditions were in dispute between the parties:

27 Condition 3 - this condition requires a time-limited consent for a period of 12 months. The applicant proposes a two year period. As the potential for impact on the amenity of nearby land uses is limited because of the adequate separation distances I accept that the applicants proposal for a two-year trial period.

28 Condition 6(c) - this condition requires the removal of the authorised timber structure and stairs that form the mezzanine level. The applicant proposes to deny access to this area through the construction of an internal wall so the removal of the mezzanine is not necessary. I am in general support of the approach by the council however I am not prepared to require the removal of the mezzanine level as part of this application as it would deny the opportunity for the applicant to make application for this area to be regularised through a Building Certificate. I will however require that the stairs that provide access to this area be removed, in addition to the construction of the proposed internal wall.

Orders

29 The orders of the Court are:

1) The appeal is upheld.
2) DA07/1452 for the use of Unit 2/167 Taren Point Road Caringbah as a brothel is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of Exhibit A.
_______________
G T Brown
Commissioner of the Court