Land and Environment Court New South Wales Medium Neutral Citation: Feng v Willoughby City Council [2021] NSWLEC 1222 Hearing dates: 30 and 31 March 2021 Date of orders: 05 May 2021 Decision date: 05 May 2021 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders: (1) The appeal is dismissed. (2) Development application DA-2020/66 for the change of use and fit-out of the first floor of the existing building for a massage parlour and sex services premises at 84A Hampden Road, Artarmon is determined by refusal. (3) The exhibits, other than exhibits A and 1, are to be returned. Catchwords: DEVELOPMENT APPLICATION – massage parlour and sex services premises – breach of separation control in Willoughby Local Environmental Plan – clause 4.6 objection – whether there is a cluster – whether the objectives of the control are otherwise met – whether there are sufficient environmental planning grounds to justify the contravention – relevance of planning principles Legislation Cited: Environmental Planning and Assessment Act 1979 ss 8.7 Willoughby Local Environmental Plan 2012 cll 2.3(2), 4.6, 6.19 Cases Cited: Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126 Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 Martyn v Hornsby Shire Council (2004) 139 LGERA 282; [2004] NSWLEC 614 Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Yao v Liverpool City Council [2017] NSWLEC 1167 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 Texts Cited: Willoughby Development Control Plan 2006 Section G.1.3 Willoughby Local Centres Strategy 2036 Category: Principal judgment Parties: Yi Feng (Applicant) Willoughby City Council (Respondent) Representation: Counsel: W K Soon (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Kinny Legal (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/173203 Publication restriction: Nil Judgment Introduction 1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Willoughby Local Planning Panel exercising the delegated power of Willoughby City Council (Council) of development application DA-2020/66 (DA) for the change of use and fit-out of the first floor of the existing building (premises) for a massage parlour and sex services premises (proposal) at 84A Hampden Road, Artarmon (site). 2. The site is within 15m of an existing approved sex services premises. Clause 6.19 of Willoughby Local Environmental Plan 2012 (WLEP 2012) provides, in short, that development consent shall not be granted for sex services premises within 100m of an existing sex services premises. The Applicant relies upon an objection pursuant to cl 4.6 of WLEP 2012 to overcome the jurisdictional bar to the grant of consent. The principal issue in the case is whether the objection pursuant to cl 4.6 is made out. 3. For the reasons which follow I do not accept that the cl 4.6 objection is sustained and therefore the appeal must fail. Proposal 1. The Applicant presently operates the premises as an approved massage parlour, although there is some evidence that the premises have been unlawfully operating as a sex services premises. The internal and fit-out works proposed include amalgamation of two existing suites on the first floor as well as provision of amenities, work rooms and waiting rooms. There is no change to the existing gross floor area of the existing building. 2. A disabled access ramp is also proposed to be constructed for rear lane access over an existing right of way on neighbouring land. At the rear lane access wall signage, CCTV cameras, security fencing, lighting, a security gate and intercom system will be provided. 3. The premises will operate from 8am to 2am the following day 7 days a week. Access and egress are both from Hampden Road and from the rear. There is a constructed private lane from Broughton Road which will lead to the proposed disabled access over the property to the north before entering the site. The rear boundary of the site will be fenced and access only available if a security gate is unlocked remotely from inside after communication by intercom from a client or worker at the gate. 4. The first floor windows of the premises are readily visible from the other side of Hampden Road. There will be a sign on one of the two large windows saying "84A Artarmon Remedial Massage Centre". At ground level on Hampden Road the single doorway will only have the number 84A, but may include a registered business name (without reference to sex services). An agreed condition of consent, if granted, is that signage stating "Restricted Area – Persons under 18 years of age are not permitted to enter" shall be placed at each door to the premises. Site and surrounds 1. The site is located in the Artarmon shopping village, which is a traditional shopping strip opposite Artarmon railway station. The site (and the shopping village) is on the western side of Hampden Road. 2. The premises are on the first floor of an existing two storey commercial building with commercial uses at the upper level and shops at street level. 3. To the west generally is high density residential development and land to the south of the shopping village is generally medium density residential development. 4. Some 15m to the south of the site is an approved sex services premises at first floor 78 Hampden Road from which access is gained from Hampden Road. About 110m to the north is another approved sex services premises at 116 Hampden Road, also on the first floor with access from Hampden Road. Planning regime 1. The site is zoned B2 Local Centre pursuant to WLEP 2012. Sex services premises are permissible in the zone with development consent. 2. The Court must have regard to the B2 zone objectives (cl 2.3(2) of WLEP 2012) which are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To enhance the viability, vitality and amenity of local centres. 1. It is the last objective to which the Council submits is of relevance to this appeal. 2. Notwithstanding the universal familiarity with the clause, the provisions of cl 4.6 WLEP 2012 should also be noted: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows— (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained…. 1. The critical provision which gives rise to the need for an objection pursuant to cl 4.6 WLEP 2012 is cl 6.19 which I extract in full: 6.19 Location of sex services premises (1) Development consent must not be granted for the purpose of sex services premises unless the consent authority has considered the following— (a) the distance between the premises and any place of public worship, school, community facility, hospital or medical centre or any other place in the vicinity of the premises that is regularly frequented by children, (b) whether the operation of the premises could cause a disturbance in the neighbourhood, taking into account the location of any other sex services premises operating in the neighbourhood, (c) whether sufficient off-street parking will be provided, (d) whether the premises will be accessed by a separate entrance, (e) whether the operation of the premises will interfere with the amenity of the neighbourhood because of its size, operating hours, traffic generation, lighting or noise or the number of its employees and clients, (f) whether the operations of the premises will utilise circulation areas common to any other use of the premises. (2) Development consent must not be granted for sex services premises in a business zone unless the premises will be located above the ground floor and in a building used for commercial purposes. (3) Development consent must not be granted for sex services premises unless the premises are located more than 100 metres from any other premises to which a similar development consent has been granted. (4) The distance between 2 premises referred to in subclause (3) is to be measured as the shortest distance between the premises. (Emphasis added) 1. It should be noticed that cl 6.19 has two different components – first the mandatory relevant considerations in subcl 6.19(1), and second the locational requirements in subcll 6.19(2) and (3). That distinction may be important in understanding the underlying objective of the locational requirement that sex services premises should be at least 100m apart. 2. Willoughby Development Control Plan 2006 (the DCP) applies to the land and makes specific provision for sex services premises. The general objectives and General Standards in the DCP are in Section G.1.3: "General Objective The objectives of Part G.1 of this plan are to ensure that: • Sex services premises are sensitively located so that they do not create adverse social impacts or impacts on the amenity of the places in which they are situated; • Do not cause offence to the community at large; • Do not result in any other adverse environmental effects; and • Do not form clusters within areas where they are permissible. General Standards 1. Sex services premises must not be located within pedestrian view from a place of worship, school, community facility, hospital, medical centre or any place in the vicinity of the premises regularly frequented by children for any reason. 2. Development for the purpose of sex services premises shall only be located more than 100 metres from any other premises to which consent has been granted to the use of the premises for the purpose of a sex services premises. 3. Consideration is to be given as to whether the operation of the sex services premises could cause a disturbance in the neighbourhood, taking into account the location of other sex services premises operating in the neighbourhood; 4. In no circumstances should sex workers display themselves in windows or doorways of their related premises. 5. Development for the purpose of a sex services premises is prohibited if the sex services premises is located at ground level within a business zone. 6. Development for the purpose of a sex services premises is prohibited in the residential component of buildings within a business zone." 1. In terms of the objectives, there are three distinct and different objectives. The first and third objectives relate to impacts – social impacts and other amenity impacts. The second objective is not to cause offence to the community and is to be distinguished from actual impacts. The DCP thereby recognises that there is the potential for sex services premises to cause offence simply by their existence and location, even in the absence of social or amenity impacts. The final objective is to avoid clusters of sex services premises. Again, this appears to be not directly related to the question of impacts, although it could be related to cumulative amenity impacts and offence to the community. 2. The DCP provides for more detailed controls designed to minimise impact: "B. Access and Layout of Premises Objectives Ensure that the layout and access of sex services premises is designed to minimise the impact on other development in the locality. Standards 1. The sex services premises is to not have an adverse effect on the amenity of the area. 2. The sex services premises will not have an adverse effect on surrounding and adjoining land uses and businesses in the locality or within the same site. 3. In the Business zones, no part of the sex services premises (other than an access corridor to the premises) is to be located at ground floor level or street level of a building. 4. In Business zones, no part of the sex services premises or building in which the premises are situated is to be used as a dwelling unless separate access is available to the dwelling. 5. No merchandising relating to the sex services premises is to be erected, displayed or exhibited at any entry or in an access corridor (including any stairwell) to the premises. 6. The sex services premises will be accessed by a separate entrance. This is to prevent staff and clients causing a disturbance to other premises in the same building. This entrance should be illuminated to provide a safe access point. 7. The operations of the sex services premises will not utilise the circulation areas common to the building. 8. Council may consent to a sex services premises at ground level or street level within an industrial zone where Council is satisfied that no part of the sex services premises (including the entrance to the premises) other than an access corridor to the sex services premises, is visible from a public place." 1. The emphasis of the controls is to maintain the discrete nature of sex services premises – cannot be on the ground floor, must have a separate entrance, no residential use unless there is separate entry for that use. It is also important to note that there is to be no onsite "merchandising" relating to the sex services premises. That is, there is to be no overt advertising or notification of the sex services provided. To the passerby, it will not be obviously evident that a sex services premises is operating. The signage that is acceptable under the provisions of the DCP is the street number, potentially the name of the premises, and, like this application, identification of the non-sex services being offered at the premises, for example, massage. The sign indicating "restricted premises" is some indication of the potential for the premises being sex services premises. 2. The DCP makes provision for a limitation on the intensity of a sex services premises: "C. Number of suites/ workrooms Objective To limit the potential for adverse social and environmental impact of sex services premises by controlling the intensity of operation. Standards 1. Not more than ten suites/workrooms in the Industrial Zones. 2. Not more than eight suites/workrooms in the B3 Commercial Core zone in Chatswood Central Business District covered by WLEP 2012. 3. Not more than five suites/workrooms in the other Business Zones." 1. The proposal is for five work rooms which complies with control 3 (as the maximum). 2. Whilst amenity is dealt with in the parts of the DCP already identified there is a further section of the DCP which should be noted although it adds little: "D. Amenity Objective To prevent sex services premises having an adverse effect on the amenity of an area. Assessment The operation of the sex services premises will be assessed in terms of whether it would interfere with the amenity of the neighbourhood because of its size, operating hours, traffic generation, lighting, noise and the number of employees and clients." 1. The Council also relied upon the Willoughby Local Centres Strategy 2036. This Strategy is part of the overall strategy for the local government area which is to form the basis for the development of a new local environmental plan in due course. It is therefore a very early stage of the planning process and its specific terms cannot carry significant weight. 2. It is enough to note that the Strategy anticipates that the shopping strip will remain zoned B2 and that little or no change is expected to the Artarmon Village Centre itself. There is the potential for higher density living as shop top housing set back from Hampden Road, but that is not relevant for present purposes. Issues 1. The Council raises three issues: 1. The clause 4.6 objection to the location requirement in cl 6.19(3) of WLEP 2012 is not well founded; 2. The location is inappropriate having regard to nearby sensitive uses and nearby sex services premises (relying on the provisions of WLEP 2012 and the DCP); 3. The proposal does not provide safe and secure access for patrons and workers. Public consultation 1. The proposal was publicly notified and 16 submissions were received by the Council. The issues of concern were: * The area is frequented by school children, and where children and families congregate. * The proposal is close to Artarmon Public School, parks and shops. * Too many brothels and massage parlours in the Artarmon retail strip where it becomes a red light district. It will also impact on the character of Artarmon. * It is not pleasant for families or singles to walk alone in the evening. * The proposal does not take into account the recent strategy to revive the Artarmon shopping strip to a more vibrant and family friendly environment. * The proposal does not comply with cl 6.19 of WLEP 2012 in respect to distance to school, medical clinic and other sensitive uses, provision of off-streetcar parking and 100m separation between 2 sex services premises. * Drainage issues. 1. The proposal was referred to NSW Police. NSW Police do not object to the proposal but set out some conditions which it said should be imposed if development consent is granted. The focus of the Police response was the safety of patrons and workers. Evidence 1. Evidence was given by social planners, Prof R Ryan, retained by the Applicant, and Dr J Stubbs, retained by the Council. The social planners provided comprehensive individual reports, a concise joint report and gave oral evidence. 2. Evidence was also given by town planners, Mr J Boers, retained by the Applicant and Mr C W Kong, a Development Assessment Officer of the Council. The town planners also prepared individual reports, a joint report and gave oral evidence. 3. The Applicant also relied upon a Statement of Evidence from Mr W Levitan, a real estate agent with knowledge of the commercial leasing market in the Artarmon shopping village. The clause 4.6 objection 1. Clause 4.6 of WLEP 2012 (as in all local environmental plans) requires the consent authority to consider "a written request from the applicant that seeks to justify the contravention of the development standard". It is typical, perhaps universal, that the Court is provided with a separate document which is the cl 4.6 objection, and directly and specifically addresses the matters in cl 4.6. That is not the case here. 2. There is no separate cl 4.6 objection, but rather the Applicant points to parts of the Statement of Environmental Effects (SEE) prepared by Mr Boers for the DA as constituting the cl 4.6 objection. Whilst this is less than satisfactory, the Council does not suggest that extracts of the SEE cannot constitute the written request and I will proceed on that basis. 3. At p 29 of the SEE Mr Boers sets out cl 6.19(3) of WLEP 2012 and parts of cl 4.6 noting, correctly, that the 100m separation requirement is a development standard to which the provisions of cl 4.6 apply. It is appropriate to set out the whole of that part of the SEE which the Applicant identified as the cl 4.6 objection. "It is noted that no details provide the basis for this numeric control. However reference is made to compliance with WDCP Part G.1.3A Location (for Sex Services Premises) objective – 'Do not form clusters within areas where they are permissible'. A physical separation standard is common in most other Council Development Control Plans with the stated objective of preventing the formation of clusters of sex industry premises. This objective, together with relevant Land and Environment Court cases, in particular Martyn v Hornsby (2004) and Yao v Liverpool City Council (2017) provide planning principles and insight into the rationale of this standard, which is useful in evaluating the merit of flexibility in its strict application in this instance. In addition to avoiding disturbance and general amenity impact, which have already been addressed above in terms if relevant objectives if the B2 zine and standards, criteria and considerations otherwise under cl 6.19 and WDCP Part G.1. It is appropriate to evaluate the proximity of sex industry premises to one another in terms of their potential effect upon area character and reputation. This approach is supported in the Yao v Liverpool Council (2017) where a more objectives (performance based) approach, rather than a strict numeric approach on the location of brothels has been adopted as a Planning Principle (25). In this instance, the reduced 100 metre separation of No. 84A Hampden road to No. 1/78 Hampden road would not preclude achieving consistency and meeting all relevant objectives of Clause 6.19, as well as of the B2-Local Centre zone, as already detailed above, as well as the relevant objective of G.1.3 of WDCP. Flexibility of the strict application of this 100 metre separation control in this instance would result in a better outcome (pursuant to clause 4.6(1)(b) in that otherwise the first floor of the premises would be less likely to be occupied, which would have a negative impact upon the local centre, as already detailed above under headings "Site and Context/Broader Context' and 'Statement of Heritage Impact'. To re-iterate in summary, this particular local centre is largely in the form of an older strip type row of shops, with several former first floor walk up shop top dwellings. Those converted to Commercial uses have shown to be difficult to let (because of the stairs), and have tended to be occupied by Massage Premises due to their suitable room configuration. Otherwise, the premises may be vacant, which conflicts with the B2 zone objective in part of enhance the viability, vitality and amenity of local centres. As such flexibility in the application of clause 6.19(3) is likely in this instance to have a better outcome for development (objective 4.6(1)(b)." 1. Earlier in the SEE Mr Boer considered the B2 zone objectives. The only truly relevant zone objective is "to enhance the viability, vitality and amenity of local centres" about which Mr Boer said earlier in the SEE: "The proposal is not likely to reduce the viability or vitality of this local centre as it will retain the occupancy of the first floor of this particular building which is one of the original shop top dwellings. As detailed below…the shop top spaces which have been converted to commercial uses tend to be difficult to lease, which may result in extended periods of vacancy. ..[the proposal] may potentially enhance the viability and vitality of the local centre in giving it to appearance of being occupied, particularly during its night time operating hours when its front façade windows would be illuminated (note that they would be obscured with translucent backing material, not opaque, so that the windows are lit up at night. …. The 12+ month period of operation of the entire first floor as remedial massage and sex services premises has shown that it is unlikely that the approval of this proposal would result in a reduction of the viability, vitality and amenity of the Hampden Road local centre. …. there is no evidence that the operation of Mo 84A as a brothel had any adverse impact upon the range and diversity of retail, business, entertainment or community uses serving visitors or the local community." 1. Mr Boers is referring to the apparently accepted fact that the premises had operated unlawfully as a sex service premises, in addition to a massage parlour, for in excess of 12 months prior to the making of the DA. In another part of the SEE Mr Boers asserts that there is the potential for the premises to be vacant for a period in the event the DA is not approved. Social planning 1. Both Prof Ryan and Dr Stubbs are highly qualified and experienced social planners who have provided a significant amount of material to assist the Court. As it has transpired, such differences as there may have been between the social planners have not proved decisive in the determination of this appeal because the simple question of the social impact of sex services premises was not really at the heart of the principal issue. There was significant common ground between Prof Ryan and Dr Stubbs, and without intending to do a disservice to them I have distilled the salient parts of their evidence in the following paragraphs. Where a proposition is not attributed to one of the experts then I have taken it to be common ground. 2. Sex services premises are not necessarily associated with increased crime, nor always cause amenity impacts. In large part the actual impact of a sex services premises will depend upon its physical context and its management pursuant to a robust plan of management. 3. Prof Ryan says that sex services premises have a neutral or positive effect on neighbourhoods in terms of amenity and the Council records do not disclose complaints about the operation of the approved sex services premises on Hampden Road. "Observational studies on site show that these businesses appear to be operating with no adverse impacts on surrounding residents and businesses". Opposition to sex services premises often stems from an assumption that such premises encourage criminal, immoral and anti-social behaviour which is not the case as a matter of fact with a properly run sex services premises. 4. Prof Ryan enquired of 3 premises in a nearby neighbourhood where two sex services premises were operating, and only one identified any impacts as a consequence. 5. Dr Stubbs opines from the literature that most people who live near sex services premises reported no or neutral impacts but some 28% of respondents report negative amenity impacts. Dr Stubbs surveyed 14 businesses nearby to the premises and about one third had concerns about the proposal. None reported any concerns with crime or anti-social behaviour but those with concerns mentioned the potential to change the character of the shopping strip. 6. Prof Ryan concluded that the activities and use will not be in any way visible or discernible from the outside, rendering the impacts on character neutral or positive. In relation to "clusters" she said that regardless of how many sex services premises there are, their activities and use will not be visible or discernible from the outside, rendering the impacts on character neutral or positive. For the same reason she said there is no unacceptable cumulative impact if there is a cluster of sex services premises. 7. Dr Stubbs' survey recipients were all aware of the operation of a number of sex services premises in the shopping strip notwithstanding that there was little external manifestation of the service provided. Dr Stubbs opined that the two near adjacent premises comprises a cluster and that clusters of premises attract other premises of the same type. In Artarmon that can lead to a significant change in character. Prof Ryan says that because the cluster theory is based upon the notion of attraction of a shopper to an area because of the number of similar shops which can be accessed easily, it does not apply to sex services premises because the customer of such premises is not browsing the premises as such. 8. Dr Stubbs says that whilst the premises are low key and unimposing, knowledge would be acquired of the operation, and those sensitive to, or offended by its nature, would be uncomfortable about its operation. On the other hand, Prof Ryan says that: "The proposal us unlikely to result in any conflicts with surrounding sensitive uses due to sufficient proximity, obscured lines of sight and the small size of the operation. Any school children or people accessing the sensitive uses walking from Artarmon railway station would be unlikely to discern the nature of its operations if all signage is removed and entry/exit points are discrete." 1. In her oral evidence Prof Ryan accepted that although the ground floor entrance door was relatively innocuous, there was a plain association between the signage on the first floor window and the entrance on Hampden Road. Further Prof Ryan very appropriately accepted that there are premises labelled as providing massage services which generates scepticism in the passerby who may, rightly, suspect that the premises are in fact sex services premises. She also accepted that it is possible to confirm that use by simple internet search because the proposal, like many others, will advertise online and procure the overwhelming majority of its clients by that method. Planning evidence 1. In his evidence Mr Boers makes two essential propositions: * There is unlikely to be any adverse social or amenity impact as the design and operation of the sex services [premises] would be wholly internal and in no way visible or discernible (sic) from outside. Further to this, sex services should not cause offence if their provision inside the building is not apparent from the outside (Joint report at [18]). * The proposal is consistent with the relevant objectives of the B2 Local Centres zone in that the first floor suites facing Hampden Road would be likely vacant for extended periods otherwise, due to difficulty in leasing out former shop top type floor space of this type for commercial uses. Vacant floor space is not consistent with the economic vitality of the Local Centre (Joint report [41]). 1. Mr Kong says that the addition of a sex services premises some 14m apart from the existing sex services premises creates a cluster. He says that the Artarmon local centre contains convenience stores, cafes, takeaway food shops, post office and other business premises and these places are frequently visited by children or parents with children after school and the premises are also in the vicinity of a mosque and a church. There will be an impact on these sensitive groups, and the cluster of sex services premises does not co-exist in harmony with the established uses in the local centre. Mr Kong also says that the clustering effect of sex services premises will impact on the existing and desired future character of the local centre. 2. Mr Kong also says that a better outcome would not be achieved by the relaxation of the development standard. Although there may be a period of vacancy if the present tenant departed, that is preferable to creating a cluster of sex services premises. Mr W Levitan 1. Mr Levitan is an experienced real estate agent who manages a number of commercial rental tenancies in the Artarmon centre including the premises. 2. He opines that the establishment of "sex premises" at the premises has had no impact on the character or reputation of the Artarmon Shopping Village and that its approval and continued operation will have no such impact. He says that the existence of sex services premises does not affect the commercial value of surrounding premises and that "brothels and massage premises" do pay a higher than average rent in Artarmon village. 3. At the time of his report in February 2021 Mr Levitan noted that of the 30 or so shop top commercial premises in the village there were two which were vacant. Mr Levitan did not offer a comparison with an equivalent shopping village to demonstrate whether that level of vacancy was typical or exceptional. Whilst Mr Levitan did not proffer an opinion as to the consequences if the premises were vacant, he did say: "..it is my experience that where the "shop top" properties have come up for lease in the last few years, the demand has come from massage businesses and the likes. Without these tenants, I believe that many of the "shop top" premises would be vacant, which I believe would add to the decline of appearance and drop in values." 1. Mr Levitan had also said that the existence of the massage businesses and sex services businesses had not caused any drop in property values, and there is no downward trend in property values. Consideration 1. The starting point must be the cl 4.6 objection, because unless that is sustained then the Court does not have power to grant the application. It remains important to set out the principles concerning a cl 4.6 objection, notwithstanding the frequency with which the Court has to do so. 2. For there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: * The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and in fact be satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); * The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard and in fact be satisfied that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)); * The proposed development will be in the public interest because it is consistent with the objectives of the zone (cl 4.6(4)(a)(ii)); and * The proposed development will be in the public interest because it is consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). (Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action)). 1. The Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters (Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130). The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention (the first two dot points above) must be reached only by reference to the written request (cl 4.6 objection). Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the cl 4.6 objection, it cannot supplement what is in the cl 4.6 objection. 2. On the other hand, the state of satisfaction that the proposed development is in the public interest, because it is consistent with the objectives of the standard and of the zone, (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 objection. 3. A further precondition in cl 4.6(4), which must be satisfied before the power can be exercised to grant development consent for development that contravenes a development standard, is that the concurrence of the Secretary has been obtained. The Secretary's concurrence can be assumed as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003 (Initial Action at [28]). 4. The common ways in which an Applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]–[51] (Wehbe) and repeated in Initial Action at [17]–[21]. Although Wehbe concerned a State Environmental Planning Policy No 1—Development Standards objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]): 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the Council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). 2. It is necessary that the cl 4.6 objection itself establishes "sufficient environmental planning grounds to justify contravening the development standard". Whilst that language is not used in the cl 4.6 objection, it is to be inferred that the environmental planning grounds relied upon in the cl 4.6 objection are that if development consent is not granted then the premises will be vacant having a negative effect on the local centre. 3. I accept that such a circumstance can be an environmental planning ground in that it relates to the B2 zone objective to enhance to vitality of the local centre, and also an objective of cl 4.6 to achieve a better outcome. However, in this case the factual basis for the ground has plainly not been made out. 4. First there was no evidence from the Applicant, included in the cl 4.6 objection or otherwise, that he will vacate the premises if the development application is not granted. It would be a simple proposition for the Applicant to make in his own evidence. 5. Second, there is no empirical support for the facts underpinning the claimed environmental planning grounds. The cl 4.6 objection says that without flexibility in the strict application of the separation control "the premises would be less likely to be occupied which would have a negative impact upon the local centre". There is no basis to assume that the premises are less likely to be occupied either permanently or for a lengthy period. And there is nothing beyond the mere statement that vacancy would have a negative impact on the local centre. There is no analysis or explanation as to why one vacant first floor tenancy, even in addition to one or two others, itself has a negative impact on the local centre. 6. The statement is also inconsistent with a statement in the next paragraph where Mr Boers says of the first floor tenancies that "Those converted to commercial uses have shown to be difficult to let (because of the stairs) and have tended to be occupied by Massage Premises due to their suitable room configuration". I cannot assume that Mr Boers is using the phrase "Massage Premises" euphemistically and is thereby referring to sex services premises. Mr Boers is an experienced planner and if he intended to refer to sex services premises then he would have done so. 7. In the cl 4.6 objection therefore Mr Boers acknowledges that a Massage Premises use is a likely use, in the absence of consent for sex services premises, and which is the presently approved use at the premises. There is no basis in the cl 4.6 objection to be satisfied that there are sufficient environmental grounds to justify contravening the development standard. 8. That is sufficient to dispose of that issue, but I should add that Mr Levitan's evidence does not support the assertion in the cl 4.6 objection either. He does not opine that the premises would actually be vacant if development consent is not granted, but rather says that "where the 'shop top' properties have come up for lease in the last few years, the demand has come from massage businesses and the likes. Without these tenants, I believe that many of the 'shop top' premises would be vacant...". All this means is that businesses of the nature described, which perhaps includes sex services premises ("and the likes"), are likely tenants upon vacancy. This means that the presently approved use at the premises is the most likely occupier of the premises, which militates against the assertion that the premises will be vacant if development consent for sex services premises is not granted. 9. It follows that apart from not being satisfied that the cl 4.6 objection demonstrates that there are sufficient environmental planning grounds to justify the contravention of the standard, as a matter of fact I am not satisfied that there are sufficient environmental planning grounds to justify contravening the development standard for the reasons set out above. 10. I will deal only briefly with the other aspects of the cl 4.6 objection and Objectives and Standards of the DCP because having found that I am not satisfied that there are sufficient environmental planning grounds to justify the contravention there is no jurisdiction to grant development consent. I generally agree with the evidence of Mr Kong as explained in the following paragraphs. 11. The Applicant relies upon the first of the Wehbe "tests" as the basis for asserting that the application of the standard is unreasonable or unnecessary – that the objectives of the standard are met notwithstanding the non-compliance. The standard itself does not identify its objective, so it is necessary to determine the underlying objective of the standard. 12. The Applicant and the Council appear to agree that the underlying objective of the standard is to avoid a cluster of sex services premises. Accepting that to be the case, it cannot be a complete statement of the objective of the control. Because the question must be asked, for what purpose is a cluster to be avoided. That is, if the objective is to avoid a cluster of sex services premises, then the question - why must a cluster be avoided - must be answered in order to properly understand the underlying objective of the standard. 13. The Applicant submitted, consistently with the cl 4.6 objection, that: * There was no planning basis for the numerical control; * The standard is meant to avoid disturbance and general amenity impact; and * The standard intends to avoid closeness which affects the character of the area. 1. It was also submitted that one more sex services premises is not going to lead to homogenisation of the local centre and, there is not a cluster. Whilst it may be true that approval will result in the attraction of additional sex services premises, the Applicant says, each one will be judged on its own merits and "at 4 or 5 or 6 Council can make a judgment", but with only two approved sex services premises at present, granting consent in this case will only mean there are 3 in the local centre. 2. The Council submitted, consistent with the evidence of Mr Kong and Dr Stubbs, that the objective of avoiding clustering is because there may be unacceptable impacts including: * Amenity impacts; * Undesired character of an apparent "red light district" or sex hub; * Operators of similar land uses being drawn to the cluster; * Incompatibility of land use and suppression of demand for business premises in the locality; and * Frustration of urban revitalisation. 1. I reject submission by the Applicant that there is no planning basis for the control. The control of 100m is a consequence of seeking to achieve its underlying objectives. Whilst it can be said that it is simply a "line in the sand" and there is little difference from say 80m or 120m, in a shopping strip of some 300m in length, there is a basis for the Council adopting the standard of 100m. Of course, that does not mean it cannot be varied if the provisions of cl 4.6 are satisfied. 2. I accept the Applicant's remaining two objectives are part of the underlying objective of the standard – avoid cumulative impacts and the potential for a change in character of the local centre. Those underlying objectives are also embraced by the Council in its first 3 objectives in [74] above, with the Council's addition of its additional two objectives. The last two of Council's objectives really are a subset of the notion that the character of the local centre should not change. 3. It seems to me however, that the objectives of the standard are even a little broader. First it can be observed that cl 6.19(1) of the WLEP 2012 requires consideration of the amenity impacts of a proposed sex services premises, but more importantly the potential for cumulative impacts described in cl 6.19(1)(b) as "whether the operation of the premises could cause a disturbance in the neighbourhood, taking into account the location of any other sex services premises operating in the neighbourhood". The 100m control perhaps suggests that in ordinary circumstances, there is likely to be an unacceptable cumulative impact. 4. Whilst one cannot look to a development control plan for the purposes of construing the relevant local environmental plan, it is legitimate to consider the terms of the DCP here for the purpose of establishing the underlying objective of the standard (see Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [46] and [50]). 5. The principal relevant parts of the DCP are set out at [18] above. I simply observe that the avoidance of offence to the community at large is an objective of the DCP and there are prescriptive measures in relation to visibility from certain sensitive land uses. 6. In my view the underlying objective of the development standard is to avoid a cluster or concentration of more than one sex services premises so as: * to minimise the potential for amenity impacts, individually and cumulatively; * avoid the potential for a change in character of the local centre, including the creation of a "red light district" or "sex hub"; * to avoid the increased potential for offence to the community at large where there are at least two sex services premises within a reasonably close visual catchment. 1. The Applicant by reference to the cl 4.6 objection and in submissions points to the lack of amenity impacts and the discrete nature of the premises to justify the achievement of the objectives of the standard. 2. In relation to the potential for actual amenity impacts, I can accept that the potential is very low, and indeed the Council did not submit otherwise. The question of actual amenity impacts is however by no means the end of the consideration of the underlying objectives of the standard. 3. In relation to the discrete nature of the proposed sex services premises, the difficulty for the Applicant is that all sex services premises are to be designed to be discrete, in accordance with the scheme of cl 6.19 of WLEP 2012 and the relevant provisions of the DCP. That is, the fact that the premises will be discrete and not immediately obvious as a sex services premises, does not differentiate this proposal from any other proposed sex services premises, and not necessarily from any existing approved sex services premises. 4. The premises, like others, will advertise as offering massage services, and will not be permitted to advertise the broader range of services at the premises. The visibility to which the DCP refers is to the premises, as discrete as they are required to be, even though to the stranger passing on the street, it is not immediately clear that the premises are sex services premises. 5. I opine that the objective relating to visibility and the potential for consequential offence is because recognising premises as offering "massage services" will raise scepticism and suspicion as to whether the premises limit their services to the provision of massage or are indeed sex services premises. Prof Ryan very fairly agreed that there was likely to be that scepticism and suspicion. Further, it is not difficult for members of the public, like potential patrons of the sex services premises, to search online to establish the nature of the business actually being conducted at the premises. It is likely to become notorious to the regular users of Artarmon local centre that the premises are sex services premises. 6. That of itself does not render the premises incapable of satisfying the objective of the standard. But the question is whether the proposal, which will be known or assumed to be sex services premises by the community at large, some 15m from an existing sex services premises will meet the objectives of the standard. 7. In my opinion it will not. The upper windows of the proposal and the existing sex services premises will be clearly visible in close juxtaposition to each other from the other side of Hampden Road. The ground floor entrance to each of the premises will be associated with the identified businesses and so, whilst there is no ground level identification of the premises specifically as sex services premises, the knowledge or assumption will be gained by relating what was seen from the other side of the road to the ground floor entrances. A business name which indicates the availability of massage services and the restricted premises signage will add to the suspicion and knowledge of the passerby. 8. Opposite the premises is the railway station with a reasonably constant flow of people leaving the station to come to or through the local centre as well as passing through the local centre to head to the station. There is the full range of local population coming by rail or motor vehicle or by foot to the Artarmon local centre, from young children and school children to adults of all ages. Within close proximity to each other will be what is known or reasonably suspected to be two sex services premises. The underlying objectives of the standard include avoiding such close proximity, because in this case there is the potential for a change in character of the local centre, including the creation of a "sex hub" and it increases the potential for offence to the community at large. 9. This is not simply because there is a substantial numerical departure from the standard, but because of the particular characteristics of the proximity of the premises and the existing approved sex services premises. The two premises are within the same visual catchment from the other side of Hampden Road and their entrances are close to each other. The two premises are in the same block – there is no street intervening and there are few premises between the front entrances on Hampden Road. 10. In my view therefore the cl 4.6 objection does not demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, nor am I satisfied that the proposal is in the public interest because it does not meet the objectives of the standard. 11. The relevant objective of the zone is to enhance the viability, vitality and amenity of the local centre. Whilst it is finely balanced, I do not consider I would have refused the proposal as failing to be consistent with this objective as required by cl 4.6(4)(a)(ii) of WLEP 2012. The proposal is a commercial addition to the local centre and so contributes to its viability and, potentially, its vitality. (I interpose that the proposal is assessed on its own merits, not in comparison to the presently approved use nor any other proposed use.) In the absence of any amenity impacts it can be considered that the proposal enhances the amenity because it provides a service bringing patrons to the local centre without causing any amenity issues. 12. Insofar as the provisions of the DCP are concerned it is unnecessary to deal with them in any detail. It is apparent from the analysis above that I have considered the provisions of the DCP in determining the underlying objectives of the 100m separation standard in WLEP 2012. In my opinion the premises are in the view of sensitive users of the local centre and being so close to the existing sex services premises form a small cluster. The proposed use has the potential to cause offence to the community. The proposal fails having regard to the provisions of the DCP. 13. Notwithstanding the entreaties of the Council I do not consider it appropriate to have regard to the Court's planning principles relating to brothels. First, I was invited to apply the principle in Martyn v Hornsby Shire Council (2004) 139 LGERA 282; [2004] NSWLEC 614 (Martyn) but that planning principle was abandoned (as recorded in the decision of Yao v Liverpool City Council [2017] NSWLEC 1167) (Yao). Martyn was effectively updated and it was considered too prescriptive rather than the preferred process-driven principle in Yao. 14. Second, the role of planning principles developed by the Court should be properly understood. A convenient history is set out by Moore SC (as his Honour then was) in Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLC 1126. A planning principle cannot usurp the planning regime adopted by a Council in relation to a particular subject matter. A principal focus of the assessment of an application must be the provisions of the DCP (Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167) and to apply a planning principle in the face of the provisions of the DCP runs the risk of applying a policy which differs from the policy adopted by the Council and therefore fall into error (Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226; Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 at [82]). 15. Here the Council in WLEP 2012 and the DCP has adopted a detailed and comprehensive regime for the assessment of development applications for sex services premises. I do not consider that it is appropriate to consider the planning principle in Yao when the Council planning regime is comprehensive. 16. I should add in relation to the third contention of the Council, that the safety and security of patrons and staff have been addressed in the updated arrangements proposed by the Applicant, and whilst the access from the rear is not ideal, it would not be sufficient to refuse the application. Conclusion 1. There is no jurisdiction to grant the development application because the cl 4.6 objection cannot be sustained. I am not satisfied that the cl 4.6 objection has adequately addressed that the underlying objectives of the development standard have been achieved, and that there are sufficient environmental planning grounds to justify the contravention. I am also not satisfied of those matters as a matter of fact. 2. The proposal also fails on its merits and in particular having regard to the provisions of the DCP. 3. Accordingly, the orders of the Court are: 1. The appeal is dismissed. 2. Development application DA-2020/66 for the change of use and fit-out of the first floor of the existing building for a massage parlour and sex services premises at 84A Hampden Road, Artarmon is determined by refusal. 3. The exhibits, other than exhibits A and 1, to be returned. ………………………… P Clay Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2021