Land and Environment Court of New South Wales CITATION : Hong Hang v Holroyd City Council [2005] NSWLEC 741 APPLICANT Hong Hang v Holroyd City Council PARTIES : FILE NUMBER(S) : 10024 of 2005 CORAM: Hussey C KEY ISSUES: Costs :- The use of a cottage as a brothel. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Statewide Developments Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 353 DATES OF HEARING: 15/09/2005 DATE OF JUDGMENT: 12/23/2005 APPLICANT Mr R. Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr G. McKee, solicitor of McKees Legal Solutions JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 16 September 2005 10024 of 2005 Hong Hang v Holroyd City Council The following decision and orders were handed down (orally) extempore on 16 September 2005. Some minor alterations and additions have been made in the interests of clarity and completeness. JUDGMENT Background 1 The matter concerns council's refusal of a development application for the use of premises at 170/179 Military Road, Guildford for a brothel. The development application basically comprises two stages involving: · No. 178; which is the existing 411 sq m allotment containing an older style fibro cottage, with large shed in the rear yard. The proposal involves upgrading this cottage and its use as a brothel with two workrooms, for a period of 12 months. This limited term consent is requested by the applicant to enable the construction of a purpose-built brothel on the adjoining property 179. · No. 179; is the adjoining 411 sq m allotment that contains a single story light industrial premises previously used as a mechanical workshop. The proposal 2 The proposal is for the upgrading and interim use of No. 178 as the brothel for 12 months. To facilitate this it is proposed to: · Demolish the existing carport, garage and shed and the construction of a paved carparking area for 5 cars at the rear of the property. · Refurbishment and conversion of the existing dwelling house for the use as a brothel for a 12 month period. · Hours of operation to be 7 days per week, 24 hours per day. · A maximum of 2 sex workers to operate on the premises at any one time. · One receptionist to be employed on site at all times as well as a part time contract cleaner. · The proposed development is shown on the development application plan prepared by Moshonis Bros. 3 According to Mr Creighton, this time limited consent time will enable the construction of the new purpose-built brothel on No. 179, which involves; · Demolition of the existing buildings · Construction of a new two storey building as shown on plans prepared by Moshonis Bros. · The development of a ground level car parking area and entrance foyer together with ground level workroom, toilet and shower and garbage bins storage area. At the first floor level 10 workrooms are proposed together with foyer, office, waiting room, staff facilities, laundry and drying area. · A maximum of 10 sex workers plus receptionist and a part time cleaner are to be employed. The issues 4 The issues arising from this development application concern: · The compliance with the upgrading work for the cottage to comply with the BCA and also fire safety considerations to create a workplace; · Disabled access; · Parking · Drainage; and · Adequacy of detailing the proposal. 5 In order to assess the proposal, the parties agreed to Mr L. Winnacott being appointed Court appointed expert for planning issues. He prepared a detailed report, which became exhibit 2. Planning controls 6 Holroyd Local Environmental Plan 1991: Under the provisions of this plan the subject land is contained with Zone No. 4(b) (Industrial Light Zone). The objectives for this zone are contained in the table to cl 9 as follows: (a) To encourage the development and expansion of a wide range of light industrial activities which will contribute to the economic growth, and create employment opportunities within, the city of Holroyd, (b) To ensure that industrial development creates areas which are pleasant to work in, and safe and efficient in terms of transportation, land utilization and services distribution, and (c) To allow commercial or retail uses only where they are associated with, ancillary to our supportive of, industrial development. 7 Clause 9.3 of the LEP provides as follows: Except as otherwise provided in this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development proposed is to be carried out. 8 On 19th of December 1997 (Amendment No. 20) to the LEP came into effect. It provides a new cl 38 as follows: 38. Despite the other provisions of this plan, the council may grant consent to the carrying out of development for the purpose of a brothel on land shown edged heavy black on the map marked "Holroyd Local Environmental Plan 1991 (Amendment No. 20)". 9 The subject land is shown on the map referred to in cl 38 and therefore brothels are a permissible use on the land. 10 Amendment No. 20 contains the following aims: (a) to specify appropriate planning controls relating to the use of premises as a brothel, and (b) to designate specific locations within the Holroyd City where brothels may be established with the consent of the Council, and (c) to ensure that brothels are not located within residential zoned land or on land used for residential purposes or in areas near or within view of a church, hospital, school, shopping centre or in any place regularly frequented by children for recreational or cultural activities, and (d) to ensure that the operation of a brothel does not adversely affect the amenity of the locality in which it is situated, and (e) to permit the provisions of medical support facilities in areas where brothels are permitted. 11 State Environmental Planning Policy No. 55 – Remediation of Land. 12 Holroyd Development Control Plan No. 25 – Planning Controls for Brothels. This DCP was introduced at the same time as Holroyd LEP 1991. The objectives of the DCP are listed in cl 3 with the principle objective of the DCP to implement the aims and objectives of the Holroyd LEP 1991 relating to brothels by: · Providing detailed planning controls to ensure that the location, operation and design of brothels do not adversely affect the amenity of the area. 13 Other objectives of the DCP include: · To provide more certainty in the development control process and assist the community and applicants to understand council's requirements relating to brothels; · To nominate the location requirements and development standards for brothels which reflect broad community attitudes and expectations. · To provide appropriate guidelines fro brothels, which will ensure that such are at a reasonable distance from residential occupancies and other nominated sensitive land uses, and will not have a detrimental impact on the amenity of the neighbourhood. · To provide appropriate guidelines which will discourage a concentration of brothels in close proximity to one another. · To identify appropriate health and hygiene standards relating to the management of brothels. · To ensure that adequate consideration is given to safety and security issues. 14 Holroyd Development Control Plan No. 1 - Guidelines for Parking: The evidence 15 This matter commenced by way of an on-site hearing, but was adjourned to enable the applicant to consider further detailed amendments to enable adequate assessment of the proposal. This included details for compliance with the BCA requirements for the evacuation paths and providing a consistent and implementable landscaping plan and also providing details of stormwater drainage control and discharge. This involved consideration of downstream easements through neighboring properties to facilitate the increase runoff, created by the development. 16 Following the adjournment of the appeal, the matter was resumed on 15 September and amended plans tendered which the applicant considered, responded to the issues raised. These amended plans have been considered by council and Mr Winnacott, and he is satisfied with the amendments. 17 I understand from the submissions that the demolition works for No. 179 and the subsequent building for the brothel is now acceptable, particularly because it incorporates the additional set of stairs, which comply with the BCA. This is in accordance with the concerns expressed by the building experts Mr Parrott and Mr Hill. 18 Also the amended carparking and landscaping is now acceptable, as is the drainage system, which provides for a downstream pipe system through an easement over the adjoining properties, which is to be obtained by the applicant through a deferred commencement condition. Accordingly this component of the development consent could be granted conditional consent. 19 However the outstanding issues concerns council's dissatisfaction with the temporary 12 month use of the cottage at No. 178 for a brothel. According to Mr McKee's submissions, the expenditure required to upgrade No. 178 to a standard suitable for the public brothel would be excessive, in the context of its limited 12 month interim operation. Therefore it does not represent economic and orderly development. 20 Furthermore Mr McKee's submits that as an illegal brothel has operated at No. 178 and its closure involved Class 4 proceedings, therefore as a matter of public policy it not appropriate to allow this part of the brothel development to be granted consent. His submissions is that there is a real concern that the 12 months period will be extended at the expense of the building and implementation of the new brothel at No. 179. 21 Accordingly his submission is that the public interest is well served by the avoidance of future legal action if the brothel at No. 178 does not close within 12 months and the new purpose-built brothel does not replace it. 22 Notwithstanding this, conditions of consent have been prepared which endeavor to effectively implement the applicant's staged proposal. These are included in the overall draft conditions with the combined development which provide for the deferred commencement consent comprising two stages as follows: Stage 1 Demolition of existing structures No. 179 Military Road; demolition of existing carport associated buildings upgraded temporary use of the existing premises at No. 178 Military Road as a brothel for 12 months period and construction associated parking area and drainage easement. Stage 2 Remediation validation of the site and erection of a 2-storey building for use as brothel at No. 179 Military Rd. 23 This condition provides that consent shall be void if evidence is not produced within 6 months of the date of Notice issued by council confirming the matters listed have been satisfactorily attended to. 24 Following discussions during the hearing is apparent that most of the proposed items in Schedule A are inappropriate but this can be resolved by way of alternative conditions. In addition to this deferred commencement condition, the other conditions provide that: Prior to issue of Occupation certificate condition No. 69 is that: 69 All structures existing on the site known as No. 179 Military Road shall be demolished and removed from the site, prior to the existing premises at No. 179 Military Road, being occupied. 25 Also, condition: 95 The use of the existing premises located at No. 178 Military Road, Guildford is approved for a 12 month period (commencing on the date of the Development Consent is made operative by council). At the expiration of the 12 month period, the premises shall be vacated, and no further business shall be undertaken from the site. 26 In considering these competing positions regarding the interim use of No. 178 as brothel, I am satisfied that based on the evidence and observations of, the view, it is of poor amenity that requires substantial upgrading so that the amenity of the locality is not adversely affected. 27 Accordingly I accept Mr McKee's submissions that if the substantial upgrading works are undertaken, it is to be clearly on the basis of the interim use. Nevertheless Mr Winnacott, says that the upgrading building could be used for some alternative uses in this light industrial area in the future. 28 The clear intention of the conditions of consent are to encourage the development to allow the building and use of the new purpose-built brothel at No. 179 and by restricting the use of No. 178 until the building at No. 179 is demolished. This would allow the improvement works for No. 178 to be undertaken during the demolition period. Following this the interim brothel at No.178 could operate for 12 months during which time the new brothel would be constructed. 29 An important aspect of this staged development is that the building at No. 179 is demolished initially, otherwise there are significant fire safety concerns between the two buildings while they both co-exist, considering the basic cottage construction of No. 178. After 179 is demolished, reasonable separation distances will be provided, without the need for substantial fire protection between the adjacent properties. 30 In response to these concerns about the applicant commitment to the new brothel, Mr Creighton agreed with the conditions consent and has confirmed that they reflect the intention to only use No. 178 as a brothel for 12 month period. 31 Insofar as Mr McKee raised other concerns about the logistics of these arrangements, the prime concern is that when the new brothel at No.179 is completed there may be some expectation that the brothel at No. 178 can continue. However this outcome is covered by provisions of DCP No. 25 – "Planning for Brothels". It objectives are to: · Providing detailed planning controls to ensure that the location, operation and design of brothels do not adversely affect the amenity of the area. 32 The other relevant objectives include: · To provide appropriate guidelines for brothels which will ensure that such are at a reasonable distance from residential occupancies and other nominated sensitive land uses, and will not have a detrimental impact on the amenity of the neighbourhood. · To provide appropriate guidelines which will discourage a concentration of brothels in close proximity to one another. 33 I particularly note the restriction on concentration of brothels in close proximity and furthermore that s 8.2 of the DCP provides locational controls including: The appropriate location of brothels should also have regard to whether the operation of the brothel could cause a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood. In this regard, council will not permit "congregation" of brothels in close proximity to each other so as to form or potentially form "red light districts". The brothel should not be located so as to have an adverse effect on existing surrounding and adjoining land uses and businesses in the locality or within the same site. 34 Whilst Mr Winnacott accepts that the brothel can operate for No. 178 (subject to its renovations), I am prepared to accept his opinion on the basis that the forgoing provisions of the DCP can be relied upon to restrict concentration of brothels. From the evidence presented to the Court, the concurrent future of both No. 178 and 179 would be inconsistent with the planning controls and unacceptable, in my assessment. 35 Accordingly I rely on the applicants submissions and acceptance of the conditions of consent, that the clear intent of the combined staged development is to only use No. 178 as a temporary brothel for 12 months, pending the construction of the replacement purpose-built brothel at No. 179. 36 In this event I consider that the objectives of the relevant planning controls for the approval of this brothel are reasonably satisfied together with the public interest considerations relating to the location of sensitive developments. 37 Accordingly the Court orders are: 1. The appeal is upheld. 2. Development consent is granted to DA 2005/401 for the staged development of a brothel at No. 179 Military Road, Guilford comprising the demolition of existing building at No. 179, the construction of a new 2-level building for use as a brothel and alterations to the cottage at No. 178 Military Road, Guilford for use as a temporary brothel for 12 months during the construction of the new brothel. This consent is subject to the conditions in Annexure A. 3. The exhibits may be returned except for Exhibits 2, 6, 8, 9, G, H, J, K, L, N and O. 4. The matter of costs is reserved. ___________________ R Hussey Commissioner of the Court ljr 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.