Land and Environment Court of New South Wales CITATION : Soueid v Sydney City Council [2004] NSWLEC 388 APPLICANT Margaret Soueid PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10091 of 2004 CORAM: Hoffman C KEY ISSUES: Appeal :- Section 96 application to delete time limit condition of consent for a brothel Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 2003 City of Sydney Sex Industry Policy 2003 CASES CITED: DATES OF HEARING: 01/07/2004 EX TEMPORE 07/01/2004 JUDGMENT DATE : APPLICANT Mr P Clay, barrister RESPONDENT LEGAL REPRESENTATIVES: Mr C Leggat, barrister SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 1 July 2004 10091 of 2004 Margaret Soueid v Sydney City Council JUDGMENT 1 This was an appeal against the refusal of a s 96 application under the Environmental Planning and Assessment Act 1979 to delete condition 7 of consent No. S/SP/02/00126 granted by Sydney City council on 22 August 2003 for a brothel and commercial premises at 136 Parramatta Road, Camperdown. 2 The locality had once been in the South Sydney Council area and the South Sydney Local Environmental Plan 1998 applied. The City of Sydney had adopted the applicable South Sydney Development Control Plan now called Draft Regulation of Sex Services DCP 2003. There was also a Sex Industry Policy adopted by Sydney City on 23 June 2003. The consent already having been granted for the brothel, the relevant considerations of these instruments and controls were related to why condition 7 was imposed and whether or not it should be deleted. 3 The original consent in condition 7 had imposed a time limit of 5 years on the brothel from the date of consent, after which a fresh DA would have to be made. A later s 96 application was granted by the council to amend condition 7 so that the 5 years commenced at the date of occupation of the premises. 4 The premises was on an existing two storey brick building that ran full length between Parramatta Road and Purkis Street. The latter was a laneway width road. At the back across the lane was a large brick electrical substation. East along Purkis Street were the back entries to commercial uses and then closer to the next street east, being Missenden Road, were quite recent apartment buildings. 5 At the T intersection of Purkis and Missenden was the old Weston biscuits factory that had recently been approved by council for about one hundred apartments. Two short city blocks north was the Camperdown Children's Hospital site on Pyrmont Bridge Road, now being rebuilt as one thousand apartments. Within the two blocks to the north of the proposal was a mix of commercial, retail and residential flats, some new and some in converted warehouses, and some in existing high rise Housing Commission buildings. 6 On the west side of the approved brothel was the Headquarters Hotel on the corner of Layton Street. On the east side of the subject site was an electrical repairs workshop. Across Parramatta Road were various commercial and retail premises. Across Layton Street were retail and commercial premises and a little north, as mentioned, apartments and mixed commercial and retail uses. The area was Zoned 10 Mixed Uses under the South Sydney Local Environmental Plan 1998. 7 The approved brothel had a retail commercial space at the front facing Parramatta Road, and an entry lobby and corridor beside it to a reception area for the brothel at the back. There were also staff facilities on the ground floor level. All customers would enter and leave via Parramatta Road. Because of the high ceilings of the existing building, the first floor was to be removed and two new floors inserted inside the upper level. The first floor was to be a lounge area, and work rooms and plant rooms. The top floor was more work rooms. 8 The Court heard the respondent's evidence from: · Ms B Walsh, principal of the Sancta Sophia College on the campus of Sydney University near the intersection of Missenden Road and Parramatta Road. · Ms L Evans, town planner for the council. · Other objectors' submissions were in Exhibit 4. 9 The applicant's evidence was heard from Mr R Chambers, town planner of BBC Consultants. 10 The issues were: 1. Nature of Condition . Whether condition 7 (as amended on 20 February 2004) is fundamental to the development consent the subject of these proceedings. 2. Whether by the amendment to the development consent at hand on 20 February 2004 the applicant has fulfilled its objectives in seeking the initial deletion of condition 7, as reflected in the supporting documentation, namely the timing of the activation of the consent. 3. Purpose of Condition . Whether the proper planning purpose achieved by the imposition of condition 7 (as amended on 20 February 2004) will be defeated if condition 7 is deleted having regard to, (a) the criteria set out in s 79C of the Environmental Planning and Assessment Act , and (b) the City of Sydney Sex Industry Policy 2003 (adopted in June 2003) part 2.1, and (c) the respondent's ability to review the proposed development in 5 years, to ensure that the use and operation continues to be compatible with the area having regard to, (i) the volume of residential development currently under construction within a 200 m radius of the brothel which will result in an influx of more than eleven hundred dwellings and between two thousand and two thousand five hundred residents in less than 2 years, and (ii) the nature of the use in this development application having regard to the objectives of Zone 10 Mixed Uses as set out in cl 21 of the South Sydney Local Environmental Plan 1998 , in particular, (a) to allow in appropriate circumstances a mixture of compatible land uses such as residential, retail, commercial, light industrial and industrial development, and (b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development such as that related to opening hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors is controlled so as to preserve the quality of life for residents in the area. 4. Deletion of condition 7 not being in the public interest . Whether the deletion of condition 7 in the public interest having regard to the inequity that would result from approval of a brothel in the subject location unlimited in its duration. Particulars: (a) The city has adopted a general practice of limiting the duration of consents granted to commercial uses which may reasonably be expected to impact upon residential amenity and are reliant on management practices, (eg signs, external cafes, and pubs and brothels). The intent to limit duration of operations has been made clear in cl 5.6 of the Outdoor Cafe Policy. Whether the applicant has demonstrated that this practice is unduly onerous or inappropriate in this instance or why its approval should be differentiated from others. (b) The city has adopted a policy, and developed a draft policy, in respect of sex related uses which applies to this area. Both the current and the draft include "anti-clustering" provisions directed towards achieving a balance of uses in the area, (see cls 1.7 definitions and 2.1 cumulative impacts). The effect of an unlimited consent is to confer an anti-competitive advantage. Whether the applicant achieves a monopoly by excluding others from the area indefinitely and is in breach of the anti-clustering cl 2.1. (c) If the business wishes to continue after a number of years, a further application provides an opportunity to review and address aspects of concern having regard to compatibility (e.g. ongoing patron access and interface, configuration to the rear, modification of lighting or security strategies). The general nature of the factors are referred in the notice of refusal and are indicated in cl 2.4 of the policy. Whether it is inequitable to require other businesses both within the same industry and of a broader commercial nature to recognise and adjust for impacts and to exempt these premises from that process. 11 Ms Walsh said her student residents were young women and the college enjoyed support for its sports teams from the Headquarters Hotel and the Hampshire Hotel that was almost opposite on Parramatta Road. Her students went to both hotels and she would rather they would not have to pass the brothel, and it was the shortest way to the Headquarters Hotel. In any case, the brothel was directly next door to the hotel. 12 She noted another brothel had been approved by council and was operating at 82 Parramatta Road, which was opposite the gates to her college grounds, and those grounds resembled parkland. She said women workers from that brothel used her college grounds to rest during breaks from work but were not welcomed. She saw the proposal as a further imposition on the amenity of her college and students, and was contrary to the residential amenity of the locality both existing and future. 13 Whilst there had been many objections to the original application, there were only a few objections to the deletion of condition 7. The other objectors owned units and lived in Purkis Street. They said in summary that it would become the parking area for the brothel due to the lack of parking on Parramatta Road. They would have late night vehicle activity and parking together with possible encounters with customers of the brothel. They drew attention to the fact that the increasing residential development in the area would only exacerbate on street parking problems in the future. 14 The residents had to walk westwards along Purkis Street, past the back of the brothel to go to the convenience store and video store in Layton Street. They were particularly concerned that this would bring them into contact with customers of the brothel. 15 The respondent made the point that the brothel had been approved because it was an appropriate use now in the locality, and the time limit was only imposed in the event that the locality changed. The applicant said whilst it was not unusual to have a trial period for various types of uses such as extended trading hours at a hotel, condition 7 was not a trial period. 16 The brothel had been deemed acceptable now. It was unreasonable in the applicant's view to say it would not be acceptable in five years time. The conditions of consent and the Management Plan to be approved by council would ensure it operated with minimal impact on residential amenity. In any case, there was to be no customer access via Purkis Street; the focus of any arrival or departure activity would be Parramatta Road and the amenity of Parramatta Road was unlikely to change to residential uses. 17 Further, the likelihood of residential uses becoming dominant in the locality beyond Parramatta Road was uncertain. Already there was development industry recognition of a glut of apartments in Sydney and a cooling of the housing market. Other economic factors and events in the future could mean the locality would be little different in five years time. 18 The applicant also noted that Sydney City council had approved the mixed use residential commercial developments in the area whilst also approving Nos. 82 and 136 Parramatta Road as brothels. If there was likely to be conflict in achievement of the objectives of the zone, one or other types of development should not have been allowed. 19 The respondent showed the council officer's reports in regard to the original consent that indicated the changing nature of the locality to achieve the new objectives of the Mixed Use Zone. This had given weight to the real likelihood of residential uses becoming predominant, and the location of a brothel within it becoming antipathetic to the objectives of the Local Environmental Plan and the Development Control Plan that required brothels to be away from residential areas. In other words, the assessment process of the impact of the brothel in a neighbourhood of changing character was spread over time, and, but for the time limit of five years on the consent, there would have been no approval. 20 The council officers both town planner and sex industry liaison officer reports did take note of the shifting demographics of the area. The objectors to the original consent referred to the changing character of the area towards residential uses. The conclusion of the earlier report showed that the 5 year limit was a strong consideration. 21 There was no dispute that the council did have the power to impose a time limited consent. The Court has concluded that the position put by the applicant that defraying the cost of the investment in the brothel over a 5 year period was unreasonable is not a matter to justify amendment when the public interest is at stake. In legislating and zoning for change in the lands under its control, the council should take into account the likely ultimate result of its objectives. 22 Whilst the applicant's position could be understood from a financial standpoint, in this case the council's imposition of condition 7 is reasonable. 23 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 2, 3, 5 and A. K G Hoffman Commissioner of the Court nmc/RJS 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.