Land and Environment Court of New South Wales CITATION : Xiao Ping Ai v Newcastle City Council [2004] NSWLEC 17 revised - 29/01/2004 APPLICANT Xiao Ping Ai PARTIES : RESPONDENT Newcastle City Council FILE NUMBER(S) : 10314A of 2002 CORAM: Watts C Development Control Plan :- Brothel - reasonably apprehended possible impacts KEY ISSUES: Whether or not when focussing assessment of the application on the distance specified and objectives set in DCP46 - the proposed brothel may detract from the amenity of residential occupancies nearby. Newcastle Local Environmental Plan 2003 (NLEP2003) LEGISLATION CITED: Council's Code for the Regulation of Brothels and Other Sex Industry Establishment - Development Control Plan No 46 (DCP46) Environmental Planning and Assessment Act 1979 s79C and 97 CASES CITED: 22 October 2002 - Original decision DATES OF HEARING: 28 May 2003 - 56A Appeal decision 7 November 2003 - Directions hearing 19 and 20 January 2004 - Remittal hearing DATE OF JUDGMENT: 01/23/2004 APPLICANT Mr J Doyle, solicitor with Mr B Eastoe, town planner of Cowley Hearne LEGAL REPRESENTATIVES: RESPONDENT Mr P W Larkin, barrister instructed by Ms D Grant, solicitor and Ms N Simmonds, solicitor of Sparke Helmore JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10314A of 2002 Watts C 23 January 2004 Xiao Ping Ai Applicant v Newcastle City Council Respondent Judgment 1 . This is an appeal by way of rehearing under s 97 of the Environmental Planning and Assessment Act 1979, by the Commissioner at first instance, who on 22 October 2002, had upheld the council's decision to refuse consent. The applicant had appealed that decision and her Honour Pain J upheld that appeal and remitted the matter for decision by the Commissioner. 2 . This appeal relates to a decision of Newcastle City Council (the council) to refuse a development application for a change of use from residential to a brothel and massage parlour in an existing dwelling house at No 7 Denney Street, Broadmeadow, being Lot 1 DP 669387. 3 . The issue is whether or not, when focussing assessment of the application on the distance specified and objectives set in the Development Control Plan No 46 (DCP46), the proposed brothel may detract from the amenity of residential occupancies as to warrant refusal of the application. 4 . A site inspection was taken in company with the parties on the morning of the hearing. 5 . I have concluded that the application should succeed under s 97 of the Environmental Planning and Assessment Act 1979, for despite it not meeting the numerical locational requirements of DCP46 there are no significant adverse environmental impacts, either actual or apprehended, as would persuade me to refuse the application. I am satisfied that the objectives and underlying purpose of the locational requirement of DCP46 would be met. The land 6. The land is situated on the northeastern side of Denney Street, rectangular in plan and has a frontage of 10.06m, a depth of 50.29m and an area of 505.9m2. At the rear is a bitumen paved public laneway. Erected on the flat land is a single-storey weatherboard, iron-roofed dwelling house, setback 4.8m from the Denney Street frontage and about 1m and about 1.4m from the common northwestern and southeastern side boundaries, respectively. Access to this dwelling, is via a concrete footpath, through a recessed doorway located on the southeastern side. There is also a rear entrance. 7. A detached weatherboard single-car garage 6.8m x 3.25m, setback about 600mm from the northwestern boundary, is located about 17.5m from the rear of the dwelling and 6.2m from the laneway. Vehicular access to this garage is from the rear laneway. 8. Adjacent to the northwest at No 5 Denney Street is a single-storey detached brick dwelling setback about 5m from Denney Street and about 2m from the subject dwelling. Although there was no dividing fence between these two dwellings the application proposes one. This dwelling is residentially occupied, however when the original application was lodged it was vacant and previously had been commercially used. 9. Adjacent to the southeast at No 9 Denney Street is a single-storey weatherboard cottage setback about 5m from Denney Street and about 2.4m from the 1.8 metre high metal fence on the common boundary. This dwelling is residentially occupied. 10. Mixed development characterises the northeastern side of Denney Street and commercial, industrial, warehouse buildings and race track are found on the southwestern side of the street. 11. A public cycleway, that forms part of a link between the city and the western suburbs, extends along part of Jackson Road to the southeast of the land adjacent to an open concrete stormwater channel about 60 metres distant. Relevant planning controls Newcastle Local Environmental Plan 2003, (NLEP2003) 12. Under the NLEP2003, gazetted 8 August 2003, the land is zoned 4(a) Urban Services and the proposed use is permissible with consent. 13. The objectives for the 4(a) Urban Services zone under the DLEP are, [Note: Exhibit Tab K p 26]: i. To accommodate a wide range of light industrial, transport and storage activities which do not adversely affect the amenity of the neighbourhood. ii. To accommodate a wide range of employment generating uses and associated support facilities with good access to the arterial road network for freight movement. iii. To accommodate sales and storage operations requiring extensive space such as bulky goods retail outlets, which are not appropriate in, and which will not prejudice the viability of local centres, district centres or the Newcastle City Centre. Council's Code for the Regulation of Brothels and Other Sex Industry Establishment -Development Control Plan No 46, (DCP46) 14. DCP46 was adopted by the council on 9 June 1998 and became operative from 6 July 1998, [Note: Exhibit 4 Tab 22 p 3]. 15 . The objectives under cl 3.0 of DCP46 are: a. To nominate locational requirements and development standards for brothels and other sex industry establishments, which reflect broad community, attitudes and expectations and which clarify the provisions of the Newcastle LEP 1987 in this regard. b. To provide appropriate guidelines for brothels and other sex industry establishments which will ensure that such are at a reasonable distance from residential occupancies and other nominated sensitive land uses, and will not cause disturbance or otherwise have a detrimental impact on amenity of the host neighbourhood. c. To provide appropriate guidelines which will restrict the scale of brothels and other sex industry establishments, as well as prevent their concentration in close proximity to one another. d. To identify appropriate public and hygiene standards relating to the equipping and management of brothels and other sex industry establishments. 16 . Clause 6.0 of DCP46 provides development guidelines for the location of a brothel, sex aid establishment or sexual entertainment establishment relative to dwellings, public buildings, places where children or young people are likely to congregate including railway stations and major bus stops. 17 . Clause 6.1 of DCP46 specifies the location of brothels and relevantly states: a. A brothel, sex aid establishment or sexual entertainment establishment is not to be located in a position which may detract from the amenity of residential occupancies and, in this regard, the entrance or exit doorway to or from any such premises is not to be closer than 150 metres from the entrance to premises used as a dwelling within a Residential zone. Note: Council may relax this requirement by up to 50% in respect of premises used as a dwelling within a Commercial or Industrial zone, including shoptop housing or inner-city residential apartments; b. The entrance or exit doorway to or from a brothel, sex aid establishment or sexual entertainment establishment is not to be closer than 200 metres from a church, hospital, school, community facility or any place where children or young people are likely to regularly congregate, including railway stations or major bus stops. c. In order to avoid a concentration of sex industry related land uses in the one location: ii. a brothel, sex aid establishment or sexual entertainment establishment is not to occupy premises already used or proposed to be used for any such purposes; and iii. An entrance or exit doorway to or from a brothel, sex aid establishment or sexual entertainment establishment is not to be closer than 200m from the entrance doorway to any other brothel, sex aid establishment or sexual entertainment establishment. d. … e. … The proposal and its history 18 . Development application No 01/2390 was lodged with the respondent council on 12 November 2001, for a change of use from residential to brothel and massage parlour within an existing cottage at No 7 Denney Street, Broadmeadow. 19 . Approval is sought for two (2) massage rooms, each with a shower cubicle; a client reception area; an anteroom (worker lounge room); kitchen, meals, bath and laundry at the rear and a storeroom at the front of the building. Access to the client reception room is proposed through the recessed doorway at the southeastern side of the building. 20 . Off-street car parking for four (4) vehicles is proposed off the paved laneway to the rear. A 700mm wide pathway is to be constructed from the car park to the rear of the dwelling. A 1.5m high Colorbond fence, incorporating a gate, is to be erected across the land about 7m from the rear of the dwelling. 21 . The hours of operation were amended during the present hearing and are agreed to be 9.00am to 10.00pm daily. 22 . The statement of environmental effects that accompanied the application states: "alcoholic liquor will not be provided nor offered for sale on the premises". No details were provided in relation to the number of employees of the brothel. 23 . On the first site inspection the distances from the front door of the proposed brothel to nearby residential occupancies were measured first along the rear lane and then along the footpath in Denney Street. 24 . The distance along the rear lane from the front door of the proposed brothel to the front gate of No 1 Ailsa Road was measured as 89.5m and to the front gate of No 5 Ailsa Road was 91.3m. 25 . The distance along Denney Street from the front door of the proposed brothel to the front gate of No 5 Denney Street was 21.1m; and to the front gate of No 9 Denney Street was 22.7m. Measured along Denney Street, from the front door of theproposed brothel to the front gate of No 5 Ailsa Road was 90.7m and to the front gate of No 1 Ailsa Road was 122.5m. 26 . From the front door of the proposed brothel to the cycleway was measured at a distance of 70.8m and to the gate of Hamilton North Public School was measured as 301.5m. 27 . The Church, from whose congregation the council received the form letters, was outside a 200m radius of the proposed brothel. Notification 28. When the original application was notified to nearby owners and occupants and the council received three (3) written submissions objecting to the use of the premises as a brothel. One objection came from Mr Thorne the owner of No 5 Denney Street, which premises was let for residential purposes at that time. 29. At that time a petition was received by the council, which contained an objection to the use of the subject premises as a brothel. This petition contained the names, addresses and signatures of 28 persons. 30. When the application was readvertised in August 2003, the council received 101 form letters and nine (9) individual submissions. There was no objection from the owner of No 9 Denney Street. The council's decision 31. By notice dated 8 January 2002 the council refused the application for three reasons that are reiterated as issues. Since that time the issues have been expanded by the inclusion of Issue 2A, 2B and 2C. The hearing 32. The original appeal was filed on 12 April 2002. The matter was remitted to Commissioner Watts for rehearing in accordance with the findings of the judgment of her Honour Pain J on 28 May 2003. 33. At the hearing the court heard oral evidence on behalf of the respondent council from Mr D Brazaitis, Senior Development Officer Newcastle City Council who prepared a statement of evidence in Exhibit 7. 34. On behalf of the council evidence was also given by: * Ms C Downie, Secretrary of Broadmeadow, Georgetown, Hamilton North Community Forum; * Mr K Rowe, staff manager of Print National; * Mr R Koning, who is a resident of No 74 Denney Street, Broadmeadow. 35 . On behalf of the applicant evidence was given by: * Mr B Eastoe, consultant town planner whose statement of evidence is in Exhibit A. 36 . Messrs Eastoe and Brazaitis conferred under the Court's expert practice direction and prepared joint statements of matters agreed and disagreed, [Note: Exhibits 6 and 10]. The issues 37. On 3 September 2003 the council filed an amended statement of issues. 1. The premises does not meet the objectives and locational requirements for a brothel under the development guidelines of Council's Code for the Regulation of Brothels and Other Sex Industry Establishments -DCP 46 . 2. The proposed development is likely to adversely impact upon the amenity of residential premises and other non-residential establishments in the locality. 2A. The information provided with the development application is inadequate and insufficient to enable the proposed development to be properly assessed. 2B. Having regard to its capacity to be used as a dwelling, not being used in conjunction with an industry, as defined in the Newcastle Local Environmental Plan 1987 ('NLEP 1987'), the proposed development is prohibited within the Zone 4(a) (Light Industrial Zone) of the NLEP 1987. 2C. Having regard to its capacity to be used as a dwelling, not being used in conjunction with an industry, as defined in the Newcastle Local Environmental Plan 2003 ('NLEP 2003'), the proposed development is prohibited within Zone 4(a) (Urban Services Zone) of the NLEP 2003. 3. Having regard to the foregoing, approval of the application would not be in the public interest. 38 . Those issues shown in bold have been added since the first appeal. 39 . The salient issue is whether or not when focussing assessment of the application on the distance specified and objectives set in DCP46, the proposed brothel may detract from the amenity of residential occupancies nearby. The evidence and findings Locational requirements of DCP46 40. Under DCP46 the minimum distance between the entrance or exit doorway of a brothel to or from any premises in "residential occupation" is 150m if the dwelling is located in a residential zone. However, the council, or the Court on appeal, may apply its discretion if the dwelling is located in either a commercial or industrial zone and the separation distance in such cases may be reduced by a maximum of 50% to 75m. 41. Within 75m of the proposed brothel, there is at least one residential occupation of a dwelling, being No 9 Denney Street. There is some doubt as to whether the other dwelling at No 5 Denney Street within that distance, is in 'residential occupation'. Owner of No 5 Denney Street instructed to cease residential use of No 5 Denney Street on 29 January 2003. The owner of No 5 Denney Street also agreed not to object to the present brothel application. 42. The experts agreed that the front gates of Nos 5 and 9 Denney Street are within 75m of the front door of the proposed brothel. 43. The experts agreed that from the entrance of the proposed brothel to the rear boundary of No 9 Denney Street is 53.9m and to No 5 Denney Street would be 56.2m. 44. They also agreed that the distance from the entrance of the proposed brothel at No 7 Denney Street to its rear boundary is 43.0m. 45. There are dwellings at Nos 1 and 5 Ailsa Road in residential occupancy outside the 75m-distance when measured either along the road or the lane. 46. A public cycleway is located about 60m to the south of the land (measured on the site inspection at 70.8m from the front door) is within the minimum separation distance of 200m. To the gate of Hamilton North Public School the distance was measured on the site inspection, at 301.5m. 47. I am satisfied that the distances required under DCP46 to the adjoining residential occupancies are not met. Whether or not when focussing assessment of the application on the distance specified and objectives set in DCP46, the proposed brothel may detract from the amenity of residential occupancies nearby – reasonably apprehended impacts 48. As submitted by Mr Larkin, the essence of the distance requirements in the expressed objectives and the underlying purpose of DCP46 is: "…to ensure that brothels are at a reasonable distance from residential occupancies" , [Note: Exhibit 4 Tab 22 p 3 Objective 3(b)], are not in "close proximity" to dwellings, [Note: Exhibit 4 Tab 22 note at the foot p 5], and "…not to be located in a position which may detract from the amenity of residential occupancies" , [Note: Exhibit 4 Tab 22 p 6 para 6.1(a)]. 49 . He submitted that the word 'may' in para 6.1(a) of the DCP46 is indicative of the draftsperson's desire to include perceived impacts and on the basis of perceived impacts the objectives and underlying purpose of the distance requirement is not met and the application should be refused. A more appropriate interpretation for 'may' is to include actual impacts or a reasonable apprehension of possible impacts. 50 . Mr Doyle, for the applicant, submitted that despite the proposed brothel not meeting the locational requirements of DCP46 there would be no significant adverse environmental impact, either actual or perceived, that would require the refusal of the application. 51 . I have dealt with the matter by considering whether there would be any significant adverse environmental impact, either actual or reasonably apprehended, that would require the refusal of the application. 52 . The town planning experts agreed that the proposal could be conditioned to ensure the proposed brothel would not have any significant physical adverse environmental impacts on the neighbourhood. These conditions would include the stipulation that the brothel would close at 10pm, the windows of the brothel next to No 5 Denney Street would be double-glazed and the fence adjacent to No 9 Denney Street would be raised and acoustically treated, [Note: Exhibit 6 p 2]. . Despite this, Mr Brazaitis was concerned that nearby residents might perceive adverse environmental impacts. 53 . The council received three submissions and one petition when the application was first advertised. The council received nine (9) individual objections and 101 form letters when the application was readvertised in its original form. 54 . Mr Larkin submitted based on those objections and evidence given in the appeal that the perceived impacts would be: * That drunken people might come to the brothel, from time to time, [Note: Oral concession of Mr Eastoe in cross-examination]; * That the proposed brothel might lower of the standard or tone of the area, [Note: Exhibit 4 Tab 14]; * Safety issue likely to be caused by a minority of those attending the brothel, [Note: Exhibit 4 Tabs 13 and 19] * That "…people might knock on my door." [Note: Exhibit 4 Tab 15, Letter undated received on 4 August 2003 from the manager of a portable building business at No 5 Denney Street], and * That the brothel would diminish the value of properties, [Note: Exhibit 4 Tab 19, Letter dated 4 August 2003 from managing director Print National owner of No 10 Denney Street]. 55 . Evidence of the reasonably apprehended possible impacts of the proposed brothel came from nearby residents who gave evidence on site by consent of the parties. This evidence was placed on record and is summarised below: 56 . Ms C Downie, who resides at No 78 Denney Street, Broadmeadow, is Secretary of Broadmeadow, Georgetown, Hamilton North Community Forum. She referred to a letter from the Community Forum in Exhibit 4 Tab 12 and to a second letter Exhibit 5. 57 . She explained that the Community Forum meets once per month and a council representative is in attendance. 58 . She noted that nearby residents are concerned about the brothel as it is close to residences, a primary school, a pre-school, playgrounds, parks, soccer fields, child care centre, cycle-way and church. She said her main concern was the entry of non-residents into the area as they may be associated with an increase in assaults and crime. She noted that there has been a death in the area since the brothel commenced its operation. She expressed concern that the brothel at No 7 Denney Street, Broadmeadow may be part of a chain of brothels. 59 . She was asked whether this latter concern was in her letter of objection and she said it was not. 60 . Mr Larkin, for the council, pointed out that resident objectors are not legally trained in writing letters. Mr Doyle reserved his right to object to this evidence. 61 . The Commissioner queried the concern arising from the brothel being part of a chain of brothels and the answer was given that it might be associated with crime. 62 . Commissioner commented that the fact that it was under the umbrella of a chain of brothels might indicate that the brothels that make up the chain are operating successfully and complying with council health checks. Ms Downie commented that 'successful' could go either way. 63 . She also noted that a chain might result in Sydney 'girls' coming to the area by train. She said that a brothel would downgrade the area and that there seemed to be a trend that brothels were moving from Islington to Broadmeadow. 64 . Mr Doyle, for the applicant, questioned her on that evidence. Ms Downie said she was concerned generally about the movement of non-residents to the area and referred to a brothel at No 22A Broadmeadow Road. 65 . Mr Doyle also asked if she were aware of the council's policy in relation to brothels and she said she was not and confirmed that the Community Forum had not been invited to make submissions on draft planning controls. 66 . Ms Downie said "whether [the brothel] is legal or illegal there [would be] no difference" as there would be a movement of non-residents into the area, which is her main concern. 67 . Mr Doyle questioned whether she would be concerned about non-residents coming to the printing works proposed opposite the land. She said that any development that would encourage non-residents would be a concern but that the brothel will operate seven days a week and she is worried that in addition to the number of non-residents attending the area to visit the (Marathon) Stadium, 'Home of the Knights', there would be more people encouraged to the area. 68 . Mr K Rowe, staff manager of Print National referred to a letter written by Mr D James, owner of Print National in Exhibit 4 Tab 19 69 . He noted that the council had recently approved a DA for his employer's printing business on land opposite the brothel. He expects that this business, once established, will employ between 35 and 50 staff and expressed concern regarding social issues that might arise from the use of the brothel and noted that staff will be on the premises 24 hours and 5 days a week. He said he was concerned that the brothel would attract people who would mitigate ability to secure the building and staff. 70 . He said that security was paramount for Australian Tax Office jobs and was concerned that there would be some security issues with the brothel opposite. He expressed concern regarding parking and pointed out that even if the entrance were changed to the rear, people would still be likely to park out the front. He conceded that there was ample parking at present. 71 . He continued that the proposed brothel would affect the value of his employer's business and the business property itself, however, his main concern was for the safety of his young female staff who will be leaving the premises between 5pm and 12 midnight. People whose destination is the brothel might drive past before entering the brothel and see the young women leaving his premises to go to their cars. 72 . Mr Doyle noted that Mr Rowe's expressed concerns were 'anticipated problems' only and Mr Rowe agreed. 73 . Mr R Koning, who is a resident of No 74 Denney Street, Broadmeadow, and whose letter is at Exhibit 4, Tab 13, stated that the proposed brothel would have no positive impact and the residents of the area are already under stress because of the [activity generated] by the stadium and soccer field. He was concerned about property prices and 'elements' that attend the brothel, who might not always be sober, and that it was not appropriate for the area to have such undesirable people coming in. 74 . Commissioner noted that there is no evidence that attendees at the brothel are drunk and noted that they might be seen as 'just normal people'. Reference was made to the council's policy regarding brothels and the objector agreed that his property was beyond the 75m limit. 75 . Mr Doyle referred to a letter from the former resident of No 9 Denney Street, (now deceased) in which he said he did not object to the brothel. The objector said that he was aware of that resident who had since died and he believed that staff bearing gifts visited him quite regularly. General discussion followed. 76 . I have given little or no weight to the concession of Mr Eastoe in cross-examination that drunken people might come to the brothel, from time to time, as there is no factual evidence of this occurring at the brothel on the subject land. I am satisfied that if it did occur, it would be likely to be so infrequent as to be of little effect. It is more likely that individual local attendees at the proposed brothel who walk or drive would be discreet and not be drunk. 77 . That the proposed brothel might lower of the standard or tone of the area is an apprehended effect and not based on evidence or reasonable. As a result I give it little or no weight. 78 . Safety issue likely to be caused by a minority of those attending the brothel again is an apprehended effect not based on evidence. As a result I give it little or no weight. 79 . That attendees of the brothel might knock the neighbour's door would be likely to be seldom especially if a discreet sign were erected at the frontage of the proposed brothel and if attendees were directed to the rear of the establishment by advertisements and by phone. 80 . That the brothel would be likely to diminish the value of properties is an unreasonably apprehended impact that is not supported by evidence. I have given it little or no weight. 81 . I accept the evidence of Messrs Brazaitis and Eastoe that there would be no significant actual impacts and having carefully weighed the reasonably apprehended impacts as expressed in the written and oral evidence, I am satisfied that these have not reached a threshold that would cause me to refuse the application. I have had regard for the fact that the proposal would not meet the numerical distance requirements of DCP46 and these requirements have been a 'focal point' for my assessment of the actual and reasonably apprehended possible impacts [Note: Zhang v Canterbury City Council (2001) 115 LGERA 373 at [74] - [75], per Spigelman CJ, with Meagher and Beazley JJA agreeing]. I am satisfied that the proposal would meet the objectives and underlying purposes of the locational requirements in DCP46 and that with appropriate conditions imposed, the proposal, which is of relatively small scale, would not detract from the amenity of residential occupancies nearby, sufficient to warrant refusal of the application. Public interest 82. In respect of Issue 3, the council through the evidence of Mr Brazaitis argued that approval of the application would not be in the public interest. He was of the opinion that any departures from the objectives and guidelines of DCP46 would not be in the public interest. 83. The council adopted DCP46 after an exhaustive consultative process by the council's Social Impact Consultative Panel in June / July 1996 and the public has been involved in the planning process. 84. Having reconsidered the application I am satisfied that despite the fact that the proposal would not meet the locational requirements of DCP46 there is no evidence to suggest that the application should be refused for reason of any adverse impact on the residential occupancies nearby. I am also satisfied that the proposal would not offend the public interest. The council has planned for brothels in the industrial zone. 85. For the above reasons, the appeal is upheld. Orders 86. My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 01/2390 lodged with the respondent council on 12 November 2001, amended 20 November 2003, for a change of use from residential to brothel and massage parlour within an existing cottage at No 7 Denney Street, Broadmeadow, being Lot 1 DP 669387, is approved subject to Conditions 1 to 4.20 in Annexure A. 3. The exhibits with the exception of Exhibits 8 and 11 are returned. S J Watts Commissioner of the Court sw Conditions of development consent Annexure A Xiao Ping Ai v Newcastle City Council 1 Conditions restricting the terms of consent 1.1 The proposed development being carried out strictly in accordance with the details set out on the submitted plans, the statement of environmental effects and on the application form, except as otherwise provided by the conditions of this consent. Note: Any proposal to modify the terms or conditions of this consent whilst still maintaining substantially the same development to that approved, will require the submission of a formal application for Council's consideration in accordance with the provisions of Section 96 of the Environmental Planning and Assessment Act 1979. Reason: To confirm and clarify the terms of Council's approval. 2 Conditions requiring inclusion of details in documentation for a construction certificate application/matters to be resolved prior to occupation of the premises 2.1 Appropriate essential services related to fire safety being installed within the premises in accordance with the provisions of the Local Government (Approvals) Regulation 1993 and to the satisfaction of Council. Note: In this regard, a detailed schedule of fire safety equipment currently installed and/or proposed to be installed within the premises is to be submitted for consideration and approval with the required Construction Certificate application. Reason: To ensure the adequacy of fire safety measures in the public interest. 2.2 The building being provided with adequate means of access for persons with disabilities in order to comply with the Building Code of Australia . Full details to be included in documentation for a Construction Certificate application. Note: Compliance with the Building Code of Australia can still leave a building professional or building owner in contravention of the Federal Disability Discrimination Act. Reason: To ensure compliance with the provision of the Environmental Planning & Assessment Act 1979 and the Building Code of Australia in relation to the provision of disabled persons access. 2.3 All areas not provided with natural ventilation in accordance with the provisions of the Building Code of Australia being provided with an adequate mechanical ventilation system complying with Australian Standard 1668, Parts 1 and 2 "The use of mechanical ventilation and air conditioning in buildings". Full details are to be included in the documentation for a Construction Certificate application. Reason: To ensure the provision of adequate ventilation in the interest of public health and safety. 2.4 The premises being provided with adequate toilet facilities and wash hand basins for each sex in accordance with the provisions of the Building Code of Australia. Full details are to be included in the documentation for a Construction Certificate application. Reason: To ensure compliance with appropriate public health and hygiene standards. 3 Conditions requiring the submission of future applications to council or the approval of other authorities 3.1 The proposed development complying with all requirements of the WorkCover Authority of NSW. Reason: To confirm registration requirements under the Factory, Shops and Industries Act. 3.2 All proposed parking bays being constructed with a basecourse of adequate depth to suit design traffic, being sealed with either bitumen seal, asphaltic concrete, concrete or interlocking pavers and being properly maintained. Full details are to be included in documentation for a Construction Certificate application. Reason: To facilitate the use of the proposed carparking facilities and to minimise any associated noise and dust nuisance. 3.3 All stormwater runoff from the proposed carparking area being collected into a suitable detention facility and disposed of by appropriate means into the street drainage system in accordance with the requirements of DCP 50 – Stormwater Management for development sites. Full details to be included in documentation for a Construction Certificate application Reason: To ensure that on-site stormwater run-off is properly collected and conveyed to an appropriate drainage facility. 4 General conditions 4.1 The development complying with all the relevant health standards under Clause 7.0 of Development Control Plan 46 – Council's code for the regulation of Brothels & Other Sex Industry Establishments. Reason: To ensure that the development complies with appropriate public health standards in the public interest. 4.2 There being no interference with the amenity of the neighbourhood by reason of the emission of any "offensive noise", vibration, smell, fumes, smoke, vapour, steam, soot, ash or dust, or otherwise as a result of the proposed development. Reason: To prevent environmental pollution, to ensure observance of appropriate public health standards and to protect the existing amenity of the neighbourhood. 4.3 The brothel being identified discreetly externally by means of a property identification sign only which does not indicate or promote the fact that the premises are used or available for use for the purpose of prostitution and any distinctive external lighting using a single low-wattage globe. Reason: To confirm the terms of consent and to ensure compliance with the provisions of Council's Draft Code for the Regulation of Brothels & Other Sex Industry Related Land Uses. 4.4 All acts for prostitution carried out within the premises being confined to Suites 1 to 2, as indicated on the submitted plan. Reason: To confirm the terms of consent and to ensure compliance with the provisions of Council's Draft Code for the Regulation of Brothels & Other Sex Industry Related Land Uses. 4.5 Liquor under no circumstances being sold or made available for purchase on the premises. Reason: To clarify the terms of consent and ensure that the premises does not function as a liquor outlet. 4.6 Adequate facilities being provided in a screened location within the premises for the storage of garbage, including any putrescible matter, contaminated wastes, discarded or returnable packaging or other forms of trade wastes and arrangements being made for regular removal and disposal of same. Reason: To ensure adequate garbage storage and removal arrangements in the interest of public health, safety and sanitation and to ensure that the required on-site garbage storage facilities do not unreasonably detract from the overall appearance of the proposed development. 4.7 All garden or lawn areas provided on the site being kept free of parked vehicles, garbage, trade waste or other extraneous material and being permanently maintained. Reason: To ensure the site is properly maintained in the interest of preserving the visual amenity of the neighbourhood. 4.8 Adequate facilities being provided in an appropriately screened location within the premises for the separate storage of recyclable and non-recyclable material, and arrangements being made for regular removal and disposal of same. Reason: To prevent environmental pollution and reduce the amount of waste being disposed to landfill. 4.9 Adequate separately accessible toilet facilities being provided for persons with disabilities in accordance with Part F of the Building Code of Australia. Reason: To ensure compliance with appropriate public health and hygiene standards. 4.10 The premises being identified by the provision of a house number on the building exterior such that it is clearly visible from the road frontage. Reason: To ensure that the property can be readily identified by visitors, motorists, emergency services and the community generally. 4.11 All parking bays being permanently marked out on the pavement surface. Reason: To encourage the use of the proposed on-site car parking facilities and thereby minimise kerbside parking in the adjacent public road as a result of the proposed development. 4.12 A sign being clearly displayed at the Denney Street frontage of the premises indicating the availability of car parking at the rear. Reason: To encourage the use of the proposed on-site car parking facilities and thereby minimise kerbside parking in the adjacent public road as a result of the proposed development. 4.13 The hours of operation of the proposed brothel being restricted to between 9.00am and 10.00pm daily. Reason : To confirm the terms of consent and to protect the amenity of the neighbourhood. 4.14 A 1.8 m high, lapped timber paling fence, or equivalent, being erected along the unfenced common boundaries of the site in consultation with the adjoining owners involved. ( Note: Any disputation which may arise between the developer and the adjoining property owners in respect of this matter is to be resolved in accordance with the provisions of the Dividing Fences Act.) Reason: To Minimise any adverse impact which the proposed development may have upon the neighbouring dwellings in terms of noise nuisance or loss of privacy. 4.15 The existing dividing fences on the common boundaries of the site being extended in height and/or otherwise being suitably modified or rebuilt in consultation with the adjoining owners involved to provide the equivalent of a 1.8 m high lapped timber paling fence and at full cost to the Developer, notwithstanding the provisions of the Dividing Fences Act. (Note: Any disputation which may arise between the developer and the adjoining property owners in respect of this matter is to be resolved in accordance with the provisions of the Dividing Fences Act.) Reason: To minimise any adverse impact which the proposed development may have upon the neighbouring dwellings in terms of noise nuisance or loss of privacy and to ensure that the cost of any higher standard fencing required in this regard is borne by the Developer and is not imposed as a cost burden on the adjoining owner/s. 4.16 The proposed car park at the rear of the site being floodlit during the night between sunset and sunrise and any floodlights being so positioned, directed and shielded to prevent direct light from spilling onto nearby residential premises. Reason: To ensure that the car park is adequately lit for public safety and security reasons and to protect the existing amenity of the neighbourhood. 4.17 The use must not continue after three (3) months of the date of the grant of this consent unless the works required by this consent have been completed. 4.18 The existing windows along the north western side of the premises adjacent to No 5 Denney Street being constructed of fixed glazing, suitably attenuated to ensure that there are no noise impacts emanating from within the premises into the residential premises at No 5 Denney Street, Broadmeadow. Such measures to be implemented prior to the premises being used as a brothel. 4.19 Deleted. 4.20 The existing dividing fence on the south eastern common boundary of the site with adjacent premises No 9 Denney Street, being erected to a height of 2.5metres behind the building alignment and being constructed of noise attenuating material at the full cost of the developer. The required fence addition is to be undertaken and completed prior to the premises being used as a brothel. ___________ S J Watts 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.