Land and Environment Court of New South Wales CITATION : Wu v Rockdale CC [2005] NSWLEC 744 APPLICATION Amy Wu PARTIES : RESPONDENT Rockdale City Council FILE NUMBER(S) : 10972 of 2005 CORAM: Hoffman C Appeal :- chinese acupressure theraputic massage and computer software help clinic used as a brothel KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Rockdale Local Environmental Plan 2000 Summary Offenses Act 1988 Dennis v Parramatta CC, 1981 McClelland CJ ; CASES CITED: Sydney v Hurzeler 1981 Cripps J DATES OF HEARING: 13/12/2005 EX TEMPORE JUDGMENT DATE : 12/13/2005 APPLICANT Mr R. Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr J. Reilly, solicitor of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 13 December 2005 10972 of 2005 Amy Wu v Rockdale City Council JUDGMENT 1 This is a class 1 appeal No. 10972 of 2005 between Amy Wu and Rockdale City Council in regard to the proposed development at No. 344 Rocky Point Road, Ramsgate. It should be noted at the outset that the original development application identified the site as 348 Rocky Point Road, and that is the number that appears above the doorway at the entry to the upstairs subject premises. 2 It is a 2-storey building with a medical practice and another shop on the ground floor, and then stairs leading to the single tenancy on the upper floor. There is a rear set of stairs down into a carpark that would accommodate at least 8 cars and a rear lane way that runs between Park Road and Ramsgate Road. 3 The premises and the shopping strip are zoned 3(a) General Business and front Rocky Point Road in the locality of the subject proposal between Ramsgate and Park Road. 4 The opposite side of the street is actually in Kogarah Council area and it's common ground between the parties that the premises on the opposite side of Rocky Point Road for about the same distance between streets are also zoned General Business. Both sides of the street are developed for that purpose. The upper floors of some buildings closer to Park Road may have had residential uses within them. This was never verified for the Court. 5 The nearest school is one city block and a half away near the corner of Selmon Street and Rocky Point Road. The locality beyond the subject premises to the east is zoned Residential 2(a) on the opposite side of the laneway and that zoning seems to stretch well to the east towards Botany Bay. 6 The applicable statute is the Rockdale Local Environmental Plan 2000. Other controls that the council regards as applicable is the Rockdale Council Parking and Loading Code, Development Control Plan No. 28 (requirements for access), Development Control Plan No. 50 (Community engagement in Development decisions) and Development Control Plan No. 67 (Crime prevention through environmental design). One further control is relevant in this appeal that being Development Control Plan No. 36 (Brothels). 7 The premises have been used for the subject proposal for a considerable time. The applicant states the purpose of the use as being for therapeutic massage, acupuncture and pressure together with computer help services in a mixed use format. The council says that the de facto actual use that is proposed to be continued is a brothel, even if it is called by those different names. 8 The issues in the appeal are: 1. The proposed development is contrary to s 79C(1)(a)(i), (a)(iii), (b), (c), (d) and (e) of the Environmental Planning and Assessment Act, 1979 (NSW) in that: 1.1 The development fails to comply with the Rockdale Local Environmental Plan 2000. 1.2 The development fails to comply with the Development Control Plan No. 36 – Brothels. 1.3 It will have an adverse impact on the built environment and the locality. 1.4 It fails to sufficiently consider the adverse impacts caused to the adjoining/neighbouring developments and adjoining/neighbouring residential developments with respect to the incompatible nature of the proposed use. 1.5 It fails to have regard to s 79C(1)(e) of the Environmental Planning and Assessment Act, 1979 (NSW) as it would not be in the public interest. Particulars (i) The Development Application has been submitted on the basis that the premises will have the combined use of a Chinese Acupressure, Medical Massage and Software Help. However, Council has evidence that the premises in fact operates as a brothel. In addition, Council's Solicitors have confirmed the use of the premises as a brothel by Private Investigator. Development consent is therefore not being sought for the actual use occurring at the property. (ii) The proposed development is therefore contrary to s 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (NSW) as the location of the brothel is prohibited by the provisions of cl 24 of the Rockdale Local Environmental Plan 2000. 2. The proposed development is unacceptable pursuant to s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act, 1979 (NSW) in that it fails to have regard to the requirements of Development Control Plan No. 36 – Brothels with respect to the objectives and development standards related to location. The Development control Plan provides further detail and performance criteria for brothels and the proposed location of the development does not satisfy these standards. 3. The proposed development will have an adverse impact on the built environment and the locality pursuant to s 79C(1)(b) of the Environmental Planning and Assessment Act, 1979 (NSW). 3.1 The location of the proposal results in land use conflicts because the location is highly visible and is in a heavy traffic area. 3.2 The rear of the property adjoins Clelland Lane, which adjoins Residential 2(a) properties, and the proposal will impact adversely on such residential occupancies. 3.3 The property is located in the Ramsgate Town Centre. The proposal will lessen the amenity of Ramsgate as a shopping and recreation precinct. 3.4 The property adjoins Clelland Lane, which is heavily utilised by residents entering their properties and users of the Ramsgate Town Centre. 4. In regard to s 79C(1)(c) of the Environmental Planning and Assessment Act, 1979 (NSW), the site is unsuitable for the use. It is located in close proximity to other sensitive land uses and is considered a poor location for a brothel. It cannot operate in the location without adverse impacts upon those who reside in adjoining residential properties, those who have neighbouring businesses and users of the Town Centre. 5. The proposed development is contrary to s 79C(1)(d) of the Environmental Planning and Act, 1979 (NSW) as the proposed use of the premises was misleading, no exhibition of the application occurred and as a result adjoining neighbours and the general community were not notified and no submissions could have been received related to the use of the premises as a brothel. 6. The proposed development is contrary to s 79C(1)(e) of the Environmental Planning and Assessment Act, 1979 (NSW) as it would not be in the public interest having regard to any submissions that may have been raised had the proposed development been exhibited as a brothel. 6.1 A submission was received by Council from a resident of an adjoining residential property raising concern that the premises is believed to be operating as a brothel above a Doctor's Surgery, which is also in close proximity to residential properties and a school. 6.2 A second submission was received by Council informing the use of the premises as a brothel that is operating without a development application during the hours of 10.00 am to 9.00 pm, seven days and being advertised in the St George Leader on 16 June 2005, known as Shop 348. 9 The respondents evidence was in the form of a report from Mr T. Kulchar, town planner for the council and he was not required for cross examination. 10 There was also documents in council's bundle from Mr A. J. Macinante a private investigator and he was not required for cross examination. 11 There was also a communication from a Mr E. Taylor of the St George Local Area Command Police. On the 29 July 2005, he communicated to the development manager of Rockdale City Council that there had been police operations which had found illegal immigrants working at several known premises in the locality. One of these was No. 348 Rocky Point Road. That number is relevant to the development application wherein that is the original number given in the application for the address of the subject premises. The number had been crossed off to read 344 on the original DA form. Mr Taylor was not required for cross examination. The police communication also indicated that the subject premises was a known brothel. 12 On the subject plans, at the inspection on the day of the hearing, it was found that the waiting room towards the rear of the premises was in fact to be used for the computer software service facility. What had been nominated as the computer area was to become a waiting area. The premises had three treatment rooms at the front with windows obscured towards Rocky Point Road. Each room was fitted out with a massage table. There was an open reception area, included in which was a storage area for necessary medical and hygiene goods. There were two other smaller rooms nominated as waiting rooms on the plans before one arrived at the large waiting area towards the rear of the premises and the computer room, lunch room and a single shower and toilet at the rear. 13 The applicants evidence was heard from: + Mr Boers, consultant town planner and + Dr Bernhardt, husband of the applicant and + Ms Wu, the applicant in the proposal. 14 Essentially the decision in this appeal is whether or not it is a sham application. If indeed there is a finding of fact that the application is a sham then the use as brothel is prohibited in the zone by the provisions of the Rockdale Local Environmental Plan. 15 There are specific areas in the Rockdale Local Government Area designated for brothels to be located. The Ramsgate Shopping Centre is not one of them. 16 The respondent said that if the use is actually for a Chinese acupuncture and medical massage and pressure clinic and software help it has no objections to the proposal and the draft conditions in Exhibit 6 would apply. 17 Going to the essential matters in the appeal the respondent took the Court to the definition of brothel in the Local Environmental Plan which involves the description of prostitution as contained in the Summary Offences Act 1988. A description in that document leaves one with the factual description of relevance to the private detective's experience on two occasions in visiting the premises. Based on his experiences and that description there is no dispute sexual services were provided on both occasions. 18 The applicant said that she was absent from the premises on bothoccasions, and it was being looked after by a manager, and that some staff are unreliable. Whilst on those occasions sex may have been given, it was not with consent of the owner or the applicant and that masseuse no longer works for the premises. 19 It is of some relevance that Mr Macinante named the particular women involved on each occasion, one being called Julie and the other being called Isabella. 20 The applicants evidence was in fact that they were the same person using different names. However when one looks at the description that Mr Macinante made of each woman from his visits, they are plainly two different persons. 21 It was noted also in the council's evidence, that as stated in the issues and a tendered copy of a newspaper page dated June 2005, the premises were being advertised in the Adult Services Section, not in the Health and Beauty, or the clinical massage sections of the paper. 22 Mr Macinante's experiences were on the 23 August 2005 and 21 October 2005. So the premises were being advertised in Adult Services long before the persons named Julie or Isabella, who were alleged to be temporary employees, were present on those occasions. 23 Also tendered in evidence are the St George and Sutherland Leader advertising pages of today's date, the date of the hearing being 13 December 2005. Once again the premises is advertised in the Adult Services section when there are other categories notably Health, Beauty and Fitness where other therapeutic massage services are mainly advertised, not in the Adult Services section. 24 The applicants evidence is that a Mr Alan Zhang is the advertising agent for the premises, and he made the decision of where to place the ads, and the applicant was not involved in that decision. 25 During cross examination Dr Bernhardt said that it was not unusual for male customers of the clinic to request sex, and it was a difficult problem in the therapeutic massage industry. The female employees were required to sign an agreement that sexual services would not be provided and if they were requested they must be refused and the manager must be informed. 26 The respondent submitted there has been no production of a managers report sheet indicating that on those two occasions the private investigators requests for sex were refused. There were no managers reports at all in regard to the common problem referred to by Dr Bernhardt. 27 It was the respondents submission that in the agreement with each female employee, a proportion of the fee for the therapeutic massage went to the "house" as it was termed in the agreement, the remainder was kept by the person giving the massage. It was also of note that in Mr Macinante's report he paid more than the notified fee of the premises for massage, and that raised the question on the respondent's part of why extra was charged and what was done with the additional amount. It was put that the overall function of the premises included brothel services, even if it was not for each customer who might attend. 28 Ms Wu the applicant is a certificated Chinese medicine acupuncturist and masseuse and therefore is qualified to run the premises as described in the application. As the respondent pointed out however on each occasion there appeared to have been a problem at the premises, Ms Wu was not in attendance, although she does claim to be the operator and manager of the premises. Ms Wu indicated that unreliable staff are sometimes engaged although she is normally very careful about who is appointed. 29 Nonetheless it would seem to me that the responsibility for the proper management and running of the premises is that of the applicant and manager, and it is not sufficient to lay the blame at the feet of other persons. 30 Turning to Mr Boers evidence, the cover of his report in fact illustrates premises across the street from the subject one, but that is of little consequence in the matters of relevance in the appeal. His report essentially goes to the proposal as being for therapeutic massage clinic. He puts particular weight on his previous experience in preparing town planning reports on other brothels to say the subject premises are not set up to be a brothel especially because the treatment rooms do not have full height walls. 31 It is true that in some locations in the premises certain areas like the waiting areas and reception do not have full height walls. On the day of the hearing it was pointed out by the respondent that all of the treatment rooms do have full height walls, and in fact two of those rooms were the rooms that Mr Macinante stated he received sexual services. 32 The applicant could have brought evidence of existing customers with referrals from doctors, or advertising other than in the Adults Services sections of local newspapers. However this was not done. The applicant could have produced a list of current and previous patients some of whom may have been prepared to give evidence. This was not presented to me. 33 The applicant said that the premises were a legitimate operation and would be continued to be operated in the same way and advertised in the same way. On the facts of the matter put before me that does involve the provision of sexual services, even if it is not to every customer who might attend. Overall I must refer to the case of Dennis v Parramatta City Council, McClelland CJ, 1981, in which his Honour considered another premises that was alleged to be a sham application. His Honour concluded that in that particular case: "it would naive in the extreme for the council or the Court to conclude that the present application is in reality for a health and beauty salon; and it would be a disservice to that reputable trade to launch into the process of becoming yet another synonym for a brothel." 34 Similar consideration was rendered in the case of Sydney CC v Hurzeler 1981 Cripps J. It seems to me the uncontested facts and the evidence of this appeal is that the premises does operate as a brothel, and therefore is prohibited under the Rockdale Local Environmental Plan. That being the case it is the end of the matter. 35 Therefore the Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties and 3. No orders as to costs. ___________________ K G Hoffman 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.