Yang v Blacktown City Council [2005] NSWLEC 282

Land and Environment Court of New South Wales

CITATION : Yang v Blacktown City Council [2005] NSWLEC 282

APPLICANT Eric Yang

PARTIES : RESPONDENT Blacktown City Council

FILE NUMBER(S) : 11371 of 2004

CORAM: Hoffman C

Appeal :- Brothel -carparking - security measures - social and economic impacts - issues raised by objectors KEY ISSUES:

Blacktown Local Environmental Plan 1998 LEGISLATION CITED: Blacktown Development Control Plan 1992

Parry Properties Pty Ltd v Ashfield Municipal Council No. 2 [2001] NSWLEC 62; Venus Enterprises v Parramatta City Council, [1981] 43 LGERA 67; CASES CITED: Cartier Holdings Pty Ltd v Newcastle CC [2001] NSWLEC 70; Martyn v Hornsby SC [2004] NSWLEC 614

DATES OF HEARING: 07-08/03/20051 EX TEMPORE JUDGMENT DATE : 05/19/2005

APPLICANT Mr R Creighton, agent

LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

19 May 2005

11371 of 2004 Eric Yang v Blacktown City Council

JUDGMENT

1 This is a class 1 appeal, No. 11371 of 2004 between Eric Yang and Blacktown Council in regard to refusal of a brothel in industrial unit Nos. 11 and 12 in an existing development at No. 12 Forge Street, Blacktown. 2 The applicant sought opening hours of seven days a week, 24 hours a day. The area is zoned 4(A) Industrial under the Blacktown Local Environmental Plan 1998. The use for a brothel is permissible with consent of the responsible authority. Part E of the Blacktown Development Control Plan 1992 stated controls on brothels in the industrial zone in Ch 6, Pt E. The Local Environmental Plan contains statutory provisions in cl 43(A). 3 The brothel occupies industrial units having direct street frontage with an entry door immediately beside a take-away food shop that services the industrial area. Outside the shop are some tables and chairs used by shop patrons whilst consuming food. 4 Just inside the front boundary through the drive entry gates to the shared carpark there are two roller doors to garages one in each of the brothel units. At the time of the on-site hearing one was fitted out as a CCTV security camera office, with TV screens, telephones, files and office furniture. The other roller door and garage was used for storage. 5 The two industrial bays had been joined by the opening of doorways through the fire separation walls. The customer service rooms had showers installed by breaking up the concrete slabs to lay pipes. There was cracking of the concrete masonry walls in places, both inside and outside. Air conditioning units have been installed on the roof and external flood lights installed in various places. 6 The secretary of the Owners Corporation of Strata Plan No. SP70989, the Industrial Bay Development of which the brothel was part, gave uncontested evidence that these works had been done without consent of the body corporate. The council indicated there was no council consents either. 7 At the rear of the brothel units was a shared carpark. Most individual car spaces were allocated to individual industrial bays, and there were some visitor spaces that were part of the common property. The subject proposal had the two closest carparks beside the building allocated to it. The next carpark was allocated to the shop. The remaining carparks were allocated one each to the other industrial bays with six visitor spaces furthest away from the brothel at the rear of the site. Car spaces in the carpark as shown on the Strata Plan, totalled 20. 8 The brothel proposed a reception room, five customer service rooms, called working rooms, two waiting rooms, a kitchen, a laundry and toilets, with the two garages to be returned to that use. During the view it was noted one of the corridors to one set of toilets was gated to create a kennel in which there was an Alsatian dog. 9 Also a staircase was discovered in a cupboard leading to the roof space. The ground floor rooms all had false ceilings and the roof space had a floor and skylights. There were clothes lines strung in part of the space and in the other was an area with separate walls and its own ceiling, but the ceiling was low such that a person of ordinary height had to bend down considerably to enter. It had been painted with bright colours, and had its own air conditioning. 10 These in-roof areas were not shown on the subject plans, and had not been authorised by the body corporate. 11 The issues were: 1. Whether the proposed development makes adequate provision for carparking (proposal requires nine spaces and effectively only two available). 2. Whether the proposed development is satisfactory with regard to the provision of security measures. 3. Whether the location is suitable for the proposed development with regard to issues of safety and security raised by the New South Wales Police and social impacts 4. Whether the proposed development complies with the draft Local Environmental Plan exhibited for brothels. Particulars Amendment No. 199 to the Blacktown Local Environmental Plan aims to incorporate a distance of separation requirement to schools of 500 m. The proposed development is within 500 m to the Blacktown North Public School. The issues also queried whether the brothel was within the minimum distance separation of another brothel required under the amendment. 5. Adverse social impacts in the locality. 6. Issues raised by objectors. 12 The hearing was attended for the respondent by: - Mr T 0'Connor, solicitor of Houston Dearn O'Connor, - Mr G Apps, senior statutory planner for the council and - Ms R Saltman, consultant social planner.