Land and Environment Court of New South Wales CITATION : Mark Makhoul v Sydney City Council [2005] NSWLEC 331 APPLICANT: Mark Makhoul PARTIES : RESPONDENT: Sydney City Council FILE NUMBER(S) : 10094 of 2005 CORAM: Watts C at 1 Development Application :- Brothel application Parking KEY ISSUES: Amenity Perception of amenity LEGISLATION CITED: South Sydney Local Environmental Plan 1998, (SSLEP) - Environmental Planning & Assessment Act 1979, s 79C - Draft Regulation of Sex Service Premises DCP 2003, (RSSDCP), adopted as an interim policy by the council on 8 December 2003. CASES CITED: Broad v Brisbane City Council (1986) 59 LGRA 296 - Dixon v Burwood Council [2002] NSWLEC 190 - Fang Lin & Anor v Sydney City Council [2005] NSWLEC 95 - Liu v Fairfield Council [1996] NSWLEC 272 - Martyn v Hornsby Shire Council [2004] NSWLEC 614 - Perry Properties Pty Limited v Ashfield Municipal Council [2000] NSWLEC 188 - Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62 DATES OF HEARING: 08/06/2005 DATE OF JUDGMENT: 06/22/2005 APPLICANT: Dr S M Berveling, barrister, instructed by Mr V Conomos, solicitor SOLICITORS: Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT: Mr C J Leggat, barrister instructed by Ms L R Finn, solicitor SOLICITORS: Abbott Tout JUDGMENT: Appeal No: 10094 of 2005 THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 22 June 2005 10094 of 2005 - Mark Makhoul v Sydney City Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Sydney City Council (the council) of a development application to establish a brothel [erotic massage facility] at Nos 133-135 Bayswater Road, Rushcutters Bay. The owner of the premises is Lidis Pty Limited. 2 I visited the land in company with the parties on the day of the on-site hearing where local residents gave evidence. 3 I have concluded when considered under s 79C of the Environmental Planning and Assessment Act 1979, that the application should succeed and conditional approval should be granted. I have distinguished the present application from Martyn v Hornsby Shire Council [2004] NSWLEC 614 . The premises 4 The premises is situated on the southern side of Bayswater Road between the road and the Eastern Suburbs railway line. The rear southern boundary abuts the railway line. The site is slightly to the west of the intersection of Bayswater Road and McLachlan Avenue. The site on which the premises stands, is relatively level and has a frontage to Bayswater Road of about 10m a depth of around 23m and an area of about 230m2. 5 Erected on the site is a two-storey commercial building with a ground floor of around 139m2 and a first floor commercial office of around 140m2. 'Elvis Pizza' fifty-seat restaurant previously occupied the ground floor of the premises and operated until midnight each night. That restaurant has moved a few doors to the west. The previous uses of the subject premises generated a demand for seven (7) off-street car parking spaces and there was no on-site parking provided. No car parking is proposed on-site. 6 To the west at Nos 129 131 Bayswater Road is a three-storey mixed commercial/residential building. The residential uses are apparently on the upper floors. To the east at Nos 137 –141 Bayswater Road is another three storey building used for commercial purposes. In this building is the Fuss Beauty College. Relevant planning controls South Sydney Local Environmental Plan 1998, (SSLEP) 7 Under the provisions of the SSLEP the land is zoned commercial and the proposal is permissible with consent. 8 Other planning controls of relevance include: · Environmental Planning & Assessment Act 1979, s 79C. · South Sydney Development Control Plan 1997, (DCP). · Draft Regulation of Sex Service Premises Development Control Plan 2003, (RSSDCP) adopted as an interim policy by the council on 8 December 2003. · Sex Industry Policy as amended. · South Sydney Development Control Plan No 11- Transport Guidelines for Development, (DCP11). The proposal and its history 9 Development application No D/2004/1685 was lodged with the respondent council on 20 December 2004 to establish a brothel at Nos 133-135 Bayswater Road, Rushcutters Bay. The proposal is described in Drawing No A101, Project No 200445, prepared by Mark Makhoul, Architectural Design & Building Solutions in Exhibit A. 10 The proposed brothel would provide ten (10) working rooms with one being located at ground level for disabled use and the others on the first floor. 11 The applicant states that while the operation would be classified correctly under council's draft RSSDCP, as a 'brothel', the operation would not be providing sex services that include sexual intercourse or oral sex. However, I have considered the application as if it were primarily a brothel. 12 The entrance to the premises would be maintained in a central location on Bayswater Road. A new awning is proposed to link with the existing awning on the building to the east. Provided on the ground floor would be two retail shops on either side of the central entrance, a waiting/reception room, a unisex toilet, garbage room under the stair, one workroom with amenities for persons with a disability, general staff amenities, office, staff room, and laundry. On the first floor there would be nine (9) workrooms each with shower and sink including two spa rooms. A new entrance would be provided at the rear of the building at the southeastern corner. A number only would identify the entrance to the brothel. It is proposed to brick up the windows on the first floor on the western side near Nos 129 - 131 Bayswater Road the three-storey mixed commercial/ residential building so that blank walls would present to the lightwell opposite residential uses in that building. On the ground floor widows opening onto the lightwell would be opposite non-residential uses. 13 The proposed hours of operation would be 10.00am to 5.00am, Thursday to Saturday and 10.00am to 2.00am Sunday to Wednesday. A receptionist and security personnel would be present during operating hours. Notification 14 The application was notified to nearby owners and occupants on 5 January 2005. In addition, notices were placed on the site and the proposal was advertised in the daily press in accordance with the provisions of the Draft City of Sydney Advertising and Notification Development Control Plan 2003. The council received sixty-seven (67) submissions objecting to the proposal and these are contained in Exhibit 2, Section 2 - Objections. 15 Residents objected to the potential loss of amenity, likely increase in crime, traffic congestion and proximity to residential and sensitive land uses. 16 There were no objections from the residents of the three-storey mixed commercial/ residential building to the west at Nos 129 131 Bayswater Road. However, there were objections from the occupants of the three-storey commercial building to the east at Nos 137 –141 Bayswater Road including from the Fuss Beauty College that occupies that building. The council's decision 17 Despite support of the application from the Sex Industry Liaison Officer of the council (SILO) and a recommendation for approval from its planning officers, the council by notice dated 18 April 2005, refused the development application. The hearing 18 The applicant filed a deemed refusal appeal on 10 February 2005 prior to the council's refusal of the application. 19 At the hearing the court heard evidence on behalf of the council from a number of residents and from Mr J Swan, Area Planning Manager, City of Sydney Council. 20 On behalf of the applicant Mr A D Betros, consultant town planner, and Mr R Varga, consultant traffic engineer gave evidence. 21 Many residents also gave evidence and the solicitors for each side prepared notes of that evidence on behalf of the Court. The issues 22 On 28 April 2005 the council filed a statement of issues: ISSUE 1- SUITABILITY OF THE SITE 1. The proposed development is not suitable for the site. Particulars: The proposed brothel is inconsistent with the adjoining uses fronting Bayswater Road; in particular the site adjoins residential development and subsequently fails to comply with locational requirements within Clause 2.1 and 3.2 of the Draft Regulation of Sex Services DCP 2003. The development has inappropriate pedestrian entry and egress points onto Bayswater Road. It does not include a separate ground floor tenancy that would adequately separate the proposed use from the public domain and fails to comply with design requirements under Clause 3.4 of the Draft Regulation of Sex Services DCP 2003. ISSUE 2 - AMENITY 2. The proposed development will unreasonably impact on the amenity of adjoining and nearby residential dwellings. Particulars: The brothel fails to comply with location and design requirements within the Draft Regulation of Sex Services DCP and amenity controls described within Mixed Use 10 Zone objectives within the South Sydney LEP 1997 and Part E Operational Controls and Part F Mixed Use Development Controls within the South Sydney DCP 1997, in particular: It will unreasonably impact upon residential amenity in excessive noise and disturbance to the adjoining dwellings; (i) The proposed brothel does not incorporate sufficient amenities for the staff or clients in terms of client screening areas, waiting areas and staff rooms; (ii) The proposed brothel will erode safety and security in the area; (iii) The proposed brothel will generate excessive waste; and (iv) The proposed brothel has excessive hours of operation. ISSUE 3 - INCONSISTENCY WITH MIXED USE ZONE/TRANSITIONAL PRECINCT OBJECTIVES The proposed development is inconsistent with the zone objectives. Particulars: The proposed development does not comply with zone objectives in 21(1) of the South Sydney Local Environmental Plan 1998 or the planning intent of Precinct 2, Mixed Use Transitional under the South Sydney DCP 1997 in that: (i) it would not protect the amenity of adjoining residential areas; (ii) it does not ensure that the nuisance generated by non-residential development, such as that related to operating 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; (iii) it does not promote supportive or compatible land uses in close proximity to each other; and (iv) it does not incorporate urban design principles and does not have a satisfactory relationship with the public domain. ISSUE 4 - TRAFFIC & PARKING 4. The proposed brothel will result in excessive traffic and parking impacts to the locality. Particulars: The proposed brothel fails to comply with the South Sydney DCP No. 11 Transport Guidelines for Development 1996. In particular the proposal provides no off street parking or delivery areas and will result in unacceptable traffic generation from staff, clients, and deliveries to the brothel. Parking and traffic impacts upon surrounding streets will be unsatisfactory. ISSUE 5 - STREETSCAPE DESIGN 5. The proposed development fails to satisfy Part E 2.5 'facade treatment' of the South Sydney DCP (Urban Design) as the facade treatment on Bayswater Road fails to reinforce the character and continuity of the streetscape by recognising contextual cues and fails to contribute to harmonious and robust streetscapes. ISSUE 6 - THE PUBLIC INTEREST 6 The proposed development is considered to have detrimental impacts upon residential amenity, conflicts with zone and precinct objectives and is poorly designed. In this regard it is considered that the proposal will have detrimental effects on the public interest and is inconsistent with Section 79C (1) (e) of the Environmental Planning and Assessment Act 1979. 23 The salient issues were; the perception of an adverse impact on amenity and car parking The evidence and findings Internal amenity and external appearance of the proposal 24 There was no dispute between the parties as to the internal amenity of the proposed brothel or the external appearance of the proposal, except for the frosting of the new windows on the first floor above the awning facing Bayswater Road. 25 Mr Swan was of the opinion that the change to frosted windows in the front elevation above the awning would adversely impact on the streetscape. I am not persuaded by that evidence and I am satisfied that there would be very little change in the appearance of those first floor windows, as presently they are trimmed with a light coloured material that would be similar in tone to frosted glazing. The proportions of the windows would be improved when compared with the existing and would better relate to the proportions of the façade. 26 A single centrally located entrance door on the ground floor would give access to the brothel from the footpath in Bayswater Road. As proposed, no advertising would be permitted and only a street number would identify the brothel. As proposed and as conditioned, no spruikers would be permitted on the footpath. An awning is proposed over the footpath that would throw shade, during the day, on the ground floor shop-front windows and the entrance to the brothel and in my opinion give greater visual definition to the front elevation. 27 There would be a blank wall on the first floor facing the lightwell of the adjoining mixed-use building at Nos 129-131 Bayswater Road that contains some residential uses above the ground floor. I would not refuse the application for reason of internal layout or physical appearance in the streetscape. The perception of an adverse impact on amenity 28 There were sixty-seven written objections to the proposal and many residents who had written to the council, gave evidence at the on-site hearing. I have selected but a few to give an indication of the depth of the residents' feeling of antipathy towards the establishment of a brothel at the site. 29 The head teacher of the Rushcutters Bay pre-school was concerned that if a brothel were located on the premises that parents might be reluctant to place their children at the pre-school. 30 Ms I Taumberger, the owner of the Fuss Beauty College said that the proposal would be likely to affect her business as parents of the young women, who attended her college, would be likely to withdraw their daughters once word was out about the brothel. 31 Ms S Pearson, also from the college, said young women of the college on their morning tea and lunch breaks use the bus seat (with no bus stop) outside the front door of the proposed brothel and might attract the attention of the brothel's clients. 32 Others gave evidence that likely adverse impact of the proposal would "…serve little to enhance life of the local community in this pleasant and historic district," and would "…encourage the overspill of sleazy enterprise from the neighbouring Kings Cross district." [Note: Exhibit 2 Section 2 p 2 email from Mr D L Mills who is a resident of No 1A Clement Place 'Marina One']. 33 Mr A Strauss, who was present at the on-site hearing, supported his written objection and spoke of his personal experience with brothels in Kings Cross as he established a photographic business in the 1980s at No 64 Darlinghurst Road. He wrote, "…sleaze just does not happen it is planned for. It is easy to destroy an area and [destroy] the hard-working people who put their effort into building an enterprise. It does not take much for the area to collapse. It does however, take an eternity to rebuild." [Note: Exhibit 2 Section 2 p 76] 34 Ms T Engelen, an architect, who resides in a recently erected apartment building opposite the premises and who had designed and built a number of new apartment buildings in the area, said that she, had through her work, sought to improve the physical appearance of the area and if the brothel were approved it would be likely that the 'tone' of the area would be lowered. She said that she would not feel safe taking her children for a walk in the area if the brothel were approved. 35 Mr M J Robinson, barrister, who resides at No 25/33 Waratah Street, Rushcutters Bay referred to his comprehensive objection at Exhibit 2 Section 2 p 65 and following. He considered that "…a brothel such as this …ought to be quarantined in Kings Cross where other brothels operate. It should not be allowed in Rushcutters Bay, where it is not wanted or needed by residents or visitors." 36 Mr Swan, town planner for the council, concluded, [Note: Exhibit 3 pp 13-4]: The proposal fails to comply with the City of Sydney draft regulation of Sex Services Development Control Plan 2003 in that the proposed location …adjoins residential development and adjoins a sensitive land use, that being Fuss Beauty College and is within close proximity to other sensitive land uses such as parks and a childcare centre and as a result on-street car parking, patrons will be required to use the local streets where these sensitive land uses exist and therefore will result in an unacceptable impact on the local community. The hours of operation are considered excessive and will impact on surrounding properties and are not consistent or respect existing surrounding land uses. The proposed uses [are] not consistent with the mixed uses zone as specified in South Sydney Local Environmental Planning 1998 , or the planning intent of precinct two, mixed use transitional under South Sydney Development Control Plan 1997 (urban design). The proposed changes to the facade of the building detract from the streetscape and the use of opaque glazing will become a prominent feature in the streetscape. The main weakness of the proposal is its closeness to Fuss Beauty College. The premises are adjacent and it is likely that students of the college would frequently encounter the brothel's clients on their way to and from the classes. 37 In oral evidence Mr Swan stated: It is incompatible because of the perceived view of the community that a brothel in this location will change the inert character of this small area or precinct. Brothel use when mixed with other uses in the vicinity will create a perceived view to the local area that in my view is unacceptable. 38 Mr Swan agreed that Martyn v Hornsby Shire Council [2004] NSWLEC 614 was properly decided and the "…fundamental reason for that application failing was that the brothel was proposed located close to the college of skin care." He agreed that was "…the main weakness in the site's location." He said that the distance between the entrances in the Martyn case and here were similar [6m (in fact about 4m) in Martyn as compared with around 8m] and students at the college would be likely "…to encounter the brothel's clients on their way to and from the classes." 39 Mr Betros, town planner for the applicant, concluded in respect of the location of the present site, [Note: Exhibit B p 23]: · the proposed brothel is suitably located and will have no adverse design or and amenity impacts on the surrounding neighbourhood. · the proposal satisfies the provisions of the draft council policy for brothels whilst also satisfying the planning principles associated with Martyn v Hornsby Shire Council [2004] NSWLEC 614 . · the proposal was recommended for approval in a planning report dated March 2005. Despite 68 (sic 67) submissions against the proposal the council's reporting officer concluded that the proposal was acceptable subject to the imposition of certain conditions. · the applicant has slightly modified the proposal to respond to these conditions and it is considered that the proposal complies with each of the council's considerations with the exception of its location adjoining a property use the residential purposes; · the siting is acceptable as a building does not share any common walls with that residential property and there are no windows associated with the brothel visible from the residential units. Given that there are no noise impacts associated with the brothel, there is no opportunity for the location of the brothel to offend residential neighbours or any other residential property located across Bayswater Road; and · Mr Varga concluded that there would be no unreasonable traffic or parking impacts. 40 In oral concurrent evidence Mr Betros said: It [the proposed brothel] is permissible [in the Zone X mixed-use zone] with no impacts, promotes employment, in an accessible area. Operation will not be detrimental to the quality of life of the residents due to adequate distance of separation five lanes of Bayswater Road and the retail shops on Bayswater on the southern side. A high level of background noise …dominates this island site. The council officers in their report said that it was consistent with the objectives of the zone. Council's [sex industry liaison officer] SILO also gave positive comment before and after being aware there was residential next door and suggested that the locational provisions [contained in the draft DCP] should be revisited. 41 He drew the conclusion from comments of Ms Taumberger that the students at Fuss Beauty College were likely to be in their mid-20s and predominantly older than those at Hornsby in the Martyn case. He said he had relied on the Fuss brochure that stated that the college was an adult tertiary institution for students of years 20 to 25 with the majority of students in their mid 20s. 42 Mr Betros disagreed with Mr Leggat that the use of the seat in front of the proposed brothel would be a significant adverse impact, as there were many places for students to sit in the many parks nearby in preference to sitting near five lanes of traffic. 43 Mr Betros agreed with Mr Leggat that Martyn was properly decided and that it was appropriate to apply the planning principles outlined therein by the Court. He said that applying those planning principles and even accepting that younger students might attend the Fuss Beauty College he would not recommend that this application be refused. He referred to his comments in Exhibit B, p 13. 44 He said that he was not aware of the Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62 decision about 'community perception' as a reasonable basis to reject an application, however, he disagreed with the statement that the 'tone' of the neighbourhood would change were the proposal permitted. He was of the opinion that residents do not have a reasonable basis for fearing change. 45 In answer to the question posed by Mr Leggat that the concerns [expressed by the residents are] were rational, he said words to the effect that: I made my assessment, as did the planning officer. There have been no impacts demonstrated today. The appearance of the entry and building [would be] quite discreet. On its island site the proposed building with opaque glass [in the first floor windows] is not prominent in the streetscape. It will sit in between two other shops. [There would be a] single door with a light above it. 46 Mr Leggat submitted that the Court should reject the application having regard for the extent of community concern. He submitted that this was the wrong location for a brothel and there is a "real issue about Martyn" and its planning principles need to be applied consistently. 47 In Martyn the facts were that a brothel was proposed in an existing single-storey brick building at No 373 Pennant Hills Road, Pennant Hills. That site had a frontage to Pennant Hills Road of 6m and the premises was set back 2m from the road. The land was zoned Business B (Special) , and business premises [including a brothel] are permissible with consent. No on-site parking was possible at that site, as here. The applicant had prepared a management plan and the Senior Commissioner dismissed the appeal mainly for reason of the close proximity of the proposal with the next-door premises the Sydney College of Skin Care. The Senior Commissioner took into account that the entrance of the proposed brothel would have adjoined the entrance to the college. The principal of the college gave evidence in that case that the parents of her students would not like their daughters attending premises next to a brothel and would take them out of her college if the brothel were approved. 48 In that case, the door to the proposed brothel would have been only about 4m distant from the entrance to the college. In order to approach the front door of the college it would have been necessary for visitors to the college to share a ramp with the clients of the brothel, as the ramp gave access to both uses from Pennant Hills Road. [Note: photograph in Exhibit E]. 49 In the present case the front door of the proposed brothel would be accessed directly off the southern footpath of Bayswater Road some 8m distant from the Fuss Beauty College. Also students of the college arriving from Kings Cross railway station or bus stops on the northern side of Bayswater Road, would most likely cross Bayswater Road at the traffic lights to the east of the college and enter the college door before coming to the door of the proposed brothel. I am satisfied that access to the present proposal is distinguished from the entrance in Martyn , and that there would exist, in the present case, sufficient separation between the proposed brothel and college entrance as to not cause any adverse amenity impacts. 50 Another distinguishing feature in the present case is that the entrance to the proposed brothel would be flanked by retail uses in a commercial strip of shops. I accept the evidence of Mr Betros that there would be sufficient buffering between the entrance to the proposed brothel and neighbouring businesses and the entrance to residential uses at Nos 129 – 131 Bayswater Road. 51 Another distinguishing element is that in the present case, is that there is no residential zone abutting the site and any residential uses in close proximity are in the mixed-use zone. The residential zone is distant and across five lanes of traffic in Bayswater Road. 52 In both cases, no car parking was provided and public transport was near to hand. In the Pennant Hills Road case the rail station was around 4 minutes walk and Kings Cross rail station is around 6 minutes walk. However, the proposed brothel would have very good access to buses in Bayswater Road. 53 I am satisfied on the evidence that the present application is distinguished from the proposed brothel in Martyn . In this regard I have had particular regard for the evidence of Mr Betros. However, as did Messrs Betros and Swan it is worthwhile assessing the present application against the planning principles of Martyn . 54 The planning principles in Martyn are: · Brothels are a legal land use that benefits some sections of the community but offends others. Most people believe that the exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. The aim should therefore be, to locate brothels where they are least likely to offend. However, criteria for locating brothels should be not so onerous as to exclude them from all areas of the municipality. · Brothels should be located to minimise adverse physical impact, such as noise, disturbance and overlooking. In this aspect they are no different from other land uses. · There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application this should be supported by evidence. · Brothels should not adjoin areas that are zoned residential or be clearly visible from them. Visibility is a function of distance, but not always. · Brothels should not adjoin or be clearly visible from schools, education institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk. · The relationship of brothels to places of worship (which are likely to attract people who are offended by brothels is a sensitive one. The existence of a brothel should not be clearly visible from places where worshippers regularly gather. · There is no need to exclude brothels from every stop on a public transport route. However, it would not be appropriate to locate a brothel next to a bus stop regularly used by school buses. · Where a brothel is proposed in proximity to several others, it should be considered in the context that a concentration is likely to change the character of the street or area. In some cases this may be consistent with the desired future character, in others not. · The access to a brothel should be discreet and discourage clients gathering or waiting on the street. Apart from areas where brothels, sex shops and strip clubs predominate, signage should be restricted to the address and telephone number. Located where they are least likely to offend 55 I am satisfied that the proposed brothel being located in a mixed-use zone would be least likely to offend people including those living in the residential zone opposite. As discussed above, the entrance to the proposed brothel would be about 8m distant from the entrance to the Fuss Beauty College at Nos 137-141 Bayswater Road and flanked by retail shops unrelated to the brothel, which act as a buffer between uses. Mr Swan considered this to be the main weakness of the proposal, as he considered it likely that students of the college would frequently encounter on their way to and from classes, the brothel's clients. I consider the Fuss Beauty College to be not a sensitive land use as was suggested by Mr Swan. Sensitive land uses are defined under the RSSDCP [Sex Service Premises DCP], as a "…day care or child minding centres, primary or secondary schools, churches, parks, playgrounds or any other place regularly frequented by children," [Note: Exhibit 2 Tab 12 para 34]. The Catholic Church of St Candice that could be seen as a sensitive land use is well removed from the proposed brothel. 56 The proposal also would be situated around 8m distant from the entrance to a mixed-use building at Nos 129-131 Bayswater Road, in which there are residential uses. Despite the submissions of Mr Leggat based on his understanding of the premises in Fang Lin & Anor v Sydney City Council [2005] NSWLEC 95, I am satisfied that there would be sufficient buffering by other non-residential uses at the ground floor, to distinguish this present case. I am satisfied that the proposed separation of the ground floor entrance to the brothel and the residential uses to the west would be adequate. At the first floor there would be blank walls facing onto the lightwell of that adjoining residential building. 57 The proposal would be remote from the Rushcutters Bay Pre-school run by KU Children's Services for 3-5 year old children and given that there would be no outward distinguishing signs, not directly exposed to impressionable groups like children and adolescents. 58 The proposed brothel would be situated on an 'island' surrounded by the flanking shops, the eastern suburbs rail line to the south and the five lanes of Bayswater Road to the north. It would be remote from the dwellings of many of the resident objectors. 59 Unlike some earlier brothels in Kings Cross, it would not have any distinguishing features that would alert the casual passer-by to the existence of a brothel. The only indication of a brothel would be a street number. Also, there would be no spruikers and this is confirmed by the conditions of consent. One of the residents at the on-site hearing accepted that clients to the brothel would most likely appear as ordinary members of the public and indistinguishable from others walking along the street. Thus persons entering the proposed brothel would appear as others do entering other doorways in the street. 60 The concern of the residents that if approved the brothel, would lower the 'tone' is not to my mind supported by the facts. However, if some people fear the presence of a brothel that fear might remain. However, there is no evidence that the proposed brothel would attract crime or drug dealing. I am satisfied that the proposal would meet this planning principle, and I consider that it would not significantly lower the 'tone' of the area. Located to minimise adverse physical impact, such as noise, disturbance and overlooking 61 I am satisfied there would be no adverse physical impact of the proposed brothel as discussed above. There was no evidence of any adverse noise impacts, disturbance or overlooking as a result of the proposal. The proposal would be a logical use of a heavily trafficked and noisy location and I am satisfied that the proposal would meet this planning principle. Brothels should not adjoin areas that are zoned residential or be clearly visible from them 62 The proposal is within a mixed-use zone and remote from residential zones. It would be visible from residential apartments on the northern side of Bayswater Road, however, as pointed out by Mr Betros, [Note: Exhibit B p 13] the proposed awning would reduce the visibility of the entrance door of the proposed brothel from some dwellings and the new windows on the first floor are to be frosted. Also dwellings on the northern side of Bayswater Road would be at least 25m distant, viewed obliquely, across a busy road. 63 The blank first floor sidewalls of the proposal contribute to the shielding from view of neighbouring residents of the proposed brothel. On the southern side there are no buildings in close proximity given the presence of the railway. I am satisfied that the proposal would meet this planning principle. Brothels should not adjoin or be clearly visible from schools, education institutions for young people or places where children and adolescents regularly gather 64 As discussed above I am satisfied that the proposal would be sufficiently remote from the Fuss Beauty College and the Rushcutter's Bay Pre-school. I have taken into account that the students attending the beauty college are, on average, aged in their mid-20s. Even if there were some women as young as 16 year old, as was submitted by Mr Leggat, I am satisfied that there would be sufficient separation between the two uses and a greater separation than that in Martyn . The bus seat in front of the proposed brothel might be repositioned closer to the college, to assist in overcoming some of the concerns of the college. 65 The evidence suggests that the proposal is not in a location where children and adolescents regularly gather. I recognise that there are parks and playing fields to the north and east used by schoolchildren but these are sufficiently distant. I am satisfied that the proposal would meet this planning principle. Brothels are not appropriate next to a bus stop regularly used by school buses 66 There was no evidence that the proposed brothel would be located near a bus stop regularly used by school buses to pick up or set down. I am satisfied that the proposal would meet this planning principle. A brothel should be discreet and discourage clients gathering or waiting on the street. 67 Shops within the shopping strip, unrelated to the brothel use, would buffer the proposal with its single centrally located entrance door. The street number would be the only indication that a brothel exists. I am satisfied that the proposal would meet this planning principle. 68 When tested against the planning principles in Martyn I am satisfied that there would be no reason to refuse the present application. 69 Similar planning controls are contained in the council's RSSDCP , adopted as an interim policy by the council on 8 December 2003 and consideration must be given to locating brothels near residential 'uses' as opposed to residential 'zones'. As explained above, I consider there to be sufficient separation and non-residential buffering between the entrance of the proposed brothel and the mixed-use building entrance at Nos 129-131 Bayswater Road to the west of the premises in which there are some residential tenancies. There would be no significant privacy impacts across the lightwell that abuts the subject premises, as the first floor blank walls of the proposal would screen the neighbouring mixed-use building. Thus for the above reasons I am satisfied that the proposal would meet the requirements of the council's RSSDCP. 70 Murrell A J in Liu v Fairfield Council [1996] NSWLEC 272 considered that morals should not influence the decision of the Court. If the objections of the nearby residents were based on moral concerns it would be wrong to refuse the application on moral grounds. However, there is widespread community antipathy towards the proposal and its impact on the amenity of the locality. 71 Mr Leggat addressed these concerns and referred to Dixon v Burwood Council [2002] NSWLEC 190 and the decision of her Honour Pain J on 13 August 2002 and 31 October 2002. He submitted in that case that her Honour referred with approval to de Jersey J (Connolly J agreeing) in Broad v Brisbane City Council (1986) 59 LGRA 296 at 305 that: There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the residents' subjective perception of this locality. Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity. 72 Her Honour also referred to Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62 and Bignold J's statement at 317: It is clearly established in the decided cases that the concept of "amenity" in a town-planning context (including one that does not include, as a potentially relevant consideration "social impact of the proposal in the locality") is a concept that transcends merely physical content. 73 Her Honour also referred to Perry Properties Pty Limited v Ashfield Council (No 1) wherein Cowdroy J said at 351: A rational fear, or one having a real basis, is a matter for consideration. However, in view of the factual finding of the Commissioner concerning the absence of anti-social behaviour it is impossible to ascribe any basis to the objectors concerns, which rely upon the very existence of such behaviour. As a result it is an unjustified fear alone which the commissioner determined was adverse to the application and which the Commissioner found was contrary to the public interest. As a consequence the Commissioner's conclusion cannot be supported. 74 Her Honour Pain J concluded at para 44: In my opinion these two cases (Broad and Perry No 2) stand for the proposition that the concept of amenity itself is wide and flexible and can include the subjective perception of residents in relation to the locality in question (subject to the question of weight). Furthermore, such matters will be relevant to determining the "likely impacts", most relevantly the social impact under s 79C of the Environmental Planning and Assessment Act 1979 . 75 There has been no evidence to suggest that drug dealing, or crime would follow the establishment of the brothel under consideration or that it would 'lower the tone' of the area or bring in 'sleaze'. Although the concept of amenity itself is no doubt "wide and flexible" and can include the subjective perception of residents in relation to the impact of the proposal on the Rushcutters Bay locality, this perception must be weighed along with other matters under consideration. I have given consideration to the residents concerns as expressed in their written objections and orally at the on-site hearing. However, the result of an analysis of the cases referred to by Mr Leggat, is that resident's perception of an impact on the amenity of the area it must have a real basis in fact. I am satisfied that in the present case there is no real basis for the residents concerns and I have given their evidence little weight in my consideration of the present application under s 79C of the Environmental Planning and Assessment Act 1979. 76 The NSW Police responded favourably when notified of the present application, [Note: Exhibit 2 Section 2 p 66]. Ms D Harmer, Crime Prevention Officer, however, pointed out that as car parking is restricted on Bayswater Road for one hour prior to 6.00pm, residents accepted, that the parking situation be monitored once the business starts. She added that she would be interested in contacting the owners concerning the management plan, once, and if, the development application were approved. Parking 77 Mr Varga the applicant's traffic expert, concluded that the parking issue would not represent adequate or appropriate grounds for refusal of development consent as: · parking accumulation surveys conducted on Friday and Saturday night confirm that vacant parking spaces are readily available near the site; · the majority of vacant parking spaces are located in commercial areas of Neild and McLachlan Avenues less than 150m walk from the site; · the site is exceptionally well served by public transport and is located on a busy arterial route which carries a high volume of taxis; and · the number of car drivers visiting the proposed massage parlour would be likely to be similar to the number of car drivers which visited the previous uses in the existing building, particularly the 50-seat pizza restaurant. 78 Mr Varga pointed to the fact that the past use of the premises generated a similar car parking demand of seven spaces as the proposal. He has demonstrated that car parking is available to the south of the premises and a few spaces to the north across Bayswater Road. He concluded that there would be "no net increase in …car parking" . 79 Despite some resident concerns in this regard, I am satisfied that car parking would not be a reason to refuse the application. 80 For the above reasons, the appeal is upheld. Conditions 81 The conditions are those in Exhibit 4 and there was no objection taken to these by the applicant. Orders 82 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No D/2004/1685 lodged with the respondent council on 20 December 2004 to establish a brothel at No 133-135 Bayswater Road, Rushcutters Bay is approved subject to Conditions 1 to 59 in Annexure A. 3. The exhibits with the exception of Exhibits A and 4 are returned. S J Watts Commissioner of the Court sw Annexure A Mark Makhoul v Sydney City Council Without Prejudice Conditions of Approval Schedule 1A Development, Contributions and Covenants Note: Some conditions in Schedule A are to be satisfied prior to issue of a Construction Certificate and some are to be satisfied prior to issue of Occupation Certificate, where indicated. Note 2: Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate. APPROVED DEVELOPMENT 1. Development must be in accordance with Development Application No D2004/1685 dated 20 December 2004 and Statement of Environmental Effects prepared by Anthony Betros Consulting dated December 2004 and amended drawings numbered A1.01 Revision A and prepared by Building Design & Technology, dated 16 May 2005 and as amended by the following conditions: OPERATING HOURS 2. The hours of operation are regulated as follows: (a) The hours of operation of the premises shall be restricted to 8.00am to 11.00pm Mondays to Saturdays and 10.00am to 10.00pm Sundays. (b) Notwithstanding (a) above, the premises may operate between 8.00am to midnight seven days a week for a trial period of 1 year from the date of commencement of these extended hours. The operator shall inform Council in writing of the date upon which these extended hours commenced and of any interruption to the continual operation of these hours. (c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period for Council's consideration. Such consideration will be based on, inter alia, the performance of the operator in relation to compliance with development consent conditions, comments received from the NSW Police Service and any complaints received. SIGNAGE 3. The following signage requirements apply: (a) A separate development application for any proposed signs which are either externally fitted or applied must be submitted for the approval of Council prior to the erection or display of any such signs. (b) No advertisements or signs other than an approved identification sign, relating to the brothel or business carried there in shall be erected, displayed or exhibited to public view in the window or entrance of the premises, or in, outside or directly above an access corridor to the premises. (c) No merchandising display relating to the brothel, or business carried out there in shall be erected, displayed or exhibited in an access corridor (including any stairwell to the premises) so as to be open to the public or used by the public. (d) No above awning signage will be supported. PLAN OF MANAGEMENT 4. The Plan of Management submitted with the development application prepared by Julie Bates – Urban Realists dated December 2004 is to be signed and dated by the management of the premises and shall be updated to include the following details: (a) Acknowledge the possibility of sexual intercourse taking place on the premises and ensure that safe sex practices and equipment are catered for. This includes the placement of signage in workrooms and enable safe sex equipment to be made freely available to staff. (b) Maintenance and handling of sharps and identify the needle exchange services. (c) Education Information including evidence of relationships established with health service providers to be provided and further details as to the information resources used as guidelines to the responsibilities identified in the plan. Additional detail to the information resources used for other language/cultural groups. 5. The revised Plan of Management shall be submitted and approved by Council prior to the issue of a Construction Certificate. Schedule 1B Conditions to be complied with prior to issue of Construction Certificate to the satisfaction of the Certifying Authority 6. Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate. SECTION 94 CONTRIBUTIONS PLAN - 1997 7. As a consequence of this development, Council has identified an additional demand for public amenities and facilities. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979, and Sydney City Council Section 94 Contributions Plan, 1997, the following monetary contributions towards the cost of providing facilities and amenities are required. Contribution Category Amount Open Space Land Acquisition $517.00 Open Space/Townscape/Public Domain $1,890.00 Accessibility And Transport $15.00 Management $60.00 Total $2,482.00 8. The above payment, with the exception of Open Space Land Acquisition and Management, will be adjusted according to the relative change in the Consumer Price Index using the following formula. The contribution for open space land will be reviewed at time of payment in accordance with the latest valuations. Contributions at Time of Payment = C x CPI 2 CPI1 where: C is the original contribution amount as shown above; CPI2 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of statistics at the time of payment; and CPI1 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of statistics at the date of the consent being March 2005. 9. The contribution shall be paid prior to the issue of a Construction Certificate under Environmental Planning and Assessment Act 1979. Payment shall be by EFTPOS (debit card only), CASH or a BANK CHEQUE made payable to the City of Sydney. (Personal or company cheques will not be accepted). 10. Please contact Council's Planning Support Coordinator on 9246 7728 prior to payment to confirm amount payable. 11. Notes: Endorsed DA plans relate to the subject site only and cannot be taken as approval to carry out any works beyond the boundary of the site. No works, including works listed in the adopted Section 94 Contributions Plan, will be off-set against monetary Section 94 Contributions without prior written approval by Council in the form of a letter referring to detailed specifications and costs. To support a case for carrying out works, Council requires the submission, for formal approval, of complete construction documentation and detailed cost estimates of the works based on established industry standards. Works carried out without written approval by Council will not be off-set against any Section 94 Contribution and, if carried out on public land, may expose the responsible party to prosecution in addition to the cost of reinstatement. Applicants are advised to contact the Council as soon as possible concerning the specific requirements for any proposal for works-in-kind. Applicants should note that Council may have specific requirements concerning future management and will require security in the form of a bank guarantee for all approved works. 12. Copies of the Section 94 Contributions Plan may be inspected at Council's offices located at Town Hall House 456 Kent Street Sydney. MATERIALS TO COMPLY WITH BCA 13. All materials used in the building shall comply with specification C1.10 of the Building Code of Australia. GLAZING MATERIALS 14. All glazing materials shall be selected and installed in accordance with the relevant provisions of AS 1288 S.A.A. "Glass Installation Code". VENTILATION 15. That the premises shall be ventilated in accordance with the requirements of the Building Code of Australia (If using deemed to satisfy provisions: AS1668, Parts 1 & 2). WASTE MANAGEMENT 16. (a) The design of the building and the methods of storage and handling of waste and recyclable material must comply with the Code for Waste Handling in Buildings adopted by Council 17 October 1994. The Code requires the submission of a Waste Management Plan, except for minor partition work (Annexure "A" of Code). (i) The project may require a garbage room, which must be large enough to store, and allow easy removal of the waste, which will be generated by the proposed use. Allowance must be made for the separation of putrescible waste from waste suitable for recycling. (ii) The Waste Management Plan for the project must be submitted to and approved by the certifying authority (Council or a private accredited certifier) prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979 or prior to commencement of the use if a Construction Certificate is not required. The Waste Management Plan must be submitted by the Architect or other appropriately qualified person experienced in Waste Handling Design and Environmental Management. Note: Special requirements exist in Council's Code for premises such as medical and dental surgeries, food premises, skin penetration premises, laboratories and the like. The Code recognises the constraints imposed by existing buildings and design issues. In circumstances where full compliance is not possible, an "Alternative Solution" must be submitted to the Certifying Authority. 17. All contaminated waste including condoms, dams, gloves and tissues must be double-bagged and stored in an approved contaminated waste container, as required by the NSW Department of Health and be disposed of twice weekly by waste collectors licensed by the Environment Protection Authority. The applicant is to provide evidence of a contract with licensed waste collectors within one month of the date of this Notice, to the approval of Council. ACCESS FOR PEOPLE WITH DISABILITIES 18. Access and facilities for people with disabilities shall be provided in accordance with Part D3 of the Building Code of Australia and Council's Access Policy. Prior to issue of a Construction Certificate under Environmental Planning and Assessment Act 1979 , a certificate certifying compliance with this condition OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act 1979 ) must be provided, and copy submitted to Council. FIRE SAFETY 19. Pursuant to Clause 94 of the Environmental Planning and Assessment Regulation 2000 the following works are required to be completed prior to the issue of an Occupation Certificate to ensure that there is adequate fire safety in the building, and details are to be submitted for approval by the PCA with any future application for Construction Certificate: (i) An automatic smoke detection and alarm system shall be installed throughout all areas of the whole premises, inclusive of the existing ground floor food premises, and connected to a building occupant warning system, and in accordance Specification E2.2a and AS 1670.1. (ii) A fire and life safety assessment in accordance with the provisions of the BCA, and with particular reference to provision for egress from the a building for the proposed increased usage of ground and first floor brothel areas, is to be provided to, and approved by the Principal Certifying Authority prior to issue of a Construction Certificate. The proposal indicates a single means of egress, as the "statement of effects" provided by Anthony Betros Consulting has indicated that an area located to the rear, does not provide a suitable means of egress to a road or open space. (iii) A system of emergency lighting and exit signs shall be installed throughout the whole premises, to comply with the provisions of Australian Standard AS2293.1; (iv) Openings within 3m of the east and west allotment boundaries shall be protected, in accordance with the requirements Clause C3.4 of the BCA. Details shall be submitted and approved by the Certifier prior to the issue of any Construction Certificate. (v) Access and facilities for persons with a disability are to be provided in accordance with the requirements of the Building Code of Australia (BCA), Councils Access policy and relevant Australian Standards, and details of the method of providing a means of reasonable and dignified access is to provided with any future application for issue of a Construction Certificate. INSTALLATION LOADS OF SPAS & SHOWERS 20. A letter from a qualified practicing structural engineer (NPER) shall be attached to the Construction Certificate Application, having regard to the installation of proposed spas and shower installations. The letter must state that the existing structure is adequate to support the new loads from the proposed installations, and that the design will comply with the relevant Australian Standards adopted by the Building Code of Australia. INSTALLATION & WATER PROOFING SHOWERS 21. Specific details with respect to the proposed installation and waterproofing of the proposed shower enclosures is to be provided to, and approved by the pca prior to release of any future construction certificate. INSTALLATION OF DUAL-FLUSH TOILETS 22. All toilets installed within the development shall be of water efficient dual-flush capacity with a minimum "AAA" rating. The details shall be submitted for the approval of the certifying authority, prior to issue of a construction certificate for the building under the Environmental Planning and Assessment Act 1979. INSTALLATION OF WATER EFFICIENT TAPS 23. All taps and shower heads installed shall be water efficient with a minimum "AAA" rating. The details shall be submitted for the approval of the certifying authority, prior to the issue of a construction certificate for the development under the Environmental Planning and Assessment Act, 1979. CERTIFICATION OF MECHANICAL VENTILATION 24. The details of any mechanical ventilation or air conditioning must be certified by a competent person to comply with Council's Ventilation Code, the Building Code of Australia and relevant Australian Standards, to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) prior to commencement of any mechanical services work. 25. To enable certification, the mechanical ventilation documentation prescribed below shall be submitted to the Principal Certifying Authority:- (a) Certified plans (in duplicate), coloured so as to adequately distinguish the proposed alterations; (b) A general description of the project plus mechanical ventilation drawings and documentation in duplicate, coloured to show ductwork and equipment as set out below. (Where appropriate a schematic drawing should also be submitted). i. Supply Air Ducts, Shafts and Fans - Blue ii. Return Air Ducts, Shafts and Fans - Pink iii. Outside Air Ducts, Shafts, Intakes and Stair Pressurisation - Green iv. Exhaust Air Ducts, Shafts, Fans, Discharges and Smoke Spill - Orange v. Mixing Boxes and Conditions - Yellow vi. Fire Dampers and Electric Heaters - Red (c) Drawings which show where applicable the existing and proposed air intakes, air discharges and cooling towers and their relative position to each other, the boundaries of the site, openable windows, and adjoining buildings; (d) A Mechanical Ventilation Design Certificate pursuant to Section 93 of the Local Government Act 1993 in the form of Attachment M1 , OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) together with the Curriculum Vitae of the Design Engineer or other appropriate Certifier must be submitted to Principal Certifying Authority (PCA). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council by the PCA; (e) Documentary evidence in support of requests for departure from the prescribed or deemed provisions of the Building Code of Australia or any other requirements. Schedule 1C Conditions to be complied with prior to commencement of demolition or work or construction to the satisfaction of the Principal Certifying Authority STRUCTURAL CERTIFICATION FOR DESIGN - MAJOR WORKS 26. Prior to the commencement of work , the following documentation must be submitted to the satisfaction of the Principal Certifying Authority (PCA) and a copy of same submitted to Council (if it was not the PCA): (a) Structural Drawings showing all new fully detailed structural elements, prepared by an appropriately qualified practising Structural Engineer, corresponding with and attached to a Structural Certificate (see (b)); (b) Structural Certificate/s for Design , of all new fully detailed structural elements and for checking any structural elements supporting the new work, submitted in the form of Attachment S1A completed by the Project/Principal Engineer and S1B completed usually by the Architect, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979), after the structural drawings have been checked and comply with: i. The relevant clauses of the Building Code of Australia (BCA); ii. The relevant conditions of Development Consent; iii. The Architectural Plans incorporated with the Construction Certificate; and iv. The relevant Australian Standards listed in the BCA (Specifications A1.3); v. Any other relevant report/s or documents. Specify on Attachment S1A. (c) Repeat (a) and (b) for any revision, or staged submission of structural drawings. Notes: (a) An appropriately qualified practising structural engineer certifying by completing Attachment S1A must have:- i. Appropriate tertiary qualifications in Civil or Structural Engineering; AND ii. Corporate membership of the Institution of Engineers Australia or equivalent; AND iii. Evidence of relevant experience in the form of a CV/Resume; iv. Appropriate current professional indemnity insurance. (b) An appropriately qualified practising structural engineer certifying by issuing a Compliance Certificate must have accreditation as a certifier for Structural Engineering issued by the Institution of Engineers Australia in accordance with the Environmental Planning and Assessment Act 1979 . i. An appropriately qualified person certifying by completing Attachment S1B must have a good working knowledge of the Building Code of Australia and Structural and Architectural drawing co-ordination so that all structural elements supporting the new work are fully certified by the project structural engineer. ii. Certification of Inspection/s is also required prior to issue of the Occupation Certificate, and/or prior to use. See Schedule 1E Conditions. BARRICADE PERMIT 27. Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council. Schedule 1D Conditions to be complied with during work on site to the satisfaction of the Principal Certifying Authority HOURS OF WORK AND NOISE 28. The hours of construction and work on the development shall be: (a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30 a.m. and 5.30 p.m. on Mondays to Fridays, inclusive, and 7.30 a.m. and 3.30 p.m. on Saturdays, with safety inspections being permitted at 7.00 a.m. on work days and no work must be carried out on Sundays or public holidays. (b) The applicant must provide to Council a 24 hour per day telephone contact number and must ensure such number is continually attended by a person with authority over the building work during the construction period. (c) The approved hours of work and a 24 hour telephone number must be prominently displayed at all times on the building site and must be visible from a public street or a public place. (d) All work, including demolition, excavation and building work must comply with "The City of Sydney Building Sites Noise Code" and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites". PROTECTION OF PUBLIC WAY 29. The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of Notice by Council to stop all work on site. DEMOLITION WORKS 30. All Demolition Work shall be carried out in a safe manner by trained personnel under the management of a licensed demolisher who is registered with the WorkCover Authority, in accordance with:- a. The approved Demolition Work Method Statement; b. Australian Standard AS2601-1991- Demolition of Structures; c. Relevant Codes of Practice of the WorkCover Authority (NSW); d. The Construction Safety Act 1912 and Demolitions Regulations; e. The Occupational Health and Safety Act 1983 ; and f. All other relevant Acts and Regulations. 31. Demolished combustible materials shall not be stockpiled. Material must be removed regularly. CONTROL OF RUNOFF DURING CONSTRUCTION 32. To comply with the Protection of the Environment (Operations) Act 1997 whereby it is an offence to pollute classified waters such as Sydney Harbour to which most of the City's street drainage is directly connected:- (a) concrete trucks, concrete pumps and their attachments, and trucks used for the disposal of spoil shall not be washed out on the public way; (b) any water collected from on-site washing down of concrete trucks, concrete pumps or their attachments and trucks used for the disposal of spoil shall not be pumped, directed or allowed to flow to the street stormwater system; (c) any seepage or rain water collected on site during construction shall not be pumped to the street stormwater system unless separate prior approval is given in writing by Council and evidence of approval is to be submitted to the Principal Certifying Authority prior to discharge into such system. CITY OF SYDNEY COMPLIANCE INSPECTIONS 33. The purpose of this condition is to ensure that the Council is given sufficient notice prior to the issuing of the Occupation Certificate to carry out inspections of soon to be completed buildings, where Council considers it necessary. In doing so, this ensures that the Council is able to provide an independent analysis of whether the building is constructed to a standard that complies with the BCA and in accordance with the development consent. (i) The applicant and building owner are to note that it is an offence under S.109N of the Environmental Planning and Assessment Act 1979, to occupy or use a building in whole or in part, unless an Occupation Certificate has been issued in relation to the building or the part. (ii) A maximum penalty of 25 penalty units applies under the provisions of the Environmental Planning and Assessment Act 1979, for the contravention of the above requirements. (iii) Council officers may undertake random inspections from time to time during construction and toward the end of building works to ensure that buildings or part of buildings are not occupied without a partial or final Occupation Certificate, and to check compliance with conditions of development consent and the BCA. (iv) In the event that a Principal Certifying Authority (PCA) other than Council is appointed, written notice shall be given to Council (whether by the developer, builder or other person relying on the development consent) on each of the following occasions: (a) Within 7 days of installation of services, such as plumbing, mechanical ventilation and the like which penetrate fire rated walls and slabs (excluding basement areas); and (b) 7 days prior to the installation of false ceilings or cornices which abut fire rated walls and slabs; and (c) 14 days prior to the final inspection to be carried out by the PCA for the purpose of issuing an Occupation Certificate. (v) The PCA shall be advised in writing (whether by the developer, builder or other person relying on the development consent) of Council's requirements pursuant to paragraph (d). (vi) This reserves time for Council or persons appointed by Council to conduct any random inspections Council may choose to do, prior to the issue of the Occupation Certificate, in order to ensure that buildings or part of buildings are not occupied without a partial or final occupation certificate, and to undertake random audits of certified works. Schedule 1E Conditions to be complied with prior to issue of Occupation Certificate and prior to commencement of use, to the satisfaction of the Principal Certifying Authority OCCUPATION CERTIFICATE 34. An Occupation Certificate (in accordance with Clause 155 of the Environmental Planning and Assessment Regulation 2000) must be obtained from the Principal Certifying Authority (PCA) (Council or a private accredited certifier) and a copy furnished to Council in accordance with Section 79L of the Environmental Planning and Assessment Amendment Regulation 1998 prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. A copy of the certificate shall be submitted to Council if it was not the PCA. SECURITY MANAGEMENT PLAN 35. The operator shall prepare and submit a Security Management Plan which specifies appropriate security patrol, training of staff, uniforms, numbers of security staff at different times, surveillance, weapons detection and other security and response methods in and around the site, for approval of Council prior to commencement of the use . 36. The Security Management Plan shall also include the following: (a) the procedures for monitoring & responding to security cameras; (b) the procedures for responding to duress alarms; (c) identification and details of security service providers; and (d) identify the safety procedures for staff in the staff room and isolated working rooms (room 9 and 10) 37. The management shall install digital CCTV surveillance cameras strategically placed within the premises with particular coverage to the entrance and all areas accessed by clients except working rooms. The video monitors will be placed within the premises so as to be used by staff to assist in the assessment and monitoring of clients. The video tapes/disc shall have the time and date automatically recorded and shall be kept for a minimum period of 30 days before being reused or destroyed. The video tapes/discs are to be made available to the police upon request. 38. Suitable signage must be displayed at the principle entrance of the premises with the words "Closed Circuit Television" in use on the premises". The same signage must be attached in a prominent position within the premises i.e. reception area and client management areas. Details of the signage must be submitted to Council prior to commencement of the use. CERTIFICATION OF MECHANICAL VENTILATION 39. Prior to issue of an Occupation Certificate under Environmental Planning and Assessment Act 1979 and following the completion, installation, and testing of all the mechanical ventilation systems covered by the approval, a Mechanical Ventilation Certificate of Completion and Performance in the form of Attachment M2 , OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the Principal Certifying Authority (PCA) (Council or a private accredited certifier). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council if it was not the PCA. WASTE MANAGEMENT CONTRACTS 40. Prior to issue of an Occupation Certificate and/or commencement of the use of the premises, all required contracts or arrangements for the collection and removal of wastes and recyclable material must be finalised. COMMERCIAL CONTRACT TO LAUNDER LINEN 41. That the proprietor shall enter into a commercial contract to launder linen or install and use a washing machine capable of washing at a temperature of not less than 70 degrees Celsius. Schedule 1F Conditions to be complied with during the use of Premises NOISE 42. That the use of the premises shall not give rise to: (a) Transmission of 'offensive noise' to any place of different occupancy, and, (b) A sound pressure level at any affected premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5dB(A). The source noise level shall be assessed as an LAeq, 15min and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content, and, (c) A sound pressure level at any affected premises that exceeds the recommended planning levels outlined in the NSW, EPA Industrial Noise. ANNUAL FIRE SAFETY STATEMENT 43. An annual Fire Safety Statement (form 15A under the Environmental Planning and Assessment Amendment Regulation 1998) must be given to Council and the NSW Fire Brigade commencing within 12 months after the date on which Council receives the initial Fire Safety Certificate. PREMISES TO BE MAINTAINED IN SATISFACTORY CONDITION 44. That the premises shall be maintained in a clean, sanitary condition and kept in a satisfactory state of repair at all times. CLEAN LINEN 45. The proprietor shall ensure that all linen, towelling and other bed coverings which come into contact with clients shall be changed immediately after each use. ACCESS TO HEALTH SERVICE PROVIDERS 46. The proprietor must give access to health service providers to provide information and educational activities on disease transmission issues. WRITTEN INFORMATION ON SEXUALLY TRANSMITTED DISEASE 47. The proprietor shall provide written information, i.e. pamphlets and brochures, for sex workers and their clients on sexually transmitted infectious diseases in a variety of languages including those of any sex worker who has difficulty communicating or reading the English language. PUBLIC HEALTH ACT 48. The proprietor's attention is drawn to Section 13 of the Public Health Act. 1991, which makes it an offence to knowingly permit sex workers suffering from a sexually transmissible disease to have sexual intercourse with other persons unless the client has been informed of the risk and voluntarily agreed to accept the risk. SUPPLY OF SAFE SEX EQUIPMENT 49. The proprietor shall provide an adequate supply of condoms, dental dams and water based lubricant free of charge for sex workers and their clients. REGULAR HEALTH CHECKS FOR WORKERS 50. The proprietor shall ensure that all sex workers undertake regular sexual-health check-ups and that accurate records are kept indicating the frequency of such check ups. ADEQUATE LIGHTING TO ALLOW HEALTH CHECKS 51. That all workrooms be provided with an adequate level of lighting to allow sex workers to conduct health checks of their clients for any visible signs of sexually transmitted diseases. ADEQUATE WASTE CONTAINERS 52. That adequate waste containers with disposable plastic liners be provided in all work rooms for the disposal of used gloves, soiled tissues and the like. MAINTENANCE OF POOLS/SPAS 53. That swimming and/or spa pool/s and pool surrounds shall be maintained in accordance with the Public Health (Swimming Pools and Spa Pools) Regulation 2000. Note: Guidance may also be obtained from the NSW Health Department's "Public Swimming Pool and Spa Pool Guidelines". CARE OF BUILDING SURROUNDS 54. In addition to Council's daily street sweeping and cleansing operations, the owner/manager of the building shall ensure that the forecourt and the surrounds of the building including pavements and gutters are to be kept clean and free of litter at all times. NO SOLICITING 55. No display or soliciting shall take place outside the premises. NO SPRUIKERS 56. No persons (such as those commonly known as spruikers) or recordings or other devices which have the effect of spruiking are to be located on Council owned property. Furthermore, the sound level of any spruiking or amplified noise generated within privately owned land must not be audible on Council's footpath adjoining the subject premise and within 3 metres of the premises. CLIENTS ARE NOT TO WAIT OUTSIDE PREMISES 57. Clients are required to wait inside the building and are not permitted to wait outside the premises or in passageways associated with the premises. REMOVAL OF GRAFFITI 58. The owner/manager of the site shall be responsible for the removal of all graffiti from the building within 48 hours of its application. WINDOW CLEANING 59. The owner/manager of the building shall ensure that all windows on the façade of the building are cleaned regularly and, in any event, not less than annually. Schedule 2 The prescribed conditions in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000 apply to the development. 1. (a) The work must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate is made). (b) This condition does not apply: (i) to the extent to which an exemption is in force under Clause 187 or 188, subject to the terms of any condition or requirement referred to in Clause 187(6) or 188(4) of the Environmental Planning and Assessment Regulation 2000 ; or (ii) to the erection of a temporary building. 2. In the case of residential building work for which the Home Building Act 1989 requires that there be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force. 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.