Wheeler v Waverley Council [2004] NSWLEC 479

Land and Environment Court of New South Wales

CITATION : Wheeler v Waverley Council [2004] NSWLEC 479 APPLICANT Ann Wheeler PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10169 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Refusal of a brothel - amenity of locality - security - parking and traffic - location in a transitional zone - hours of operation LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley and Woollahra Joint Local Environmental Plan 1991 CASES CITED: DATES OF HEARING: 26-27/05/2004 EX TEMPORE 07/29/2004 JUDGMENT DATE :

APPLICANT Mr S Berveling, barrister SOLICITORS Michell Sillar

LEGAL REPRESENTATIVES: RESPONDENT Mr S Brockwell, barrister SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

29 July 2004

10169 of 2004 Ann Wheeler v Waverley Council

JUDGMENT

1 This was a class one appeal 10169 of 2004 between Ann Wheeler and Waverley Council regarding the deemed refusal of a brothel at 104A Ebley Street, Bondi Junction. The premises were on the whole first floor of a two storey commercial building that had rear access to Grays Lane. 2 All customer access to the brothel was to be via Grays Lane. At the start of the hearing a chairlift disabled persons access was to be installed at the Ebley Street entrance but this was deleted during the hearing. 3 There were existing showers and basins in the existing rooms, the premises had previously been used for a health and beauty therapy service operated with its main entry off Ebley Street. As a result, there were to be some internal changes to locate the reception area near the rear lane doorway. 4 There was to be illumination and security cameras in the laneway. There were three ground floor rooms incorporated into the proposal adjacent to the rear lane doorway and they were to have a spa bath each. Staff amenities were to be near the Ebley Street door and it would be used for emergency access only. There would be eight work rooms. 5 The area was zoned 3(a3) Business Secondary under the Waverley and Woollahra Joint Local Environmental Plan 1991 for the Bondi Junction commercial area. The proposal is in the category of commercial premises in the statute and is permissible with consent. 6 South across Ebley Street is a Residential 2(c1) zone and contains terrace houses, two and three storey flats and, due to another change in zone to Business on the south side and just west of the site, there are more commercial and retail premises and the Cock 'N' Bull Hotel. 7 On the same site on Ebley Street, on the ground floor, is a parcel courier service. On the west side of the site a commercial premises electrical goods on the ground floor, and a coaching college on its first floor, and then a laneway between Ebley Street and Gray Street called Ann Street. 8 On the east side of the proposal there was a two storey commercial premises, two mobile phone shops, then an Asian food restaurant that was said to have footpath seating in summer months. Commercial premises were above it. Next east was a video store with commercial premises above. 9 Grays Lane is a dead end off the east end of Gray Street. Opposite the site in Grays Lane is the multi storey blank wall of a new Westfield building under construction. At the dead end of the lane is a truck bay entry to Westfield and a set of steps up to a right of way that connects to Hollywood Avenue. The Court was told the steps and lane are used by residents east of the shopping centre to walk back and forth. 10 Gray Street west of the lane is a one block long street that T-intersects with Bronte Road. In Gray Street is the local RSL Club. Opposite the club in Gray Street is a 24 hour convenience store and above it is another brothel called Unique that was approved by council on 20 May 2004. At the T-intersection opposite Gray Street is an entry to the Easts Leagues Club and around the corner from Gray Street in Bronte Road is the Tea Gardens Hotel. 11 The applicant had originally sought operating hours of 10 am to 1 am seven days a week but after council's refusal had amended the hours sought to 24 hours a day seven days a week. The previous use was 9 am to 9 pm. 12 The issues in the appeal are: 1. Whether the proposal complies with the aims and objectives at clauses 2(1)(d), 2(1)(g), 2(2)(i) of the Waverley and Woollahra Joint Local Environmental Plan 1991 - Bondi Junction Commercial Centre . Particulars (i) The proposed use does not improve the environmental amenity of the centre and adjacent areas and unreasonably affects the amenity of residential areas adjoining and surrounding the centre. 2. Whether the proposed use is an acceptable use in the 3(a3) Business Secondary Zone as it does not comply with objectives 2, 3 and 4 of the zone at clause 12 of the Local Environmental Plan 1991 . Particulars (i) The site is within a transitional zone and the proposal does not provide for a less intense commercial use than permitted in the core business zone. (ii) The proposal is not a use which is compatible with the surrounding residential uses. Amenity 3. Whether the proposal will adversely impact on the amenity of adjoining residential developments opposite the site along the southern side of Ebley Street. 4. Whether the proposed trading hours of 24 hours, 7 days a week is acceptable in respect of the surrounding commercial and residential uses and the site zoning. 5. Whether the proposed "main" entrance to the premises off the Ann Street right-of-way is likely to operate in practice as the principle point of entry and exit from the premises in the circumstances as the premises street address and street frontage is 104 Ebley Street. (Note: Anne Street right-of-way is also called Grays Lane) Security 6. Whether the proposed entrance from the Ann Street right-of-way is appropriate in terms of patron and employee security, having regard to the physical environment of the right-of-way. Parking and Traffic