Suzelle Antic v City of Sydney Council [2006] NSWLEC 276

Land and Environment Court of New South Wales

CITATION : Suzelle Antic v City of Sydney Council [2006] NSWLEC 276

APPLICANT Suzelle Antic (De Cue Pty Limited) PARTIES : RESPONDENT City of Sydney Council

FILE NUMBER(S) : 11485 of 2005

CORAM: Brown C - Tuor C

KEY ISSUES: Development Application :- alterations and additions to an existing brothel - additional working rooms - impacts on sensitive landuses

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998

CASES CITED: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99

DATES OF HEARING: 18,19/05/06 17/06/06

DATE OF JUDGMENT: 06/23/2006

APPLICANT Mr J Robson SC SOLICITORS Comino Prassas Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr M Craig SC SOLICITORS Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C with Tuor C

23 June 2006

11485 of 2005 Suzelle Antic (De Cue Pty Limited) v City of Sydney Council

JUDGMENT 1 COMMISSIONERS: This is an appeal under s 97(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against conditions imposed by the City of Sydney Council (the council) on Development Application D2005/01841 for alterations and additions to an existing brothel at 3 Tusculum Street, Potts Point (the site). The site and surrounding development 2 The site has a frontage to Tusculum Street of 7.315 m, a rear lane frontage to Tusculum Lane of 7.32 m and side boundaries of 42.715 m and 42.51 m giving a site area of approximately 358 square metres. The site contains an existing two-storey Federation terrace house currently used as a brothel. 3 Tusculum Street comprises mainly Federation and Inter-war residential buildings. Immediately to the south is a six storey residential flat building. To the north is St Vincent's Girls College (the College). The main entrance to the College is from Rockwall Crescent although pedestrian access is available from Tusculum Street adjoining the site. The three-storey building within the College grounds and adjoining the site provides dormitory facilities for the College. Immediately to the north-west is a modern multi-storey residential flat building at 1A Tusculum Street known as Rockwall Gardens. Background 4 In March 1997, a development application was lodged with South Sydney Council seeking approval to use the existing building as a brothel. Development consent was granted on 7 July 1997 subject to conditions (the 1997 consent). The relevant conditions are: (1) That not more than 10 sex workers should be employed on the site at anyone time. (4) That the use of the building shall be generally in accordance with the plan submitted with the application. (5) That the hours of operation shall not exceed 10.00 am to 4.00 a.m. Sundays to Thursdays and 10.00 am to 6.00 am on Fridays and Saturdays. 5 Development Application D2005/01841 was lodged with the council on 1 November 2005 and a Deferred Commencement consent was granted on 23 March 2006 (the 2006 consent). The proposal 6 The development application seeks a range of alterations and additions to the existing building. A Plan of Management forms part of the proposal. Many of the minor changes sought in the development application have already been undertaken and are accepted by the council. The most significant change was to increase the number of working rooms from 7 to 10. This was to be achieved through the repositioning of walls in different areas on the ground level and the first floor level within the existing building. 7 The 2006 consent placed conditions on the approval that deleted the additional rooms and required the rooms to be in the same configuration as the 1997 consent. These conditions form the basis of the appeal 8 The conditions in dispute are: Deferred Commencement condition (A)(1) That all works commenced without consent in relation to the creation of additional working rooms (Bedroom G.07, Bedroom G.13 and Bedroom 1.01) be reversed and the layout of the building is to continue as a seven room brothel. Deferred Commencement condition (A)(5): Amended plans be submitted showing retention of seven rooms. The creation of three additional working rooms (Bedroom G.07, Bedroom G.13 and Bedroom 1.01) is not granted and shall be deleted from the plans. The seven rooms in the original approved layout are to be retained. Notwithstanding this, the disabled facilities in the front room on the ground floor are granted consent and shall be incorporated into the original seven room layout. 9 Following the hearing and prior to any Orders being made, we heard a Notice of Motion on 16 June 2006 to reopen the hearing. Following submissions from both parties, leave was granted to reopen the hearing to allow each party to make submissions on proposed Deferred Commencement condition (A)(7). This condition was not included in the 2006 consent but was included in the council's draft conditions of approval for this appeal. It requires the applicant to surrender the 1997 consent. Notwithstanding that the condition was within documentation provided to the applicant by the council at the time of the hearing, we granted leave for the proceedings to be reopened in the interests of justice as the imposition of the condition, in conjunction with the condition providing for a five-year trial in Part B (2), could significantly impact on the ongoing and legal use of the property as a brothel. Relevant planning controls 10 The site is within the zone No. 2(b) Residential (Medium Density) under the provisions of the South Sydney Local Environmental Plan 1998 (the LEP). Clause 12 provides objectives for the zone. The relevant objectives are: (a) To enhance the amenity of the existing medium density residential areas, and (c) To insure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (d) To provide limited opportunities for non-residential development which provides goods, services or employment for residents and is of a type and scale that is compatible with the existing or planned residential development and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (f) To facilitate opportunities for small scale local business activity which is compatible with the existing residential areas. 11 Brothels are not specifically defined within the LEP and as such brothels fall within the general classification of "Commercial Premises". The LEP lists forms of development that are permissible with consent. Commercial premises are not identified within the specific forms of development however the use would be included within "Any other developments not included in subclause (2)" and would be permissible with consent. 12 Clause 10 of the LEP states that consent must not be granted, "unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located". 13 City of Sydney Adult Entertainment and Sex Industry Premises Development Control Plan 2006 (DCP 2006) applies. DCP 2006 was adopted by the council on 20 March 2006 and became operational on 18 April 2006. DCP 2006 contains no savings provisions. Clause 2.1 provides objectives. The relevant objectives are: o to ensure that the design and location of adult entertainment and sex industry premises will minimise any adverse impact on the character or amenity of the area or neighbouring properties; o to ensure that high levels of both internal and external amenity are provided for adult entertainment and sex industry premises to ensure the safety and comfort of staff, visitors and neighbouring properties; 14 Clause 2.4 addresses Intensification of use. The clause states: Where an existing adult entertainment or sex industry premises seeks to intensify its use through the introduction of a new "high impact" use, an increase in the number of working rooms, cubicles or booths, an increase in the number or size of performance areas, or increase in floor area, the provisions of this DCP including the location controls, will be applied. 15 Clause 2.6 provides Definitions. Sensitive Land Use is defined as: includes daycare or childminding centres, primary or secondary schools, churches, parks, playgrounds, or any other place regularly frequented by children. 16 Clause 3.1 addresses Location. The relevant objective in cl 3.1.1 is: (b) to ensure that adult entertainment and sex industry premises are located in appropriate areas where they do not have an adverse impact on the character or amenity of the area and neighbouring properties, in particular upon residential and sensitive land uses; and 17 The relevant controls in cl 3.1.2 are: ( 1) Adult entertainment and sex industry premises must not be located in areas zoned residential, within buildings containing a residential use, or immediately adjacent to or directly opposite (to any elevation) land developed for residential purposes. Adult entertainment and sex industry premises must be separated from land developed for residential purposes by at least one other non-residential land use. (2) Adult entertainment and sex industry premises must not be located adjacent to or directly opposite (to any elevation) a sensitive land use defined in this DCP unless separated by at least one other non-sensitive land use. A nonsensitive land use does not include a waterway, un-developed site or road less of than 30 metres in width.