Land and Environment Court of New South Wales CITATION : Diamonds 4 Ever Pty Ltd v Holroyd City Council [2010] NSWLEC 1085 APPLICANT: Diamonds 4 Ever Pty Ltd PARTIES : RESPONDENT: Holroyd City Council FILE NUMBER(S) : 10829 of 2009 CORAM: Hussey C KEY ISSUES: DEVELOPMENT MODIFICATION :- brothel - time limited consent - sensitive land use - condition imposing a trial period is reasonable - modification allowed in part LEGISLATION CITED: Holroyd Local Environmental Plan 1991 Holroyd Development Control Plan 2007 CASES CITED: Hang v Holroyd City Council [2005 NSWLEC 538 Wei v Holroyd City Council [2007] NSWLEC 163 DATES OF HEARING: 19 March 2010 DATE OF JUDGMENT: 20 April 2010 APPLICANT: Mr S Patterson (solicitor) SOLICITORS: LEGAL REPRESENTATIVES: Wilshire Webb Staunton Beattie Lawyers RESPONDENT: Ms P Hudson (solicitor) SOLICITORS: Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 20 April 2010 10829 of 2009 Diamond Entertainment Pty Ltd v Holroyd City Council JUDGMENT Background 1 This appeal is against conditions of consent imposed by council on a development consent for a brothel in an existing two-storey building at No. 185 Military Road, Guilford. This site has an area of 735.4 sq m and is situated on the south western corner of Military Road and Clarke Street and has access to both streets. 2 The appealed conditions relate to engineering requirements and the extent of external foot paving, kerb and gutter repairs, drainage and associated roadworks. Also, the condition requiring a twelve-month trial period. 3 However, after conferencing by the parties, agreement was reached on the extent of the external works to provide reasonable access to the premises. These works are shown on the 'services plan' that became Exhibit "D". Consequently, requirement for a twelve-month trial period was the only issue for determination of the Court. 4 The deferred development consent was granted on 8 December 2009 and required attention to the following matters before the consent became operative: - Landscaping; a satisfactory, fully documented landscape plan to be provided. - Acoustic report; a noise assessment report to be undertaken to ensure the operations comply with accepted noise criteria. - Privacy screens; further details to be provided to ensure that the entry arrangements are discrete. - Parking layout; revisions to the parking arrangements require. 5 Consequently, the approved development is summarised as: - A brothel comprising 18 rooms, with a maximum of 12 sex workers to be employed, plus a receptionist and a security personnel. - The hours of operation to be from 10 am to 3am daily. - The brothel to operate in accordance with an approved Plan of Management (POM). - Provision of 9 parking spaces for both staff and clients. 6 The conditions concerning the trial period are: 9 The brothel is to operate for a trial period of twelve (12) months (from the issue) of the Occupation Certificate). To enable Council to assess the operation of the premises having regard to any complaints received and compliance with conditions of consent. Prior to the conclusion of this twelve (12) month period the applicant may apply to Council for a modification under Section 96 of the Environmental Planning and Assessment Act 1979 to delete this condition relating to the twelve (12) month trial. At the time of lodging the Section 96 application, it shall be adequately demonstrated that the brothel has been in operation for at least a continuous period of 6 months. 89 The hours of operation for the brothel are to be restricted to between:- 10.00am and 3.00am, seven days a week, for a trial period of 12 months (from the issue of the Occupation Certificate). Prior to the expiry of this period, representation shall be made to council seeking the above hours continuing on a permanent basis. Note: It should be demonstrated that the use has been in effective and continuous operation for at least 6 months during the above period. If Council is not satisfied that the above hours have appropriately addressed the conditions of consent and are having adverse impact upon the locality/neighbourhood, then the hours of operation shall be in accordance with Council's standard hours of operation fro industrial zones, being 7.00am to 6.00 Monday to Friday 7.00 to 12 non, Saturday, and Sunday closed" Planning controls 7 The primary control is the Holroyd Local Environmental Plan 1991 (HELP) under which the site is zoned 4(b) Light Industrial. Brothels are listed as a prohibited use, but this prohibition is overridden by cl 38, which allows brothels in areas designated on the respective map, according to Amendment No 20. 8 As the subject land is situated within the area identified under the Amendment No. 20 map, the proposal is permissible with consent. 9 The detailed controls for brothels are contained the Holroyd Development Control Plan 2007 (DCP). Clause 14.2 of the DCP states: "14.2 Objectives The principal objective of this DCP is to implement the aims and objectives of the Holroyd LEP 1991 relating to Brothels by:- a) Providing detailed planning controls to ensure that the location, operation and design of brothels does not adversely affect the amenity of the area. Other objectives are:- a) To provide more certainty in the development control process and assist the community and applicants to understand Council's requirements relating to brothels. b) To nominate the location requirements and development standards for brothels which reflect broad community attitudes and expectations. c) To provide appropriate guidelines for brothels which will ensure that such are at a reasonable distance from residential occupancies and other nominated sensitive land uses, and will not have a detrimental impact on the amenity of the neighbourhood. d) To provide appropriate guidelines which will discourage a concentration of brothels in close proximity to one another. e) To identify appropriate health and hygiene standards relating to the management of brothels. f) To ensure that adequate consideration is given to safety and security issues." 10 Clause 14.3 provides for a time limited consent as follows "14.3 Time Limited Consent Development consents granted to brothel applications may be initially limited to a period of twelve (12) months. At the completion of this period, Council will re-evaluate the proposal in terms of any complaints received regarding the approved operations, and compliance with any conditions of development consent. If Council is satisfied that the brothel has operated in an orderly manner and with limited impact upon surrounding and nearby land uses, it shall then grant a permanent development consent. Council may also impose conditions of consent relating to the hours of operation. This will also be the subject of review after 12 months. If after the 12 month trial, the approved hours of operation are causing a disturbance in the neighbourhood, the Council may further restrict operating hours. Where consent is granted, a specified operator will be nominated on the consent. Should the operator change, Council must be notified prior to work commencing. If the number of sex workers, hours of operation, or signage are proposed to be changed, a new development application may be required." 11 Other relevant controls are: * Clause 14.4.1: "To ensure brothels are sensitively located and designed so that they do not create adverse social impacts; do not cause offence to the community at large; and do not result in any adverse environmental effects." * Clause 14.4.2 contains locational controls and cl 14.4.4 deals with the layout of the premises. The evidence 12 Evidence was presented by: * Mr J Vescio; Applicant's town planner. * Mr A Milinkovic; Manager development services * Mr P Amzellofti; Senior development planner * Mt T Morris; Senior development engineer. 13 The evidence and submissions for council are that this is a relatively large brothel, which attracted some objections when notified. Consequently, the imposition of the twelve-month trial period is reasonable to ensure that the brothel operations are established so as to avoid any adverse impacts on the neighbourhood. 14 Against this, the submissions for the applicant are that the brothel is to be managed in a professional manner and taking into account the significant set up costs, it is unreasonable to maintain the twelve-month trial period. Findings 15 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this approved development represents a relatively large scale brothel having some 18 rooms and a maximum of 12 sex workers. Given the sensitivity within the community of brothel locations, I am satisfied that a cautious approach should be undertaken for a brothel of this scale. 16 Insofar as the brothel is permitted within this industrial area, it is nevertheless located in a relatively prominent location at the street intersection. I note council's submissions that there is a significant bike path on the eastern side footpath opposite the site and adjacent to the railway line. Also that there is residential development on the eastern side of the railway line that may have its amenity compromised. Accordingly, the council submissions are for maintenance of its trial period condition. 17 It is apparent to me that a brothel of this scale will require careful management so as to comply with conditions of consent, including the provisions of the POM, thereby avoiding any disamenity to the neighbours. During the hearing assurances were given about the applicant's ability to operate the brothel in an appropriate manner and accordingly it is not reasonable to maintain the trial period. 18 However, it seems to me that this undertaking to operate the brothel in an appropriate manner is a reasonable expectation under the terms of the consent. Assuming this occurs, then the brothel should operate as a "good neighbour" to the immediate neighbours and the wider neighbourhood. In this regard, I note objections concerning anti-social behaviour, vandalism, loss of value and operating hours were lodged from some of the occupiers of the neighbouring industrial units. The trial period will allow opportunities to ensure these points of objection are not realised and the brothel does not interfere with the amenity of the area. 19 On the basis that this expectation is achieved and the brothel operates as a "good neighbour", it would seem unlikely that there would be any rational grounds to refuse its continuing operation after the twelve-month trial period. Therefore, I give little weight to the submissions about the risks associated with the significant set up costs for this building. Presumably the applicant would have been aware of the provisions of the DCP, including the possibility of the application of the cl 14.3 – time limited consent provisions. 20 Insofar as submissions were made about the Court's approval of other brothels in the area without a trial period condition, I am satisfied that the circumstances of those applications can be distinguished from the current matter. 21 In the matter of Wei v Holroyd City Council [2007] NSWLEC 163, this was for a much smaller brothel comprising 3 work rooms and a maximum of 3 sex workers in McCredie Road, Guildford West. Whilst the brothel premises were located in an industrial unit at the front of an industrial complex, the planners agreed that its street presentation and landscaped frontage would result in no adverse impacts on the amenity of the neighbourhood. Whilst the matter of a trial period was raised, this can be distinguished from the from the subject application in my assessment, because of the proposed security arrangements, the less prominent site exposure and much smaller scale of the operation. 22 In the matter of Hang v Holroyd City Council [2005] NSWLEC 538, the Court granted consent in 2005 for the construction of a purpose built brothel at No. 179 Military Road for 12 work rooms and a maximum of 10 sex workers. Whilst the same development controls were apparently in force, the matter of a trial period was not raised as an issue. This application was in part to regularise an illegal brothel operating from the adjoining land. Apart from the trial period not being raised as an issue, it still appears to me that it is significantly smaller and different circumstances prevailed due to the 12 month temporary use of the adjoining property. Therefore I do not consider this approval sets any precedence in the current matter. 23 Following these submissions, I have considered the applicant's further application to match the scale of No. 179 Military Road by keeping the additional 6 rooms locked preventing their use, thereby avoiding the trial period requirement. However it seems to me that this is impractical and difficult to enforce. Given the difficulty that occurs from time to time in establishing how a property is being used relative to the conditions of consent, I do not consider this submission very practical or appropriate. It seems to me that sensitive uses such as brothels should be as self regulating as possible. The proposed locking of doors does not achieve this in my assessment. 24 In summary then, I am satisfied that the scale of this brothel is relatively large and as it is in a prominent location, due care is required to ensure that it does not adversely affect the amenity of the area. Accordingly, I consider it reasonable in the circumstances of this case to maintain the twelve-month trial period condition, which is consistent with cl 14.3 of the DCP. In reaching this conclusion, I have considered the detailed council assessment report, resulting in the original approval, including the trial period, which I am satisfied should remain. Providing the brothel is operated within the conditions of consent, then this clause allows for the grant of permanent development consent. 25 In reaching these conclusions, I also note that it is current practice in many areas to require a trial period for sensitive land uses such as brothels to ensure the public interest is well served. For these reasons then, the appeal is allowed in part and the conditions of consent are to be modified to reflect the agreed extent of civil works. Court orders 26 The Court orders: (1) The appeal is allowed in part. (2) The conditions of consent for Development Consent No 2009/379/1 are modified as shown in Annexure A. (3) The exhibits may be returned except for 1, A, C and D. ___________________ R Hussey 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.