Land and Environment Court of New South Wales CITATION : Relaxing Centre Pty Limited v Sutherland Shire Council [2007] NSWLEC 487 APPLICANT Relaxing Centre Pty Limited PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10009 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- Brothel, number of working rooms, number of employees, carparking, signage LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 14/06/2007 EX TEMPORE JUDGMENT DATE : 14 June 2007 APPLICANT Mr T. Tzouaras, solicitor of Tzouras Legal LEGAL REPRESENTATIVES: RESPONDENT Mr J. Reilly, solicitor of Hone Wilkinson Lowry Lawyers incorporating the practice of Abbott Tout Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 14 June 2007 10009 of 2007 Relaxing Centre Pty Limited v Sutherland Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against Sutherland Shire Council's refusal of a development application for a brothel. The premises are upstairs in an industrial unit building known as 64 Alexander Avenue, Taren Point. 2 The proposed development application is for three working rooms with a manager and two sex workers to be employed on the premises. The application before the Court in exhibit A shows a parking configuration for the whole of the site that is all the uses within the building. The subject development application is for an upstairs small portion of the total premises. 3 The total site has a length of some 76 metres to the side boundary and a width of some 15 metres at Alexander Avenue and at the rear. 4 The site is developed with two factory buildings on the site, both 2-storey buildings. There are a number of uses within these buildings including a motor vehicle repair workshop on the ground floor with a takeaway shop at the front. On the upstairs level of the building where the brothel is located at the front there is also a fibreglass pipe fabrication activity behind the brothel. At the rear of the site there is a separate building, a 2-storey brick office and factory that currently has an application approved for a reconfiguration. However currently the 2-storey brick factory at the rear is vacant. 5 There are a number of development applications that have been approved by the council over the years dating back some 35 years plus, and there have also been a number of changes of use. Prior to the brothel, that is currently an unauthorised use on the subject site, there was an office premises in that location. 6 It is noted that the council officer recommended approval of the application. The application was considered by the Independent Hearing and Assessment Panel where approval was also recommended. When the matter was determined by the council, it was refused on a number of grounds. 7 The Court has the assistance of Mr James Lovell in these proceedings, the Court appointed town planning expert. And the Court also has the benefit of a site inspection carried out this morning in the presence of the parties. The council identified a number of issues that reflect the reasons the development application was refused by the council. 8 The Statement of Issue identifies: non-compliance with Sutherland Shire Council's Brothels and Sex Shops Development Control Plan (DCP); lack of disabled access; and matters raised by objectors. 9 The objectives set out in the DCP at cl 4 is to limit the cumulative impact of several brothels and sex shops establishing in a single area. I noted that there are currently two other brothel establishments operating within the Taren Point precinct as it has been described, approximately half a kilometre from the subject site. Clause 7 of the DCP provides assessment criteria for brothels and for cumulative impact and the impact on the streetscape. The DCP also identifies a number of criteria that should be met, that is, a brothel should not be located within 200 metres of an existing brothel, it should not be located within 200 metres of a number of more sensitive land uses including residential development. 10 I note from the site inspection, that there is a retirement village that has its service access from Production Avenue approximately 150 metres from the subject site but not in a direct line of sight. The main entrance to the retirement village for the residents is some 250 metres plus from the subject site and once again not in a direct line of sight. 11 The council's DCP also provides for parking requirements. That is: (i) two spaces per employee or workroom, and for a brothel with a single workroom or sex worker, a minimum of three car parking spaces to be provided. (ii) for brothels with more than one employee or workroom, additional spaces at the rate of two spaces per employees or workroom are to be provided, spaces are in addition to the minimum required above. (iii) the amount of available on street parking will be considered as an addition to the minimum on site parking requirements. 12 It is generally agreed that in terms of the DCP some six or seven car parking spaces are required. Mr Lovell provided evidence to the proceedings and indicated that the minimum peak demand would be four or five spaces, and that in his opinion the four to five spaces proposed on the subject site would generally be adequate. 13 While the subject premises are currently operating as an unauthorised use this is not a matter for the Court in these proceedings before me. But rather the issue for the Court in this merit appeal is the future use of the proposed premises for a brothel and any impacts that may occur from the future use. It is clear that one cannot assume that the way an unauthorised use has operated, that it would continue in the same manner if the use is approved. For example the approved use may be advertised more extensively. 14 The Court must give "real, genuine and proper consideration" to the DCP as established in the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167. The Court in its consideration also has the benefit of the council's new development control plan that requires three car parking spaces for the proposed premises. Although it is common ground that the application should be assessed under the previous DCP, the Court may also, in terms of Architectural Property Services Pty Ltd - V - Rockdale City Council [1999] NSWLEC 83 a judgment of Lloyd J, have regard to other policies and in that regard the Court may take into consideration the new DCP requirements in terms of the parking requirements. 15 It is clear that the plan before the Court would require amendments because the configuration of the car parking as shown on the architectural plan does not have regard to manoeuvring areas for the industrial uses at the rear of the property and for vehicles to exit the site in a forward direction. As configured and shown in the plan before the Court vehicles would need to reverse out onto Alexander Avenue and this is an undesirable situation. 16 In my assessment of the application I have considered the council's planning regime. A brothel is a permissible use in the subject zone, 4C however, this is subject to a merits assessment of the application. The council's controls or planning regime for brothels confines such establishments to the industrial zones and they are prohibited in other zones. 17 In terms of cumulative impact, I do not consider this would warrant refusal of the development application, the other brothels identified by the council in its submission are more than half a kilometre from the subject premises, and I do not consider that whilst there is not a definition of cumulative impact, guidance can be gained from the fact that council's DCP refers to brothels not to be located within 200 metres of each other. 18 With respect to the proximity to the service lane of the retirement village, this also would not warrant refusal of the application. In my assessment there would be no perceivable impact on the retirement village as the laneway is for service vehicles and is not the residential entrance to the retirement village. 19 By reducing the intensity of the brothel operation, that is the number of working rooms to a maximum of two in my assessment the four spaces shown in the plans before the Court would be acceptable. However, the car parking on the plan would need to clearly identify the four spaces for use by the brothel and indicate the manoeuvring areas and the other parking required to service all the uses on the subject site. . 20 The Court has expressed concern and has given the applicant the opportunity to respond to the facilities for the sex workers. In my assessment the facilities for the sex workers, that is a lounge area of some 1.7 metres by 2.79 metres does not provide appropriate amenity. This staff lounge area must be enlarged and this is to be accommodated by one of the treatment rooms, that is the treatment room on the southern wall, being changed to the staff lounge area. The waiting room shown on the subject plan shows an office as well as the waiting room and 20 square metres is required in terms of council's guidelines. Clearly this also needs to be enlarged in the reconfiguration of the floor plan. 21 Three treatment rooms as opposed to two treatment rooms on the subject premises also has implications for the amount of parking provided for the development in terms of the intensity of the use. It is noted that the applicant has indicated or submitted that the application is only for two sex workers working on the premises at any one time. However, in view of the intensity of development in terms of the limited car parking, in view of the inadequate staff facilities, it is appropriate that the partitioning of the brothel be reconfigured such that there are only two working rooms, with an enlarged staff area to provide appropriate amenity for the workers. The deletion of the working room would also allow for a more appropriate size office/waiting room area. 22 The council has also proposed a condition of consent for all laundering of linen not to be carried out on the premises. Clearly such a condition must be adhered to because the subject premises are unsatisfactory with a laundry combined with kitchen tea room for staff within a two by two metre square area or less. The applicant has agreed that all laundering would be done off-site. 23 These poor amenity issues that I raise are symptomatic of trying to accommodate three working rooms as shown in this development application. Furthermore the amount of parking limits the number of working rooms to a maximum of two. 24 The Court also considers that the appropriate course of action is for the consent to be limited to twelve months. This is not uncommon in the case of brothel operations to monitor and ascertain the impacts of the proposed development on the general amenity of the area. And this would also allow for the car parking to be monitored in terms of its adequacy for the proposed brothel and its juxtaposition with the adjoining uses on the subject site. 25 The applicant sought an adjournment of these proceedings to allow for further evidence to be adduced on the car parking. I declined to allow such an adjournment because in my assessment it is clear from the submission made by the council that the previous approvals on the subject site are such that there is not necessarily consistency in terms of the car parking provision for the various uses and the number of uses accommodated on this site and little or nothing would be achieved by an adjournment and this would only incur additional expense for the parties. 26 In my overall assessment I do not consider that the plan should be approved in its current form. However, subject to a number of specific changes to the proposal and the need for an amended plan, I consider the use should be approved subject to a deferred commencement consent. The deferred commencement provision under s 83 of the Environmental Planning and Assessment Act 1979 requires the deferred commencement condition to be satisfied prior to the rest of the conditional consent operating. That is, council approval of the amended plan is required. It would also appear that the BCA requirements are not satisfied by the plan currently before the Court. 27 The time limited consent of twelve months means that the applicant if he wishes to continue to use the subject premises for a brothel then a new development application must be submitted to the Council prior to the expiration of the twelve months and with sufficient time to allow the application to be determined by the Council, otherwise the brothel use must cease. 28 At the end of the day, I must holistically assess the development application and as I stated, the premises do not allow for the intensity of development proposed and a maximum of two working rooms can only be accommodated. The deletion of one working room also reduces the the demand for on-site parking and the provision of the four parking spaces is then satisfactory in the context of council's controls. 29 On the basis of my assessment above the formal Orders of the Court will be that the development application be approved subject to a deferred commencement condition. The deferred commencement condition will require a reconfiguration of the brothel premises such that there are two working rooms, an enlarged waiting office area and an enlarged staff facilities area. The deferred commencement condition will also require discrete signage for the premises. An amended plan is necessary so it is clear as to what the final approval relates to and the site plan is to also show the car parking of four spaces allocated for the brothel premises and the parking layout is to show adequate manoeuvring areas for the entire site. 30 The consent will then operate according to the conditions handed up by the council and also in accordance with the plan of management, a condition of consent for the operation of the premises. and the management plan is to be adhered to at all times. The conditions also include that there will be no laundering on the premises and no linen will be visible from the premises in the foyer areas. 31 Accordingly the formal Orders of the Court are: 1. The appeal in respect of the premises known as 64 Alexander Avenue, Taren Point is upheld in part. 2. The development application submitted to Sutherland Shire Council for a brothel is approved subject to the conditions contained in Annexure 'A': (This includes: a deferred commencement condition that requires an amended plan to be submitted to council to show two working rooms, an enlarged staff room and waiting area and parking; and subject to a twelve month trial period; and the general conditions shown in Exhibit 8.) 3. The exhibits except A, 7 and 8 are returned to the parties. 4. A copy of the amended plan approved by the council shall be forwarded to the Court. ___________________ J S Murrell Commissioner of the Court ljr 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.