Cheung v Ku-ring-gai Council [2009] NSWLEC 1408

Land and Environment Court of New South Wales

CITATION : Cheung v Ku-ring-gai Council [2009] NSWLEC 1408

APPLICANT Hoi Wan Cheung PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10353 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT MODIFICATION :- Brothel Trial period

Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance LEGISLATION CITED: Ku-ring-gai Development Control Plan No 31 - Access Ku-ring-gai Development Control Plan No 42 - Regulation of Brothels Disability Discrimination Act 1992 (Cth)

Jonah v Pittwater Council (2006) 144 LGERA 408 CASES CITED: Dayho v Rockdale City Council [2004] NSWLEC 184 Bales Investments Pty Ltd v Cessnock City Council [2009] NSWLEC 1102

DATES OF HEARING: 24 November 2009

DATE OF JUDGMENT: 8 December 2009

APPLICANT Mr M Baird, barrister Instructed by LEGAL REPRESENTATIVES: Storey & Gough Lawyers RESPONDENT Mr T Howard, barrister Instructed by Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

8 December 2009

10353 of 2009 Hoi Wan Cheung v Ku-ring-gai Council

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Ku-ring-gai Council (the Council) of an application pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent granted on 26 March 2008 by the Ku-ring-gai Planning Panel to development application No. 0353/07 for the change of use of commercial premises at 1/105 Grandview Street Pymble (the premises) to a brothel. The consent was subject to a condition limiting the use to a trial period of 12 months and the applicant sought to modify the consent by the deletion of that condition. 2 The issues between the parties are whether it is appropriate to permit continued operation, or impose a further trial period. The Council contends that the applicant had not complied with the conditions of the consent and all of the procedures as approved in the Plan of Management during the trial period, that the kitchen waiting room and reception areas have not been constructed and set up in accordance with the approved plan result in an unsatisfactory reception area/waiting room configuration, that the continued use of the premises would be contrary to the public interest, and that the applicant has not provided sufficient information to demonstrate that disabled access should not be provided to the premises. Background 3 The premises are located on the first floor of a two-storey commercial building fronting Grandview Street with access from a rear lane via timber stairs. There are two working rooms, each with a separate shower cubicle and handbasin, one staff resting room, two waiting rooms, one staff bathroom and one toilet. There are two car parking spaces at the rear of the site, one of which is used by the business on the ground floor and the other provided for the subject premises. 4 The Ku-ring-gai Planning Panel granted consent to development application No 0353/07 for a brothel on 26 March 2008, to operate from 10 April 2008. Condition 1 imposed a trial period of 12 months, stated to be "To allow Council to monitor the use and to ensure any possible adverse impacts are avoided". The hours of operation were restricted to 10am to 10pm seven days week. Condition 13 required that the premises be operated in accordance with the submitted plan of management, stated to be "To ensure the premises are well run, encourage a satisfactory and safe environment for sex workers and their clients, and that the operation of the premises does not cause a disturbance in the local area". 5 On 18 June 2008 a s96 application was approved to clarify condition No 4 in relation to the provision of ensuites in each working room. A further s96 application was approved on 27 November 2008 in relation to the erection of firewalls. 6 The Council referred to the application to New South Wales Police, and notified the application to adjoining parties. Seven written submissions were received, two in support and five opposed. A site inspection was conducted on 17 March 2009 in relation to the application the subject of these proceedings by the Council's Development Compliance Officer, Environmental Health and Building Surveyor (Mr David Mitchell), and Building Surveyor (Mr Greg Evans). Mr Mitchell undertook a further inspection of the premises on 2 April 2009. Mr Mitchell, Mr Evans and the Council Development Compliance Officer undertook a further site inspection on 7 July 2009. Mr Mitchell and Mr Evans conducted a further site inspection on 30 October 2009. Planning controls 7 The subject site is zoned Business 3(a)-(A2) Retail Services under the Ku-ring-gai Planning Scheme Ordinance. Brothels are permissible with consent. 8 The site is zoned B2 – Local Centre under the Draft Ku-ring-gai Local Environmental Plan (Town Centres) 2008. A "sex services premises" is defined as "a brothel, but does not include home occupation (sex services)". Sex services premises are permissible with consent of Council. 9 Relevant development control plans are Development Control Plan No 31 – Access (DCP 31) and Development Control Plan No 42 – Regulation of Brothels (DCP 42). The aims of DCP 42 are to provide planning controls for the determination of development applications to ensure the appropriate location of brothels, and to provide health guidelines for the operation of brothels. Part 3.1 of DCP 42 provides: 3.1 Initial Limits on Development 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. 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 the consent will would lapse and a new Development Application would be required. If the number of sex workers, hours of operation or signage are proposed to be changed, a new Development Application may also be required. Evidence 10 The hearing commenced with a site view. The Court heard evidence from residents who objected to the brothel and from others in support. The objectors stated that their concerns relate to the proximity of the premises to Pymble Park, and to a gymnasium where young women exercise, which could encourage inappropriate behaviour. The lighting in the Park at night is poor. In support of the application, another resident stated that he lives close to the premises, and walks around the area five times a week, and has never seen any trouble or disturbances. Another resident who runs a real estate business on Grandview Street stated that there is more trouble in the Park from kids than from this business, and that the premises generates business for the local shops. Two clients of the premises spoke in support of the application, stating that the business was well-managed. Ms Maggie Moylan, Counsellor at the Sex Workers Outreach Project (SWOP) spoke in support of the application stating that she has been in regular contact with the owner since May 2009, and that brothels usually operate in a quiet and discreet manner. 11 Expert planning evidence was provided by Mr Richard Smyth on behalf of the applicant and by Mr Harvey Sanders on behalf of the Council. Mr Mitchell and Mr Evans provided written statements which outlined their observations on the site visits and included copies of the reports which they had provided to Council.