Land and Environment Court of New South Wales CITATION : AMORGAS HOLDINGS PTY LIMITED v. MARRICKVILLE COUNCIL (31 July 1998) [1998] NSWLEC 6 PARTIES : Applicant : AMORGAS HOLDINGS PTY LIMITED Respondent: MARRICKVILLE COUNCIL FILE NUMBER(S) : 10706 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979 CASES CITED: DATES OF HEARING: 30-31 July 1998 EX TEMPORE JUDGMENT DATE : 07/31/1998 N/A LEGAL REPRESENTATIVES: Phillips Fox JUDGMENT: HIS HONOUR: 1. In this matter the applicant company has been seeking a development consent to use a never before used three storey industrial commercial factory or warehouse building at 83 Marrickville Road, Marrickville, in whole or in part as a brothel. It has been disclosed during the evidence that the company also owns the cottages at 85 and 87 Marrickville Road. 2. The subject site is zoned industrial 4(a) industrial general under the Marrickville Planning Scheme Ordinance 1972 as amended. Marrickville Council Development Control Plans No 19 (regarding parking strategy) and 21 (regarding regulation of brothels) are also relevant and all three instruments have been considered in the Court's deliberations. 3. The Council rejected Development Application 110/97 for the use of the mezzanine and level 1 levels of the building for brothel purposes and the ground floor level for storage of building materials. 4. That decision having been taken on 20 May 1997 these Class 1 proceedings were commenced on 13 November 1997 to appeal against that refusal. 5. A fresh Development Application 49/98 was lodged on 16 February 1998. It sought consent to use the whole of the building as a brothel and it was notified to the neighbourhood on 18 February 1998. Only one objection was received, that being from the owners of a building and/or business opposite, largely concerned with possible impact on their property value, pressure on parking in the area, undesirable street behaviour and a fear that their female staff might be harassed in some way by people loitering near the brothel premises. 6. Council issued a consent to DA49/98 on 27 April 1998 subject to seventeen conditions. 7. The company then made a section 102 application on 14 May 1998 to obtain a modification of the conditions numbered 4 and 12 which Council had attached to the consent. That section 102 application was refused. 8. These proceedings have culminated in a hearing about the conditions of consent and two suggested "retrospective" alterations of the Development Application as it received such consent. 9. The amended floor plan in exhibit A1, filed in Court on 29 June 1998, and served on Council on 2 July 1998, evinces the stated desire of the applicant to use all available 10. space on the ground floor level as a reception area and exhibit A6 proposes modest external signage to which the Council planner expressed, on oath, no objection. 11. Other issues between the parties - regarding some apparently illegal building works carried out in the premises in anticipation of their use as a brothel, and what should be done about them - are not strictly before the Court in these proceedings, although there has been evidence about the works and the Court saw them on the site inspection this morning. 12. The subject site is in a highly industrialised area of Marrickville close to Sydenham Railway Station. There are several residences scattered around the near vicinity of the site, but those two closest on the shopping centre side to its north-west are, as I have already noted, owned by the applicant. Adjacent on the other side is a service station. 13. The evidence indicates that few if any of the nearby industrial undertakings operate outside daylight or normal working hours. 14. It seems to me, as it obviously does to the Council, that this is an appropriate location for a brothel, and I need concentrate my attention only on the two disputed conditions which are concerned with the parking arrangements and hours of operation, and some ancillary matters. 15. The issues identified in the issues statement filed by the Council on 12 December 1997 are four in number but are concerned with these two main issues, namely parking/traffic and hours/amenity, as well as with the apparent exceedence of the relevant floor space ratio. 16. Council's evidence also expresses apprehension regarding the availability of, and the possible utilisation of, a large cavernous space at the rear of the ground floor, known now, and shown in the amended plan, as a reception area. 17. The seventeen conditions imposed on the consent by the Council appear at pages 32 to 34 of exhibit C1. 18. Council wishes the Court to uphold its consent and the conditions, subject to the question of signage, but has placed before the Court some "without prejudice" conditions in case the appeal succeeds. They appear as attachment 9 to exhibit C5 and two additional conditions are now proposed by Council in exhibit C10. 19. Should the appeal succeed, the effect of exhibits C5 and C10 on the conditions currently attaching to the consent will be as follows: · Condition 2 would be deleted . That condition currently restricts the use of the ground floor level to parking and storage. · Condition 4 would be amended to reduce the requirement of off-street parking spaces from the number of eight to the number of four. · Condition 5 would be deleted . That is the condition which requires the roller door situated at the front of the ground floor level to be kept open during the operating hours of the brothel. 19. There would be a new condition 12 in three parts, maintaining the restriction on hours in the consent to 12 noon to 12 midnight seven days a week including public holidays, but providing for a period of twelve months from the date of the consent for the operation to be on a twenty-four hour seven day a week basis, and a requirement that the continuation of such extended hours beyond a twelve month period would require Council's approval under the Environmental Planning and Assessment Act by way of a fresh application. 20. Success in the appeal and the implementation of the conditions in exhibits C5 and C10 would also involve the addition of some additional conditions numbered in the exhibits 18 to 24 : · Condition 18 would confirm the waiving of the one additional off-street parking space in the light of a monetary contribution in lieu already received by Council. · Condition 19 as it is currently framed provides: "No live music or entertainment being provided within the premises". Mr Christmas seeks that that be amended to read: "No live music or live shows being provided within the premises". · Draft condition 20 would require the proprietors to ensure the orderly dispersal of patrons of the brothel. · Proposed condition 21 would require, in terms, the provision of two security guards between the hours of 11 pm and 6 am, but Mr Christmas conceded that the Council would be happy if that were amended to reduce the number of guards to one , as is apparently required for the brothel Council approved at 751 New Canterbury Road, Hurlstone Park. · Draft condition 22 requires that cautionary signs be erected within the premises and that the staff be appropriately involved in seeking to control the street behaviour of persons entering or leaving the brothel. · Draft condition 23 would restrict the operation of the brothel to nine employees. · Draft condition 24 deals with the signage proposed and would require that a further Development Consent be obtained for any additional signage. 20. For its part the appellant company would accept those proposed conditions with three exceptions. In terms of proposed condition 12 the company wishes to have only a provision that the brothel may open twenty-four hours seven days a week with no 21. trial period; Mr Campbell has sought the deletion from proposed condition 19 of the restriction on live music; and the company opposes the requirement of a security guard as would be specified by draft condition 21 whether it be two guards in number or one. 22. Accordingly, the issues requiring determination by the Court are the hours of operation of this brothel, the parking arrangements, the use of the ground floor, if any, and the question of security arrangements if the hours are to be extended. 23. I turn first to the question of hours of operation . 24. The Development Application nominated, in terms, "12 am to 12 pm" in respect of every day. Council eventually interpreted that expression to mean 12 noon to 12 midnight seven days and issued its consent accordingly. However, it had earlier notified the application to the neighbourhood as being for a twenty-four hour seven day operation and in those terms it received only the one objection to which I have referred. That objection opposed the use as brothel in broad terms but said nothing specifically about the question of hours. 25. The evidence clearly indicates that "peak hour", if I may use that expression, for a brothel in this sort of area, would be expected to be between 10 pm and 3 am, and that other approvals for comparable proposals within Council's area have nominated hours of operation, for example, as follows: Twenty-four hours as I interpret the decision in respect of 269-271 Marrickville Road; 10 am to 12 midnight Monday to Saturday in respect of 751 New Canterbury Road, Hurlstone Park, with a six month trial period of 10 am to 3 am Monday to Sunday; and 10 am to 4 am Monday to Saturday and 11 am to 4 am Sundays and public holidays in respect of 143 Marrickville Road. 26. I hasten to add that some of these approvals have been expressed as terminating consents, or have sought in other ways to put the uses on trial periods, or in some other respect under review. Some of those establishments would seem to me to be unlikely 27. to avail themselves fully of the permitted hours, but it seems that to me the twenty-four hour seven day operation is appropriate in the subject location subject to appropriate safeguards. 27. I would therefore propose to delete condition 12 restricting the hours. While I will not impose a trial period or a requirement for an additional consent in due course I will impose a security guard condition between the hours of 11 pm and 6 am. 28. Turning to the question of car parking , I should say that I am in absolutely no doubt on the evidence that at most times of the day clients of a brothel at this site who would choose to access it by motor vehicle will find plenty of parking nearby, either on the street or in very busy times when all else fails, in the currently under-utilised public multi-level car park within one hundred metres on Marrickville Road closer to the main shopping centre. 29. I therefore propose to uphold the appeal against condition 4 as it currently appears in the consent and I would propose to delete condition 5 which requires the roller door to remain open while the brothel is open so that the ground floor can be accessed for parking purposes. That roller door is still in place but car access through it is currently precluded by the building works which remain in contention between the parties. 30. Given that the administration and waiting room functions of the brothel are intended to be on the mezzanine and upper levels of the building, I am satisfied that such a large and open means of access to the building would constitute an unnecessary security risk and possibly facilitate behaviour harmful to the amenity of the neighbourhood. 31. Accordingly, I think it is in the best interests of all that these modifications be made to the consent, but this decision is in no way to be seen as condoning in any respect the building works that have been undertaken without Council approval 32. Turning to the question of security , I believe, as I have said, that it is in the interests of the protection of the security and amenity of both the employees and the neighbourhood that Council's suggested requirement of some security service presence in the area, at least in the midnight hours when the brothel is actually operating, is reasonable. 33. Accordingly, I propose to impose an appropriate condition. However, I believe that one security guard is adequate and I note that Council took such a view in respect of the consent it granted for the brothel at 751 New Canterbury Road, Hurlstone Park, although there remain some differences in terminology in condition 12 to that approval when compared with condition 21 in the draft "without prejudice" conditions here. 34. I turn, therefore, to the question of the ground floor . 35. All the so-called working rooms of the brothel are on the top floor, with a waiting area and office facilities on the mezzanine floor, along with further ablution facilities. These facilities have already been established in the building. 36. Compared with the factual and approved situations in comparable projects dealt with during the evidence, there is no need for the ground floor to be used for any relevant purposes other than storage and the location of a possible reception desk just inside the entrance from the street level. I believe the Council is entirely justified in seeking to restrict the possibility of a non-complying use on the ground floor in conjunction with the brothel operations upstairs and Council was somewhat innovative in addressing its floor space ratio concerns about the building by requiring much of the available area to be used for in-house parking. 37. I have already indicated I do not see the need to require such parking within the premises as a condition of the consent. I note that the applicant suggests during argument that it may provide pool tables etcetera on the ground floor for waiting 38. patrons, but I feel that the use of the area should be seriously restricted. The only relevant suggestion that has been made during the hearing is the imposition of draft condition 19, with or without some delineation of what is covered by the use of the word "entertainment". I see no justification for leaving open the possibility of live music, strip shows etcetera without specific consent, and I propose to impose an amended version of condition 19, it being amended along the lines as suggested by Mr Christmas at the end of his submissions. [After His Honour pronounced suggested orders, Counsel discussed whether, and then agreed upon, an additional condition to be imposed in respect of the ground floor level]. 38. The final orders of the Court in this matter will be: (1) The appeal be upheld insofar as it sought relief from conditions 4 and 12 as imposed by Council. (2) Pursuant to section 102 of the Environmental Planning and Assessment Act, the consent of Council, effective date 27 April 1998, is amended as follows: (a) As to plans, to accord with the amended plan in exhibit A1, insofar as the reception area on the ground floor will be limited to the area defined in new condition 25. (b) As to works approved, to incorporate signage as proposed in exhibit A6. (c) As to conditions, all conditions imposed by Council in its consent of 27 April 1998 stand, except as follows: (i) Condition 2 is deleted (ii) Conditions 4, 18, 20 and 22 will be imposed as they appear in Exhibit C5 (iii) Condition 5 is deleted (iv) Condition 12 will be imposed as amended to read in the following terms: "the hours of operation will be 24 hours 7 days per week, including public holidays". (v) Condition 19 will be imposed as amended to read "no live music or live shows being provided within the premises". (vi) Condition 21 will be imposed as it appears in Exhibit C5, subject to its being amended to require only "a minimum of one security guard …". (vii) Conditions 23 and 24 will be imposed as they appear in Exhibit C10 . (viii) New condition 25 agreed as follows: "Reception desk area on ground floor to be defined by a line 13 metres from the front wall on the ground floor level, and the remainder of the ground floor area to be confined to use for storage purposes". (3) Exhibits numbered A1, A6, C1, C5 and C10 should remain with the Court papers; but all others may be returned. There will be no order as to costs. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: Dated: 31 July 1998 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. 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