Land and Environment Court of New South Wales CITATION : Pederson & Anor v Parramatta City Council [2007] NSWLEC 61 APPLICANT Patrick and Patricia Pederson PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10644 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Continuation of use of a brothel / swingers club, BCA compliance, amenity of area. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 9/11/2006, 8/01/2007, 19/01/2007, 1/02/2007 and 9/02/2007 DATE OF JUDGMENT: 12 February 2007 APPLICANT Mr M. Baird, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr P. Matincowitz, solicitor of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 12 February 2007 10644 of 2006 Patrick and Patricia Pederson v Parramata City Council JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for the continuing use of a brothel and swingers club at No. 18 Ferndell Street, Granville. 2 This proposal had previously been assessed by the Land and Environment Court and on appeal, a conditional development consent was granted on 24 April 2005 subject to the conditions including: 2. This consent is given a period of twelve (12) months only. A further development consent must be obtained to extend the use beyond this period. 3 On 13th June 2006 Development Application 485/2006 was lodged with Parramatta City Council for the continued operation of the brothel and swingers club approved by the Court. The applicant also sought approval for clients to be served complimentary drinks and to bring their own drinks such as wine to the premises for their consumption. The development application was publicly notified by Council on two occasions resulting in two letters of objection. One of the objection letters relates to multiple development applications and is irrelevant to the development proposed for the subject property. 4 For the appeal a number of issues were identified and the parties agreed to Mr L Winnacott being the Court-appointed expert for planning. He prepared a detailed assessment referred to as (Exhibit B), and concluded the proposal merited consent. The site 5 The site is at 18 Ferndell Street, South Granville and is described as Lot 36 in DP 14788. The site is rectangular in shape with a frontage to Ferndell Street of 14.93 m and depth of 36.575 m. The total area of the land is 544 sq m, and the building excluding internal car spaces is 246 sq m. 6 The proposal utilises the existing industrial warehouse currently located on the site. The building is constructed of brick, with concrete floors at the ground level and a suspended mezzanine timber floor with a metal roof. 7 Ferndell Street is surrounded by industrial uses comprising mainly manufacturing and warehousing uses. Adjoining the site on both sides and opposite the street are industrial uses. The development on the opposite side of the street consists of a large-scale industrial plant. The proposal 8 The proposal is Development Application 485/2006. It seeks approval for the continued use of an existing warehouse building as a swingers club and brothel. The applicant proposes the following operation requirements for the premises: o Hours of operation being 24 hours per day, 7 days per week. o The club would provide five car spaces on site, including one for the disabled. o A maximum of two sex workers would operate on the premises at any one time (probably one male and one female). o Five private bedrooms would be provided, including one with facilities for the disabled. Two of the bedrooms would have their own ensuite privately accessed. o There would be one receptionist on site at all times, as well as a part time contract cleaner. 9 The following change is proposed by the applicant in respect to the activity compared to the previous Court Approved Development Consent. o The serving of 1 glass of alcohol to patrons / visitors per hour as well as approval for visitors to bring their own alcohol onto the site. Planning controls 10 The subject site is within Zone No. 4 – Employment in Parramatta Local Environmental Plan 2001 (the LEP). Whilst the swingers club is not defined in the LEP, it could be defined as a Recreational Facility, which along with the Brothel are uses that are permissible subject to development consent with this zone. 11 Clause 24 of the LEP outlines specific siting requirements for Brothels. 12 The proposed development is subject to the requirements of Parramatta Development Control Plan 2005 (the DCP). The relevant sections of the DCP pertaining to this appeal are Land Contamination (s 4.1.8), Social Amenity (s 4.4), Visual and Acoustic Privacy (s 4.3.2), Safety and Security (s 4.4.2), Access for People with Disabilities (s 4.3.1), Parking (s 4.5.1). The evidence 13 The appeal commenced with a view and the parties agreed that the matter be completed by way of an on-site hearing (OSH). After hearing the evidence, the objectors and undertaking the view, I gave preliminary findings that the proposal could granted conditional consent subject to satisfactory amendments to address BCA requirements and the landscaping works being clarified. 14 The parties agreed to an adjournment to facilitate these amendments. 15 A number of amendments were made, resulting in the plan being referred to the Department of Planning in respect of classification of the building under the BCA and what associated fire safety measures were to be included. A difference of opinion was expressed as to whether the building should provide fire safety for a Class 6 or Class 9(b) building. 16 Subsequently further amended plans were filed on 8 February 2007. These plans specifically address the emergency fire exit concerns by the provision of a new, recessed, outward opening door from the lounge area, which is fitted with the appropriate panic bar. I understand from the submissions that this specification complies the BCA requirement for this class of building. Conclusion 17 Having considered the evidence, I am now satisfied that the consent can be granted subjected to the agreed conditions. The proposal was initially assessed and on its merits, approved for the trial period. 18 It is apparent that no substantive matters have been raised against this proposal as a result of the trial period operation that would warrant its refusal. 19 Insofar as objections were raised about the character of the area and possible use of alcohol on the premises, the conditions of consent are imposed to retrict this possibility. 20 In the ultimate, I accept that the final amendments on the plan filed 8 February 2007 satisfactorily address the BCA requirements, so as to enable final consent. In reaching this conclusion, I note that Mr Winnacott and Mr A Cowell (council's senior development assessment officer) agreed that if the premises were operated in accordance with the management plan and the aforementioned BCA upgrading works were completed, then the health safety and security of occupants would be satisfactory for the consent and accordingly the following orders are made. Court orders 1. The appeal is allowed. 2. Development consent is granted for DA 485/2006 for the use of the premises at 18 Ferndell Street, Granville, as a brothel and swingers club, subject to the conditions in Annexure 'A'. 3. The exhibits may be returned except fort Exhibits 1, 4, A, B and C. ___________________ R Hussey Commissioner of the Court Rjs/lr 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.