Land and Environment Court of New South Wales CITATION : Yang v Hurstville City Council [2008] NSWLEC 89 APPLICANT Huang Yi Yang PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 11149 of 2007 and 11041 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- Brothel, separation to residential dwelling, amenity impacts, signage, lighting, s121B Order unauthorised use. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hurstville Local Environment Plan 1994 Martyn v Hornsby Shire Council [2004] NSWLEC 614 CASES CITED: Weynton v Rockdale City Council [1999] NSWLEC 273 Suzelle Antic v Sydney City Council [2006] NSWLEC 276 DATES OF HEARING: 19/02/2008 and 21/02/2008 DATE OF JUDGMENT: 28 February 2008 APPLICANT Dr S. Beverling, barrister LEGAL REPRESENTATIVES: RESPONDENT Ms J. Hewitt, solicitor of Home Wilkinson Lowry, Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 28 February 2008 11149 of 2007 Huang Yi Yang v Hurstville City Council 11041 of 2007 JUDGMENT Background. 1 These proceedings relate to a development application concerning an unauthorised brothel at 2/15 Stanley Street, Peakhurst and involves the following two appeals: i) 11149/07; an appeal against council's refusal of the brothel application. ii) 11041/07; an appeal against a s 121B Order to cease using the premises as a brothel. 2 The issues concern: + The location of the premises relative to its proximity to residential dwellings. + Adequacy of access to the premises, in terms of amenity, lighting and security. + Public interest. The site. 3 This site is a factory unit within a complex of 3 that is located off a battle-axe handle (ROC) connected to Stanley Street. It has an area of 176 sq m and it is proposed to use approximately 46 sq m for the brothel, with remainder parking and storage. 4 The site is mainly surrounded by other factory units, although there is a first floor level caretakers dwelling (No 13) adjacent to the battle-axe handle connection to Stanley Street. Another caretakers dwelling (No 20 Stanley Street) is located opposite the battle-axe handle. The proposal. 5 This proposal is for 2 rooms for sex services, a waiting room, laundry and kitchen area. The staffing involves 3 operational workers, manager/receptionist and after 5.00 pm, a male security person is to be present on site. 6 There are 6 designated car spaces available to the premises. 7 The proposed hours of operation are: Monday to Saturday; 10.00am to 11.00pm Sunday; 10.00am to 9.00pm. Planning controls. 8 Hurstville Local Environment Plan 1994; under which the site is in Zone No 4 (Light Industrial Zone) and the proposal is permissible with consent. Relevantly, the proposal is subject to the zone objectives in cl 8 and cl 16A – Sex Service Premises provisions. 9 Development Control Plan No 18 -Crime Prevention Through Environmental Design 10 Development Control Plan No 2- Car Parking. 11 Development Control Plan No 17 - Neighbour Notification. The evidence. 12 A joint planning report was prepared by Ms L Locke (Council planner) and Mr L Winnacott (Consulting planner). A number of objections were lodged from neighbouring premises, including the occupant of the caretakers' residence at 13 Stanley Street. Location 13 Ms Locke says that the premises is not satisfactory because it is within 100m of the residential dwelling at 13 Stanley Street and this does not comply with the controls in cl 16A (2) of the Hurstville Local Environment Plan 1994, which restricts brothels within 100 m of: (i) land within Zone No 2, or (ii) … (iii) land used for residential purposes. 14 The planners agree to the following separation distances from 13 Stanley Street: o 25m from the dwelling to the site boundary, o 47m from the dwelling to the factory unit, o 63m from the dwelling to the front entry door of the premises. 15 The resident from 13 Stanley Street has occupied this dwelling for some 25 years and since the unauthorised brothel has been operating for about the last 3 years has experienced: o Night-time disturbance and security risks from brothel clients mistakenly entering her property, o Noise nuisance from late night use of the access handle driveway adjacent to her boundary. o Antisocial behaviour by brothel clients. 16 In response to the 100 m separation issue, the applicant lodged a SEPP 1 Objection to the (agreed) development standard in cl 16A. The points supporting the submissions that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case are: o The dwellings the cause of the non-compliance with the development standard are prohibited (other than if attached to and ancillary to other buildings permitted in this zone); o The dwellings the cause of the non-compliance with the development standard are attached to and ancillary to the industrial buildings permitted in this zone; o To apply cl 16 A(2)(b)(iii) strictly in relation to dwellings attached to and ancillary to of the building the zone would preclude brothels in most parts of the zone; o The physical characteristics of the subject premises, the caretaker's cottage on 13 and 20 Stanley Street are such that the use of the subject premises for the purpose of sex services premises would not inappropriately impact on 13 and 20 Stanley Street. 17 The relevant objective for this separation development standard is to ensure that sex service premises are not located within or near land that is in a residential zone or used for residential purposes. In this matter the critical issue concerns the land used for residential purposes at No 13 and 20 Stanley Street, because the proposal is adequately separated from residentially zoned land. 18 In support of the proposal, Mr Winnacott says that this is a relatively small-scale brothel and unlikely to adversely effect the residential amenity at No 13 and No 20, with the controls proposed. In any case, he considers their amenity is likely to be diminished in comparison to that experienced in a residential zone. This occurs because of the different building appearance, lack of landscaping, increased industrial traffic, the likelihood of more noise and the absence of attractive outdoor spaces in the industrial zone. He says that a reasonable level of amenity can be achieved for the occupants of the residence and he supports the SEPP 1 Objection as being well founded. 19 Dr Berveling submits that reference to the LEP shows very limited areas for brothels in the Hurstville area, with the subject Peakhurst industrial zone being the main opportunity. As no detailed study has apparently been undertaken on the location of dwellings/ancillary dwellings in the industrial area, the restriction of the subject brothel would be onerous, particularly where the applicant agrees to control measures to maintain reasonable amenity impacts. 20 In my assessment, the brothel is discreetly located at the end of the battleaxe lot and generally complies with the development planning controls, except the separation distance to No 13. However, this property comprises a first floor level dwelling above an industrial unit and it is apparent to me that the property will experience a lower-level of amenity than one in predominantly residential zones. 21 Nevertheless, the location of the brothel is such that is not able to the overlooked from the dwelling. Also, the front entry to No 13 is some 63m from the brothel, from which there is no clear line of sight to the brothel. Whilst some amenity concerns emanating from the use of the ROC were raised, I consider they should be capable of control by better identification and directions and lighting leading to the subject premises. Also, the limitation on night-time trading until 10.00pm should assist in achieving a reasonable balance. Access 22 The main concern about access to the proposed brothel comes from the neighbour and the Police who were not satisfied with the existing lighting. In this regard, I have considered the applicant's response that the following works will be implemented: o Lighting is to be installed along the accessway to illuminate the entry to the premises, o Identification signage is to be installed at the Stanley Street alignment, o A landscape barrier is to be planted along the front 8m of the landscape setback strip adjacent to No 13 to better define the boundaries of No 15, o A security guard is to be stationed outside the brothel after 5pm, until closing, and should patrol and supervise entry and exit from the brothel in an orderly manner, o Discrete advertising only is to take place, which does not identify the street location so that appointments will be required and the address then made available. Conclusions. 23 Having considered the evidence, the submissions and undertaken a view I am satisfied that this proposal merits conditional consent. The brothel is located within the industrial zone as required by the LEP. Whilst it does not comply the separation distance of 100m to the land used for residential purposes at No 13 Stanley Street, nevertheless I have carefully considered the amenity impacts on this property. 24 I am satisfied that there is no overlooking into the brothel, there are no direct sight lines from the front of the dwelling to the brothel and the proposed management initiatives should ensure a reasonable level of amenity. 25 Accordingly, I am satisfied that in the circumstances of this case, the SEPP 1 objection to vary the separation distances, should be allowed and the brothel permitted to operate for a trial period of 2 years. 26 I rely on Mr Winnacott's evidence that the proposal represents a relatively small-scale brothel comprising 2 bedrooms, which is to be supervised by a receptionist and security person after 5 p.m. It seems to me that the security person can patrol and supervise the ROC to minimise any of the stated problems of misdirection by clients and associated anti-social behaviour, so that the amenity of these caretakers dwellings are maintained at a reasonable level. 27 I am inclined to give reduced weight to the proximity of the No 13 dwelling because it appears to be ancillary use to the predominant ground floor industrial/commercial use, however this is not determinative. As I have noted, there are no overlooking opportunities from the dwelling to the brothel and the entry to the brothel is some 63m away and can be clearly distinguished. Whilst some overlooking, at an oblique angle could occur to the driveway, I do not consider this of sufficient magnitude to warrant refusal, taking into account the aforementioned patron control measures. 28 Any misunderstanding of the exact location and entry to the brothel should be remedied by the new identification signage and access lighting to be installed. I note that the application was referred to the Police, who do not object, subject to the imposition of safety and lighting conditions, which are agreed to by the applicant. It also seems to me that this directional signage should facilitate patrons to drive to the parking areas adjacent to the brothel, thereby minimising anti-social behaviour near No 13. 29 Insofar as reference was made to the following cases, my assessment is as follows. Regarding the principles in Martyn v Hornsby Shire Council, they arose in different circumstances where there were no local controls for brothels. Notwithstanding this, I note those principles do not preclude brothels, provided they are located where they are least likely to offend, and the merit assessment satisfies this. 30 With regard to Weynton v Rockdale City Council, this relevantly deals with land being used for residential purposes. I accept this is the case with No 13 and 20, and have assessed the merits on this basis, despite the land having a light industrial zoning. Reference was also made to Suzelle Antic v Sydney City Council, in terms of the use of Plans of Management (POM). Whilst a POM is required as a condition of consent, I am satisfied such plan can be modified in a reliable manner, particularly taking into account the small scale of this brothel. 31 In the ultimate I am satisfied that the relevant industrial and sex industry objectives in the LEP are achieved. Notwithstanding this, I accept that this is a sensitive land use and that it should be subject to a 2 year trial period to ensure that the proposed security and safety measures result in a satisfactory level of amenity to the caretakers dwelling occupants and the general public. This includes the brothel having a latest closing time of 10.00 pm, during the trial period. 32 Consequently, the appeal in 11041/2007 is allowed, on the basis that the brothel operates in accordance with conditions of consent. Court Orders. 1. The appeal is upheld. 2. The SEPP 1 Objection to the 100m separation distance development standard in cl 16A(2)(b)(iii) of the LEP is allowed. 3. Development Consent is granted to D A No 20060413 for the use of the premises at 2/15 Stanley Street, Peakhurst for sex services/brothel subject to the conditions in Annexure 'A'. 4. In relation to Appeal No. 11041 of 2007: a. The appeal is upheld in part b. The s 121B Order is set aside. c. Order 4B is stayed until the conditions of consent for the operation of the brothel pursuant to the Appeal No. 11149 of 2007 have been satisfied. 5. The exhibits may be returned except for 1, 7, B and C. ___________________ R. Hussey 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.