Land and Environment Court of New South Wales CITATION : Sansiro Group Pty Ltd v Parramatta City Council [2010] NSWLEC 1065 APPLICANT Sansiro Group Pty Ltd PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10811 of 2009 and 10897 of 2009 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- brothel, access/parking, security, plan of management, building certificate Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Parramatta City Centre Local Environmental Plan Parramatta City Centre Development Control Plan 2007 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 CASES CITED: Krausman v Parramatta City Council [2004] NSWLEC 503 Huang v Parramatta City Council [2009] NSWLEC 1401 DATES OF HEARING: 1 March 2010 and 3 March 2010 DATE OF JUDGMENT: 29 March 2010 APPLICANT: Mr G Newport (barrister) SOLICITOR Law & Planning LEGAL REPRESENTATIVES: RESPONDENT: Mr P Marincowitz (solicitor) SOLICITOR Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 29 March 2010 10811 of 2009 10897 of 2009 Sansiro Group Pty Ltd v Parramatta City Council JUDGMENT Background. 1 These proceedings involve the following 2 appeals that the paries agreed be heard concurrently: Appeal No 10811 of 2009: An appeal against council's refusal of a development application for the intensification of an approved sex services premises located at No 35 Macquarie Street, Parramatta. Appeal No 10897 of 2009: An appeal against council's refusal to issue a Building Certificate relating to associated building works at No 35 Macquarie Street, Parramatta. 2 It was also agreed by the parties that the determination of merits of the development application would effectively enable resolution of the Building Certificate appeal. 3 The contentions identified by council are summarised as follows: The adequacy of car parking provision. Compliance with the DCP controls concerning safety/security. Social impact/public interest. Unauthorised works. The site 4 This site has frontage to 22A Hunter Street, Parramatta and is described as Lot A DP 358326. There is a 2 – storey commercial building on the site and it backs onto the south western corner of No 35 Macquarie Street. The conditional consent for the existing brothel to operate was granted in August 2007 5 The surrounding precinct generally consists of commercial buildings with a 90 place day care centre approved at 35 Macquarie Street, which is not currently operating. The proposal 6 This proposed intensification of use involves: Increasing the number of sex workers from 2 to 8 Increasing the number of client rooms from the approved 6 to 8 Change the approved hours of operation from 10am to 10pm daily to that of 11am to 3am daily Provision of a security guard on the premises between the hours of 8pm to 5am. Provision of an administration officer Fitout of the front section of the ground floor level Blacking out of the 2 windows facing Hunter Street Alterations to the 1 st floor layout Provision of disabled access ramp from the footpath in Hunter Street to the proposed new entrance. The provision of 5 car parking spaces. 7 The application is submitted on the basis of a limited term consent of 2 years pending the development of a more significant contemporary building consistent with the surrounding buildings. Planning controls 8 The following controls are relevant: Parramatta City Centre LEP ; under which the site is zoned Mixed Use 4. A sex services premises is permissible with consent in this zone. The LEP contains specific matters for consideration in determining a development application including: o Cl 10; Land Use Zones o Cl 12; Zone Objectives and Land Use Table o Cl 22; Floor Space Ratio o Cl 29B Restricted Premises and Sex Services Premises 9 The Parramatta City Centre DCP 2007; contains the following relevant controls: o Part 3.2; Active Street Frontages o Part 3.4; Safety and Security o Part 4.0; Access, Parking and Services o Part 7.4; Controls for Special Uses The evidence 10 Detailed evidence was presented by Mr A Middlemiss; Senior development officer for council Mr C Weston; Consulting planner for applicant Mr N Mamouzelos; Crime & Corruption advisor Ms R Barretto; Council's Traffic & Transport Engineer Mr D Ball; Building Surveyor for applicant Mr S Papadoniou; Building Surveyor for council Sen. Constable G Neal; Crime Prevention Officer, Parramatte. 11 During the lead up to the appeal hearing, conferencing by the parties reduced the outstanding issues, so that the main issue concerns the access and parking arrangements. The other issues concern the adequacy of the Plan of Management (POM) and safety and security associated with the proposed brothel operation. Access and parking 12 It is apparent that the traffic issue is somewhat compromised because of the conditions imposed on the original consent granted in 2007. That consent was for a sex services premises comprising 6 client rooms and 2 sex workers. The consent required the provision of 1 car parking space for the exclusive use of the brothel and another presumably for use in connection with the remainder of the building. These 2 spaces were located at the front of the building and aligned across the footpath at an awkward angle between 2 larger trees. 13 Ms Barretto assessed the traffic issue on the basis of AS 2890.6:2009 and council's Sex Services DCP. She expressed concerns about the development saying that the parking should be assessed on the basis of the number of spaces required for a new development, rather than the incremental change from 6 working rooms to 8 working rooms. Accordingly, this results in a requirement of 4 – off street spaces. 14 As the amended parking plan shows 5 car spaces (2 fronting the building, 1 being designated for 'disabled car space' and 3 stacked spaces on the western side of the property, this number is considered acceptable, but their location and associated manoeuvring is not due to: Difficult access due to the location of the 2 existing street trees. Inadequate building set back to achieve the car spaces, particularly the disabled space. Likelihood of parking encroaching on the footpath. Insufficient width along the side boundary to allow adequate door opening Unsatisfactory movements generated by vehicle reversing from the site because there is insufficient area to permit to allow turning on the site. 15 Ms Barretto concludes that the proposed intensification of the use of the premises is unacceptable on traffic grounds because: "The layout of the on – site parking spaces is considered in adequate and vehicular manoeuvrability into and out of the is unacceptably difficult. The 2 off – street parking spaces fronting the building and located on the footpath are considered unacceptable and access into and out of these proposed spaces is considered 'impossible' if not 'difficult' due to existing trees on the footpath. Further parking on the footpath is illegal according to Rule 197 of the NSW Road Rules 2008. 16 However the planners also addressed this issue. They agreed that the Sex Services DCP requires 1 space/ 2 client rooms (ie it is not based on the number of workers or floor space), so that only 1 additional space would be required over that in the original consent. 17 There were no other significant points of disagreement between the planners except for the crime and security issues, which were dealt with separately by Mr Mamouzelos. Safety and security 18 Mr Mamouzelos provided a general overview of the types of crime in the area and the importance of security arrangements. Insofar as a considerable number of anti – social activities were identified, there was no substantive evidence to link them to the past operation of the brothel, or projected expanded use. 19 Mr Mamouzlos concluded that the expansion was unacceptable because it would bring an increased risk of crime against staff and customers, particularly robberies because of increased profits. He also considered the location inappropriate due to its visibility and that it would be unacceptable to allow the consumption of alcohol on the premises. 20 Senior Constable Neal also provided a detailed statement, which included an analysis of various crime activities in the Parramatta CBD. He says that there is little pedestrian movement in this part of Hunter Street and clients would be exposed to greater risks after 10pm. He did not think that adequate details of the security arrangements had been provided. In addition to this, he expressed concerns about the design of the building, its identification and increased visibility, and the adequacy of its CCTV coverage and lighting. Conclusions 21 Having carefully considered the evidence, the submissions and undertaken a view, I am satisfied this application merits conditional consent. Importantly, this application is for the expansion of an existing approved brothel that has operated over the period from 2007. The incremental change is from 6 working rooms to 8 and an increase in sex workers from 2 to 8. There is to be no obvious change to the appearance of this older style building. 22 Both the LEP and DCP permit appropriate brothels in the Mixed Use 4 zone. Whilst the DCP restricts the clustering of brothels, it appears from the evidence presented to the Court that this proposal reasonably satisfies these controls. 23 The main issue concerns the parking. Considering the different approaches by the respective experts, I am satisfied to accept that of the planners in respect of the number of spaces. The DCP controls are based on the number of work rooms to ascertain the maximum number of spaces. In this case there is an incremental increase of 2 work rooms, which translates to 1 extra space. As 2 spaces were previously required for these premises, a maximum of 3 is now reasonable, as agreed by the planners. 24 The 2 spaces previously approved were at the front of the building, in an awkward and undesirable location. Insofar as the proposal is for the parking within the side setback area, whilst there are limitations on this, nevertheless it seems this would be preferable to the footpath parking on safety, convenience and amenity grounds. The DCP does not differentiate between staff and clients who is to use the parking. 25 Accordingly, considering the proposed operating hours and the nature of this operation, it is likely that the optimum utility of the spaces will be made by staff. In these circumstances I am satisfied the use would predominantly be on a regular basis and the users would be familiar with the reversing movement onto the street. I then consider the provision of the 2 side spaces satisfactory for staff use, taking into account that improved lighting is required at the front corner of the building and that the exit movement will be generally early morning hours when road traffic is minimal. 26 Notwithstanding this, I consider it appropriate to provide a designated 'disabled parking space', within the property at the front south western corner. This location allows greater accessibility width for exit/entry to a vehicle. When this space is utilised, the management operation should include guidance when patrons reverse onto the street. 27 In reaching this conclusion, I consider this rationalisation of the parking represents a considerable improvement in amenity and safety from that allowed under the current consent. 28 I have also taken into account the location of the property within the Parramatta CBD where there is a high level of access to a range of public transport. There is also a considerable amount of time limited on – street car spaces and a large parking station nearby. For these reasons I consider it reasonable to exercise the discretion allowed in section 5.3 P.3 of the DCP. 29 There was a considerable amount of discussion about security at the premises. This involved references to the character of the operators. However, the Court attention was directed to the matter of Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 where the Chief Judge said: 38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant 30 In this regard, I have also considered the submissions regarding the authority in Krausman v Parramatta City Council [2004] NSWLEC 503 where Pain J said: 16 Having said that, I do not think that the Court operates in a legal vacuum when considering planning matters so that, for example, the Court may not grant consent for an activity which was otherwise illegal under other non-planning laws even if it considered it was permissible under the planning laws. The Court should consider any evidence which suggests that use of the premises may possibly lead to criminal or illegal activity in deciding whether consent should be granted to a development application or conditions which are appropriately imposed in relation to such a development consent. The evidence from the Police Service relied on by the Council in these proceedings fails to indicate that, should the Court determine to grant consent to the Applicant's development application, criminal activity would be likely to take place at the brothel. The submission made by the Council's solicitor in relation to the possibility that the police might make an application under s 3 of the Restricted Premises Act 1943 is not borne out by the evidence of Constable Perera who stated that he does not know if such an application would be made. 31 As previously mentioned, Mr Mamouzelos provided a detailed overview of possible crime and security implications. But there were no substantive links to the subject premises, which has been in operation since 2007. In the circumstances, it seems that the following comments of Dixon C in Huang v Parramatta City Council [2009] NSWLEC 1401 are relevant: 40 Council's crime and corruption officer Mr Mamouszelos provided a comprehensive report to the court on the issue of criminal activity and the connection with brothels in NSW. He gave sincere and informed evidence about his extensive experience with criminal activity concerning brothels in NSW and the council's area. I appreciate his expertise in this subject and his evidence was very useful in formulating security conditions for the consent and the security measures to be incorporated in the plan of management. However, as he appreciated while giving his oral evidence this is a permissible use in this locality and without specific evidence to relate a crime to this development a planning court has no power to refuse an otherwise acceptable development based on an assessment under section 79C of the EPA Act. The evidence is that he was not able to provide specific evidence about a connection between criminal activity and this application for a brothel. Although he was concerned about a clustering of brothels and an increase in criminal activity in this precinct as a consequence of an approval of this brothel again but he was not able to produce evidence to support such a conclusion. Consequently, it seems to me that the submissions in the subject matter are of a speculative nature. I think that the appropriate course of action is for little weight to be given to the submissions on the character of possible operators. Instead it is more relevant that any consent runs with the land and that the merits of the proposal be assessed on the basis that the operator will operate within the law. This in my view would be an appropriate application of the Jonah and Krausman authorities. I am satisfied that the operation of the brothel in accordance with conditions of consent and particularly the revised POM should achieve a satisfactory outcome. 32 Consequently, it seems to me that the submissions in the subject matter are of a speculative nature. I think that the appropriate course of action is for little weight to be given to the submissions of possible operators. Instead it is more relevant that any consent runs with the land and that the merits of the proposal be assessed on the basis that the operator will operate within the law. This in my view would be an appropriate application of the Jonah and Krausman authority. I am satisfied that the operation of the brothel in accordance with conditions of consent and particularly the revised POM should achieve a satisfactory outcome. 33 Importantly the conditions of consent require the provision of CCTV coverage of the entry area to the premises from Hunter Street as indicated by Sen Const Neal. Also, the security officer employed at the premises (at all times) is to be suitably accredited and licensed in accordance with relevant industry standards and a member of the Australian Security Industry Association Limited. Building Certificate 34 The conditions of consent require certain works to be completed within the deferred commencement timeframe. The building experts have considered these works, together with other works carried out at the premises and agree they satisfy the requirements for issue of the Building Certificate. Accordingly I am satisfied the Building Certificate appeal should be allowed and this certificate issued subject to satisfactory completion arrangements. 35 In the ultimate, I am satisfied that the incremental change in the intensification of this approved brothel, which is to operate within the conditions of consent should satisfy the relevant controls, particularly cl 29B of the LEP, to achieve a satisfactory outcome. Importantly, I note that this is a time limited consent for 2 years. Court orders 36 The Court orders 1 The appeal is upheld. 2 Development consent is granted to DA/109/2007 for the occupation and use of 22A Hunter Street, Parramatta as a brothel containing 8 work rooms subject to the conditions in Annexure A. 3 The exhibits may be returned except 2, 6, 8, B and F. ________________________ R Hussey Commissioner of the Court ljr Annexure 'A' Conditions of Consent Sansiro Group Pty Ltd v Parramatta City Council Brothel: 22A Hunter Street, Parramatta SCHEDULE 1: Deferred commencement condition 1. This consent shall not become operative until the Schedule 1 conditions have been satisfied. 2. Development Consent No. 109/2007 is to be surrendered to Parramatta City Council in accordance with section 104A of the Environmental Planning & Assessment Act and Regulation 97 of the Environmental Planning and Assessment Regulation. 3. The following documentation/certification prepared by an appropriately qualified person or persons must be submitted to Council prior to Occupation Certificate: Structural engineer's certificates for the building alterations; Wet area certification; A Final and Annual Fire Safety Certification that shall include all of the fire safety measures installed in the building; Certification for Fire door installation; and Certification of measures to protect the opening located within 3 metres of the side boundaries. 4. This consent will not be operational until Council notifies the applicant that it considers the issues identified in deferred commencement conditions 2 and 3 to have been satisfactorily completed. Deferred commencement conditions 2 and 3 must be complied with no later than 6 months after the date of this consent otherwise this consent will lapse. SCHEDULE 2: Operational conditions General Matters: 1 The development is to be carried out in compliance with the following plans and documentation listed below, except where amended by other conditions of this consent: Architectural plans No Issue Title Author Date 1011-09-A01 C Proposed Alterations to Existing Brothel Algorry Zappia & Associates Pty Ltd 16 December 2009 Documents Document Author Date Statement of Environmental Effects C.C. Weston & Associates March 2009 Plan of Management 10 March 2010 The Use of the Site: 2. This consent is until 31 March 2012.. Prior to 31 March 2012, if the applicant wishes to continue the use, a development application to continue the use of the premises as a brothel should be lodged with Council. Reason: To ensure the proper management of the brothel and protect the amenity of the surrounding residential properties 3. Staff members not involved in the provision of sexual services are to be suitably trained in the use of fire fighting equipment (i.e. portable fire extinguishers). A trained staff member is to be present on the premises at all times during brothel operation. Trained staff are to give basic instruction on the use and location of firefighting equipment and emergency procedures to all new staff at the commencement of their employment. Reason: To ensure staff are capable of using the equipment in the event of an emergency. 4. The days and hours of operation are restricted to 11am to 3am, 7 days a week. Any alterations to the above will require a further development consent. Reason: To minimise the impact on the amenity of the area. 5. The brothel is to operate with a maximum of eight (8) sex workers on site at any one time. Reason: To ensure that the development complies with the development consent. 6. The number of client service rooms, including the disabled service room in the premises is not to exceed eight (8) at all times. Reason: To ensure that the development complies with the development consent. 7. The total number of employees (including sex workers, administration staff, security guard) permitted onsite at any one time is 10. Reason: To ensure that the development complies with the development consent 8. Three (3) car parking spaces are to be provided on the site. (including 1 disabled parking space at the south western corner of the building), permanently marked on the pavement and used accordingly. The disabled parking space dimensions are to be in accordance with AS2890.6-2009. Reason: To ensure that the adequate car parking is provided. 9. Traffic facilities, such as; wheel stops, bollards, kerbs, signposting, pavement markings, lighting and speed humps, shall comply with AS2890.1-2004 Reason: To ensure compliance with the relevant standard 10. Clear sight lines shall be provided at the property boundary line to ensure adequate visibility between vehicles leaving the carpark and pedestrians along the frontage road footpath (in accordance with Figure 3.3 of AS2890.1-2004). The required sight lines to pedestrians or other vehicles in or around the site should not be compromised by the landscaping, signage fences, walls or display materials. Reason: To ensure adequate access is provided to the car parking area 11. The display or erection of any advertisement or signage external to the premises or visible from a public place is strictly prohibited. Reason: To protect the amenity of the area 12. No merchandise display relating to the proposed use is to be erected, displayed or exhibited in an access corridor (including stairwell to the premises). Reason: The maintain the amenity of the area. 13. The operation of the premises shall be in accordance with the Plan of Management referred to in condition 1. Reason: To ensure the safe and orderly operation of the premises. 14. The operation of the premises shall comply with the requirements in the NSW Health and Workcover publication "Health and Safety Guidelines for Brothels in NSW" (1997) or such other publication which may supersede these guidelines published by the same or equivalent regulatory agency. Reason: To ensure best practice standards. 15. All obsolete materials and combustible rubbish be removed from inside and outside the building (i.e. all materials unless they are absolutely necessary for the functioning of the business). Reason: To reduce the fire hazard. 16. Arrangements shall be made for a garbage collection service to be provided to the premises prior to the occupation of the building by the additional staff. Contaminated waste must be disposed of by a DEC's licensed waste collector. Reason: To ensure appropriate garbage collection is provided to the site. 17. Details of Business Registration/ABN No., Workers Compensation and Public Liability Insurance, together with book keeping records, Taxation and Employee records shall be kept on the premises at all times and made available upon request. Reason: To ensure the premises is operating within legal requirements 18. No sale or supply or consumption or display of alcohol may occur on the premises at any time. Reason: To ensure the proper management of the brothel and protect the amenity of the surrounding residential properties 19. The service rooms shall not be used for sleepovers at any time. Reason: To ensure the development complies with the development consent. 20. All employees at the premises are to have relevant identification available at the premises at all times. Reason: To ensure the premises is operating within legal requirements 21. Closed circuit video surveillance cameras shall be installed so as to provide coverage of the entry area to the premises from Hunter Street. The cameras shall be selected so as to provide images of a quality satisfactory to the Commander of the Parramatta Local Area Command of the NSW Police Service. The cameras shall record continuously while the Brothel is open for trade and for, at least, 30 minutes after the cessation of trading. The surveillance system shall display images in real time on screens where staff, security personnel and patrons can see them. All recording made by the system shall be kept for one month before being erased. All recordings shall be made available to the NSW Police Service and Council within 36 hours of any request received either in writing or electronically for access to them. Signs shall be displayed to the effect that the area is under video surveillance. Reason: To protect the amenity of the area. 21A The security officer employed at the premises shall be suitably accredited and licenced in accordance with relevant industry standards, and be a member of the Australian Security Industry Association Limited. Reason: To ensure suitable security officers are employed at the premises. 22. Operation of the spa pool is to be in accordance with the Public Health (Swimming Pools and Spa Pools) Regulation 2000. The pool must have an effective means of continuous disinfection to reduce transmission of pathaogenic micro-organisms in the water. Direction on the operation of a public pool is contained in the NSW Health publications 'Public swimming pool and spa pool guidelines' and 'Protocol for minimising the risk of cryptosporidium contamination in public swimming pools and spa pools' Reason: To ensure public health standards are maintained 23. Adequate ventilation is to be provided to all occupied areas of the building. Any ventilation systems installed shall be in accordance with plans and specifications approved by the principal certifying authority (PCA). Certification that the system/s function in accordance with Australian Standard AS 1668 (Parts 1 & 2) must be submitted to the PCA prior to occupation of that part of the building which is to be newly occupied pursuant to this development consent. Reason: To comply with the Building Code of Australia and relevant Australian Standards 24. Confirmation of waste removal arrangements for the ongoing use of the development is to be provided to Council. This is to include a copy of the contractor's waste agreement and shall contain details of collection of general waste and separate collection of recyclable materials and any contaminated waste. At all times 25. The building shall include the provision of a security / safe room for staff which can be secure in the event of intruders invading the site. Details of security devices including the provisions of a back to base security system shall be submitted to the Principal Certifying Authority prior to the issue of the Final Occupation Certificate. Reason: To ensure appropriate safety of staff on the site. 26. The main front entry / exit door in a required exit, forming part of a required exit or in the path of travel to a required exit must be readily open-able without a key from the side that faces a person seeking egress, by a single hand downward action or pushing action on a single device which is located between 900 mm and 1.2 m from the floor. Details showing compliance with this requirement must be submitted to the Principal Certifying Authority for approval prior to the issue of the Final Occupation Certificate. Reason: To ensure appropriate fire safety measures are installed. 27. All windows for this development on the first floor are to be frosted or opaque glazing and are to be permanently fixed. Details showing compliance with this requirement must be submitted to the Principal Certifying Authority for approved prior to the issue of the Final Occupation Certificate. Reason: To maintain amenity to the adjoining occupants and provide privacy to these rooms. Prior to Use/Occupation Certificate 28. An Annual Monitoring Fee for Restricted Premises and Sex Service Premises must be paid to Council. The Annual Monitoring Fee will be the amount stated from time to time in Council's adopted Fees and Charges. The first payment of the Annual Monitoring Fee must be made to Council prior to the issue of the Final Occupation Certificate and each subsequent annual payment must be made on each anniversary of the date on which the first payment was due to be paid. Reason: To comply with Council's adopted Fees and Charge document and to ensure compliance with conditions of consent. 29. [DELETED] 30. Occupation or use, either in part or full, of that part of the premises which is to be newly occupied pursuant to this development consent is not permitted until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with. Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council. Reason: To ensure the building is fit for occupation before occupation occurs. 31. A report by a qualified "access consultant" must be submitted to the Principal Certifying Authority certifying that the disabled sanitary facilities comply with the requirements of the Building Code of Australia and Australian Standard 1428. The certification shall be submitted prior to the issue of the occupation certificate. Reason: To ensure adequate facilities for disabled people. 32 A BCA compliance report shall be submitted to Council prior to the issue of a Final Occupation Certificate. Reason: To ensure compliance with the BCA. ______________________ 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.