Wei v Parramatta City Council [2008] NSWLEC 1157

Land and Environment Court of New South Wales

CITATION : Wei v Parramatta City Council [2008] NSWLEC 1157 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Xing Xing Wei PARTIES : RESPONDENT Parramatta City Council

FILE NUMBER(S) : 11309 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Application :- Commercial Brothel, parking, noise, privacy, inappropriate development, property values, red light district crime and undersirable elements.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Parramatta Local Environmental Plan 1997 Sydney Regional Environmental Plan 28 Parramatta Development Control Plan

DATES OF HEARING: 26/05/2008

EX TEMPORE JUDGMENT DATE : 26 May 2008

APPLICANT Mr M. Baird, barrister instructed by Mr B Barrack of Barrack Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr C. Drury, solicitor of DLA Phillips Fox Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

26 May 2008

11309 of 2007 Xing Xing Wei v Parramatta City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This is a Class 1 Appeal 11309 of 2007 between Xing Xing Wei v Parramatta City Council in regard to Development Application DA/54/2007 with a change of use of an existing first floor massage clinic to a commercial brothel. 2 No structural works are proposed to the premises but there would be refitting out of existing rooms. The plans accompanying the development application show the premises to contain two bedrooms, one bathroom, three waiting rooms and one make-up room and change room. 3 When we were on-site, two of the waiting rooms were shown to be an existing kitchenette and what had been a staff room in the massage clinic. One had to walk through the staffroom to get to the kitchenette. The applicant advised that those rooms would remain for those uses, leaving only a single waiting room. 4 The proposal is that only the two customer service rooms would be provided, and there would be a maximum of two sex workers on-site at any time plus a receptionist.The proposed hours of operation are 24 hours, 7 days a week. 5 The address of the property is 19 Brodie Street Rydalmere, which is nearly opposite the Rydalmere Railway Station. Along the same side of Brodie Street as the subject premises is a row of shops and commercial premises. There is a fast food outlet on the ground floor of the subject site and adjoining and there are other shops and commercial premises in the strip. 6 About 100 metres north of the subject site Brodie Street goes underneath Victoria Road where there is a major embankment and overpass of the railway and there are residential uses on the northern side of Victoria Road. 7 Just before the viaduct there is a service road at the foot of the embankment which is also part of Victoria Road and several commercial premises also front that service road. Along it is the St Johns Ambulance Training Centre and a number of other commercial premises, one of which is an adult bookstore or an adult goods store visible from Victoria Road. 8 Within the vicinity, and by that I mean extending as far as Euston Street to the east which would be several 100 metres away. There are several other operating brothels. However, looking at the distribution map in Appendix B, Exhibit 5 none are within sight of each other, there being five city blocks within which they are spread. 9 The subject property has an entry lobby off Brodie Street for the subject premises alone and a staircase to the upper floor. The area of the premises upstairs is approximately 87 square metres. The evidence showed that it is a fairly small operation so that there would be no great generation of either pedestrian or vehicular traffic. As a result, one car spot on the site would be provided for the use of the brothel, the other two car spaces being for the commercial premises on the ground floor. 10 The Rydalmere Shopping Centre apparently used to be under the Parramatta Local Environmental Plan 1997. However the currently applicable statute is Sydney Regional Environmental Plan 28 amendment 7 in which brothels are permissible with consent within the business and transport centre zone, that applies to the subject property. Clause 79 contains provisions in relation to brothels and matters that the consent authority must consider when determining an application to carry out development. 11 Under the previously applicable local environmental plan there were development control plans for the regulation of brothels and for the insurance of health in the premises which no longer apply. However the parties indicated to the Court that the premises would comply with that. 12 One of the provisions is the separation distance from the railway station, and it was shown to me on-site that if one takes even the direct line diagonally across Brodie Street to the railway station, the premises would be beyond the physical limit sought by the development control plan, and the other provisions are complied with. 13 The site itself is on the boundary of the business and transport centre and trade industry support centre in Rydalmere. It consists of a mixed neighbourhood centre business uses to the south, east and west of the site, generally confined between the railway, the Parramatta River and Victoria Road. There are residential uses as I have previously indicated on the northern side of Victoria Road about 200 metres from the site. 14 There had been 14 submissions and a petition containing 38 signatures received by Council in response to the notification of the application. The concerns raised were parking, noise, privacy, inappropriate development, property values, red light district and undesirable elements. The Council's Environmental Health Officer raised no concerns provided the appropriate health matters were included in the new fit-out of the premises and Council's waste management officer also raised no concerns subject to the appropriate conditions. 15 The New South Wales Police Rosehill Command had raised concerns and on the day of the hearing was represented by Senior Constable Carne. He indicated that the police department's major concern is prevention of crime. Premises such as this and other uses which held cash on the premises had been subject to armed robberies in the recent past and any new premises that might be prone to such criminal activity are of the concern to the police. 16 On-site, Senior Constable Carne indicated that if the development is to be approved that it should include back-to-base alarm and CCTV coverage as a deterrent to any armed hold-ups, and to control entry to the premises, and to record by TV any persons who might commit a criminal offence. 17 The parties discussed this and arrived at an additional condition to those already proposed by the Council. The parties came to the Court with consent orders and a number of conditions limiting the operation of the proposal as I have described previously. There is a joint report by the applicant's expert Mr Jones, town planner and the Council's senior development assessment town planner, Ms S Matthews who examined the required provisions of Sydney Regional Environmental Plan 28 and found that subject to appropriate conditions there was nothing which would prevent approval. 18 The Council had advised all of the objectors of the proposed consent orders and apart from the police only two other objectors sent letters confirming their continued opposition to the proposal. One is a premises some distance down Brodie Street from the proposal, a commercial artisan products outlet who is concerned about young travellers from the residential areas, school aged children and university personnel. The University of Western Sydney is on the opposite side of the railway to the premises. The other objection is complaining about parking capacity and saying the premises is only 100 metres from family orientated residential area and also the David Morgan Centre which is for handicapped young persons alleging that they come to the shopping centre for takeaway food et­cetera. 19 In regard to those objections the parties noted that the David Morgan Centre is also on the western side of the railway. The only way to get to it is by coming over the railway overpass on Victoria Road and descending a steep set of steps on the embankment, or continuing another 100 metres or so down along the embankment to the service road off Victoria Road and then returning. It is quite a distance for any handicapped person to achieve on foot. There is no visual connection between the two being on opposite sides of the railway station. 20 In regard to the residential area the experts feel that the premises are 200 metres away from the dwellings on the other side of Victoria Road. The road itself, the embankment and the overpass create a considerable separation between the uses. 21 The parking concerns had been dealt with by a joint parties expert, Mr Hallam, traffic engineer, who found that the conditions I have already envisaged would be totally sufficient for this small premises and small operation. In fact he felt that the one car space on-site might only be used by management, both patrons of such premises as these and the sex workers usually park well away or come by a taxi or other means of transport, rather than parking on-site. 22 Being adjacent to the university on the western side of the railway is another matter put by the parties as being not of sufficient impact to justify refusal. First of all the university students are usually adults and being on the opposite side of the railway the university is well separated from the proposal. 23 I was also told that the Rydalmere railway line is actually part of the Carlingford dead-end railway spur and provides only one train every forty minutes. It is not a major transport node and whilst there might be some school students that use the railway station they would normally be coming from the residential area on the northern side of Victoria Road to the railway station and not come down past the proposed brothel. There is no school in the near vicinity. The schools they would be heading for would be James Ruse at Carlingford or other schools along the line not at Rydalmere. 24 Clause 79 of the Regional Plan says,