Land and Environment Court New South Wales Medium Neutral Citation: Boston Blyth Fleming v Kogarah City Council [2011] NSWLEC 1050 Hearing dates: 2 March 2011 Decision date: 02 March 2011 Before: Morris C Decision: 1. The appeal is upheld. 2. Development Application No. 384/2010 for the fitout and use of an existing building at Lot 6 DP 217221 No. 65 Planthurst Road, Carlton for the purposes of a brothel is approved subject to the conditions in Annexure "A". 3. The exhibits, other than Exhibit A, can be returned. Catchwords: Consent Orders; Brothel; Proximity to sensitive land uses; Development Standards; SEPP 1 objection. Legislation Cited: Environmental Planning and Assessment Act, 1979; Kogarah Local Environmental Plan 1998; State Environmental Planning Policy No 1 - Development Standards Texts Cited: Development Control Plan No. 15 - Regulation of Brothels Category: Principal judgment Parties: Boston Blyth Fleming (Applicant) Kogarah City Council (Respondent) Representation: Counsel: Mr M Staunton, Barrister (Applicant) Ms C Schofield (Respondent) Solicitors: Sattler & Associates (Applicant) Pikes Lawyers (Respondent) File Number(s): 11067 of 2010 Judgment 1This is an appeal under s 96(1) of the Environmental Planning and Assessment Act, 1979 (the Act) against the deemed refusal by Kogarah City Council (the council) of a development application which seeks the use of an existing building at No. 65 Planthurst Road, Carlton (the site) as a brothel. 2Leave was granted during the proceedings to change the applicant to Boston Blyth Fleming, the applicant responsible for lodgement of the original development application to the council. 3The issues between the parties have been resolved and they are seeking orders from the Court. The site and its locality 4The site is located on the western side of Planthurst Road, having a radial frontage of 10.82m and site area of approximately 1233m 2 . This section of Planthurst Road is a circuit having two access points off Bellevue Parade. An open Sydney Water stormwater channel runs adjacent to the rear boundary of the site and separates the light industrial area from the adjacent residential area in West Street and Blakesley Road. The width of the drainage reserve is approximately 11-12m and it is vegetated so as to provide a buffer between the two zones. The site also provides a 9m wide riparian vegetation buffer between an existing concrete carpark at the rear of the site and the canal. A distance of approximately 20m separates the carpark portion of the site from the closest residential property which is in West Street. The site is some 5m higher than the adjacent residential zone due to the embankment of the site and channel. 5A single storey factory building, formerly used as a smash repair business is erected on the site. Vehicular access to the site is provided from a single driveway located along the northern side of the site that provides access to a rear carpark which can accommodate seven cars. Four of these spaces are provided in a stacked arrangement and it is intended that these be reserved for staff of the premises. Development in the vicinity of the site comprises a range of light industrial premises and the council's works depot. 6P J Ferry Reserve is located on the corner of Bellevue Parade and Blakesley Road, approximately 300m from the proposed brothel. That reserve contains a community facility and playground equipment. There is a local park in West Street that also contains playground equipment. There are no pedestrian or vehicular linkages available across the channel from Planthurst Road to West Street and the evidence provided indicates the reserve is some 500m walk from the site. The proposal 7The development application proposes the fitout of the building to provide internal carparking for five cars accessed through an existing roller shutter door to be widened to improve access through the northern wall of the building off the driveway. New walls and ceilings would be installed within the remainder of the building to provide an entry lobby, reception/waiting room, three private waiting rooms, six workrooms (all containing en-suite areas), customer WC and staff amenity/administration areas and laundry. A 2.4m high colourbond fence is proposed to enclose the rear carpark area to ensure the site is not visible from any of the residential properties in West Street. A maximum of six sex workers, one receptionist and one manager are proposed on site at any time. It is proposed that the brothel operate on a 24 hour basis. The planning controls 8The site is zoned Industrial 4(a) -Industrial (Light) Zone under Kogarah Local Environmental Plan 1998 (the LEP) . Land on the other side of the channel is zoned Residential 2(a) - Residential (Low Density). 9Development Control Plan No. 15 - Regulation of Brothels (the DCP) applies to the site and provides general controls to support the LEP. 10In accordance with the Court's Practice Note, all persons who lodged submissions to the council in relation to the application have been notified of the content of the proposed orders and conditions of consent and provided with an opportunity to present their views to the Court. 11During the site inspection, I heard evidence from Mr Nolan and Mrs Perkins, residents of Blakesley Road, Mrs Korkatis a resident of Planthurst Road (the residential section of the road) and Mrs Cvetkovska, a resident of West Street. Issues raised were: Concerned the area would become the red light district for the area. They are experiencing problems regarding patron behaviour and parking from the brothel in Bellevue Parade and do not want another brothel in the area. Opposed to brothels in the area. Concerned about the impact of brothels on their children, property values and the general amenity of the area. 12In considering the merit issues, I have regard to the council's LEP and DCP. Brothels are not identified as a prohibited use within the 4(a) Zone and are therefore permitted with consent. The objectives of that zone, to which the consent authority must be satisfied a proposed use is consistent with, are: (a) to recognise existing industry and to encourage the establishment of new light industry so as to expand the local employment base, (b) to minimise the impact of industry and other permitted uses on adjoining lands, (c) to enable limited retailing of bulky goods where this is unlikely to detract from the role and function of land zoned for business purposes, and (d) to enable limited development for commercial premises to enhance the viability of land uses within the industrial zones. 13The parties agree that the development is consistent with the relevant objective, being objective (b). 14Clause 23 of the LEP has specific criteria to be considered in determining applications for brothels. The objectives of the clause are: To ensure that the operation of brothels meets community standards and does not adversely affect the amenity of land used for educational, recreational, residential, cultural, community or neighbourhood business purposes. 15Subclause (1) requires: Despite any other provision of this plan, premises shall not be erected or used for the purpose of a brothel where they are located: (a) on land within the Residential 2 (a) or 2 (b) Zone or within 50 metres of any such land, or (b) adjacent to any property used or partly used for residential purposes, or (c) within 50 metres of a railway station ingress or egress point adjacent to a public footpath, or (d) near or within view from any church, hospital, community facility, school or public open space or any place regularly frequented by children for recreational or cultural activities. 16Subclause (2) requires consideration of the following matters: (a) whether the brothel will operate near or within view from a church, hospital, community facility, school, public open space or any place regularly frequented by children for recreation or cultural activities, and (b) whether the operation of the brothel is likely to cause a disturbance in the neighbourhood when taking into account any other brothels operating in the neighbourhood or other land uses within the neighbourhood involving similar hours of operation, and (c) whether the operation of the brothel is likely to cause a disturbance in the neighbourhood because of its size or the number of people working in it, and (d) whether the operation of the brothel is likely to interfere with the amenity of the neighbourhood, and (e) any other environmental planning matter that the Council considers is relevant. 17An objection to the development standards incorporated in clauses 23(1)(a) and (b) was lodged with the application. The council agrees that the objection is well founded. I consider this issue later in the judgment. 18The DCP provides further matters for consideration to that contained within the LEP and limits the areas where brothels can be located to four areas, one being the 3(b) business zone within the Kogarah Town Centre (excluding the area fronting Regent Street between Premier Street and Gladstone Street) and the other three being light industrial zones in Kogarah, South Hurstville and Carlton. The site is located within the Carlton precinct identified in the map referenced in cl 1.6 of the DCP as an area where brothels can be located. 19Other controls within the DCP relate to the limitation of the size of premises, a maximum of six rooms being permitted, parking, layout, signage and health requirements. The proposed development provides parking in accordance with the requirements (12 spaces) and has been designed to address the criteria of the DCP. 20The parties agree, subject to the implementation of an approved Management Plan, that the site can be operated so as to comply with all of the DCP controls and be consistent with the zone objectives. A draft Management Plan has been prepared which addresses the operational requirements of the council. 21The conditions proposed address management, safety and regulatory requirements and are agreed between the parties. With the implementation of the Management Plan and compliance with the consent conditions, I find the development would not be antipathetic to the zone objectives. 22I note that the site does not meet the locational requirements, which are agreed to be development standards, of the council's LEP in that it is within 50m of a residential zone. Whilst being separated from a property used for residential purposes by a stormwater channel, it is adjacent to such a zone as the drainage reserve is zoned residential. 23Evidence provided during the view shows that the walking distance to the nearest residential property is 275m. There are no schools, pre-schools or churches situated within the immediate vicinity of the site however Blakehurst High School is some distance to the south of the site, with an access handle in West Street providing pedestrian access to the school. The nearest pre-school is located in Bellevue Parade, approximately 400m from the site and the nearest church is in Planthurst Road, some 400m to the east. The approved brothel in Bellevue Parade is 140m from the site. 24An objection to the development standards contained within cl 23 of the LEP was lodged and has been assessed by the council pursuant to the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP1). 25The purpose of the development standards is set out in the objective of clause 23 of the LEP and its prime purpose is to provide an adequate separation between any brothel and dwellings to protect the amenity of a range of sensitive land uses described in the clause. 26I am satisfied that the separation and walking distance between the site and nearby dwellings, the circular nature of this section of Planthurst Road and the lack of visible and physical connections between the site and those dwellings and other sensitive premises achieves the objectives of the development standards. 27I have considered the objections to these development standards, the purpose of the standards, the aims of SEPP1, whether compliance with the standard is reasonable or necessary and whether the objection is well founded. I have also considered a comprehensive assessment report prepared by the council and tendered in the proceedings and I agree with the council that in the circumstances of the case, compliance with those standards is unreasonable and unnecessary. I also find that the proposal would be consistent with the aims of SEPP1, and that the objection to the development standards is well founded. Accordingly, variation to those development standards is appropriate. 28I am mindful of the concerns of residents in relation to locational issues however I note that the council's DCP restricts areas where brothels can be located and it is that policy position that leads to the application before the Court as the site is located within one of those areas. 29Having heard from the parties and considered the relevant matters raised by s 79C of the Act, and considering the views of the NSW Police, St George Local Area Command that it does not raise any objections to the use provided its recommendations are implemented, I am satisfied that the application can be approved and that the consent orders ought to be made. Draft consent conditions, further amended to more accurately reflect the recommendations of the Police, were tendered in the proceedings and are agreed. 30By consent, the Court orders: 1. The appeal is upheld. 2. Development Application No. 384/2010 for the fitout and use of an existing building at Lot 6 DP 217221 No. 65 Planthurst Road, Carlton for the purposes of a brothel is approved subject to the conditions in Annexure "A". 3. The exhibits, other than Exhibit A, can be returned. Sue Morris Commissioner of the Court ********** 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. Decision last updated: 14 March 2011