Land and Environment Court New South Wales Medium Neutral Citation: Sydney Sport and Leisure Pty Limited v City of Sydney Council [2013] NSWLEC 1090 Hearing dates: 18 April 2013 Decision date: 19 April 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development application DA2012/730 to use an existing building at 22 Burton Street Darlinghurst for a brothel is approved subject to the conditions set out in Annexure A. 3. The exhibits are returned with the exception of exhibit 3. Catchwords: DEVELOPMENT APPLICATION: use of existing building t for a brothel - proximity to residential properties - proximity to other restricted premises - incompatible hours of operation Legislation Cited: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 Sydney Local Environmental Plan 2012 Cases Cited: Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472 Wehbe v Pittwater Council (2007) 156 LGERA 466 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Sydney Sport and Leisure Pty Limited (Applicant) City of Sydney Council (Respondent) Representation: Mr A Gough, solicitor (Applicant) Ms S Duggan SC (Respondent) Solicitors Storey & Gough Lawyers (Applicant) City of Sydney Council (Respondent) File Number(s): 11218 of 2012 Judgment 1COMMISSIONER: This is an appeal against the refusal by the City of Sydney Council of Development Application No D/2012/730 to use an existing building at 22 Burton Street, Darlinghurst for a brothel. The brothel will contain five working rooms and operate from 10am to 2am, 7 days per week. The brothel is to specialise in bondage and sado-masochistic services. 2The council maintains that the application should be refused because: 1. this site is not suitable as it is adjacent to, and overlooked by, a residential property, and will affect the amenity of the area. 2. the site is not suitable as it is within 75 m of an existing approved restricted premises. 3. the hours of operation are incompatible with the surrounding residential uses. 3The council did not press the contentions relating to the impacts on the surrounding road network, and on-site parking. The public interest is addressed as part of the contested contentions, and the contention relating to the adequacy of the plans was not a matter, in my view, that required any further action by the parties. The site 4The site is located on the northern side of Burton Street adjacent to the intersection of Burton and Foley Streets to the south, and Burton and Riley Streets to the west at Darlinghurst. The site has an area of 199 sq m, slopes from south to north, and is generally rectangular, with the exception of a 1.3 m deviation on the northern boundary. 5The site is occupied by a 2 and 3 storey stone and brick cottage. A secure car park with vehicular access from Riley Street is located at the rear. An easement for parking benefits 20 Burton Street and the site. Access to the rear car park is over the rear of 20 Burton Street, via a Right of Way. The car park on the site is enclosed with masonry walls generally 6 m in height. 6Surrounding development is mixed in nature. Burton Street is characterised by commercial and retail uses, with residential properties to the north of the site on Riley and Little Burton Street. Oxford Street, to the north of the site, is a prominent commercial street, with a mix of residential, commercial and retail functions, including bars, nightclubs, restaurants, and some sex industry related premises. A two storey residential terrace is located at 170 Riley Street, which adjoins the rear boundary of the site. Additional houses are located north of this property. Relevant planning controls 7The site is currently zoned B4 Mixed Use under Sydney Local Environmental Plan 2012 (LEP 2012). The proposed use is permissible within this zone. The objectives for the zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage, and encourage walking and cycling. • To ensure uses support the viability of centres. 8The site is a heritage item of local significance (Item i 225) although the council raised no heritage contentions. Clause 7.21(iii) states: Development consent must not be granted to development for the purposes of sex services premises that are proposed to be located in a building containing one or more dwellings, unless the sex service premises can only be accessed by a separate street entrance that does not provide access to the rest of the building. 9Section 4.4.6 of the Sydney Development Control Plan 2012 (DCP 2012) applies with the requirements for sex industry premises and adult entertainment. 10As the development application was made but not determined before the commencement of LEP 2012 the savings and transitional provisions in cl 1.8A apply. These require the application to be determined "as if this plan has been exhibited but not commenced". 11The planning instrument that applied to the site before the commencement of LEP 2012 was South Sydney Local Environmental Plan 1998 (LEP 1998), where the site was within Zone No. 10 - the Mixed Use Zone. The proposed development was permissible in this zone. The relevant zone objectives are: (a) To allow, in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light industrial, and industrial development. (b) To promote mixed use planning by locating mutually supportive and compatible uses, such as residential uses, places of employment, and retail uses, in close proximity to each other so as to minimise vehicular traffic. (f) To encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage, and encourage travel by foot, and bicycle from surrounding areas. (g) To minimise any adverse impacts on a residential amenity by devising appropriate design assessment criteria, and applying specified impact mitigation requirements by the use of development control plans. (h) To ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic, or other factors, is controlled so as to preserve the quality of life for residents in the area. 12Clause 10 provides that consent must not be granted unless the proposed development is consistent with the objectives of the relevant zone. 13City of Sydney Adult Entertainment and Sex Industries Premises Development Control Plan 2006 (DCP 2006) was referred to although there was agreement that the requirements in DCP 2012 and DCP 2006 provided similar requirements. Proximity to residential development The evidence 14Expert town planning evidence was provided by Mr Anthony Betros for the applicant, and Ms Nadia El Botati for the council. Both experts agree that the site is in conflict with cl 4.4.6(1)(b) of the DCP 2012 that provides: 1. Adult entertainment and sex industry premises must not be located: (b) immediately adjacent, or directly opposite, to land developed for residential purposes. 15The residential property in question is 170 Riley Street that shares part of its southern side boundary with the rear boundary of the site. The properties are separated by a brick wall some 6 m in height. 16Ms El Botati states that the presence of the brothel adjoining a residential property will have an unacceptable impact on the amenity of the property by way of: 1. a perception and knowledge of the existence of the brothel on the adjoining property. 2. an adverse impact on the neighbourhood by the number of persons, staff and clients, visiting the site. 3. the scale of the proposal, although Ms El Botati states that it would be unacceptable at any scale. 4. additional noise from clients and staff. 5. the character of the neighbourhood will be changed. 6. the trading hours extend beyond the trading hours of other businesses in the area. 7. the likely use of the entrance off Riley Street, notwithstanding the proposal is to use Burton Street. 8. the inability to ensure that the Burton Street entrance is used. 17Ms El Botati concludes by stating that: The objectives of the location controls of the Sex Industries Premises DCP and DCP 2012, are to ensure that sex industry premises are located in appropriate areas that will not have an adverse impact on the character, or amenity of the area. 18In her opinion, the application fails these objectives. 19Mr Betros comes to a different conclusion. He states that adjoining residential property has a blank south facing wall, some 6 m in height, that faces towards the site. The only potential overlooking is from the fixed window at the landing on the stair that leads to the third level attic of the dwelling. The sill height of the window is some 1.8 m. On this basis there can be no overlooking issues. 20Mr Betros states there are no amenity issues associated with the proposal given that it is a relatively small brothel of five rooms, access will be from Burton Street (with the exception of clients that have a disability) and the existing high levels of vehicular and pedestrian traffic associated with the activities on Oxford Street nearby. On this basis, the proposed development is consistent with the objectives for the standard in the DCP. Findings 21The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472 (at pars 83-92) and includes a review of recent judgments on this issue. Relevantly at par 87 his Honour states: A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental plan, however a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. 22His Honour further states (at par 87), the principles relevant to consideration of development control plans, these include the matters raised in the preceding paragraph, and a number of specific matters that determine the weight to be given to the development control plan. 23The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ (at par) 75 raises three important propositions. First, that although the Court has a wide-ranging discretion, the discretion is not unfettered. Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision making process, particularly if there are no issues relating to compliance with a Local Environmental Plan. Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process, but is not in itself determinative. 24In this case there was no dispute that the development was in breach of the DCP control that stated that development must not "be immediately adjacent to land developed for residential purposes". Stockland and Zhang do not require the application be refused because of this non-compliance, only that the requirement be a fundamental element in, or at the focal point in the decision making process. 25In Wehbe v Pittwater Council (2007) 156 LGERA 466 the Preston CJ identified a number of ways of establishing that compliance with the development standard in a local environmental plan is unreasonable or unnecessary. He notes that the most commonly used way is to show that the objectives of the development standard are achieved notwithstanding noncompliance with the standard. In my view this is equally applicable for standards in a DCP. 26The objectives in cl 4.4.6 that relate to the Location of Premises are: (a) Provide criteria for the location, design and ongoing management of premises used for the purposes of adult education and sex industry uses to: (i) address the health and safety of staff and visitors; (ii) minimise adverse impacts that may be generated by the premises, including traffic and noise; and (iii) ensure high levels of internal and external amenity. (b) Ensure sex service premises do not interfere with the amenity of the neighbourhood. 27In considering the objectives that relate to the location of the premises, that being (a)(ii), (a)(iii), and (b), I agree with the conclusion of Mr Betros for a number of reasons. I accept that the adverse impacts are minimised by firstly providing access from Burton Street, where the character is predominantly commercial. While Ms El Botati maintains that the vehicular access to the parking of Riley Street would likely be used by clients, I am not convinced that this will be the case given the ability to deny access to the brothel clients from this location, by the operators. It is also a requirement in the conditions of consent, and I accept that this can be addressed appropriately through a Plan of Management. 28I understand Ms El Botati to accept that if clients are restricted to the Burton Street entrance the amenity concerns to residents would be acceptable. 29Secondly, the only potential location for overlooking could not be seen as a location that would impact on the amenity of the residents of 170 Riley Street given that the window is fixed, had a sill height of 1.8 m, and is on the landing of a stair to the attic. In any event, the window can only provide glimpses of the building, and not to the activities within the building. 30Third, any noise associated with clients is likely to be restricted to the Burton Street frontage given the entrance is in this street. 31Fourth, the size of the brothel is relatively small at five working rooms. While greater detail on likely customers would have been helpful, I am satisfied that the proposal will not generate a large number of clients, and that these clients will not adversely impact on the area given the high level of pedestrian and vehicular traffic around Oxford Street, particularly on weekends. The patronage figures suggested by Ms El Botati are, in my view, overstated. 32Fifth, the hours of operation until 2am are potentially a problem, however given the orientation of the entrance away from the residential properties in Riley Street, and the acceptance of a trial period for the hours of operation, I am satisfied that the 2am closing should remain and be assessed after the trial period. 33For these reasons I find that the proposed development is not in conflict with the relevant objectives in cl 4.4.6 and that any adverse impacts are minimised, and that the proposal will not interfere with the amenity of the neighbourhood. Proximity to other restricted premises The evidence 34The second breach of the DCP related to the existence of an existing adult entertainment premises within 75 m radius of the site. The experts agreed that the premises, "The Toolshed", was located 71 m from the site. Ms El Botati stated that the proposed site is unsuitable because it is within 75 m of The Toolshed. In her opinion, this creates an over-concentration of adult entertainment as sex industry premises, and this proliferation impacts on the character and identity of the locality from a predominantly mixed use area into an actual, or perceived, red light district. 35Mr Betros states that the relationship between the two premises is affected by a lack of visual connectivity, the divide of Oxford Street, and the different nature of the two uses. In his opinion a 4 m difference is indiscernible, and would not create any impact. Mr Betros notes that while the DCP provides for a radius, or a distance as the crow flies, the pedestrian path of travel would exceed 75 m. Findings 36The relevant objective is found in cl 3.1.1(c) of DCP 2006 and states: (c) to prevent any adverse impact on the character or amenity of the area, and neighbouring properties, which may result from the concentration and/or accumulation of adult entertainment and sex industry premises. The relevant objective is found in cl 7.21(b) of LEP 2012 and states: (b) taking into account the accumulative impact of the sex service premises along with other sex service premises operating in the neighbourhood during similar hours. 37In considering the objectives in DCP 2006, and LEP 2012, I agree with the conclusions of Mr Betros. Again non-compliance does not mean the application must be refused. I accept that the separation distance of 71 m, the lack of visual connectivity, and the significant physical barrier created by Oxford Street, prevents any adverse impact on the character around the site brought about by a potential concentration of adult entertainment and sex industry premises. The suggestion that two adult entertain premises creates a red light area is again clearly overstated. 38For similar reasons there are no cumulative impacts that would warrant refusal of the application. 39In accordance with cl 10 of LEP 1988 I find that the proposed development is consistent with the zone objectives for Zone No. 10 - the Mixed Use Zone. 40In accordance with cl 2.3(2) I have had regard to the objectives for Zone B4 under LEP 2012 and find there is no basis to refuse the development application. Conditions 41Of the council's draft conditions only condition 2 was in dispute. Condition 2 provides for a time limited consent. The applicant opposed this condition on the basis of the costs associated with the fit out of the building, and the lack of impacts created by the proposed development. Having found that there were no amenity impacts that would likely affect the amenity of the neighbourhood, and with the trial period for 2am closing operating hours, I agree that the condition can be deleted. Orders 42The orders of the Court are: 1. The appeal is upheld. 2. Development application DA2012/730 to use an existing building at 22 Burton Street Darlinghurst for a brothel is approved subject to the conditions set out in Annexure A. 3. The exhibits are returned with the exception of exhibit 3. _____________ G T Brown 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: 31 May 2013