Land and Environment Court New South Wales Medium Neutral Citation: Johol Nominees Pty Ltd v Muswellbrook Shire Council [2014] NSWLEC 1071 Hearing dates: 8 April 2014 Decision date: 17 April 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. DA 225/2013 for alterations and additions to an existing dwelling at 200 Bridge Street, Muswellbrook for the purposes of a sex services premises (brothel) is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and E. Catchwords: DEVELOPMENT APPLICATION: sex services premises - brothel - unsuitable location because of the proximity of dwellings and places regularly frequented by children - unsuitable access - noise impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Muswellbrook Local Environmental Plan 2009 Category: Principal judgment Parties: Johol Nominees Pty Ltd (Applicant) Muswellbrook Shire Council (Respondent) Representation: Mr G Tyrell, solicitor (Applicant) Mr A Pickup, solicitor (Respondent) McKees Legal Solutions (Applicant) Local Government Legal (Respondent) File Number(s): 10015 of 2014 Judgment 1COMMISSIONER: This is an appeal against the refusal by Muswellbrook Shire Council of DA 225/2013 for alterations and additions to an existing dwelling at 200 Bridge Street, Muswellbrook (the site) for a sex services premises (brothel). 2The proposed development includes: * internal modifications to add shower facilities to the existing three bedrooms of the dwelling for three self-contained working rooms, * demolition of an existing carport in the rear yard to accommodate six off-street car parking spaces, as well as a disabled compliance access ramp, with access via a right of way (ROW) from Wilkins Street, * staff facilities and a reception area, * 24 hours a day, seven days a week operation, and * four staff, plus security personnel, as required. 3The council maintains that the application should be refused as the proposal: 1. is located in an unsuitable location because the site is "in close visual or physical proximity to the entry of a premises used as a dwelling house" and "near or within view from ...premises used frequently by children", 2. has unsuitable access for the anticipated vehicle movements, 3. will create unacceptable noise impacts, 4. does not adopt a number of the councils conditions of consent, and 5. has an inadequate Plan of Management. 4A number of local residents provided evidence on the site inspection and supported the concerns of the council plus other additional concerns, including: * devaluation of properties and businesses, * prominent location, and * will attract undesirable people to the area. The site and surrounding area 5The site is Lot 7 in D P 37789. It is rectangular with a total site area of 850.7 sq m. The site currently has an existing single storey brick dwelling with an existing carport in the rear yard. 6The site is located at the northern end of the main commercial area of Muswellbrook although there is a mix of land uses near the site. The property immediately to the south at 198 Bridge Street is commercially zoned and operates as a retail electrical store (Betta Electrical). The property to the north at 202 Bridge Street is also commercially zoned and is operated as a drug and alcohol rehabilitation centre. Two dwelling houses are situated at 204 and 206 Bridge Street and are commercially zoned, and the property at 208 Bridge Street, is a heritage listed single storey commercial property. Relevant planning controls 7The site is zoned B2 - Local Centre under the Muswellbrook Local Environmental Plan 2009 (LEP 2009). The proposed use is characterised as a sex services premises, which is a permissible use, with consent in this zone. Clause 2.3(2) of LEP 2009 provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of the B2 zone are: · To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. · To encourage employment opportunities in accessible locations. · To maximise public transport patronage and encourage walking and cycling. · To maintain the status and encourage the future growth of the Muswellbrook established business centre as a retail, service, commercial and administrative centre while maintaining the centre's compact form. · To enable a wide range of land uses that are associated with, ancillary to, or supportive of the retail and service functions of a business centre. · To maintain the heritage character and value and streetscape of the business centre of Muswellbrook. · To support business development by way of the provisions of parking and other civic facilities. 8The council raised no issue in relation to cl 2.3(2). 9The Muswellbrook Shire Development Control Plan (the DCP) also applies to the site. Section 17 of the DCP relates to sex services premises and of particular relevance in this case is s 17.1.1 - Location. Is the location unsuitable? The evidence 10Section 17.1.1 addresses the location of sex services premises and states: Objectives a) To locate sex services premises and restricted premises where they are least likely to offend Controls (i) Sex services premises are not permitted in shop front premises. (ii) Access to or exit from a Services Premises and Restricted Premises shall not be located in close visual or physical proximity to the entry of a premises used as a dwelling house. (iii) Access to or exit from a Sex Services Premises and Restricted Premises shall not be near or within view from a church, community facility, transport terminal or stop, school, pedestrian thoroughfare or any place regularly frequented by children. (iv) Council will generally not grant development consent to a sex services premises having more than five (5) rooms where sex services are provided at any one time. 11Expert town planning evidence for council was provided by Mr Peter Fryar and for the applicant by Mr Anthony Tuxworth. 12Mr Fryar states that the proposed brothel location does not satisfy the controls contained within the DCP, specifically s 17.1.1(ii) and (iii). In relation to s 17.1.1(ii), Mr Fryar states that that the site is in close visual and physical proximity to properties that are used as dwelling houses. Although the site is situated within a B2 Local Centre zone, the locality is clearly characterised by a mix of commercial and residential land uses. Dwellings are located on sites two and three doors to the north and three doors to the south of the site. Accommodation is also provided in the Eatons Hotel. Dwellings are also situated on the opposite side of Bridge Street including a development currently under construction for serviced apartments. It is evident that a number of balconies within the serviced apartments will "look directly" into the front entrance of the proposed brothel. Persons entering the site from Bridge Street can only access the front entrance. The balconies are likely to be used by children who reside in the apartments as well as adults who may be offended by having to observe persons entering and leaving the brothel. 13There are also a number of dwelling houses situated at the rear of the site that are separated by the existing ROW and railway line. Access to the proposed car parking area to be constructed in the rear yard of the property will be via the ROW from Wilkins Street. Mr Fryar expresses concern about the proximity of the site to the dwelling houses to the rear particularly as a 24-hour/7 day operation is proposed. 14In relation to s 17.1.1(iii), Mr Fryar states that the site is near, or within view from a number of properties, which are regularly frequented by children, including the Eatons Hotel, the retail electrical store, the Benevolent Counselling Service and Hungry Jacks. The natural therapy centre situated two doors to the south include remedial massage, podiatry and iridology services. The clientele includes children. Also of concern is the relationship of the existing entry to the retail electrical store being directly adjacent to the proposed front entry for the brothel. The likelihood of children attending the retail electrical store confronting clients of the brothel is highly probable, particularly if those brothel clients choose not to utilise the rear car parking area. The detrimental economic effect on the retail electrical store could be significant. 15Mr Tuxworth disagrees with conclusions of Mr Fryar. He states that in relation to s 17.1.1(ii), there are two single dwellings located at 11 and 13 Wilkins Street, one of which is located adjacent to the railway line and adjoins Wilkins Lane that provides access to a number of properties including the site. Access to and exit from the brothel will be from the proposed car parking area located at the rear of the premises. This access and exit is separated from the closest dwelling by the existing drug and alcohol centre to the north. Further, the dwellings fronting Bridge Street to the north of the site are currently vacant and the owner of two of these dwellings has advised that they have no objection to the proposed development. As these dwellings are located in the B2 Local Centres Zone there is potential for these properties to be used for commercial uses. Mr Tuxworth is of the opinion that the proposed development it is not in close visual or physical proximity to the dwellings in Bridge Street and Wilkins Street. 16In relation to s 17.1.1(iii), Mr Tuxworth is of the opinion that the Eatons Hotel, the retail electrical store, and the Benevolent Counselling Service are not premises that are regularly frequented by children. He accepts that children may attend these premises from time to time but when they frequent these premises they are likely to be accompanied by adults. In relation to Hungry Jacks, this premise is located on the opposite side of Bridge Street, approximately 120m to the south of the subject property. It has been established in a number of decisions by the Court that a distance of 100m is a reasonable standard to establish whether a brothel is "near" any place frequented by children. 17The access to the premises is located at the rear off an existing ROW which, is unlikely to be frequented by pedestrians gaining access to Eatons Hotel, the retail electrical store or the Benevolent Counselling Service as these premises have direct access from Bridge Street and the ROW is generally only used for deliveries to Eatons Hotel and the retail electrical store. Whilst access to the premises will be available from Bridge Street, it is unlikely that any potential users of the sex services premises will enter or leave the property using this access when these premises are open for business as a more discreet access is provided from the ROW. 18For these reasons, Mr Tuxworth concludes that the proposed brothel location satisfies the locational criteria contained within s 17.1.1(ii) and (iii) of the DCP. Findings - is the brothel "in close visual or physical proximity to the entry of a premises used as a dwelling house". 19Section 17.1.1(ii) states: (ii) Access to or exit from a Sex Services Premises and Restricted Premises shall not be located in close visual or physical proximity to the entry of a premises used as a dwelling house. 20Section 17.1.1(ii) requires that access to or exit from a brothel shall not be located in close visual or physical proximity to the entry of a premises used as a dwelling house. The premises relied upon by Mr Fryar to support his conclusion that the brothel does not satisfy this control are located at: 1. 204 Bridge Street, 2. 206 Bridge Street, 3. 194 Bridge Street, 4. approved but not constructed serviced apartments, opposite on Bridge Street, 5. accommodation in the Eatons Hotel at 184 - 192 Bridge Street, and 6. residential development at the rear and on the opposite side of the ROW and the railway line. 21The Dictionary to LEP 2009 provides some guidance where: dwelling house means a building containing only one dwelling. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. 22Notably, the control in s 17.1.1(ii) does not provide a numerical distance between a brothel and dwelling houses and the use of the words "close visual or physical proximity" dictates a limited sphere of influence in the consideration of an appropriate location for a brothel. 23With the benefit of the site inspection, I do not accept that the proposal is contrary to the control in s 17.1.1(ii) for a number of reasons. First, the words "close visual or physical proximity" places limits on the area of consideration. The word "close", in my opinion, suggests consideration of at least the adjoining properties and potentially additional properties, including properties on the opposite side of the road. 24Second, the adjoining properties are not used as dwelling houses. The property to the north at 202 Bridge Street has the form of a dwelling house but has consent for, and operates as a drug and alcohol rehabilitation centre. The property immediately to the south at 198 Bridge Street is a retail electrical store that has substantial alterations to the original dwelling house and has the appearance of a retail shop. 25Third, and beyond the two adjoining properties, dwelling houses are situated at 204 and 206 Bridge Street but are vacant and appeared to have been vacant for some time given their unmaintained condition. Mr Pickup submitted that while the properties are currently vacant they could be used as dwelling houses in the future however I am not satisfied that the possible use as dwelling houses sometime in the future is sufficient reason to refuse the application particularly given the commercial B2 zoning of these properties and that dwelling houses are a prohibited use in this zone. There is also some merit in the evidence of Mr Tuxworth that the two properties are not particularly desirable as dwelling houses because of the busy nature of Bridge Street, the railway line at the rear and the B2 zoning of the surrounding land. The property adjoining the retail electrical store is a commercial use with the building used for remedial massage services. 26Fourth, the proposed serviced apartments, on the opposite side of Bridge cannot be reasonably be characterised as a dwelling house, by definition or in practicable terms. The building contains more than one dwelling and there is a significant difference in the use of the building where occupation for serviced apartments is for a limited time compared to the more permanent occupation for a dwelling. I also accept that the expectations of the occupants of a serviced apartment are different to those of a dwelling house given the more transient nature of the occupants of serviced apartments. In any event, the opportunities for viewing the site (and understanding the use as a brothel) are limited because of the small number of balconies facing Bridge Street, their orientation to St Heliers Street and the traffic along Bridge Street. 27Fifth, the other dwelling houses and the accommodation offered by the Eatons Hotel and nominated by Mr Fryar, cannot be regarded as "in close visual or physical proximity" to the site. 28For these reasons, the proposed development satisfies the control in s 17.1.1(ii) of the DCP and that the objective in s 17.1.1(a) of the DCP is achieved. Findings - is the brothel "near or within view from ....any place regularly frequented by children". 29Section 17.1.1(iii) states: (iii) Access to or exit from a Sex Services Premises and Restricted Premises shall not be near or within view from a church, community facility, transport terminal or stop, school, pedestrian thoroughfare or any place regularly frequented by children. 30Section 17.1.1(ii) requires that access to or exit from a brothel shall not be near or within view from any place regularly frequented by children. The council did not raise any issue with the other land uses or facilities identified in the subsection. The places relied upon by Mr Fryar to support his conclusion that the brothel does not satisfy this control are: 1. the Eatons Hotel, 2. the retail electrical store, 3. the Natural Therapy Centre, 4. the Benevolent Society Counselling Service, and 5. Hungry Jacks fast food restaurant. 31I do not accept that the proposal is contrary to the control in s 17.1.1(iii). The words "regularly frequented" must be given their proper meaning. In my view, and in the context of s 17.1.1(iii), the words suggest that a place must have some attraction for children given that the place is regularly frequented. I do not accept that the subsection applies to places where children may irregularly, sporadically or casually frequent. To give the subsection the meaning, suggested by Mr Fryar, is contrary to the specific wording of s 17.1.1(iii). 32Of the places identified by Mr Fryar, the Eatons Hotel is principally a place for the consumption of alcohol, socialising and entertainment for adults. Even though some specific facilities are provided for children within the hotel, the Eatons Hotel still remains a place for the consumption of alcohol, socialising and entertainment for adults, even though children may attend with adults from time to time. Under any assessment, I do not accept that the Eatons Hotel could be regarded as a place frequented regularly by children. 33Similarly, and while children may attend the electrical store with adults who are purchasing goods, I do not accept that this irregular or casual attendance makes the electrical store a place frequented regularly by children. Even if some adolescences or children attend the store to purchase electronic games and the like, the principal function of the store is the sale of a wide range of electrical products, most of which are not products sought by adolescences or children. 34The masseur from the Natural Therapy Centre provided evidence on site and indicated that children use the facility however it is also used by other members of the community. Again, I do not accept that this irregular or casual attendance by children makes the therapy centre a place that could be characterised as a place frequented regularly by children for the purposes of s 17.1.1(iii). 35There was no evidence provided on the functions performed by the Benevolent Society Counselling Service by Mr Fryar or Mr Tuxworth. No objection was made during the advertising of the application or was any oral evidence given on site. Absent any specific evidence I presume that the Benevolent Society Counselling Service (and other like similar services) offers general social services to the community as a whole and while the services may include children, the functions performed would not characterise the place as being a place frequented regularly by children. In any event, I accept that it can be reasonably argued that this property is not "near or within view" of the site. 36While Hungry Jacks fast food restaurant could potentially be regarded as a place frequented regularly by children, Mr Fryar or Mr Tuxworth agree that the site is not near or within view of the site. 37For these reasons, the proposed development satisfies the control in s 17.1.1(iii) of the DCP and that the objective in s 17.1.1(a) of the DCP is achieved. Noise 38Noise was not the subject of any specific expert evidence but was addressed by Mr Fryar and Mr Tuxworth in their joint report where they conclude that a Plan of Management should be able to address any concerns in relation to noise although Mr Fryar qualified this response in his oral evidence by requiring the improvement of the existing ROW in accordance with the evidence of Mr Peter Higgins, the councils Manager Technical Services. This matter is addressed later in the judgment. Council conditions of consent 39The parties disagreed on the following conditions of consent: Deferred commencement condition 40This condition requires the provision of a Plan of Management but predates the Plan of Management that was provided immediately prior to the hearing. While Mr Fryar had limited time to consider this document during the hearing, he helpfully provided his comments and with some minor additions, considered the Plan of Management to be acceptable. On this basis, the condition can be deleted and replaced with an operative condition requiring compliance with the Plan of Management. Condition 3 41This condition provides that the consent is valid for a period of 1 year from the date the consent becomes operative. The condition is sought by the council due to the absence of a specific operator of the brothel and the uncertainty of the concerns raised in relation to the ROW, noise and the Plan of Management. The applicant seeks the deletion of this condition as there is no uncertainty given that the Plan of Management has been provided and the matters of the ROW and noise have been addressed as part of the evidence at the hearing. 42On this condition, I accept the general approach of the council that a trial period, rather than a time limited consent, is appropriate largely because the operation seeks a 7day/24 hour operation. These hours extends beyond the hours of operation of the Eatons Hotel and other businesses in the vicinity. Given the proposed hours of operation, a cautious approach is justified. The condition should however be amended to allow the condition requiring the trial period to be deleted through a s 96 modification application if it can be shown that the use has operated in an acceptable manner, particularly if there has been satisfactory compliance with the conditions of consent and the Plan of Management. The amended condition reads: Trial period 3. This consent is subject to a trial period of 12 months from the date of commencement of the use. The applicant is to advise the council when the use commences. If the applicant seeks to continue the use, and prior to the expiration of the 12 month trial period, the applicant is to lodge with council an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify this condition. The s96 application is to contain, at least an assessment of the operation of the brothel during the trial period against conditions of consent and the requirements of the Plan of Management. The use may continue until the s 96 application is determined by the council. Condition 6 and 13 43Condition 6 requires the construction of a vehicle crossing and layback within the road reserve of Wilkins Street at the start of the ROW. . Condition 13 seeks Public Liability Insurance for this work. 44These conditions centre on the access to the ROW to the rear of the site where the carpark is located. The council initially expressed concern as to whether access was available to the rear of the site via the ROW however this was clarified by correspondence from the NSW Land and Property Information (Exhibit B). The site, and a number of properties with frontage to Bridge Street have access to the rear of their properties via the ROW. The ROW consists of a pot holed and unmade surface from Wilkins Street to the rear of their properties for parking and unloading. The ROW is not under the control of council. 45With the benefit of the inspection that included the site, the ROW and the other properties with access to the ROW, I am satisfied that conditions 6 and 13 can be deleted. I am not satisfied that condition 6 (and consequently condition 13) sufficiently relate to the proposed development given the relatively small proportion of traffic generated by the development compared to the traffic generated by the other developments using the ROW and the area of the road reserve covered by condition 6. The agreed position of Mr Fryar and Mr Tuxworth was that there are in excess of 40 car spaces that use the ROW for access. The imposition of condition 6 benefits all users of the ROW and is a disproportionate and unreasonable imposition on only one of the many properties that have access to the ROW. Condition 7 46This condition requires an approval for stormwater disposal, including the provision of a Drainage Strategy Report and plans to implement the strategy, including the possibility for an easement. To address the disposal of the stormwater, the applicant proposed to drain the stormwater from the existing dwelling to Bridge Street (as it now flows to the rear of the site), minimise the amount of area for the car park and provide the car spaces and access driveway of permeable material, such as turf cells or other material. 47I am satisfied that redirecting stormwater from the dwelling to Bridge Street and the proposed carparking area location and construction will not exacerbate stormwater run off towards the ROW. As with other conditions, the requirements are excessive for the proposed development and inconsistent with the requirements the council has imposed on other applications, such as the adjoining drug and alcohol rehabilitation centre. This condition can be deleted. Condition 20 48This condition requires a 3.5 m wide two coat bitumen seal and 5.5 m passing bay from the vehicle crossing and layback within the road reserve of Wilkins Street at the start of the ROW required by condition 6 to the entry to the proposed carpark. 49Mr Higgins and Mr Sean Morgan, the applicants engineer addressed the condition of the ROW. They agreed that the ROW does not satisfy Australian Standard AS2890.1: 2004 however the straight alignment allows drivers from either end to observe other drivers from both ends and make necessary adjustments to their movements. Two vehicles can pass, when required on the ROW despite the unsealed width varying between 4 m and 5 m. Similarly, pedestrians can observe vehicle movements and also make the necessary adjustments for safety. Even though it is unconventional, the condition of the ROW has the effect of reducing the speed of vehicles on the ROW. 50Also, the ROW is currently used at night by patrons of the Eatons Hotel and the peak demand, at night, will not have a significant adverse impact on the operation of the ROW, including the typical hourly flow rates although Mr Higgins acknowledges that there will be additional traffic from midnight to sunrise. 51For similar reasons to that expressed on the works sought in the road reserve, I am satisfied that any works sought in the ROW is a disproportionate and unreasonable imposition on a single property, so condition 20 can be deleted. Condition 22 52This condition provides requirements for parking areas however the relevant requirements can be included in condition 9. Additional requirements 53While not specifically raised by the parties the following additional conditions are necessary to minimise any adverse impacts of the proposed development and should be satisfied prior to the issue of a Construction Certificate. These are: 12A - Signage A separate development application is to be submitted that provides signage for the development. The details are to contain the size, colour, location and wording of signage that identifies the site, the car park and directions for access to the premises. Signage should be discreet and not specifically identify the use but be sufficient to allow patrons to identify the site so as to ensure that adjoining and nearby business premises are not disturbed by patrons of the brothel. 12B - Lighting A plan is to be provided that identifies all lighting associated with the development including location, intensity and type to ensure the safety of workers and patrons while minimising light spill on adjoining and nearby premises. 12C - CCTV cameras A plan is to be provided that identifies the location and direction of all CCTV cameras. 12D - Drainage The stormwater from the existing dwelling is to be discharged to councils drainage system in Bridge Street. A plan is to be provided that shows how this is to achieved. 54The Plan of Management should also be amended to provide for the use of security staff for a period of 12 months so this will coincide with the 12-month trial period together with other drafting changes that reflect the findings in the judgment. Resident concerns 55I am satisfied that the additional concerns raised by the residents on site do not warrant the refusal of the application. The proposed use is a permissible use in the B2 zone. Given the use of an existing dwelling, alternate access from the ROW and the requirement for discreet signage, I do not accept that the use will be prominent or obvious to anyone without a prior knowledge of its existence. Importantly, the location satisfies the councils relevant controls in the DCP. 56While I accept that some people may be offended by the existence of a brothel, there was also no compelling evidence to suggest that the use would devalue properties and businesses in the vicinity or attract undesirable people to the area to the point where the application should be refused for these reasons. Again, it must be remembered that the proposed use is a permissible use in the B2 zone and satisfied the locational controls in the DCP. Orders 57The orders of the Court are: 1. The appeal is upheld. 2. DA 225/2013 for alterations and additions to an existing dwelling at 200 Bridge Street, Muswellbrook for the purposes of a sex services premises (brothel) is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and E. _____________ 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: 17 April 2014