Land and Environment Court New South Wales Medium Neutral Citation: Song v City of Sydney Council [2014] NSWLEC 1162 Hearing dates: 20 March 2014 Decision date: 21 March 2014 Jurisdiction: Class 1 Before: Dixon C Decision: Orders at [30] Catchwords: APPEAL- modification of a development application - existing brothel - increase in the number of work rooms- increase in the number of sex works - amenity impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Sydney Development Control Plan 2012 Sydney Local and Environment Plan 2012 Cases Cited: Martin v Hornsby Shire Council (2004) NSWLEC 614 Category: Principal judgment Parties: Mr Tom Song (Applicant) City of Sydney Council (Respondent) Representation: M Staunton (Applicant) F Berglund (Respondent) Sattler & Associates Pty Ltd City of Sydney Council File Number(s): 10983 of 2013 EXTEMPORE Judgment Introduction 1The applicant has development consent D/2008/1225 from the Sydney City Council to use two adjoining terraces at 10-12 Bellevue Street, Surry Hills for the purposes of a brothel (the consent). The consent, which was granted on 23 July 2008, is subject to conditions that limit the number of sex workers at any one time and the number of working rooms and the hours of operation of the premises. 2The Council has modified the consent three times and the modifications are referred to in the evidence as Amendments A, B and C. These proceedings relate to the s96 (2) modification D/2008/1225/C (Amendment C) granted by the Council on 12 November 2013. 3The modification application filed by the applicant D/2008/1225/C was granted in part. The Council did not consent to works to rearrange the rooms within the premises to increase the number of working room (i.e. change an existing staff room into a working room) or to increase the number of sex workers employed at any one time on the premises. In short, it refused the modifications sought by the applicant to conditions 2 and 20. 4Under condition 2(a) the maximum number of working rooms permitted is restricted to four. (The condition also contained a trial period that allowed the premises to operate a total of six working rooms for 12 months from 10 August 2009 until 10 August 2010). 5Under condition 20, the maximum number of sex workers allowed to be employed in the premises at any one time was restricted to four. (This condition also contained a trial period that increased the maximum number of sex workers employed in the premises at any one time to six for 12 months from 10 August 2009 to 10 August 2010). 6Despite the Council's refusal to grant all of the modifications originally sought by the applicant, after a view of the site at the commencement of the hearing it changed its position. The Council informed the Court that it agreed to further modify condition 2(a) to allow a permanent increase in the number of workrooms from six to seven and, to the conversion of the existing staff room into a workroom. It also agreed to increase the number of sex workers from six to seven on the premises at any one time - condition 20. Issue 7While these further modifications resolved the applicant's issue with condition 2(a), it did not address the modifications sought to condition 20. The applicant seeks approval to employ ten sex workers on the premises at any one time, more than the number of workrooms. 8The background facts and statutory controls are detailed in the agreed Statement of Facts and Contentions (Exhibit 2). I do not need to repeat that detail save to note that this brothel has operated on the site for many years and despite the use having been expanded and increased by additional workrooms and sex workers through various applications, the Council has at all times when dealing with the premises required the number of sex workers to be equal to the number of work rooms. Therefore, this is the first application for these premises to operate with up to three more sex workers in the premises then there are workrooms. 9It is the Council's case that an increase in sex workers in excess of the workrooms results in unacceptable amenity for the neighbours, the locality and the sex workers. Expert Evidence 10In support of its case, the Council relies on the evidence of its internal planner, Mr Jones. His Statement of Evidence is (Exhibit 4). The applicant relies on the evidence of its consultant planner Mr Blyth. His Statement of Evidence is (Exhibit B). Mr Jones and Mr Blyth also prepared a joint report, which is (Exhibit 3). Statutory Controls 11The site is within the R1 General Residential zone under the LEP. While the site is not heritage listed the buildings are identified as contributory items within the Albion Estate Heritage Conservation Area (C58), under the Sydney Local Environment Plan 2012 (LEP). 12Under the current zoning the use of the land for a brothel is prohibited. However, in this case the applicant relies on existing use rights and the Council accepts this to be the case. 13The site is also subject to the provisions of the Council's Sydney Development Control Plan 2012 (DCP). However, the DCP does not set any standards relevant to the number of sex workers or workrooms within a brothel. The Brothel 14As stated the use is carried out within two terrace houses that are two-storey and internally linked on the ground floor. Two staff parking bays are located at the rear of the premises. The brothel currently operates six workrooms for six sex workers employed in the premises from 10am to 2am the following day. 15The current hours of operation are subject to a trial period of five years that commenced on the 24 September 2012. 16According to the evidence of the police, (Folio 198 Exhibit 1), and Council's Senior Health Officer, (Folio 197 Exhibit 1), the premises are well managed. I am told that the Council carries out regular inspections of the premises and this has ensured that amenity impacts associated with the operation of the brothel such as noise from patrons and traffic issues have been resolved (Folios 101-102 Exhibit 1). 17In recommending approval of the applicant's modification application for an increase in work rooms and an extension of hours from 10am to 2am the next morning as proposed in DA/208/1225/A, the Council's assessment report states: Given the manager has demonstrated an ability to operate the premises without complaint and demonstrated a willingness to work with council in resolving non-compliances, a permanent increase in work rooms and staff of six is considered appropriate. In terms of the two-year trial period for the 2am closing, that is also reasonable. This trial period enables the council to ensure that the premises are capable of operating appropriately, without impact across extended period of time. 18As stated earlier, the trial period for the extended hours (discussed in the council report extract above) has now been further extended until September 2017. It is the applicant's evidence that in all other respects the premises operate as they always have. Neither the applicant nor its manager has changed since the first modification of the conditions (DA/208/1225/A). The only real change in circumstances since the earlier modification application is the land zoning, with the gazettal of LEP 2012. The site remains located within an existing mixed residential and commercial area, despite its current R1 General Residential zoning. 19The Council contends that under the current zoning objectives, the brothel use is inconsistent with the desired future character of the area as residential, and submits the provisions of the LEP require the Court to have regard to the zone objectives "...when approving a development application". This is not however, a development application appeal but an application for the modification of an existing brothel. The current zone objectives and desired future character of the area as prescribed by the current LEP, as residential, can only be relevant in my opinion as part of the public interest under s79C because this case is about the intensification of the use of an existing brothel, not a new development for sex service premises which is no doubt subject to cl 7.21 of the LEP (Exhibit 4 at [65]). 20In my assessment of the zone objectives (as part of the public interest) I note that this application does not change the external appearance of the premises from the street. Accordingly, there can be no new impacts in that regard. In fact the premises maintain the appearance of residential premises consistent with the adjoining residential terraces. In that regard it cannot be inconsistent with the zone objective to maintain the existing land use pattern of predominantly residential uses. Nor is the application inconsistent with the zone objective of providing facilities and services to meet the day-to-day needs of residents. 21The premises are within an area of mixed residential and commercial uses. Directly opposite the site is as an existing brothel with six working rooms and a maximum of 4 sex workers. About 32 m to the north of the site are five interconnected terrace houses at 93 -101 Albion Street that operate as a single brothel. The Excelsior Hotel is located to the south of the site at the end of the street. A Council car park is located approximately 80m north of the site and St Francis de Sales Church is located 76 m north of the site. A nine storey mixed use building with ground floor commercial and upper floor residential is located at 24-38 Bellevue Street to the south of the site. An eight storey residential flat building is located at 2- 4 Bellevue Street to the north of the site. The adjoining terrace at 8 Bellevue Street is a residential use but the terrace to the south at 14 Bellevue Street is a commercial use. The terrace houses opposite the site 1-11 Bellevue Street contain residential uses. 22The Council did receive two submissions in respect of this application, (folio 269 and folio 270 of the Council bundle). One objector expresses concern about an increase in car and pedestrian traffic and noise at night, and the other objector approves of an increase in the number of sex workers (but not more than one) so as to ensure that there is no further pressure on parking in the area. 23After a consideration of the evidence including the view of the site and locality I am satisfied that there is no planning basis for the refusal of this application for ten sex workers on the premises at any one time. Mr Jones told the Court that he opposed a trial period because once approved, it will be difficult for the Council not to confirm the condition after the trial period had finished. However, if no adverse impacts are experienced in the trial period then it is difficult to understand why the increase in numbers would not be confirmed by a permanent condition or Mr Jones' planning concern about that outcome. 24Mr Jones' evidence is that an increase in sex workers constitutes an intensification of the use and that necessarily results in an associated increase in adverse amenity impacts, - being generic impacts which he identifies in his report (at [78] at Exhibit 4). In my assessment this is not a proper basis to refuse this application. Furthermore, the decision of Martin v Hornsby Shire Council (2004) NSWLEC 614 which Mr Jones relies upon is as Mr Staunton submits, a case which deals with location criteria for new brothels, not existing brothels. 25As Mr Blyth states in his statement (at p 7, (Exhibit B) the character of Bellevue Street is determined by the existing built form and land uses. The brothel is part of that existing character and while the R1 zone under the LEP 2012 anticipates residential uses from now on, it also allows a range of other commercial uses including food and drink premises, neighbourhood shops, respite day care centres and other shops. 26Until this application the Council has historically found no planning basis to refuse applications for an increase in the number of workrooms and the number of workers at these premises. After a consideration of the evidence including that of the objectors and the public interest I find myself in the same position in this appeal. There is a permanent consent with respect to the land use. The most recent modification D/2008/1225/B was approved on 24 September 2012 and allowed a further 5 years trial period for extended trading hours. I accept the evidence of Mr Blyth that the proposed increase in the number of sex workers from six to ten will enable greater client choice and greater capacity for workers to take rest periods. As noted there is no standard in the DCP 2012 relating to or restricting the number of workers relative to the number of rooms. 27The applicant contends that there is a need for ten sex workers during peak times of 10am to 6pm, and there is no particular evidence of any complaint about the operation of the brothel during that time from the police or the Council. The only complaints I am aware of are contained within the two submissions received in respect of the notified application. 28The evidence is that the facilities required to be provided to the employees of the premises by C4.4.6.4 of the DCP will be provided subject to the locker room being reconfigured into a further staffroom. As I understand Mr Jones evidence subject to that change the staff will have appropriate rest areas within the premises and his concerns about the internal amenity of the premises for the workers is addressed. 29Mr Jones also expressed concern about the lockers located in the foyer area and believed that it did not separate the clients and workers appropriately. Having inspected the premises, I accept his evidence and require the foyer area to have no lockers within it so that there is a better separation between the staff and the clients. In my assessment the council's draft conditions including alternative four in condition 20 is appropriate. Conclusion 30After an assessment of the evidence and the likely impacts of development under s 79C of the EP&A Act, I have decided that an increase to 10 sex workers during the daytime from 10am to 6pm is appropriate on a permanent basis in this case. Furthermore, based on the evidence in respect of the period 6pm to 2am the next day, I am prepared to entertain a trial period for a period of 12 months, during which time the use of the site for that purpose can be examined and complaints considered, before a final assessment of the extended operation at the end of the trial period. Accordingly the Court orders are: (1)The appeal is upheld. (2)The Court approves the increase in work rooms to seven and a maximum number of ten sex workers at the premises 10-12 Bellevue Street Surry Hills in accordance with the conditions as discusses in this judgment. (3)The council is directed to provide the final version of the conditions in accordance with my reasons for judgment within seven days. Upon receipt of those conditions, the written judgment will be published and the exhibits will be returned. Susan Dixon 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: 18 August 2014