Land and Environment Court New South Wales Medium Neutral Citation: Wang v City of Canterbury-Bankstown Council [2017] NSWLEC 1120 Hearing dates: 7 November 2016 Date of orders: 10 March 2017 Decision date: 10 March 2017 Jurisdiction: Class 1 Before: Martin SC Decision: (1)The appeal is upheld. (2)Condition 6 of Development Consent No. 220/2012 granted by the Court 21 May 2013 in proceedings 10146 of 2013, which has become condition 5 in the conditions contained in Annexure A, is modified by replacing the words "three(3) years" with the words "ten (10) years". (3)The Exhibits are returned, save for Exhibits 1 and A. Catchwords: MODIFICATION OF DEVELOPMENT CONSENT – brothel – sex services – trial period – prohibited use – deferred commencement condition – consent capable of modification - substantially the same development – the same essence – objectives for development in a zone – merit considerations - weight to be given to DCP Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 79C(1), 79C(3A), 80(3), 80A(1)(d), 95, 96(2), 96AA, 97AA, 102(1)(a) Restricted Premises Act 1943 Canterbury Local Environment Plan 2012 (CLEP) Canterbury Development Control Plan 2012 (DCP) Cases Cited: Council of Trinity Grammar School v Ashfield Council [2015] NSWLEC 1086 Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146 Fowler and Anor v Canterbury City Council [2010] NSWLEC 1089 Kendall Street Developments Pty Limited v Byron Shire Council (No.2) [2004] NSWLEC 530; (2004) 138 LGERA 360 Moto Projects (No 2) Pty Ltd v North Sydney C [1999] NSWLEC 280 TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Wang and Anor v Canterbury City Council [2013] NSWLEC 1098 Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373 Category: Principal judgment Parties: Jenny Wang (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel Dr S Berveling (Applicant) Mr P Jackson (Solicitor) (Respondent) Solicitors Russo & Co Solicitors (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/212231 Publication restriction: No JUDGMENT 1. On the corner of Canterbury Road and Phillips Avenue, Canterbury, is a small brothel, which has been operating largely without incident since 2008. It is well-known to this Court as the Canterbury-Bankstown Council, or its predecessor (the Council) has opposed its operation, unsuccessfully, on three prior occasions, as set out in the following decisions: Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146 (Brown C, 23 April 2008) Fowler and Anor v Canterbury City Council [2010] NSWLEC 1089 (Hussey C, 29 March 2010) Wang and Anor v Canterbury City Council [2013] NSWLEC 1098 (Moore SC, 20 May 2013) 1. Most recently in May 2013, the brothel was granted a further trial period of three years in which to operate. This trial period has expired. Moreover, following zoning changes, brothels are now prohibited in the area in which this brothel is located. The Council is deemed to have refused an application made by the brothel operator, Ms Jenny Wang (the Applicant), to modify the Development Consent. In that application, she is seeking a further period of time in which the brothel can be permitted to operate. Ms Wang has appealed to the Court under s 97AA of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). 2. For Ms Wang to succeed in this appeal, she must: - establish that there exists a development consent which is capable of modification; - demonstrate that the consent sought is capable of modification as proposed; and - demonstrate that merit considerations, including submissions from objectors, are no bar to her application. 1. For the reasons set out in this judgment, none of these matters establishes a bar to the upholding of this appeal. History of the Use of the Premises 1. The land the subject of the appeal is Lot B in Deposited Plan 368248 known as 269 Canterbury Road, Canterbury (the Site). 2. On 23 April 2008 the Court granted consent for use of the property as a brothel in conjunction with the then-existing approved use of the premises as a Chinese Acupuncture and Therapeutic Massage establishment subject to conditions, including a 12 month trial period: Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146. 3. On the second occasion that the Court considered the brothel's ongoing operation, approval was granted on 22 April 2010 for its use as a brothel subject to conditions including deferred commencement (to allow building works to be completed) and a three year trial period: Fowler and Anor v Canterbury City Council [2010] NSWLEC 1089. 4. Development Consent No.220/2012 was most recently granted by the Court on 21 May 2013 in proceedings 10146 of 2013, for "use of the ground floor building situated on Lot B DP 268343 known as 269 Canterbury Road, Canterbury as a brothel and for the building to also be used as a dwelling": Wang and Anor v Canterbury City Council [2013] NSWLEC 1098. 5. It was common ground between the parties that the most recent granting of consent to the development in 2013 was given on the basis of the savings provisions in the Canterbury Local Environment Plan 2012 (CLEP) without regard being had to any of the provisions of that LEP. Indeed, Moore SC (as he then was) expressed plainly that "it is therefore necessary in these proceedings for me to proceed to hear and determine this development application without having regard to and setting aside any knowledge of anything at all of any nature contained on [sic] the 2012 LEP": Wang and Anor v Canterbury City Council [2013] NSWLEC 1098 at [15]. 6. Mr Jackson for the Council argued that in his 2013 decision, then-Senior Commissioner Moore did not take account of the then-draft Canterbury Local Environment Plan, because of the savings provision in that LEP which meant that an application made before the commencement of that LEP must be determined as if the plan had not commenced: Wang and Anor v Canterbury City Council [2013] NSWLEC 1098 at [9]. Considerable argument ensued as to the weight, if any, to be given to draft instruments in applications for development consent. In the event, this argument did not assist the Court in the determination it has been asked to make. 7. In each of these decisions, consent was granted for the Site to be used for the purpose of a brothel, for periods of twelve months and two further trial periods of three years respectively. The three previous applications were for a development application (DA). On this occasion, the application is not for a DA, but for modification of a DA. Unlike the three previous decisions, on this occasion the use has changed from being one which is permitted with consent, to one which is prima facie prohibited. This is a challenging matter for the Applicant. The Site and The Locality 1. The Site (shown below) is located on the north-west corner of Canterbury Road and Phillips Avenue. It comprises a two storey attached brick building, with a front facing Canterbury Road and the rear boundary facing Clunes Lane. The ground floor of the premises is used as a brothel, with the manager residing upstairs. There are three people working there: two sex workers and the manager. 1. Some parking for customers is available on Clunes Lane or Phillips Avenue, and parking is available on-site for the workers and manager. Whilst the brothel occupies a corner site, there is no through access for vehicles between Phillips Avenue and Canterbury Road. 2. The locality is an area undergoing transition, particularly along Canterbury Road with the commencement of a zone which permits residential development. The character has changed from two storey shop top development to high density shop top housing developments following commencement of the new CLEP. 3. This change was evident from a site inspection conducted on the date of the hearing (as well as from submissions). The area is "in transition from low rise two storey traditional shop top housing to 5 – 8 storey mixed use and residential flat development along both sides of Canterbury Road to the east and west of the Site": Joint Expert Planning Report, Betros and Winnacott; 14 October 2016, Exhibit 2 at [11]. 4. In close proximity to the Site are several new multi-apartment developments (to the west), containing 42 apartments. To the south, approval is granted for a five storey mixed use development with 15 apartments, while an application has been made for a high density residential development immediately to the Site's east, and further to the east, high density residential development is nearing completion for several five storey residential flat buildings. Statutory Controls 1. The relevant statutory controls are: ­Canterbury Local Environment Plan 2012 (CLEP) ­Canterbury Development Control Plan 2012 (DCP), in particular, Part 5.4 – Restricted Premises and Sex Services Premises. 1. Following the commencement of the CLEP 2012 on 1 January 2013, the Site is now zoned B5 Business Development. This zone permits residential development, but prohibits sex services premises within that zone. Previously, the zoning of the Site made a brothel permissible with consent. This is shown in the zoning map excerpt below. 1. Clause 2.3(2) of the CLEP 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 the zone. 2. The Objectives of the B5 Business Development Zone are [relevantly] as follows: * To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and support the viability of, centres. * To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. * To support urban renewal that encourages an increased use of public transport, walking and cycling. * To encourage employment opportunities on Canterbury Road and in accessible locations. 1. Part 5.4 of the DCP applies to "any proposal to establish restricted premises or sex service premises (brothel)". The DCP makes plain that "sex services premises are only permitted in business zones and Council approval must be obtained". 2. As the nomenclature has changed, it is helpful to set out the relevant definitions here, notwithstanding that there is no contest as to the nature of the services provided at the Site. These definitions are drawn from the CLEP unless otherwise noted. "Sex services" is defined to mean sexual acts or sexual services in exchange for payment. "Sex services premises" means, relevantly, a brothel. "Brothel" has the same meaning in the Act, which refers the reader to the Restricted Premises Act 1943, that is "a premises habitually used for the purposes of prostitution". The Application 1. The Applicant initially attempted on 22 March 2016, unsuccessfully, to lodge an application to modify the Consent under s.96 (2) of the EPA Act to continue use of the Site. That application was not accepted by the Council due to the provision of insufficient information. The Applicant's application under section 96AA (Application) was accepted by the Council on 5 May 2016. The Application sought the deletion of Condition 6 of the Consent issued by the Court on 21 May 2013. The Application was made prior to the expiry of three years from the date of the last decision of the Court; in other words, while the Consent was still on foot. The significance of this is discussed further below. 2. For completeness, section 96AA is reproduced below: 96AA Modification by consent authorities of consents granted by the Court (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with: (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. 1. The relevant condition sought to be modified is as follows: "6. This consent is for a limited period of three [3] years only." 1. The Application stated that the modification was sought "to enable continued operation of the brothel after the expiration of the three year trial period". The effect of the deletion of condition 6 would be to permit the brothel to operate without any time period restriction. 2. While a period of public exhibition was on foot, this appeal was filed on 13 July 2016. The Application was subsequently amended with the leave of the Court on 30 August 2016, to amend condition 6 such that the amended condition would provide for a limited period of 10 years in which the consent would operate, as follows: "6. This consent is for a limited period of ten [10] years only." 1. The 10 year period would run from the commencement of the most recent consent, meaning that if the appeal were allowed, the consent would permit the brothel to operate for approximately seven more years, taking account of the three years (or so) which have already passed. 2. In an affidavit sworn by Mr Gino Russo in support of an application to amend the modification sought (the Affidavit), the statement was made that if the condition imposing a time period were deleted in its entirety, "then the use would generate existing use rights… the Applicant does not seek for the land to benefit from existing use rights, and […] this may be resolved by continuing a limitation on the period during which development pursuant to the consent may be carried out" : Affidavit of Gino Russo sworn 19 August 2016 and filed 24 August 2016. Expert Evidence 1. Mr Lawrence Winnacott, a town planner, provided evidence for the Applicant and Mr Anthony Betros, a town planner, provided evidence for the Council. Mr Winnacott and Mr Betros provided a Joint Expert Planning Report: Exhibit 2. They also gave oral evidence. Mr Winnacott's report prepared in support of Ms Wang's application to the Council forms part of the Applicant's Application. 2. A site inspection also took place on 7 November 2016. 3. The main point of difference between the experts is whether the consent has or has not expired: Exhibit 2 at [11]. The other contentious issue is the brothel's location, noting that the area is in transition from low rise two-storey traditional shop top housing to five to eight storey mixed use and residential flat development along both sides of Canterbury Road to the east and west of the Site: Exhibit 2 at [11]. What is the status of the Development Consent? 1. The Consent granted by the Court on 20 May 2013 contained a deferred condition (which was concerned with the installation and operation of CCTV). The deferred commencement condition required certain works to be undertaken prior to the consent becoming operative, and is in the following terms: "Deferred Commencement Condition Pursuant to section 80(3) of the EP and A Act 1979, this consent will not become operative until the Applicant satisfies Canterbury City Council in accordance with the regulations within 3 months of the date of this consent, that the following matters have been carried out…" 1. The Court also has power to impose a condition which limits the period during which development may be carried out in accordance with the consent granted: s.80 A (1)(d) EPA Act. 2. The Council informed the Applicant on 15 August 2013 that the matters the subject of that condition had been satisfied. 3. The plain language of that condition is that the consent – and its attendant conditions – does not become operative until the matters specified have been attended to. In my view, it then follows that the condition limiting the period of consent – condition 6 – does not commence until the work is done. 4. There was dispute between the parties as to the date on which the most recent consent commenced. The Council's view was that the proper date was 21 May 2013 while the Applicant contended that the date of commencement was 15 August 2013, being the date on which the Council advised the Applicant that the condition had been satisfied. 5. I am of the view that the date of commencement of the consent (and thus the conclusion of the condition) is not determinative of the outcome of the present case, as the critical question for present purposes is the date on which the application to amend the consent was made. Provided this application to modify was made while a valid consent was in place, it is of little moment when the three years of the consent the subject of this proceeding actually commenced. 6. The date of commencement of the most recent consent is relevant insofar as it defines the period that the brothel may have been operating without appropriate approval. However, issues with respect to enforcement have not been agitated in these proceedings. Has the Development Consent Lapsed? 1. The Council through its advocate, Mr Jackson, contends that the Consent has lapsed. Mr Jackson says the Consent expired on 21 May 2016, three years after consent was granted by the Court on the last occasion: Kendall Street Developments Pty Limited v Byron Shire Council (No.2) [2004] NSWLEC 530; (2004) 138 LGERA 360. 2. The consequence of this, using the Council's reasoning, is that there is nothing for the Court to modify, as the consent expired on 21 May 2016. Put another way, the Council contends that there is no utility in modifying the Consent as it is no longer on foot. Further, the Council submits that there is no development which is capable of being modified. This is the position, says the Council, even if there is consent. 3. The Applicant through Dr Berveling disputes this, stating that the Consent has not lapsed, and remains operative subject to its conditions. Condition 6, according to Dr Berveling, does no more than impose a period during which development may be carried out in accordance with the consent. Dr Berveling also contends that there is no facility for development consent to lapse other than through s 95 of the EPA Act, which is concerned with lapsing of consent if work or use has not commenced. As the Consent has not expired or lapsed, Dr Berveling says any continued use of the premises is a breach of condition, not an operation in the absence of development consent. 4. The Applicant relies on Kendall at [16] and [17]. In particular, in that case, Lloyd J held that a temporal limitation had been imposed on the development, while no such limitation was imposed on the consent. His Honour further held at [18] that Since the development consent continues to exist in the current circumstances, it follows that the development consent may be the subject of an application for modification, notwithstanding that the development itself has become unlawful. 1. Mr Betros, the town planning expert for the Council, expressed the view that "it is typical for a trial consent to state that, before the expiration of the three year period, that a separate section 96 must be submitted… and there is no such wording in the condition": Exhibit 2 at [15]. While this may be so, the absence of such a consent condition ought not lead to the inference that the consent thus expires or ceases to have effect. 2. On any view it is more than three years since the consent was granted. However, I find that the development consent itself has not lapsed, and is therefore able to be modified. 3. A broadly similar position confronted Moore J in TL & TL Tradings Pty Ltd v Parramatta City Council [2016] NSWLEC 150. In that matter, his Honour was faced with the position where development consent for a brothel was subject to an operative period (expressed as a trial period) which had expired. Although (unlike in this case) the development consent included a provision that preserved the operation of the brothel to continue whilst ever an application to extend the period of operation of the brothel remained undetermined by the Council, such an application had, in fact, been made and rejected by the Council. The appeal to the Court in those Class I proceedings being dealt with by his Honour was filed while the development consent was operative. 4. It is clear from his Honour's decision that His Honour considered that the commencement of proceedings within the life of the existing consent preserved the right to treat the consent as remaining on foot until after the application to the Court had been determined. The sole difference between that with which his Honour was dealing and the circumstances of this case is that in TL Tradings, when the brothel continued trading after the expiry of its trial period, Parramatta City Council served a brothel closure order. That order resulted in operation ceasing until orders giving effect to his Honour's conclusion - that it was appropriate to grant a further trial period for that brothel - were made. 5. Although the brothel here involved has apparently continued to trade after the expiry of the period nominated in its development consent, the question of whether or not the Council could or should have sought to require the cessation of that trading pending determination of these proceedings is not a matter arising for my consideration of this application. Enforcement activity of that type is entirely outside the scope of matters engaged by an appeal such as this. 6. As the approach taken by his Honour reflects a considered, recent determination by the Court as to the approach to be taken in circumstances generally analogous to those which arise in these proceedings, I consider it appropriate to adopt that approach for my consideration of this application. 7. Accordingly, I find that the commencement of proceedings by the Applicant within the life of the existing consent condition preserves the right to treat the consent as remaining on foot pending the decision of this Court. 8. The consent is thus open to be amended. I accept the Applicant's submission that development consent continues to exist, albeit that carrying out development would be in breach of condition 6. 9. In the event, for the reasons set out above, it is not necessary for me to decide this dispute on the basis of existing use rights. Accordingly the arguments as to whether or not they exist are, for the purposes of this case, moot. Is the Development Consent capable of modification as proposed? 1. In order for the consent to be able to be modified, it must be in respect of development which is substantially the same development as that for which consent was originally granted: EPA Act s.96AA (1) (a). 2. The Council contends that the Court has no jurisdiction to approve the modification sought under s.96AA of the EPA Act, because the consent, if modified, will not be substantially the same as the development for which the consent was originally granted. There were both legal arguments and expert planning evidence given on this question. 3. The word "substantially" when used in s.96AA means "essentially or materially or having the same essence". Further, the submission is made on behalf of the Council that the imposition of condition 6 (limiting the operation of the brothel to a 3 year period) was an integral component concerning the proposed use of the brothel, and that the brothel use must be assumed to include the length of time in which the development is to be carried out, that is, for a limited three year period. 4. I turn first to the question of "essence". According to the Council, the consent as sought to be modified for a period of 10 years is essentially different to the consent as initially granted by the Court, and is not substantially the same, because it is not the same "essence". Council argues that the decision in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 supports its argument that the development is not substantially the same. In that case Stein J held that "in my opinion "substantially" when used in section 102(1) (a) means essentially or materially having the same essence". 5. The onus is on the Applicant to show that the modified development is substantially the same, and that it is not enough to point to the development being for a certain use: Vacik. Indeed, in that case Stein J cautioned that "one should not fall into the trap of saying that the development was for a certain use… and … it will be for precisely the same use and accordingly is substantially the same development". 6. In Moto Projects (No 2) Pty Ltd v North Sydney C [1999] NSWLEC 280, Bignold J set out the following test: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development.56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 1. This approach was also evident in Council of Trinity Grammar School v Ashfield Council [2015] NSWLEC 1086, in which Dixon C stated that a development "must be assumed to include the way in which development is to be carried out": at [97]. 2. In Mr Betros' opinion, the 10 year period sought by the Applicant represents a substantial intensification of usage of the brothel, as it is over three times longer than the period permitted in the previous judgement. Further, the incompatibility and inappropriate siting exacerbates the impact of the continued use of the proposal: 3. Mr Winnacott for the Applicant, on the other hand, argues that the "substantially the same" test is satisfied, as the proposed modification relates only to the period during which the development may be carried out: Exhibit 2 at [26]. 4. Under cross-examination, Mr Winnacott rejected Mr Jackson's argument that the time difference in operation of the brothel (from 3 years to 10 years) amounted to an intensification of the use. Mr Winnacott opined that rather than intensification, it would be a continuation of the development as presently consented to but for an extended period of time. The proper characterisation, according to the Applicant's expert, include matters such as the scale of the business; the number of people working in it; the hours of operation; the number of patrons and the facilities available. 5. I do not accept the Council's argument as to intensification. The development to which the consent as proposed to be modified relates is a brothel, the development for which consent was originally granted. The operating hours are to remain the same, as will the number of staff. There is no application to increase the size of the premises, nor is there any application otherwise to alter the activities. The development remains the same. Accordingly I find that the development is "substantially the same", thus conferring jurisdiction upon the Court to modify the condition. Having regard to merit considerations, should the modification be allowed? 1. Following on from my decision that there is on foot a consent which is capable of modification, the Application must be considered according to its merits. The Applicant submits that "the realistic likelihood of possible adverse impacts about the use of the premises for a sex service premises have been addressed in the three previous decisions": Submissions 4 November 2016 at [33(d)]. 2. That may be so, but the Court must nonetheless consider the merits of this Application as at this time. Moreover, there is a significant change between the three earlier decisions and this one, by virtue of the change in zoning rendering brothels prohibited, whereas previously they had been permissible with consent. 3. The Applicant contends that while the planning instruments are relevant and must be taken into account, a distinction needs to be drawn between a development application compared to a modification application. 4. In light of the matters that are in contention, I consider it appropriate to undertake a full merit assessment as if I were dealing with this under s 79C of the EPA Act. Section 79 C (1) of that Act requires certain matters as are of relevance to be taken into consideration in determining a development application. These are, relevantly: (a) the provisions of: (i) any environmental planning instrument, and (ii)… (iii) any development control plan, and (iiia) … (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) … that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. Non-compliance with Zoning 1. The Council contends that the operation of the premises as a brothel, which is a prohibited use of the premises, for a further ten year period (now, less than seven years) will frustrate the strategic intent of the LEP and will not result in the orderly development of the land. Council's planning expert also expresses the opinion that not only is the use prohibited in the zone, it is inconsistent with the zone objectives: Exhibit 2 at [31]. The provisions of the LEP are set out above. 2. Turning first to the objectives of the zone, in Council's view the brothel can never achieve the zone's objectives. These objectives include achievement of ground level retail uses with residential units above and the creation of mixed use developments with a high standard of design. 3. Previously, consent has relied upon the brothel's being able to operate in a discreet manner, including no open windowed frontage and an inactive eastern elevation to the cul-de-sac at Philips Street. However, this mode of operation (says the Council) will not achieve the strategic planning intent of permissible uses having regard to zone objectives. Further, recent development in the area includes large areas of glazing at ground floor level for street activation as well as setbacks from the current building alignments. 4. The Applicant's town planning expert makes the argument that a continuation of the approved use is consistent with the zone objectives. 5. Mr Winnacott's opinion is that clause 2.3(2) of the LEP requires the consent authority to have regard to (emphasis mine) the objectives for development in a zone when determining a development application in respect of land within that zone, and not in the case of an application for modification consent: Exhibit 2 at [35]. Notwithstanding this, Mr Winnacott says that there is a degree of compatibility between the zone objectives and the operations of the brothel. This includes the contribution by the brothel to the mix of business along Canterbury Road, with the provision of services to some members of the Canterbury and broader community, and the provision of employment opportunities in a location which is accessible by public transport: Exhibit 2 at [35]. 6. The Business Development Zone permits with consent a wide range of retail, commercial and residential uses. The Applicant contends that there is potential in the future for the site to be developed in conjunction with other sites fronting Canterbury Road to the west: Exhibit 2 at [35]. 7. The Applicant further contends that the existence of the brothel does not appear to conflict with or stifle the LEP zone objectives supporting urban renewal, having regard to the extent of commercial and residential development occurring and proposed: Exhibit 2 at [38]. 8. There are new objectives for the locality where the brothel is located. I find that the continuation of the brothel in the zone will not permanently impact the achievement of those objectives, albeit that they may be delayed. The operation of the brothel will postpone the achievement of some zone objectives for the period while the brothel operates. The pace of change in this area, reflective of the updated zoning, will necessarily be incremental over time. 9. Even the question of delay may be somewhat moot, having regard to the affidavit of Mr Russo insofar as that touches upon the absence of any indication that there are plans afoot to redevelop the Site or the property immediately adjacent to it. 10. On the question of the future use of the Site, the affidavit of Russo (at [29] above) states that the Site together with the site immediately to its west are currently not the subject of any development consent for redevelopment (in contrast with the site to the east), and redevelopment would most appropriately and most likely be carried out in conjunction with redevelopment of the site immediately to its west. This site is not owned by the Applicant and redevelopment would therefore be contingent upon both separate owners agreeing to pursue it: Affidavit at [8]. Non-compliance with DCP 1. The question of the weight to be afforded the DCP in this case remains somewhat open. The Council's view is that it is to be used as guidance only, given that the DCP only refers to permissible, and not prohibited, uses. Nonetheless, compliance with the DCP has been raised in argument, and will be considered in this judgment, albeit that this aspect of the decision is not determinative of the outcome. 2. Concerns raised by the Council include that the continued use of the premises as a brothel would be contrary to the locational requirements of the DCP, and be incompatible with the existing and likely future land uses and built forms. 3. Mr Winnacott's response for the Applicant in summary is that the DCP objectives can be met by the brothel: Exhibit 2 at [50]. Moreover, with respect to the 100 metre separation standard, he argues that flexibility is warranted, applying s.79C (3A) of the EPA Act: Exhibit 2 at [51]. Mr Winnacott's opinion is that the brothel either complies with the requirements of Pt 5.4, or to the extent there are departures – which he conceded there were in cross-examination - these are acceptable. He provided detailed evidence on the brothel's location and relationship to other land uses. His inspection of the premises reveals them to be run in a quiet, discreet and orderly manner: Exhibit 2 at [53]. 4. As to the emphasis that should be given to the DCP, Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373 deals with, inter alia, the issue of consideration of relevant provisions of a DCP in determining whether or not to grant development consent. From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. Firstly, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly, 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 the Local Environmental Plan. Thirdly, 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. 5. On one hand, the mere fact that a proposal meets the requirements of the DCP does not automatically mean that Development Consent will be granted. However, on the other hand, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the EPA Act. 6. I concur with the Applicant. The intent of the DCP is to protect residential and other areas from the impact of the operation of a brothel. This is apparent from the text of the DCP at 5.4 which provides as follows: While providing employment and a service for groups within the community, these activities can result in amenity problems, particularly if located close to residential areas, because of the 24 hour nature of activity. They can also result in unsafe conditions for workers, patrons and the general community: Extract of DCP, Exhibit 5. 1. Moreover, I note that the brothel's hours of operation – 9 am to 7 pm, six days per week – are much more limited than the seven day, 24 hour operation contemplated by the DCP. Further, the DCP contemplates proposals to establish restricted premises, and is not concerned with existing premises. 2. However, the evidence also discloses that in the over eight years of operation of the brothel, there have been no adverse impacts of any significance of the nature sought to be prevented by the DCP. See also discussions below regarding the objections to the proposal. 3. Accordingly, I find that the provisions of the DCP are no bar to the granting of the Application. Incompatibility with adjacent high density residential zone across Philips Avenue 1. The Council through its expert says the brothel's position is incompatible, given the likely intensification of residential development to the east across Phillips Avenue: Exhibit 2 at [39]. This includes a likely increase in proximity and exposure due to the orientation of the larger balconies of neighbouring properties, and potential visibility of the brothel's rear yard from upper level residential areas: Exhibit 2 at [39] and [40]. 2. Mr Winnacott says there has always been the potential for multi-storey residential development in this area. Further, the brothel operation is small scale and discreet. There is no evidence that the continued operation of the business as approved would be incompatible with the adjacent R4 High Density Residential Zone: Exhibit 2 at [41] and [42]. 3. As also noted and also discussed further below, there is no functional evidence of impact, and thus this contention fails. I adopt Hussey C's remarks, where he stated that "a well-managed brothel, which complies with the conditions of consent, including the Plan of Management, should not cause adverse amenity to the occupants of nearby residential properties": Fowler and Anor v Canterbury City Council [2010] NSWLEC 1089 at [22]. Adverse impact on Residential Amenity and Objectors' Submissions 1. The Council argues that there are adverse amenity impacts occasioned by the absence of parking in Phillips Avenue and Canterbury Road: Exhibit 2 at [43]. I agree with the conclusion reached in an earlier decision about this brothel that the mere presence of a brothel or patrons parking their vehicles in Phillips Avenue would not, however, be a matter that would warrant the refusal of the development application: Fowler and Anor v Canterbury City Council [2008] NSWLEC 1146. 2. The Council notified the Application and received seven submissions of which three were pro forma letters: List of Objectors, Exhibit 4. 3. In general terms, resident objections confirm "the undesirable nature of the proposal and incompatibility with the surrounding residential area to the south and east": Exhibit 2 at [44]. Submissions from objectors are set out in further detail below. 4. Three objections were in identical terms, stating that "as the area becomes increasingly residential, we think it is inappropriate to encourage the growth of a business which is not an ideal environment for children or our families": Exhibit 4. Other concerns were expressed in relation to negative impact on property values; potential safety problems; brothels not meeting the demands of locals who want restaurants and cafes; parking and access for brothel users; non-compliance with DCP considerations and harassment of neighbours. I note that no objectors sought to be heard during the site inspection. 5. According to the Council's Statement of Facts and Contentions this Application was referred by the Council to its community safety officer, fire safety officer and compliance officer. From these referrals "no issues were raised for the subject application": Statement of Facts and Contentions at [6.4]. 6. The Applicant disagrees that there will be such an adverse impact, pointing to the absence of complaints over the last three years of operation. The letters of objection do not point to any evidence of impact on residential amenity: Exhibit 2 at [45]. Given the last three years' operations history, there is no justification for the Council's claim as to a history of adverse impact: Exhibit 2 at [46]. I also note that there was no evidence proffered in relation to impact on property prices. 7. I accept the evidence from the Applicant's town planner that the premises are used for a legal form of business under NSW State legislation and there is no indication that it causes any adverse impact on the surrounding area: Exhibit 2 at [37]. 8. In considering the manner in which the brothel has been operating, expert evidence was provided on behalf of the Applicant (Exhibit 7: Council's Bundle of Documents at Folio 10) in the following terms: During the most recent trial period the business has been the subject of scrutiny by the Council. Council has not raised any issues of concern regarding the operation of the business. It is apparent that the business is operating in accordance with the conditions of consent and has not been the subject of complaint. There is no indication that the business has caused any disturbance to the amenity of the surrounding area: 1. Based on the evidence, I find that the objections and concerns as to interference with residential amenity are unfounded, are of insufficient strength to persuade, and provide no basis for the Court to refuse the Application. Proposal not within public interest 1. Mr Betros says that this contention summarises the inappropriate nature of the proposal whilst also highlighting the unsuitable and inconsistent nature of the proposal under statutory and strategic planning considerations: Exhibit 2 at [54]. There is also a stifling of the achievement of the desired future character of the area: Exhibit 2 at [55]. 2. Mr Winnacott points to the brothel's eight years of operation, and the service being provided for certain members of the Canterbury and broader community, which includes the provision of a social benefit. He notes that there is no evidence that the operation of a business during the trial period has in any way been contrary to the public interest: Exhibit 2 at [56]. 3. In his oral evidence Mr Winnacott also referred to the public benefit of removing street prostitution, and for prostitution services to be offered within premises such as those the subject of this appeal. He conceded that not every zone objective would be met, but that they needed to be considered in toto. 4. Insofar as objections have been raised on the basis of public interest, I accept the evidence and conclusions of the Applicant. The public interest is not, in my view, a basis upon which it is appropriate to refuse the application. 5. I find that the arguments urging refusal on the basis of public interest do not succeed. 6. Having carefully considered the evidence, which included as view of the Site and its surrounds, and the submissions of the parties, I conclude that there is no planning basis for the refusal of this application to modify the consent in the manner sought by the Applicant. Orders 1. The Court orders: 1. The appeal is upheld. 2. Condition 6 of Development Consent No. 220/2012 granted by the Court 21 May 2013 in proceedings 10146 of 2013, which has become condition 5 in the conditions contained in Annexure A, is modified by replacing the words "three(3) years" with the words "ten (10) years". 3. The Exhibits are returned, save for Exhibits 1 and A. Rosemary Martin Senior Commissioner 212231.16 Annexure A (C) (15.5 KB, pdf) 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: 10 March 2017