Development Application for Sex Services Premises Approved

The Land and Environment Court of New South Wales approved a development application for the use of an existing building as a sex services premises, subject to conditions, after considering the relevant zoning objectives and development control plan.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] v [NAME] [2010] NSWLEC 1296 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT [NAME] PARTIES : RESPONDENT [NAME] NUMBER(S) : 10567 of 2010

CORAM: [NAME] ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- [NAME]: Environmental Planning and Assessment Act 1979 [NAME] 2008

DATES OF HEARING: 2 November 2010

DATE OF JUDGMENT: 2 November 2010

EX TEMPORE JUDGMENT DATE : 2 November 2010

APPLICANT [NAME] (solicitor) SOLICITOR [NAME] LEGAL REPRESENTATIVES: RESPONDENT [NAME] (solicitor) SOLICITOR [COMPANY]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

[NAME]

2 November 2010

10567 of 2010 [NAME] v [NAME]

This determination was given extemporaneously and has been edited prior to publication.

JUDGMENT 1 Commissioner: This is an appeal under s 96(1) of the Environmental Planning and Assessment Act, 1979 (the Act) against the refusal by [NAME] (the council) of a development application which seeks the use of an existing building at No. [ADDRESS], [NAME] (the site) as a sex services premises.

2 The issues between the parties have been resolved and they are seeking orders from the Court.

3 The site is located on the southern side of [ADDRESS], approximately 30m west of its intersection with [ADDRESS] and is a narrow irregular shaped allotment with a frontage of 4.2m and area of approximately 171m2. The site is zoned B3 Commercial Core under [NAME] 2008 (the LEP). [NAME] Development Control Plan 2008 (the DCP) provides general controls to support the LEP.

4 A small, two-storey building is erected on the site with an entry directly from [ADDRESS] and a side entrance is available from a narrow pathway, which is approximately 900mm wide and runs along the western side of the building. This pathway also provides access to a small shed and separate toilet in the rear yard. All access to the premises is to be from the side entry, however the front door is likely to be required as a fire exit. There is no area available on the site for Carparking.

5 The development application proposes the use of the two-storey building as a sex service premises involving a total of three service rooms, one on the ground floor and two on the first floor. Staff amenities and a client waiting area are also proposed on the ground floor together with an accessible toilet facility. A maximum of five staff, being a receptionist and four sex workers are proposed on site at any time. The hours of operation proposed are 10am to 2am Monday to Wednesday, 10am to 4am Thursday and 10am to 5am Friday to Sunday.

6 The council refused consent to the application on 9 April 2010 for the following reasons:

1. The proposed development does not satisfy the objectives of B3 Commercial Core zone of the [NAME] 2008. In this regard, the proposal is not a suitable land use that serves the needs of the local and wider community, and fails to facilitate a high standard of exceptional [NAME] amenity.

2. The proposed development fails to satisfy the objectives and development standards of [NAME] Development Control Plan 2008 – Part 1.2 in regards to: (a) Clause 2.2 requires provision of 1 car parking space per 100m2 of floor area for developments in the city centre. The site proposes no car parking.

3. The proposed development fails to satisfy the objectives and development standards of [NAME] Development Control Plan 2008 – Part 4 in regards to: (a) Clause 7.2(1) prohibits sex service premises from being located on any land within 100m of an entry to a [COMPANY] or child care premises. The proposed development is located within lose proximity to a youth facility and other facilities utilised by the community. (b) Clause 7.2(3) prohibits sex services premises on the ground floor, other than access corridors. The proposed development seeks to operate a client waiting room, one service room, toilet, amenities and staff facilities on the ground floor.

4. Pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, it is considered the proposal is against community harmony and has an adverse social impact on the locality.

5. Due to the above reason, approval of the proposed development would not be in the [NAME]'s interest.

7 In accordance with the Court's Practice Note, all persons who lodged submissions to the council in relation to the application have been notified of the content of the proposed orders and conditions of consent and provided with an opportunity to present their views to the Court.

8 During the site inspection, I heard evidence from the [COMPANY] (the [COMPANY]) in relation to a submission of objection that had been lodged on behalf of the [COMPANY] by the Department of Education and Training. Issues raised were: - · A concern about the proliferation of sex services premises within the vicinity of the [COMPANY], which draws its students from a small area including residences in close proximity to the site. A plan of the area from which the [COMPANY] draws its students was tendered. · A number of students are likely to walk past the site on their way to [COMPANY] as the majority of students walk to the [COMPANY]. · There are already a number of similar establishments in the area and the [COMPANY] community is concerned about the safety issues associated with these establishments. · The site is in close proximity to a methadone clinic. · There have been a number of incidents of violence and drug deals in the area and the [COMPANY] community is concerned these will increase. · The Department of Education is of the view that sex services premises should not be located closer than 300m of the [COMPANY].

9 The [COMPANY] occupies the block bounded by [ADDRESS], [ADDRESS], [ADDRESS] and [ADDRESS] and, at its closest point would be approximately 125m from the site. The main [COMPANY] entry is off [ADDRESS] some 300m from the site however, parts of the [COMPANY] are in closer proximity. No evidence was provided by the [COMPANY] that can attribute any of the crime, drug use or behaviour in the area being associated to any [NAME] operating in the area. The concerns are more of a general nature regarding the types of establishments that are being established in the locality and a genuine concern for the students of the [COMPANY].

10 A further submission was tendered from an [NAME] who was unable to attend the on-site view. This submission objects to the [NAME] on moral grounds and expresses a concern about the proximity of the site to the local [NAME] [COMPANY].

11 In considering the merit issues, I have regard to the council's LEP and DCP. Sex service premises are permitted with consent in Zone B3 and the objectives of that zone, to which the consent authority must have regard, are: • To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community. • To encourage appropriate employment opportunities in accessible locations. • To maximise [NAME] transport patronage and encourage walking and cycling. • To strengthen the role of [NAME] city centre as the regional business, retail and cultural centre of south-western Sydney. • To ensure that, for key land in the [NAME] city centre, opportunities for retail, business and office uses exist in the longer term. • To facilitate a high standard of urban design and exceptional [NAME] amenity.

12 The parties agree that the development is consistent with the relevant objectives and as it is using an existing building, it is also agreed that the provisions of clause 7.1 of the LEP do not apply.

13 Relevant sections of the DCP are Table 4 to Section 3 of Part 1.2 which requires that parking for sex services premises be provided at the rate of 1 space per 70sqm of LFA or 1.5 car spaces per employee, whichever is the greater. The council is not pressing the need for any on-site parking or the payment of a contribution under s94 of the Act due to the application involving the use of an existing building.

14 Section 3.2 requires that developments provide an active street frontage.

15 Section 3.4 refers to safety and security and makes particular reference to the implementation of the NSW Police 'Safer by Design" principles. I note that the [NAME] has provided the council with advice that it has assessed the application applying those principles and is "of the opinion that all reasonable crime prevention strategies have been implemented and as such have no objections to the proposed Development Application."

16 Section 7.2 of Part 4 of the DCP provides controls for development within the [NAME] and particular controls for sex service premises. The controls are:

1. Sex services premises must not be sited: - on any land within 100m from an entry to a [COMPANY] or child care premises, or - on land immediately adjacent to or opposite (to any elevation) an existing or approved sex services premises.

2. In determining an application to carry out development for the purpose of sex service premises, the consent authority must consider the following matters: - whether the operation of the sex service premises will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it, - whether the operation of the sex service premises will be likely to interfere with the amenity of the area, and - whether the operation of the sex service premises will be likely to cause a disturbance in the neighbourhood when taking into account other sex services premises operating in the neighbourhood involving similar hours of operation.

3. No part of the premises (other than an access corridor to the premises) shall be located at ground floor level, mezzanine, sub basement level or street level or be visible from a [NAME] place.

4. No merchandising display relating to the sex services premises shall be erected, displayed or exhibited in an access corridor (including any stairwell to the premises).

5. Signage is to be discreet and is not to cause offence to the greater [NAME].

6. Details are to be provided on measures to be undertaken to safeguard workers, clients, and the general [NAME]. There are to address security personnel and the lighting of access-ways and car parking areas.

17 I heard expert evidence from [NAME], a town planner who is of the view that the development meets the locational requirements. A plan which indicates the location of other approved sex services premises was provided as part of Exhibit 5.[NAME] stated that the intent of the planning controls was met because the site allows for alternate access via the side doorway rather than directly from the street and this also facilitates access by persons with a disability. He stated that the street frontage, whilst not being an active frontage, is glazed as required by the DCP and will be covered with a film so that no view of the premises would be available to any passers by.

18 The parties agree, subject to the implementation of an approved Management Plan, that the site can be operated so as to comply with all of the DCP controls with the exception of the matter that requires the premises to be at a level within a building other than ground/street level. In this regard, the council is satisfied that this particular provision need not apply in the circumstances of the case due to the site's location at the fringe of the [NAME], the fact that it is not an area where children would congregate and the view that the side entrance satisfies the intent of the control.

19 The conditions proposed address management, safety and regulatory requirements and are agreed between the parties.

20 Having heard from the parties and considered the relevant matters raised by s 79C of the Act, I note that the site meets the locational requirements of the council's DCP in that it is more than100m from the [COMPANY], the [NAME] does not raise any objections to the use. I also note that the council's staff and Independent Hearing and Assessment Panel considered the application and are of the view that the council's planning intent for the area is met.

21 Accordingly, I am satisfied that the application can be approved and that the consent orders ought to be made, with the exception to those relating to costs which would need to be a separate application to the Court should either party seek their costs be paid.

22 By consent, the Court orders: 1. The appeal is upheld. 2. Development Application DA-269/2010 for the use of the ground floor and first floor of the existing building at Lot 2 DP 208270, [ADDRESS], [NAME] for the purposes of a [NAME] is approved subject to the conditions in Annexure "A". 3. The exhibits, other than Exhibit A, can be returned.

________________________ [NAME] Commissioner of the Court

03/11/2010 - Typographical error - Paragraph(s) Coversheet: Matter number & Legal representatives.

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