A J Associates Pty Limited v Bankstown City Council [2008] NSWLEC 1322

Land and Environment Court of New South Wales

CITATION : A J Associates Pty Limited v Bankstown City Council [2008] NSWLEC 1322

APPLICANT A J Associates Pty Limited PARTIES : RESPONDENT Bankstown City Council

FILE NUMBER(S) : 10503 of 2008

CORAM: Brown C

KEY ISSUES: Development Application :- Consent Orders - brothel - impacts on surrounding industrial uses

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 23/07/08

EX TEMPORE JUDGMENT DATE : 23 July 2008

APPLICANT Mr M Baird, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

23 July 2008

10503 of 2008 A J Associates Pty Limited v Bankstown City Council

JUDGMENT 1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to DA No 57/2008 for the use of an existing vacant industrial building at 53 Beresford Avenue, Greenacre (the site) for a brothel. The surrounding development consists principally of industrial uses orientated towards the automotive industry.

2 The site is zoned 4(a) General Industrial under Bankstown Local Environmental Plan 2001 (LEP 2001). Clause 33 states: Development for the purposes of a brothel may be carried out only on certain land within Zone 4(a) or 4(b) in Villawood, Greenacre, Milperra and South Bankstown as identified on the map. 3 The site is located within land identified in the maps accompanying LEP 2001 as land that is suitable for a brothel.

4 Bankstown Development Control Plan 2005 applies. Part D14 provides specific requirements for brothels. The report of the Development Committee on the application on 13 May 2008 addresses the criteria in Pt D14.

5 There was no dispute that the proposed development satisfies the numerical requirements for a brothel not being located within a 100 m radius from the boundary of the nearest property containing a sensitive land use (s 2.3), not within 100 metres of a State road (s 2.4), and not within 200 m of any other activity with similar operating hours (s 3.2). Notwithstanding these sections, s 2.2 requires a qualitative assessment of whether the brothel is within "reasonable view of a range of sensitive land uses". Criteria are provided to assist in the assessment of this requirement. 6 Requirements for car parking are provided at s 2.6 of Pt D8 of DCP 2005. There was no dispute that the proposal satisfies the requirements by providing 13 spaces where 12 spaces are required by s 2.6.

7 The Court's role in considering consent orders is set out in pars 35 and 36 of the Practice Notes - Class 1 Development Appeals. Relevantly, par 36(iii) provides the opportunity for persons who objected to the proposed development to be heard at the hearing. In this regard a number of objectors provided evidence on the site. These were; o Mr Rod Leonarder from the Department of Education, o Ms Teresia Zadkovich, the principal of the Bankstown North Public School, o Mr Alan Kamaledine of 27 Claremont Avenue, o Mr Vince Regario and Mr Frank Bortirillo of 49 Beresford Avenue, o Mr Lie Zhang and Ms Susan Xia of 55 Beresford Avenue, o Mr Shahade of 44 Beresford Avenue, o Mr Peter Anderson of 10 Reservoir Avenue, o Mr John Jager of 62 Beresford Avenue, o Pastor Ramos of the Jesus Lord of the Harvest Fellowship of 17 Rosedale Avenue, o Mr Keith Byrne of 67 Rosedale Avenue, o Mr Arthur Johnson of 28 Beresford Avenue, o Mr Paul Stevenson of 7 Reservoir Avenue, o Mr Mohammed Rachidi of 48 Claremont Avenue, o Mr Michael Zhang of 33 Beresford Avenue and o Mr De Stephano of 47 Beresford Avenue. 8 Pastor Ramos' concerns related to the proximity of the proposed brothel to the church. The concerns of Mr Leonard and Ms Zadkovich related to the proximity of the brothel to the Bankstown North Public School, while the other objectors were principally operators of industrial premises within the area. Their concerns related to additional traffic, inadequate parking, devaluation of nearby properties, impact on business operators in the area and their families and the likely unacceptable behaviour, drug use and vandalism by patrons of the brothel.

9 With the benefit of the site view and understanding of the council's planning controls and the council officer's report of 13 May 2008, I am satisfied that there are no reasons why the Consent Orders should not be made in the form agreed to by the parties.

10 The council has addressed the locational requirements of brothels in some detail through cl 33 of LEP 2001 and the more specific requirements in Pt D14 of DCP 2005. To find that the brothel is unsuitably located would be to ignore these controls. While s 2.2 of DCP 2005 provides some flexibility beyond the numerical controls in ss 2.3, 2.4 and 3.2, I agree with the assessment and conclusions reached in the council officer's report on s 2.2. It states relevantly: Given the restricted view created by the wall, the separation of the both distinctly different sections by Beresford Avenue created by Stacey Street and given that it is difficult to distinguish the brothel from other industrial unit/ properties within the locality, the brothel is not considered to be within reasonable view of Bankstown North Public School. In this respect the proposed brothel is located in a manner in which it is not within reasonable view of any sensitive land use 11 A significant concern of the business operators in the area was the parking and potential impact on traffic in the area. There was no doubt that the proposed development satisfies and exceeds the car parking requirements in s 2.6 of Pt D8 of DCP 2005. While there may be a problem with traffic and parking in the area at present, it is an existing problem and based on the car parking requirements in Pt D8, the proposal will not exacerbate the situation and as such, could not be a valid reason to reject the application.

12 Overall I agree with the conclusions reached in the council office's report where it states: It is considered that the proposal is consistent with all relevant objectives and standards. While council has received numerous objections to the use, given the design and setting of the proposed facility it is considered that it has been adequately designed to limit the impact of the development on its surrounding land uses. The development, subject to a 12 month trial period is considered worthy of support with a further development application to be submitted to council at the conclusion of the 12 trial period to assess the suitability and any impacts generated as a consequence of the use. 13 For these reasons the Court orders by consent that: 1. The appeal is upheld. 2. Development application DA 57/2008 for the use of an existing building at 53 Beresford Avenue, Greenacre for the purposes of a brothel is approved subject to the agreed conditions. 3. There be no order as to costs.

___________________ G T Brown Commissioner of the Court ljr

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.