Posted on August 1, 2017 by 1

Shining a red light on brothels

In the recent  case of Yao v Liverpool City Council [2017] NSWLEC 1167 (‘Yao’)  the Land and Environment Court revised the planning principle relating to the location of brothels that was established in Martyn v Hornsby Shire Council [2004] NSWLEC 614 (‘Martyn’) in order to set out more objective based considerations that reflect current knowledge of the amenity impacts of brothels.

In Yao, Brown C considered an appeal against Council’s refusal of a modification application to modify a development consent to use a premises as a brothel.  The original  development consent was granted in 1998 and the modification application sought to modify one of its conditions and introduce a further condition which sought to extend the hours of operation.

The premises was located on the first floor of a building in Railway Street within the Liverpool Central Business District, near to the railway station.  The adjoining land uses generally comprised of commercial/retail premises and the Liverpool Public School was located diagonally opposite the entrance of the premises, on the other side of Railway Street.

The site was zoned B3 Commercial Core Zone under the Liverpool Local Environmental Plan 2008. Whilst the use of land for “sex services premises” was prohibited under the zone, the site enjoyed existing use rights by virtue of the 1998 Consent.

The main issues in contention were: whether the proposed extension to the hours of operation was compatible with the surrounding land uses; whether the extended hours would create unacceptable social impacts in the immediate locality; and that the applicant had not satisfactorily justified the reason for the proposed extended hours.

Since the land use was prohibited, there was no applicable development control and the development was assessed against the planning principle on the location of brothels established in Martyn.

Council and the Applicant led evidence from town planners and social impact assessment experts who gave evidence on the pedestrian activity near to the premises, the sensitivity of surrounding land uses and the social impacts of the proposal.

In determining the matter, Commissioner Brown considered whether the planning principle relating to the location of brothels required updating and that [at 24 ] the more prescriptive form of planning principle in Martyn needs revision given the more recent approach of creating planning principles that simply raise relevant considerations.

Consequently, the Commissioner revised the planning principle as follows [at 25]:

When considering whether to grant consent for a development application for a “sex services premises” a consent authority should take into consideration such of the following matters as are relevant to the development application:

1. the proximity to any sensitive land uses, such as, but not exclusively educational establishments, places of public worship, child care centre etc,
2. the proximity to any premises used for residential accommodation,
3. paths of travel for different members of the community near the premises,
4. the hours of operation,
5. signage,
6. means of access to the premises,
7. safety of patrons and employees,
8. streetscape appearance,
9. the existing or anticipated character of the area,
10. car parking and public transport access,
11. social impact, and
12. impacts of clustering multiple sex services premises.

After conducting an assessment of the proposal against the relevant considerations of the revised planning principle, Commissioner Brown dismissed the appeal for the following reasons:

• The premises was too close to the school and the increased hours of operation coincided with times of high pedestrian activity from parents and school children;
• The Applicant did not provide adequate information to explain how the site could be accessed safely and securely from the rear lane and how antisocial behavior was to be managed in the immediate vicinity of the site, including the rear lane, should it emanate from the brothel.
• Sex services premises were prohibited under the zone which evinced Council’s strategic direction to preclude sex services premises from the the B3 zone.

A link to the decision is found here

Should you wish to discuss this case or any other matter, please contact Carlo Zoppo, Partner on 8235 9705 or by email, at carlo.zoppo@lindsaytaylorlawyers.com.au