Background
On the 31 March 2017, the NSW Land and Environment Court dismissed an appeal to modify the hours of operation for an existing brothel in Liverpool and revised the planning principle of Martyn v Hornsby Shire Council [2004] NSWLEC 614.
Land and Environment Court Facts
The applicant sought to modify a condition of a development consent granted by the Liverpool City Council (the Council) in 1998. This modification would have extended the operating hours of the brothel.
The Council refused the application on the basis that the proposed “extended hours are not compatible with surrounding areas”, and “would give rise to unacceptable social impacts in the immediate locality”. Furthermore, the applicant “has not demonstrated a satisfactory justification for the proposed extended hours”.
Residents, objectors and other commercial operators in the area provided evidence in opposition of the extended hours.
Land and Environment Court Decision
The brothel was located in a B3 Commercial Core Zone under the Liverpool Local Environmental Plan 2008 (LEP 2008). Its use was characterised as a ‘sex services premises’, which was prohibited.
The brothel had existing use rights pursuant to the Environmental Planning and Assessment Act 1979 (EP&A Act). As there were no relevant development control requirements because its use was prohibited in the zone, the planning principle in Martyn v Hornsby Shire Council [2004] NSWLEC 614 (Martyn) was addressed by the expert town planners.
Commissioner Brown noted this planning principle had been overridden by specific controls and requirements in development control as implemented by individual councils. The Commissioner further noted that a specific planning principle for brothels was necessary, and revised the planning principle in Martyn to include more relevant considerations such as:
- the proximity to any sensitive land uses, such as, but not exclusively educational establishments, places of public worship, child care centres etc.
- paths of travel for different members of the community near the premises, and
- means of access to the premises
In applying the relevant considerations, a panel of experts provided evidence for the parties and considered the high level of pedestrian activity of parents and children in the area. Furthermore, it was agreed upon that heightened sensitivities regarding the brothel are attributed to the demographic and cultural context of the area.
It was concluded that although the EP&A Act and Regulations permitted for such use, the LEP 2008 clearly prohibited “sex service premises”, and that it would be inappropriate to intensify such use.
Implications for Council
Councils will need to be aware of any existing use rights pursuant to the EP&A Act in relation to approving any development applications. Furthermore, Councils need to be aware of any legislation or regulation that saves the existing use rights. Additionally, Councils need to implement specific controls and requirements in situations where there are no developmental controls as the use is prohibited. Finally, Councils should be cognisant of the Court’s power to consider other relevant considerations in revising the planning principle of Martyn such as culture, demographics, impact on schools etc.
For a copy of the full judgment, please click: https://www.caselaw.nsw.gov.au/decision/58ddc37ee4b058596cba590c.
