Recently, in Yao v Liverpool City Council (Yao) [2017] NSWLEC 1167 the Land and Environment Court’s planning principle in relation to brothels was updated from the principles enunciated in Martyn v Hornsby Shire Council (Martyn) [2004] NSWLEC 614.
The planning principles in Martyn had been in operation for 13 years, and, in some instances, had been overtaken by development controls provisions in individual council development control plans.
The updated planning principle requires (Yao at [25]):
When considering whether to grant consent for a development application for a “sex services premises” a consent authority should to 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 centres 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.
Application of Revised Principles in Yao
Yao was an appeal against the refusal of a development modification application by Liverpool Council in relation to a brothel located within walking distance of Liverpool railway station and central business district. Liverpool public school is located across from the brothel and is considered to be a sensitive land use. The modification application sought to extend the trading hours of the brothel.
In determining whether the extended trading hours sought were compatible with the surrounding land uses, Commissioner Brown applied the revised planning principles 1,3,5 and 9 (see above). Ultimately, the Commissioner was not satisfied that the extension of operating hours and intensification of use was appropriate for the site (see [31], [36]-[37]).
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