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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 19 December 2000
Decision of Commissioner Hutchings
Respondent CITY OF UNLEY:
Counsel: MS PATRICIA ROSS - Solicitors: MINTER ELLISON
ERD-00-524
Judgment No. [2000] SAERDC 79
3 November 2000
THE COURT DELIVERED THE FOLLOWING DECISION
1 This matter concerns a massage parlour at North Unley. On or about 1 November 1999, Angela Wilkins of McInerney Avenue, Mitchell Park sought consent from the City of Unley for what was described in the application form as "massage" situated at Suites 1 and 2, Morrison Court, 8 Unley Road, Unley. Having deemed the proposed development to be a "change of use from warehouse and ancillary office to personal services establishment" on 11 May 2000, the City refused it.
2 Ms Wilkins appealed. The matter came to the required conference but no compromise was reached. Hence the matter came to this hearing at which time Mr Jack Costello and Ms Patricia Ross, both of counsel, represented Ms Wilkins and the City respectively. Evidence was given by Mr Jeffery Smith and Ms Kirsty Veitch, town planners, Messrs Richard Hanslip and Phillip Weaver, traffic engineers, Mr Christopher Turnbull, an acoustic engineer and Mr Darrin Wilkins, "owner and handyman at Bare Bunnies".
The Nature of the Proposed Development
3 Mr Smith described the use of the proposed development as a "personal services establishment" in his statement (Exhibit A1). When asked in cross examination as to what sort of personal services establishment, he answered "I suppose in common parlance, activities of a sexual nature", adding, "it is in common parlance a massage parlour". When asked by myself as to how he saw it in terms of the definition of massage parlour which in the Macquarie Dictionary, Second Edition, reads:
"massage parlour
1. an establishment providing massage for clients.
2. such an establishment which in addition illegally provides for the sexual gratification of its clients."
he replied ".. it's not a massage parlour in the sense of providing muscular tone" and added "my understanding of the use is that it's consistent with that"; ie, the second part of the definition.
4 Mr Weaver based his analysis of the traffic generated by the proposed development and its parking needs, inter alia, on the "Guide to Traffic Engineering Practice - Part 11 - Parking", National Association of Australian State Road Authorities, Sydney 1988; in particular on:
"Entertainment
Cinema |
spaces per seat |
0.1 |
0.4 |
Reception room |
spaces per seat |
0.1 |
0.3 |
Brothel |
spaces/100m² floor area |
0 |
1" |
He elaborated on these figures with respect to brothels in cross-examination.
5 Two independent experts in urban planning, development and traffic management both well regarded by the Court, were thus unequivocal in their professional opinions about the nature of the proposed use. The view taken by the Court in the company of the parties on the morning of 10th October 2000 of the facilities in the premises on the subject land at the above address in no way cast doubt upon these opinions.
6 On the evidence before me therefore, it is clear that - putting aside euphemisms - the proposed development is a brothel.
7 The fact that a use is currently in operation is irrelevant in the consideration of a development application under the Development Act 1993, as it was under its predecessor the Planning Act 1982 (Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472, and Kouflides v City of Salisbury (1982) 29 SASR 31). In this matter however, its relevance in relation to the Summary Offences Act, 1953 is clearly another issue. Should this Court further consider this matter in that the proposed development, on the face of it, contravenes the provisions of the Summary Offences Act, is therefore illegal and hence an inquiry into its planning merits would be hypothetical? Are the practicalities of the situation the same as those raised in Hackney Hotel Pty Ltd v Corporation of the Town of St Peters and Ors (1984) 36 SASR 265. Surprisingly, no submissions were made by counsel for the City along these lines. It seems to me that notwithstanding the principles raised in Hackney Hotel, the question of illegality is one that needs to be explored in another place and if, as one would expect, a judgment was made that the activities on the subject land should cease, that judgment would determine the action to be taken by the relevant authorities notwithstanding any judgment this Court makes with regard to the planning merits of the proposed development. That said, I now turn to the consideration of these merits.
The Proposed Development and Its Surrounds
8 Ms Veitch described the subject land as being:
" .... tenancies 1 and 2 of the Morrison Court Building, at the rear of 8 Unley Road, Unley, bounded by Park Lane to the north and Irwin Lane to the west. The subject building contains a total of 4 tenancies, 2 of which are currently being used for the purposes of conducting (the) personal services establishment .... .
The total area of the subject property is approximately 552.5m², with each of the four tenancies within the building having a floor area of approximately 80m². An informal gravel and dirt car parking area of approximately 160m² is located to the east of the subject building, approximately 90m² of which forms part of the property at 8 Unley Road with rights of way in favour of the subject property. A gravel and grass yard of approximately 140m² is located to the west of the subject building, adjacent to Irwin Lane. This yard also contains the toilets for each of the 4 premises, and is currently bounded by a steel mesh fence to the west and north boundaries."
9 The proposed development occupies tenancies one and two. Originally built as two attached dwelling units, the abutting hallways have been connected by an arch through the party wall. In the south-east corner is a room containing a reception area. There are three other rooms furnished with double beds and decorated in various ways. Towards the rear is a "girls' room", kitchens and a storeroom. Toilets are attached to the rear of the building with outside access only. Cars can be parked in the rear yard adjoining these toilets.
10 The building is a low single storey structure of about a century old. The establishment is known as Bare Bunnies and to quote Mr Smith "...suites one and two are painted in a distinctive pink and black colour scheme" on their external walls. Except for a blocked off right of way which leads to the east end of Park Lane, there is no legal access to the subject land from Unley Road. Pedestrians do walk between Park Lane and Unley Road via a car park on land north of the Morrison Court property on an informal basis. The main access therefore is from Salisbury Street (a street parallel to and west of Unley Road) and then Park Lane (east-west) and Irwin Lane (north-south). The latter eventually debouches into Young Street to the south. Rear lanes such as these are platted throughout North Unley and would have provided night cart and private horse transport rear access during the suburb's early years. Occasionally, they provide front access to cottages and other small dwellings such as those originally on the subject land, that diagonally opposite the subject land and those further south on Irwin Lane.
11 Nowadays these lanes provide actual or potential rear access to the dwellings with frontage to Salisbury Street and the offices, showrooms and the like with frontages to Greenhill and Unley Roads.
The Development Plan
12 The pattern of these uses is reflected in the zoning - the boundaries being along the middles of Park and Irwin Lanes. To the north of the subject land is the Office 3 Zone, the first objective of which is:
"Objective 1: Accommodation of office and consulting room development of up to 2000 square metres of total floor area per individual building, and residential flat buildings."
To the west is Residential B300 Zone, the two objectives of which are:
"Objective 1: A zone primarily containing dwellings of up to two storeys.
Objective 2: Provision for a range of dwelling types compatible in form, scale and design with existing positive elements of the character of the area."
13 The subject land lies within the Specialty Goods Centre Zone, the first objective of which is:
"Objective 1: Accommodation of small-scale retail specialty goods outlets, local convenience shopping facilities and neighbourhood, community, entertainment, education, religious and recreational facilities of a low traffic generating nature."
Principles of Development Control include:
"1 Development should be, primarily, small-scale retail specialty goods outlets, local convenience shopping facilities, and neighbourhood, community, entertainment, education, religious and recreational facilities of a low traffic generating nature."
"4 Small-scale specialty goods outlets and restaurants should be located within the King William Road and northern most Unley Road Specialty Goods Centre Zones."
Elsewhere in the City-wide parts of the Plan are provisions concerning the orderly arrangement of uses, appearance, minimization of detrimental impact by way of traffic, noise and the like.
14 The Unley (City) Structure Plan (Map Un/1) and the zoning maps taken together show a city where the residential areas and zones are bounded by business oriented areas and zones which are strips along the various arterial roads traversing the city from north to south. The subject land is "tucked away" at the intersection of two of these strips.
15 North of Young Street, the Specialty Goods Centre Zone takes on a distinctive character. Functions associated with entertainment, relaxation and leisure become numerous. There is a popular hotel which includes gambling facilities and a wine merchant and there are many restaurants and cafes supplying a wide range of food types and decor styles. While many of these are situated in low, single storey buildings, many are neither small in size, "small-scale" in the intensity of their operations, nor of a "low traffic generating nature." In the evenings later in the week, this northern end of the zone takes on the busy, bustling atmosphere of a typical restaurant strip. Such is common knowledge. Generically, the proposed development fits into this scene; albeit the hustle and bustle lessens towards Greenhill Road, uses with day time hours predominating.
16 The entrances for customers of these facilities in the northern part of the zone are almost solely from Unley Road. Their presentation by external embellishment, decor and activity is towards this road. Irwin Lane is very much the "tradesman's entrance", as is Park Lane in relation to the developments on Greenhill Road. The situation for the business in the suites within the subject building is the exception. The building appears to have been constructed in the early part of the 20th Century for four dwellings. Its location, access and the arrangement of the dwellings on the site can only be described as poor, even by the standards of the day. However, in subsequent years the dwellings were taken up for business purposes of the sort that can generally be expected to operate during normal business hours. Hidden away as they are from Unley Road, how successful such businesses have been and are, can only be a matter of speculation and in any event that is not an issue. They would not have had any significant detrimental impacts on the locality and would appear to have some presentation to Unley Road and access to it by way of the aforementioned pedestrian right of way; albeit it is blocked. (Figure 1)
17 Putting aside any issues with regard to the Summary Offences Act, a "personal services establishment" of the type proposed here - ie, a "massage parlour" or "brothel" is generically suitable in planning terms in this part of the Specialty Goods Centre Zone. That fundamental question having been answered, the next two general planning questions to be asked are: does it fit suitably within its neighbourhood or locality and does it fit sensibly on its site?
18 In the normal course of events one would expect a proposal that is in the business of entertainment to actively seek an Unley Road exposure as have others referred to above. However, the subject site is such that for all intents and purposes, it can only be approached through a residential area. It is generally accepted that interaction can occur between uses near or at the boundaries between zones. If people choose to live at or near the boundary between a residential zone and a business zone, they must expect some noise, traffic, overshadowing and the like which would not be appropriate further into the residential zone. Likewise, the businesses must expect some residentially based activities which may annoy. However, each situation must be judged on its peculiar circumstances. For example, where there is a clear demarcation such as a road, a linear feature such as a reserve or watercourse or the like, this interaction might be minimal.
19 In the locality, there is a clear physical demarcation between the residential and business zones. These are the lanes. However while the physical demarcation is clear, the activity demarcation is less so; ie, the lane is used by the establishments fronting onto Unley Road during (generally) daylight business hours. That said, this traffic would not impact unduly on the residential amenity. Traffic volumes are low. The proposed development on the other hand will draw traffic (vehicular and pedestrian) through the residential zone outside of not only daylight business hours but also outside of the normally expected hours of night time activities such as restaurants. Mr Weaver surveyed the situation on two Friday nights and also took into account the "numbers of clients attending the site during a two week period". Between 10.00 pm and 6.00 am the establishment is at its busiest. While there are not large groups arriving or departing such that there are peaks, there is nevertheless as steady flow throughout the night including the small hours. Customers arrive by taxi at the subject site. Some are dropped off by taxi where Park Lane intersects with Salisbury Street. Some arrive by car. Some arrive together, others singly. No information was available as to whether customers park in Salisbury Street - either in the office zone north of the traffic barrier near Park Lane or south of it in the residential zone - but it is reasonable to assume some would. Staff arrive by taxi or in the manager's car. According to Mr Turnbull, the noise generated by the activities would be "significantly less than the existing noise in the environment" given the existence of Unley Road in particular. He did not see that the noise from these activities would disturb the sleep of residents. That said, sleep disturbance is a notoriously difficult acoustic and planning issue. In this situation, noise from cars and people occurs only a few metres away from residences and bedroom windows in the small hours of the morning in an area both developed for residential purposes and zoned as such. While this noise might be subsumed by the ambient noise in a technical sense, that does not mean that louder noises of short duration should have to be tolerated in a residential zone.
20 As far as the site is concerned, car parking is the issue. Putting together the advice of Messrs Hanslip and Weaver and observing the practicalities of the situation, I can but conclude that the situation is unsatisfactory. The amount of traffic generated by the proposed development is relatively low. Nonetheless, car parking must be provided with spaces and aisles that conform to the Australian Standard, that are obviously and easily accessible at all hours and that do not compromise other site planning issues such as pedestrian movement, screening of private spaces and landscaping. If the requirements of the Development Plan Table Un/4 were relaxed, if car parking is shared by all tenancies (as the tenancies are now used) and if the western car park is arranged so that cars can drive into it directly from Irwin Lane, then the situation might just be satisfactory. But these "ifs", in site planning terms, are too many.
Conclusion
21 This matter is before me to be judged on its planning merits. As such, it must be treated as would any other proposal which seeks - whatever it may be called - to provide entertainment. On these terms it is in an appropriate zone and is of a relatively small intensity such that it does not generate from patrons in the actual premises a lot of noise and general activity. As such, it contrasts with some other nearby entertainment venues of similar scale such as restaurants. But it also contrasts with them in that it turns its back to the entertainment strip of northern Unley Road, operates well beyond the hours of these others and, for all intents and purposes, can only be accessed by back service lanes edging a residential zone. This means the amenity will be detrimentally affected to an extent that should not be expected at night in a locality significant parts of which are residential. In addition, it cannot be demonstrated that the subject land can function to reasonable site planning standards.
22 Having regard to the relevant provisions of the Development Plan, the circumstances of the site and the proposed development, it is the decision of the Court that this appeal is dismissed, the proposed development is refused and the decision of the Council confirmed.
23 There will be an order accordingly.
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