How We Got Here
INDEPENDENT ASSESSOR
Prostitution Act 1999
(1) That the appeal be upheld;
(2) That the application for development approval for a material change of use for
a brothel be approved and a development permit for a material change of use
for a brothel be granted, subject to the conditions set out in the report of Jenny
Elphinstone and Neil Beck to the planning and environment committee of the
respondent dated 14 April 2005 at pages 66-70 and the applicant and the
Prostitution Licensing Authority be advised accordingly;
Stephen Keim
Independent Assessor under the Prostitution Act
25 July 2005
1
INDEPENDENT ASSESSOR
Prostitution Act 1999
BETWEEN: AART BRONS
Appellant
AND: CAIRNS CITY COUNCIL
Respondent
REASONS FOR DECISION
Preliminary
1. The Independent Assessor prepared a preliminary assessment with reasons for the preliminary assessment1 in this matter which was forwarded to the parties on 28 June 2005. Both parties have indicated that they do not want to make submissions arising out of the substantive content of those reasons and the assessment. Accordingly, I have moved to finalise the decision and the reasons therefore.
The Appeal
2. The appeal by Aart Brons (“the appellant”) was received in the appropriate form by the assessor’s registrar at the Prostitution Licensing Authority (“the Authority”) on 19 May 2005. The appeal relates to a refusal of an application for a development permit for a material change of use for a brothel for premises located at 11 Cava Close, Cairns. The decision of the Cairns City Council (“the respondent”) was made on 14 April 2005. Pursuant to subs.3.5.17(1) Integrated Planning Act 1997 (“the IPA”), the appellant made submissions about two aspects of the terminology2 in the decision notice. Ultimately, these submissions were accepted and a replacement decision notice3 dated 16 May 2005 was issued. The notice of appeal indicates that this was received by the appellant on 18 April 2005. The appellant’s notice of appeal, received on 19 May, was well within the
time of 20 business days from receipt of a negotiated decision notice allowed for
commencing an appeal to the Independent Assessor.4 I am therefore of the opinion that the procedural requirements for the commencement of an appeal have been complied with.
The Issue
3. The grounds of appeal stated in the notice of appeal make reference to a number of documents attached with the notice. The issue in the appeal can be briefly stated, however, once reference is made to the decision notice. The decision notice reads as follows:
“REASONS FOR REFUSAL
1. The Assessment Manager is required under Section 64(1)(a)(ii) Prostitution Act 1999 to refuse the application where the application land is within 200 m of the closest point on any boundary of land on which there is a residential building and such a building is located on land at 150-172 McCoombe Street more particularly described as Lot 2 on RP730391 for which a “Residence Replacing an
____________________________________________________
1 ee s.64S Prostitution Act 1999 (“the Act”).
2 he decision notice described the application as “impact assessable” and made reference to the approval for a
use as “detached dwelling house” which was changed to read “residence to replace an existing residence”.
3 See subs.3.5.17(4)(d) IPA.
4 See subs.64L(2)(b) of the Act.
Existing Residence” was established under the Consent Permit No1630 issued on the 10 January 1977 by the former Cairns City Council. The approved use has not been abandoned under the Integrated Planning Act and the use rights associated with the use of “Residence replacing an Existing Residence” continue.”
4. Section 64 of the Act provides as follows:
“64 When assessment manager must refuse application
(1) The assessment manager must refuse a development application if—
(a) the application land—
(i) is in, or within 200 m of the closest point on any boundary of, a primarily residential area or an area approved for residential development or intended to be residential in character; or
(ii) is within 200 m of the closest point on any boundary of land on which there is a residential building, place of worship, hospital, school, kindergarten, or any other facility or place regularly frequented by children for recreational or cultural activities; measured according to the shortest route a person may reasonably and lawfully take, by vehicle or on foot, between the application land and the other land; or
(b) the application land is within 100 m of the closest point on any boundary of land on which there is a residential building, place of worship, hospital, school, kindergarten, or any other facility or place regularly frequented by children for recreational or cultural activities, measured in a straight line; or
(c) for land in a town with a population of less than 25 000—
(i) the local government for the local government area has required that all applications within the area be refused; and
(ii) the Minister has agreed that the applications should be refused; or
(d) more than 5 rooms in the proposed brothel are to be used for providing prostitution.
(2) In this section—
“residential building”, for subsection (1)(a)(ii) and (1)(b), means a building or part of a building used primarily for private residential use, other than a building or part of a building used only for a caretaker’s residence on land in an industrial area.
“vehicle” includes any type of transport that moves on wheels but does not include a train or tram.”
5. Attachment 6 of the material forwarded by the appellant with the notice of appeal included a report to the respondent by the respondent’s planning department. At page 70 of that document, it is stated that the distance between the application land and the closest point of 150-172 McCoombe Street, Cairns (“the disputed lot”) is 195 metres. The distance (or the fact that it is less than 200 metres) is not admitted by the appellant but no attempt has been made to place before me evidence disputing that fact. I find that the relevant distance is 195 metres as stated in the respondent’s document.
6. The respondent’s case on this appeal is that the disputed lot contains a residential building as that is understood in s.64 of the Act and that the respondent and, in turn, the Independent Assessor, are obliged by s.64 to refuse the application. The case of the appellant is that the building on the disputed lot comes within the exception in the definition of “residential building” in s.64(2) of the Act in that the building on the disputed lot that is used for residential purposes is “a building or part of a building used only for a caretaker’s residence on land in an industrial area”. It is this difference of position that represents the issue raised by the appeal.
7. The correct characterisation of the building on the disputed lot used for residential purposes is a question of mixed fact and law the decision on which is pivotal to the decision on the appeal. It is necessary to consider the information available concerning this building.
Current Circumstances
- The disputed lot is zoned “general industry” in the 1996 transitional planning scheme of the respondent. There is nothing to indicate that the area comprised by the disputed lot and any relevant surrounds) is anything other than an industrial area. I find that the building on the disputed lot which is the subject of this characterisation is on land in an industrial area.
9. Ms. Taylor, a town planner, acting on behalf of the appellant5 provided details of the results of a site inspection apparently carried out by Ms. Taylor, herself. The results of that site inspection include the following observations:
(a) The residence is located on a large industrial site which is developed for industrial purposes;
(b) The residence is not located on a separate lot but is located on the same lot as a number of sheds which are used for the
industrial purposes only. There is also an outside storage area whose purpose is also industrial only;
(c) The primary use on the disputed lot is a large building
contractor’s depot;
(d) The residence building is also used for a significant office and administration area;
(e) Ms. Taylor was advised by two female staff members on site that the business was operated from the residence; and
(f) The signage facing McCoombe Street indicates that the office for the business is located within the residence building.
10. In extracting the above observations, I have tried to exclude anything of a polemical nature. I am prepared to find that the above observations, as I have set them out, are an accurate description of the disputed lot and the industrial buildings contained thereon.
11. The most up to date information going to the nature of the residential use is contained in a memorandum of an interview conducted by Ms. Elphinstone, a planning officer of the respondent, with Mr. and Mrs. Richardson on 13 August 2004. Mr. and Mrs. Richardson stated that they and their children resided on the disputed lot in the residential building. Mr. and Mrs. Richardson also operate a “construction building service” from the disputed lot. Mr. and Mrs. Richardson had resided in the building since 1996. A trail bike track on the disputed lot was used by the Richardson children and friends. Consistent with Ms. Taylor’s subsequent observations, Ms. Elphinstone observed that part of the building was used for office purposes and that part of that space operated as a reception area. Mr. Richardson advised that, prior to the use by the Richardsons, the disputed lot had been used for beef cattle fattening by a butcher owner of the site who had approval to slaughter cattle on the site. Mr. and Mrs. Richardson advised that they planned to move off site into a new residence within 12 months of that interview. No more up to date information is available as to whether that has occurred.
12. I accept Ms. Elphinstone’s recounting of her interview as accurate and also accept the contents of her observations. I also accept that what Mr. and Mrs. Richardson told Ms. Elphinstone was an accurate description of the matters, both past and present, which they described.
____________________
5 In a submission to the Independent Assessor dated May 2005 and forwarded with the appeal.
6 Whether there was any earlier scheme applicable to this land is not clear from the material.
Approvals History
13. I am provided with a history that goes back to the 1971 Planning Scheme for the
respondent (“the 1971 scheme”).6 The disputed lot was zoned heavy industry in the 1971 scheme. No clear facts are available as to the use of the land between 1971 and 1977. On 10 January 1977, the respondent gave consent to “a residence to replace an existing residence”. That consent was subject to a condition that “the building or buildings will be erected in accordance with the plans and specifications approved by the Council and thereafter used and or occupied in accordance with this consent”. Plans for the building were attached. Plan 3/3 shows a site layout. It shows the new residence to be located facing McCoombe Street.7 The same plan shows (without detail) the presence of an existing dwelling near the corner of Scott and McCoombe Streets and “existing sheds”, roughly in the middle of the lot in terms of the McCoombe Street frontage but located at the back of the lot towards an access easement. Again no detail is given of the footprint or number of the sheds.
14. The table of zones in the heavy industry zone provided for heavy industry and light industry as as of right uses. A series of uses were prohibited. The balance of unenumerated uses were consent only uses. The 1971 scheme provided for “dwellinghouse” as a defined use. The definition reads as follows:
“Any land, building or other structure which comprises or is intended to comprise only self-contained accommodation for the exclusive use of one family, including such out-buildings as are incidental to and necessarily associated with a dwelling house.”
15. The 1971 scheme appears to make no specific reference to, nor to define a use as,
“caretaker’s residence’. This does not mean that no such use was possible in Cairns City as at the time the scheme commenced or during its operation. “Use” is defined in the scheme as including “any use which is incidental to and necessarily associated with the lawful use of the land in question”. Also, paragraph 2, under the heading “Definitions” allows for the existence of uses “not herein defined” although its express provision is for such undefined uses as are, however, defined in a by-law.
16. The point of the definition of “dwelling-house” seems to be that a single lot may not be the subject of a consent for use as a dwelling house and, at the same time, be used in a significant way for industrial purposes. On the information available, it is not clear, therefore, whether the residence the subject of the 1971 consent was for a dwelling house such that the existing sheds on the property were incidental and necessarily associated with the dwelling house or whether the residence was incidental to and necessarily associated with some light or heavy industrial use. It does not seem possible under the 1971 scheme (except in the case of lawful non-conforming use provisions) that a dwelling house (as defined with its references to exclusivity) and a fully-fledged industrial use could lawfully co-exist on the same land.8
______________________
7 The location appears consistent with its present position.
8 Clause 10 of part III of the 1971 scheme does allow erection of a new building to replace a building destroyed which had been previously used for a lawful non-conforming use.
9 The approval documents are included as appendix 2 to the submission of Ms. Taylor dated May 2005.
10 At page 2.
17. The lack of clarity as to the use of the disputed allotment and the relationship of the buildings to one another is rectified to some extent by an approval granted on 19 April 1979.9 The approval is addressed to a Mr. and Mrs. Eales and is described as a “consent for the erection and use of a building on and use of land … for the purpose of Dry Rendering of Meat Products (Noxious Industry)”. As a separately defined set of uses to heavy or light industry, noxious industry of any kind did indeed require town planning consent under the 1971 scheme. As Ms. Taylor points out in her submission10, the plans forming part of the conditions of that approval refer to the existing house (and the residence (and office) building) currently existing on the disputed lot as “existing managers residence”.
18. I am not advised as to any other approvals. Ms. Taylor advises11 that the 1996
Transitional Scheme provides that a “detached dwelling”12 is “prohibited” in the current zoning of the disputed lot, namely, “general industry”. Ms. Taylor also points out that a “caretaker’s residence” is “permitted” and “as of right” in the same zone. While these components of the 1996 scheme are indicative of present planning intentions, they do not resolve the issues before me since uses contrary to current approaches may lawfully continue because of their being lawful under earlier planning regimes or an original unregulated use regime.
Analysis
19. It is important to note that the definition of “residential building” in s.64 of the Act and the exception it contains of “caretaker’s cottage” are expressed in the present tense. It is current uses not the use in 1977 which is definitive although the approvals history may be of assistance.
20. To be a residential building, the building or part of the building must be used primarily for residential use. No attempt has been made by the appellant to argue that the office uses have grown so much in recent times that the residential use of the building is now only a secondary or ancillary use of the building as opposed to the whole site. In the circumstances, I assume that the residential use of the building is still in the ascendancy and constitutes the primary use.
21. It seems to me that the use by the Mr. and Mrs. Richardson and their children is private residential use. It is not clear what the alternative (to private residential use) is, perhaps, hotel accommodation where sections of the public come and stay for short periods of time. It seems tolerably clear, however, that Mr. and Mrs. Richardson and their children comprise a private family group making their own arrangements.
22. It follows, therefore, for the appeal to succeed, I must be satisfied that that part of the building used as a private residence by Mr. and Mrs. Richardson and their children is being used only “for a caretaker’s residence”13.
23. There is no definition of “caretaker’s residence” in the Act. I have been unable to find any useful reference to the ordinary meaning of the phrase in separate definitions provided in dictionaries of the component words. The definition in the 1996 scheme cannot, of course, being contained in subordinate legislation, at best, lay down for the legislature what it meant by the phrase as used in the Act.
24. Nonetheless, the definition is, indeed, worth setting out. It reads as follows:
“Any residential premises used or intended for use for caretaker or management purposes only, in
connection with any industry or other non-residential use conducted on the same site”.
25. With one exception, this definition catches key aspects, in my opinion, of the ordinary meaning of the phrase. First, it is not essential that the occupants of the particular building actually patrol the wider premises as caretakers (or some form of security person) or go round fixing things (taking care in a narrow sense). The relationship between residing onsite and the non-residential use may be looser than that. Importantly, some advantage for the non-residential use should be apparent. In the case under consideration, both Mr. and Mrs. Richardson are involved in the business and the convenience of being located on the site is apparent whether it is for security or management or some other reason. The fact that the building is, itself, used partly as an office and reception area for the business assists this conclusion. For example, both Mr. and Mrs. Richardson can devote themselves to business and domestic responsibilities within seconds of the other or even at the same time because of the very close juxtaposition of the two uses. The element of being used for purposes sufficiently closely connected with the non-residential uses on the site is satisfied in my view.
26. Second, the residential use and the non-residential use must be on the same lot. It is
difficult to envisage that “the caretaker” for one industrial lot might live two lots away. The spatial relationship is very important. This is obviously satisfied in this appeal.
___________________________________
11 In a letter to the respondent dated 1 November 2004.
12 Defined as “any premises used or intended for use as a self-contained accommodation for the exclusive use of one family on a single allotment of land and including any ancillary outbuildings”.
13 I have expressed above my conclusion that the disputed lot is land in an industrial area.
27. Third, contrary to the scheme definition, it is insufficient, for the exception provided by the Act definition, for the building or part thereof only to be “intended for use for caretaker purposes”. The Act definition requires that the caretaker aspect of the use be current (and be the only residential use)14. Questions might arise where the only residential use or only non-caretaker use is illegal in that it is not permitted by a current planning scheme. It would seem unfair in those circumstances for an applicant to be prevented from obtaining development approval for a licensed brothel only because of an existing unlawful residential use. That consideration does not arise in the present appeal where there is no suggestion that the use by Mr. and Mrs. Richardson and their children is illegal. In any event, in my view, the use for “caretaker purposes” is sufficiently current in this appeal.
28. It seems to me, therefore, on the available information, that the residential use of part of the building by Mr. and Mrs. Richardson and their children is use only for a caretaker’s residence on land in an industrial area.
29. The approvals history has been only broadly of assistance. However, it does indicate, despite the paucity of detail, that the residential use of the property has not, at any time, for which there is information, been the sole use of the disputed lot. The other uses have been unlikely, outside some kind of rural or farming zoning, to have been consistent with residential use unconnected with the industrial or non-residential uses. The approvals history, while not definitive, is consistent with an expectation that the current use would, indeed, satisfy the caretaker’s residence exception in the definition of “residential building” in s.64 of the Act.
30. One other matter raised in the material is the existence of the trail bike track on the
disputed lot. The interview with Mr. and Mrs. Richardson makes it clear that the track is associated with the residence on the disputed lot and, functionally, part of the residence, that is, it is only present because of the residence. In my opinion, the reference to “any other facility or place regularly frequented by children for recreational or cultural activities” in s.64(1)(a)(ii) of the Act is intended to refer to some public forum which satisfies that description. It is not capable of applying to part of a residence (or associated facilities) that, itself, constitutes an exception to the types of location which, if within the defined distance of 200 metres, produce the mandatory refusal of development approval. In this regard, the trail bike track is no different to the Richardson dining room which might be regularly visited by friends of the Richardson children. Further, the evidence that the trail bike track is regularly, as opposed to spasmodically, frequented by children for recreational activities is unconvincing.
___________
14 This means that one cannot have flats and use one for “a caretaker” and rent the others out to general tenants. It does not mean, in my opinion, that the caretaker use prevents a family (the family of the caretaker or caretakers) from being present.
Conclusion
31. Since the correct characterisation of the residence on the disputed lot is the only issue on the appeal and has been determined in favour of the appellant, it follows that the appeal should be upheld. The respondent’s officers prepared a set of conditions addressing the requirements of the code for assessment of development applications for a material change of use for a brothel in an industrial area (“the Code”) in Schedule 3 to the Prostitution Regulation 2000 (“the PR”). I have been advised by the town planner for the appellant that those conditions are acceptable to the appellant. They will be incorporated in the approval which forms the decision. The relevant orders are set out in my decision issued with these reasons.
32. In accord with the Act,15 each party to the appeal must bear its own costs.
Stephen Keim
Independent Assessor under the Prostitution Act
25 July 2005
_________________________________________
15 Section 64R
Kind regards,
Aart.