Detailed comments and suggestions with response

Item 10.2 - Attachment 3

Detailed comments and suggestions with response

3. DETAILED COMMENTS AND SUGGESTIONS WITH RESPONSE

Reference	Legal comments from Mallesons	Town planning comments from WorleyParsons	Response
General Comments	Defined terms are not used consistently throughout the DCP. E.g. The term “sex services” is used instead of sex services premises. Strip club premises’ and ‘Striptease Club Premises” is used. See comments re definitions below. Replace reference to sex services with sex services premises to ensure consistent use of defined terms and to avoid any ambiguity through the document.		Agreed that defined terms should be amended to apply consistently throughout the DCP and to avoid ambiguity. In particular, reference to ‘sex services’ should be replaced with ‘sex services premises’ and ‘striptease club premises’ should be replaced with ‘strip club premises’.
1 Introduction
1.3 Relationship to other Plans and Policies This DCP is to be read in conjunction with Parramatta Local Environmental Plan (LEP) 2001, Parramatta City Centre LEP 2007 and Sydney Regional Environmental Plan (SREP) No 28 - Parramatta. If there is any inconsistency between this DCP and these planning instruments, the instruments will prevail. This DCP: · supplements the Parramatta City Centre Development Control Plan 2007 provisions for sex services premises · repeals Parramatta City Council Regulation Brothels Development Control Plan and Health Standards.		There needs to be consistency in terminology/description of uses which the DCP is intended to facilitate. At end of first point, and throughout the text of the DCP, add “and restricted premises”.	See above and an amendment should be made as sought.
1.4 Purpose of this Development Control Plan The purpose of this DCP is to provide detailed provisions to guide the preparation and assessment of development applications for sex services and restricted premises. The planning controls in this DCP are designed to ensure that sex services and restricted premises are operated in appropriate locations so that they do not give offence to the community or result in a loss of amenity for residents. Under Section 79C of the Environmental Planning and Assessment Act, 1979, Council is required to take into consideration the relevant provisions of this DCP when determining an application for development. However, compliance with the provisions of this DCP does not guarantee that development consent will be granted. Section 79C of the Environmental Planning and Assessment Act, 1979 contains other matters that must be considered in determining a development application.		Replace with: The purpose of this DCP is to guide the preparation and assessment of development applications for sex services premises and restricted premises. The planning controls in this DCP are designed to ensure that sex services premises and restricted premises are operated in appropriate locations so that they do not impact (inappropriately) on the amenity of adjoining or other uses in the zone Compliance alone with the provisions of this DCP does not guarantee that development consent will be granted. Section 79C of the Environmental Planning and Assessment Act, 1979, contains other matters that must be considered when determining an application for development.	Agreed that should be amended as sought.
1.5 Savings provision Any application not determined at the time that this DCP came into force, will be subject to the provisions of this DCP.	The savings and transitional provision is not contrary to law, as a development application is determined on the law as it stands at the time of the determination. However, given that a DCP is a mandatory consideration under section 79 (1)(a)(iii), but is not an environmental planning instrument, the court has held that where the relevant development control plan commenced after the development application has been made, it should be taken into account but not be given determinative weight. Similarly, the repealed provisions which applied at the time that the application was lodged will also be taken into account. As such, while the savings provision in the draft DCP is not contrary to law, it would not prevent the court from considering relevant controls in place at the time the applicant was made, in addition to the draft DCP.	Recommend this be deleted as it is contravenes land law provisions which require a development application only consider legislation and statutory instruments that are current at the date of lodgement of the application.	In light of the legal advice the savings provision should be retained.
1.6 Aims of this Development Control Plan The aims of this DCP are to: · Regulate and control sex services premises and restricted premises appropriately to minimise amenity impacts upon adjoining land uses which reflect broad community attitudes and expectations. · Discourage a concentration of sex services and restricted premises in close proximity to each other. · Ensure high levels of both internal and external amenity are provided for sex services premises to ensure the safety and comfort of staff, visitors and neighbouring properties. · Ensure that massage parlours and similar establishments are designed in such a way as to prevent either the easy conversion or use as sex services premises. · Provide an appropriate framework to effectively regulate the operation of sex service premises through regular inspections, detailed provisions of development consent in the provision of plans of management and coordination with other relevant government agencies. · Support the health and safety initiatives of NSW Health and WorkCover NSW in regard to sex workers and their clients. · Prescribe the information to be submitted with a development application for sex services premises.	We are unaware of any published public Department of Planning Guidelines in respect of sex services premises or restricted premises. References to external documents should not be incorporated into the DCP. Delete paragraph and include new objective as follows: “To provide more detailed criteria for the development of sex services premises and restricted premises.” The meaning of the phrase “reflect broad community attitudes and expectations” is ambiguous and problematic. Delete phrase unless Council has some study or survey of community attitudes they rely on. What constitutes ‘close proximity’? Amend DCP so that it is clear what is meant by the term ‘close proximity’ - see comments in relation to Red Light District below. PLEP and DLEP do not define massage parlours. Change reference to ‘massage parlour’ to ‘restricted premises’.	Replace with: · Regulate and control sex services premises and restricted premises in appropriate locations so as to minimise amenity impacts upon adjoining land uses in the zone. · Discourage a concentration of sex services premises and restricted premises in close proximity to each other. · Ensure high levels of both internal and external amenity are provided for sex services premises and restricted premises to ensure the amenity and security of staff, and users or occupiers of the respective premises as well as neighbouring properties. · Ensure that restricted premises and similar establishments are designed in such a way as to prevent either the conversion or use as sex services premises without obtaining development consent or operating outside their development consents. . · Provide an appropriate framework to effectively regulate the operation of sex service premises and restricted premises, through detailed provisions of development consent in the provision of plans of management and coordination with other relevant government agencies. · Support the health and safety initiatives of NSW Health and WorkCover NSW in regard to sex workers and their clients. · In accordance with “Purpose of this Development Control Plan’, prescribe the information to be submitted with a development application for sex services premises and restricted premises. Note: “regular inspections” are not required as Council has powers to inspect under the Act.	Objectives should generally be amended as sought by WorleyParsons as this achieves greater clarity, and also gives effect to the concerns of Mallesons. The second bullet point should be amended as follows to resolve Malleson’s concern: Discourage a concentration of sex services premises and restricted premises in close physical proximity to each other. The aim (4^th bullet point) should be amended as follows: Ensure that restricted premises and similar establishments such as massage parlours are designed in such a way as to prevent either the conversion or use as sex services premises without obtaining development consent or operating outside their development consents.
2. Development to which this DCP applies
Sex services premises comprise premises where sexual acts or sexual services are provided for payment. These may include: (i) Brothels; (ii) Safe house brothels for street-based sex workers; (iii) Bondage and discipline parlours; and (iv) Massage parlours (see note below). NOTE: Premises described as providing massage related services involving sexual acts or sexual services will be considered as a brothel. However, please note that Section 16 of the Summary Offences Act 1988 makes it an offence for a person being the owner, occupier, or manager, or person assisting in the management of a premises held out as being available for: ‘massage, sauna baths, steam baths, facilities for physical exercise, taking of photographs or services of a like nature’ to knowingly suffer or permit sexual services.	The proposed definition of brothel is not consistent with the definition under the EP&A Act or in the SREP 28, PLEP, PCCLEP or the draft PLEP. Amend definition of brothel so that is consistent with the relevant planning instrument. Based upon the definitions in the Standard Instrument massage parlours, or bondage and discipline parlours will only be sex services premises if they are brothels, which is defined under the Restricted Premises Act. There is no definition of massage parlour, bondage or discipline parlour in these instruments or in the Standard Instrument. Consider amending definitions of brothel/sex services premises or restricted premises in LEPs to include sub-categories. Refer to bondage and discipline parlours as a sub-category of brothel. Amend definition of bondage and discipline parlours to include a reference to sexual acts. In its letter, section 3 pages 9 and 10, Mallesons states that when approving premises such as massage parlours and bondage and discipline parlours, Council should ensure that it exercises care in describing the permitted uses, and in framing the conditions that it imposes. Council may wish to consider including in the DCP a numbering of suggested conditions that would impose explicit limitations on use of such premises -- these could address matters such as the following: · The premises must not be used for sex services · The premises must only be used in accordance with the information provided in the development application (although a condition to this effect should only be included where the information and the development application is sufficiently clear). · Physical controls that could assist in limiting the illegitimate use of such premises for sex services -- for instance, by providing that no shower stalls may be built in the rooms of a massage parlour. ‘Restricted Premises’ is defined differently in PLEP; PCCLEP and the draft PLEP. References to ‘strip club premises, sex in premises venues and swingers clubs do not fall within the current definition of restricted premises in PLEP. They arguably fall within the definition of restricted premises under the draft PLEP. Ensure the definition of Restricted Premises is consistent with the applicable planning instrument. In Pederson & anor v Parramatta [2007] NSWLEC 61 the Court included "swinger's clubs" as a type of "recreational facility". Under the standard instrument such clubs would arguably be restricted premises. There is no definition of ‘swinger’s club’ in the draft DCP. Insert a definition of swinger’s club into the glossary incorporating the elements necessary to qualify as restricted premises.	Remove “please note that” as it is unnecessary. Replace “suffer” with a more common term.	The proposed definition of brothels and sex services is proposed to be amended to better reflect legislative provisions. The essential element of a brothel, as defined in legislation and this DCP, is that it is a premise where payment is made for sexual services. It is agreed that massage parlours, or bondage and discipline parlours will only be sex service premises if they are brothels. However, this is considered to be adequately covered by the explanation of sex services premises which states that, These may include -- -- -- There is no scope to amend the definition of restricted premises in LEPs to include subcategories as this is covered by the standard template. It is agreed that restricted premises is defined differently in PLEP; PCCLEP and the draft PLEP. This matter can be resolved as follows: · For the proposed stand alone draft DCP which falls under PLEP and PCCLEP strip club premises, sex in premises venues and swingers clubs can be considered as business or entertainment premises and subject to DCP controls. · When the sex services provisions are incorporated in the comprehensive DCP strip club premises, sex in premises venues and swingers clubs can be considered as restricted premises and subject to controls as proposed. Consequently, the following amendments should be made to Section 2 Development to which this DCP applies: First sentence of first paragraph should be amended to: This DCP applies to sex services, premises including brothels, restricted premises and business and entertainment premises where adult entertainment is provided as defined in Parramatta LEP 2001 and Parramatta City Centre LEP 2007 and which may include premises as outlined below: The term sex services premises should be amended as follows: Brothels and sex services premises comprise premises, as defined in Parramatta LEP 2001 and Parramatta City Centre LEP 2007, where sexual acts or sexual services are provided for payment. These may include: (i) Safe house brothels for street-based sex workers --. The term ‘Restricted premises’ should be amended to: Restricted premises comprise premises which sell restricted materials such as adult bookshops. After restricted premises the following should be added: Business and entertainment premises providing adult entertainment. These may include: (i) Strip club premises (ii) Sex on premises venues and (iii) Swingers clubs In addition, following the advice of Mallesons, the last sentence of the note for Sex services premises should be amended to: Conditions may be imposed on any development application: · preventing the conversion or use of massage parlours and similar establishments as sex services premises · ensuring that the premises must only be use in accordance with the information provided in the development application · and by physical controls that limit the illegitimate use for sex services.
Where development consent is sought for premises for medical or therapeutic massage, additional information, as outlined may be required to demonstrate that measures are proposed to ensure compliance with this Act. This information will include: · ABN number; · insurance details; and demonstration that the persons proposed to work on the premises are qualified or recognised in the treatment that they are making application for.		Recommend this section be removed as it should be in a different DCP and is likely to confuse the applicant.	It is considered that the provision should be retained as an advisory note for the applicants and operators of massage parlours. However, it is also agreed that there should be an additional reference to massage parlours in another section (ie. Section 5 Other Provisions) of the comprehensive DCP.
Conditions may be imposed on any development consent preventing the conversion or use of massage parlours and similar establishments as sex services premises.		Replace “on” with “in”. However, it is unnecessary to state this when the use of restricted premises as sex services premises would be illegal by virtue of no consent.	It is considered reasonable for information purposes to state that a condition may be imposed preventing the conversion or use of massage parlours.
Sex on Premises Venue means premises that gain income from entrance and/or membership fees paid for the use of the premises for sex between the clients but are not premises where sex services take place, or are arranged in exchange for payment. Includes: swingers clubs and sauna clubs that accommodate sexual encounters.		This ought to require a Plan of Management. To last sentence add “Such premises includes…”	Sex on premises venue are required to provide plans of management under the draft DCP. The additional minor amendment sought is supported.
Period of Consent	Council may limit the operation of a consent. However, this can only be done if a condition is imposed in the consent. Such a condition will be open to challenge and therefore must be capable of meeting the usual test applying to conditions: · Be for a planning purpose; · Be reasonable; · Relate to the development.		The advice is noted and has been referred to the Development Services Unit.
Glossary of terms	Review definitions of Bondage and Discipline Parlours; Sex on Premises Venue; Striptease Club Premises to ensure that the elements necessary to qualify as restricted premises / sex services premises are identified in the definition. An objective of the DCP is to prevent clustering of sex services premises and restricted premises, without the need to demonstrate that a ‘red light district’ will be created. Further, what is meant by concentrated? In Wei v Parramatta City Council [2008] NSWLEC 1157 at [28]: "it is unlikely that the proposal would turn the Rydalmere area into a red light district as feared by some objectors. I have already explained that the other brothels in the locality are spread over five city blocks and none are within visual sight of this premises. It is not proposed that there be significant lighting or other means of drawing particular attention to the premises, and it seems to me that the experts’ opinions that it would be far from becoming a red light district, if this application [is] approved, can be supported." Delete the term (red light district) where used throughout the document. Amend section 5.6.4 Location Standards to specify a maximum number for each area.		Definitions have been reviewed. See section --. It is agreed that the term Red Light District may be open to misinterpretation and can be removed without compromising the objectives of the DCP. However, it is considered impractical to set a limit for the number of permissible brothels that should be established in an area. It would be difficult to determine this number and to defend it on appeal. The existing separation distance standards should be retained, although these may also be open to challenge.
3 Submitting a Development Application
Development consent is needed for all types of sex services and restricted premises before they can legally operate. As a first step in the development consent process, proponents of sex services and restricted premises are strongly advised to consult with Council officers. The following requirements detail the specific information that must be provided to the consent authority as part of any development application for sex services and restricted premises. These requirements are in addition to the information requirements for all development applications.	The Environmental Planning and Assessment Regulations 2000 (“the Regulations”) currently specify what must accompany a development application - Schedule 1. Council may seek to request additional information (cl54(1), failure by an Applicant to provide such information does not entitle a Council to reject the DA without determining it though it may give rise to a ground to refuse the application. 5.6.2(3) Location Plan. A location plan is to identify specified uses within 200m of the proposed sex services site. How is this distance to be measured? Amend by inserting the words “(measured as a radius from the closest boundary on of the allotment of the proposed sex services site)”. Delete the second paragraph and replace with: “The following additional information should accompany any application for development consent for sex services premises and restricted premises in order to enable Council to properly consider the development application.” Delete reference to site plan as this merely repeats the requirements of the Regulations. If information as to uses of nearby properties is required, identify this as a separate item and link it with the distances specified within the PLEP.	Replace with: Development consent is needed for sex services premises and restricted premises. As a first step in the development consent process, proponents of sex services premises and restricted premises are strongly advised to consult with Council officers. The following requirements detail the specific information that must be provided to the consent authority and accompany any development application for sex services premises and restricted premises. These requirements are in addition to the information requirements for all development applications.	Amendments should generally be made as suggested. The first paragraph would be replaced with: Development consent is needed for sex services premises and restricted premises. As a first step in the development consent process, proponents of sex services premises and restricted premises are strongly advised to consult with Council officers. The second paragraph would be replaced with: “The following additional information should accompany any application for development consent for sex services premises and restricted premises in order to enable Council to properly consider the development application.” It is agreed that reference to the site plan can be deleted. 5.6.2(3) Location Plan, second sentence should be amended as follows: A location plan is to identify specified uses within 200m of the proposed sex services site, measured as a radius from the closest boundary on or of the allotment of the proposed sex services site.
(1) Specific information as to the operation of the proposed use should be dealt with in the Statement of environmental effects, including: · Number and role of all staff · Description of the activities that are proposed to be undertaken at the premises · Hours of operation · Number of rooms in premises · Identification of the rooms to be used for the proposed activities.		Amend to: (1) Specific information as to the operation of the proposed use must be clearly set out in the Statement of Environmental Effects, including…	It is agreed that the clause should be amended as sought.
(2) Plan of management (refer to 5.6.3 of this section): which sets out necessary considerations to be addressed for the establishment and operation of all types of sex services premises.		This should explicitly state “restricted premises”. However note that definition of restricted premises in DCP is different from the Draft LEP.	This amendment is agreed to.
4 Guide to Plans of Management
The Plan of Management will be used both in the development assessment process and as a means to identify the way in which the premises will operate in compliance to conditions of consent. The Plan of Management will be incorporated as a condition of development consent. The Plan of Management should supplement the information provided in the Statement of Environmental Effects and the plans submitted with the development application. In addition to providing information to allow the assessment of the potential impact of the premises and compliance with the provisions of this DCP, the Plan of Management can be used by both managers and employees to outline roles and responsibilities and identify procedures for the successful operation and management of the premises. The Plan of Management should include the following essential information. Business Details (iii)Record keeping procedures for employees?”	The definition of Restricted Premises under Draft PLEP may make the provision of a PoM relevant, however, under PLEP a PoM for such premises is arguably an unreasonable requirement (because the definition Restricted Premises is more restrictive). The details to be provided under the proposed PoM encompass internal operational issues. There is no reference to dealing with external environmental or social impacts. Any condition of consent imposing the PoM should provide for the PoM to be updated and approved by Council. Amend the Draft DCP so that the PoM is required to address complaints management including registering complaints regarding the operation of the premises or the behaviour of visitors arriving or leaving the premises and detailing how complaints will be dealt with. What is a meant by record keeping procedures for employees? The availability of records of employees raises issues of privacy. In the absence of Council having a right to access this information, employers may not be in a position to release it. This issue may need to be investigated further.	Provide reference to “Building and Health Matters”. Reference that the Plan of Management is to address the minimum requirements set out in the Public Health Act 1991 where relevant, and any required guidelines.	Whilst, the definition of restricted premises is more restrictive under PLEP they still fall under the definition of business or entertainment premises and can be subject to a requirement for a plan of management. The details for plans of management are designed to encompass internal operational issues and issues dealing with external environmental and social impacts can be dealt with in the assessment of a development application. Is agreed that the draft DCP should be amended to address complaints management. Under Business Details and after (iii) add a new (iv): The procedure for recording and dealing with complaints regarding the operation of the premises or the behaviour of visitors arriving or leaving the premises. It is acknowledged that employers are not expected to release confidential information on their employees (see amendment suggested in row below).
(iv)All of the above and relevant approvals are to be made available at all times on the premises	What are the relevant approvals? To whom are these details to be available? In what circumstances? Specify the relevant approvals and who has a right of inspection. We suggest that the PoM be available to the public and be kept on the premises at all times.		Amend (iv ) to: All of the above information, approvals for the establishment of the premises, the Plan of Management are to be made available to the public and be kept on the premises at all times. Confidential information on employee details is not expected to be released to the public.
Safety and Security	There is no requirement that staff training, emergency evacuation procedures or surveillance of common areas be identified in the PoM. While it is legitimate for a Council to have regard to health and safety issues the DCP provisions should not undermine or deal with matters that are properly the jurisdiction of other agencies - eg - NSW Health and Workcover.		It is agreed that amendments are generally required to address the matters raised. Under the heading safety and security add: a new (d): The method of surveillance of common areas. Under the heading Induction and Training amend (i) to: ‘Staff training and induction procedures and emergency evacuation procedures’. It is not intended that provision (i) under the heading Health Access should undermine or deal with matters that are properly the jurisdiction of other agencies. In addition, arising from Mallesons comment on 5.8 Safety and Security, Security Measures the following should be added under the heading Safety and Security: (e) Monitoring of alarms.
Health Access (i)Access arrangements for the attendance of health services providers must be detailed”	It is not clear to us what this provision is intended to achieve. Further, there is no reference to Health and Safety Policies for workers. Include a requirement that health and safety policies for workers be included in the PoM together with incident reports and accident register.		It is agreed that the provision should be amended by adding: (ii) Health and safety policies for workers together with incident reports and an accident register.
Additional Details for Sex Services Premises and Additional Details for Bondage and Discipline Premises.	In light of comments above, consider whether these uses need to be separately identified. Amend so that the purpose of the section is clear.		It is agreed that there is no need to separately identify these uses in this section.
5 Planning controls for sex services and restricted premises
5.1 Location Objectives · To ensure sex services and restricted premises are located in appropriate areas where they do not impact adversely on the environment and in particular upon residential occupancies or other sensitive uses. · To ensure that sex services and restricted premises are discreetly situated, sensitively located and are not prominent within an area. · To optimise the safety and security of sex services and restricted premises and their users. · To avoid the concentration of sex services and restricted premises in any one area.	The reference to “generally” creates uncertainty. Delete “generally” in the first line. ‘Sensitive uses’ are not defined, although are generally considered to be schools, churches, hospitals, etc.. Define “sensitive uses’ by reference to the LEP. Restricted premises and sex services premises are prohibited in residential areas although the zoning map provided to us suggests that many of the areas where they are permitted adjoin residential areas. Rephrase this objective as follows: To ensure that sex services premises and restricted premises are located in appropriate areas where they do not impact adversely on the amenity of the environment and in particular do not cause an adverse impact upon neighbouring properties, nearby residential occupancies or other sensitive uses. We are uncertain as to the difference between ‘discreetly situated’ and ‘sensitively located’. Does Council mean ‘noticeable’ rather than ‘prominent’? Amend this objective for greater certainty. There is no reference to workers in this objective. Amend the objective to include a reference to workers. The objective makes no reference to the character of the area. Amend the objective by inserting the following at the end “which changes the current or is not in keeping with the desired future character of the area.”	Add “premises’ after sex services	It is agreed that these objectives should be amended as sought and as follows: · To ensure that sex services premises and restricted premises are located in appropriate areas where they do not impact adversely on the amenity of the environment and in particular do not cause an adverse impact upon neighbouring properties, nearby residential occupancies or other sensitive uses. · To ensure that sex services and restricted premises are sensitively located and are not noticeable within an area. · To optimise the safety and security of sex services and restricted premises and their users and workers. · To avoid the concentration of sex services and restricted premises in any one area which changes the current character or is not in keeping with the desired future character of the area.
Location Standards Sex services and restricted premises must not be sited: S.1 within a radius of 100 m of existing sex services and restricted premises. Council will limit congregation of sex services and restricted premises so as to form or potentially form red light districts. S.2 within enclosed shopping malls/arcades. S.3 within a radius of 100 m of a licensed premises being a hotel, public bar nightclub or the like. S.4 within a radius of 50 m of a public transport facility being a railway station entry, bus stop, taxi rank or a ferry terminal. NOTE: Distances referred to in this DCP and in Parramatta LEP 2001 in respect of sex services premises and restricted premises are to be measured as a radius from the boundary of the allotment upon which the premises are proposed.	The word standards and principles is used interchangeably in this section. Has further commented that a ‘design standard’ is not a ‘development standard’ and will not be subject to SEPP1. Recommends replacing the word ‘standards’ and ‘principles’ with control See comments in relation to the definition of a red light district. There is no specification as to a maximum number of restricted premises or sex service premises in a particular area. Consider inserting a reference to a maximum number of premises permissible within a given area (define area). Change the reference to boundary in the NOTE to “closest boundary”. PLEP prohibits brothels on land zoned residential or on land within 200m of land zoned residential. Unlike the 200m residential buffer, there is no buffer distance for other zones. Consider whether a provision specifying a distance from a zone boundary permitting sex services premises where adjacent zone prohibits them is necessary. S.2 potentially conflicts with cl 25(b) of PLEP. Delete the word ‘enclosed’. S.4 repeats cl 24 (c ) of PLEP Delete S.4	Replace up to S2 with: Sex services premises and restricted premises must not be sited: S.1 within a radius of 100 m of existing sex services and restricted premises. Council will limit the location of sex services premises and restricted premises so as to prevent the forming or the potential to form red light districts. Where the sex premises are located in Zone B1 Neighbourhood Centre, these should be subject to urban design controls, and include consideration of siting above the ground floor where relevant, and weighed up with disability access considerations.	It is agreed that the words ‘standards’ and ‘principles’ should be replaced by the word, ‘controls’. It is agreed that the reference to red light district can be removed, as previously indicated. It is not considered necessary to insert a reference to a maximum number premises permissible within a given area (see previous comments). It is agreed that the reference to boundary in the Note should be amended to ‘closest boundary’. It is not considered necessary to impose additional separation distance requirements beyond those already stated in PLEP and the city centre LEP. S. 2 should be amended as sought S. 4 should be deleted.
5.2 Design of Premises Objectives	The term ‘presence’ has not been judicially considered. Delete ‘presence’ from O.1 O.3 requires no adverse impact but it does not require that the design be in keeping with the character of the area. Why limit to ‘built environment’ ? Amend O.3 to require that the design be in keeping with the character of the area.		O.1 should be amended as sought. O3 should be amended as sought and as follows: To ensure that the design and external appearance of the premises and any associated structures do not have an adverse impact on and are in keeping with the character of the area.
5.2 Design of Premises Design Principles P.1 The external appearance of sex services and restricted premises must respect the architectural character of the streetscape and not be a prominent feature in the street. P.2 All entrances and exits to sex services and restricted premises should be designed to facilitate the privacy of staff and visitors without compromising personal safety (through avoiding the use of isolated back lanes and poorly lit areas). P.3 The interior of sex services and restricted premises must not be visible from any place in the public domain. Where the interior of sex services and restricted premises may be visible from neighbouring buildings, adequate measures should be taken to screen the interior of the building, for example using blinds, screens etc. P.4 Sex services and restricted premises must not display sex related products, sex workers, or performers, or nude or semi-dressed staff from windows, doors or outside of the premises. P.5 Adequate design measures must be provided that ensure the safety and security of sex services and restricted premises staff and visitors and where appropriate shall include: reception and visitor assessment areas that incorporate design measures and management procedures to ensure the safety and security of staff and visitors design which minimises alcoves and entrapment spaces adequate safety and surveillance systems. P.6 Premises must not be designed or operated to have the appearance and function of a ‘fortress’ and in particular there is to be no physical obstructions to internal and external access. P.7 Doors to working rooms must not be fitted with locking mechanisms.	P.2_This clause arguably conflicts with clause 5.6.4, Safety and Security P.3. - Recesses in the building form are to be avoided but privacy of staff and visitors is to be a design element. Review to ensure no conflict between the two requirements	Add in control relating to “shared access is not permitted”. Add in control for adequate amenities (ie. shower, basins toilets) are to be provided for staff and visitors.	It is agreed that the principles should be amended as follows: P.2 All entrances and exits to sex services and restricted premises should be designed to facilitate the privacy of staff and visitors without compromising personal safety (through avoiding the use of isolated back lanes and poorly lit areas) and to prevent shared access to the premises. P.5 Adequate design measures must be provided that ensure the well-being, safety and security of sex services and restricted premises staff and visitors and where appropriate shall include: reception and visitor assessment areas that incorporate design measures and management procedures to ensure the safety and security of staff and visitors design which minimises alcoves and entrapment spaces adequate safety and surveillance systems adequate amenities (ie. shower, basins toilets) are to be provided for staff and visitors. Is not considered that there is any conflict between P. 2 Design of Premises and P. 3 Safety and Security as raised by Mallesons. Privacy of visitors and staff should be able to be secured without provision of recesses in building form.
5.3 Parking	P.2 potentially conflicts with the design standard S.1 under Advertising Signs and Structures. If only one sign is permitted, does the signposting of the car park count as an advertising sign? Clarify whether the signposting of the car park is in addition to the advertising sign referred to in Section Advertising Signs and Structures S.1		Section 5.6 Advertising Signs in Structures should be clarified that the signage permitted does not exclude signage for parking.
5.4 Hours of operation Objectives O.1 Ensure that sex services and restricted premises operate at times when they have the least impact on the community, the environment and nearby land use.	It is open to Council to limit the hours of operation of any business. However, an applicant may argue that the proposed limitation is unreasonable in the circumstances, unless an adverse impact on amenity can be demonstrated. Given the requirement for a PoM, if the plan of management addresses potential concerns and the Court considers such a PoM to be acceptable, the Court may grant longer hours then specified in the DCP, even if only for a trial period. Insert additional objectives: “To consider the amenity of the surrounding area; To ensure the health and safety of workers and patrons		The comment is noted and additional objectives should be added as sought.
		It is recommended that a ‘blanket’ restriction to hours of operation not be applied to all sex premises and restricted premises venues, but determined on consideration on (i) locality and (ii) an assessment of amenity impacts. The other DCP’s examined (refer Attachment C) do not contain specific hours that the premises are limited from operating. It is considered that an assessment of locality compatibility and amenity considerations is a more sound approach from a town planning viewpoint and likely to be taken as less discriminatory and supported by the Court. It is likely that amenity impacts on surrounding uses and community are likely to be both different and greater in Neighbourhood Centres than industrial zones, because of the other permissible ‘sensitive’ uses in the zone. Therefore, Council could more easily impose conditions limiting the hours of operation of the sex services premises and restricted premises only in the Neighbourhood Centre zone to not operate between certain hours such as between 2am and 10am and 3pm – 8pm. In relation to the siting of these premises in the industrial zones, it will need to be ensured that they are in areas that are well lit and there is some natural passive surveillance for the security of employees and users of the premises as well as employees and users of other premises in the vicinity. It is suggested this change in approach to be more focused on ‘location’ and compatibility as the main driver of amenity considerations, and that this will focus more on ‘public interest’ and well-being outcomes that ultimately underpins Section 79(C) and of Section 5(a)(ii) which provides “the promotion and co-ordination of the orderly and economic use and development of land” of the EP&A Act.	Both the legal and town planning advice emphasise that a blanket restriction on hours may not be reasonable and that in determining hours of operation account should be taken of locality and impact on amenity. It is noted that the limitation on hours restriction between 2 a.m. and 7 p.m. was incorporated to prevent such premises from being a permanent place of accommodation for sex workers and staff. The town planning and legal advice is generally supported and the provision of P.2 should be slightly revised to incorporate a degree of flexibility as follows: Sex services premises and restricted premises must not operate between the hours of 2 a.m. and 7 a.m., unless such operation can be justified by the hours of operation and nature of adjoining uses.

5.5 Scale of Operation Design Standards S.1 No more than 10 employees (includes all staff, e.g. administration staff, sex workers, security guards, etc.) and no more than 8 sex workers are to be on the premises at any one time.		Refer to ‘Hours of Operation’ above – it is recommended the same argument/line of reasoning be applied.	This rationale, similar for hours of operation, is supported. It is also appreciated that Council was particularly concerned to place a limit on the number of employees to limit the scale of operation of sex services and restricted premises. Therefore, the provisions should be slightly revised to incorporate a greater degree of flexibility as follows: No more than 10 employees (includes all staff, e.g. administration staff, sex workers, security guards, etc.) and no more than 8 sex workers are to be on the premises at any one time, but employee numbers may be varied taking into consideration nature of adjoining land uses and possible conflicts with such uses.
5.6 Advertising Signs and Structures O.1 To ensure advertising is discreet and does not draw attention to the use. S.3 Signs may be illuminated…	The second element of this objective conflicts with the objective of advertising. Delete reference to “does not draw attention to the use”. Insert additional objectives as follows: “ To encourage appropriately designed and suitably located signs for sex service premises and restricted premises. To consider the amenity of the surrounding area.” No detail regarding illumination is provided. S.3 - Specify whether neon or flashing lights are permitted.		O.1 should be amended as sought and additional objectives should be added. Neon signs are considered to be acceptable but flashing lights could be a nuisance and have a detrimental impact. Therefore, S 3 should be amended as follows: Signs may be illuminated, but flashing signs are not permitted, provided this would not result in adverse impacts upon the environment would amenity of the area. -- -- - In addition, arising from Mallieson's comment on 5.3 Parking, S 1 Should be amended as follows: A maximum of one (1) external sign to premises is permitted and shall only indicate the name of the business operated and/or the address. However, additional signage for parking and traffic management may be provided.
5.7 Health and Building Matters Objectives · To ensure sex services premises comply with relevant health and building regulations. · To promote the operation of sex services premises in a manner which will ensure the meeting of best practice health standards. · To promote safe sex education to sex workers and their clients so as to minimise the risk of contracting sexually transmitted diseases. · To ensure that reasonable working conditions are provided for sex workers.		Replace with: · To ensure sex services premises and restricted premises where the DA includes seeking consent to “Sex on Premises Venue”, comply with relevant health and building regulations.	The objective should be amended as follows: To ensure sex services premises and business and entertainment premises providing adult entertainment comply with relevant health and building regulations.
5.8 Safety and security P.1 Sex services premises should not be located in isolated areas… Security Measures - P.12-P.14	Council has restricted the location of sex services premises to industrial areas which by their nature are isolated in the evening. Is the reference to isolated a reference to undeveloped areas? Review this principle given the zones within which these premises are permissible. The issues addressed in this section have an operational element. Consider requiring these issues to be addressed in the PoM.		It is agreed that design principle P.1 is impractical as the effect of LEP provisions is to restrict sex services premises mainly to industrial areas. This provision should be deleted. P 12, which requires alarms to be monitored at all times, is considered the only design principle which should be added to the Section 2 Plans of Management.

Reference

Legal comments from Mallesons

Town planning comments from WorleyParsons

Response

General Comments

Defined terms are not used consistently throughout the DCP. E.g. The term “sex services” is used instead of sex services premises. Strip club premises’ and ‘Striptease Club Premises” is used. See comments re definitions below.

Replace reference to sex services with sex services premises to ensure consistent use of defined terms and to avoid any ambiguity through the document.

Agreed that defined terms should be amended to apply consistently throughout the DCP and to avoid ambiguity. In particular, reference to ‘sex services’ should be replaced with ‘sex services premises’ and ‘striptease club premises’ should be replaced with ‘strip club premises’.

1 Introduction

1.3 Relationship to other Plans and Policies

This DCP is to be read in conjunction with Parramatta Local Environmental Plan (LEP) 2001, Parramatta City Centre LEP 2007 and Sydney Regional Environmental Plan (SREP) No 28 - Parramatta. If there is any inconsistency between this DCP and these planning instruments, the instruments will prevail.

This DCP:

· supplements the Parramatta City Centre Development Control Plan 2007 provisions for sex services premises

· repeals Parramatta City Council Regulation Brothels Development Control Plan and Health Standards.

There needs to be consistency in terminology/description of uses which the DCP is intended to facilitate.

At end of first point, and throughout the text of the DCP, add “and restricted premises”.

See above and an amendment should be made as sought.

1.4 Purpose of this Development Control Plan

The purpose of this DCP is to provide detailed provisions to guide the preparation and assessment of development applications for sex services and restricted premises. The planning controls in this DCP are designed to ensure that sex services and restricted premises are operated in appropriate locations so that they do not give offence to the community or result in a loss of amenity for residents.

Under Section 79C of the Environmental Planning and Assessment Act, 1979, Council is required to take into consideration the relevant provisions of this DCP when determining an application for development. However, compliance with the provisions of this DCP does not guarantee that development consent will be granted. Section 79C of the Environmental Planning and Assessment Act, 1979 contains other matters that must be considered in determining a development application.

Replace with:

The purpose of this DCP is to guide the preparation and assessment of development applications for sex services premises and restricted premises. The planning controls in this DCP are designed to ensure that sex services premises and restricted premises are operated in appropriate locations so that they do not impact (inappropriately) on the amenity of adjoining or other uses in the zone

Compliance alone with the provisions of this DCP does not guarantee that development consent will be granted. Section 79C of the Environmental Planning and Assessment Act, 1979, contains other matters that must be considered when determining an application for development.

Agreed that should be amended as sought.

1.5 Savings provision

Any application not determined at the time that this DCP came into force, will be subject to the provisions of this DCP.

The savings and transitional provision is not contrary to law, as a development application is determined on the law as it stands at the time of the determination.

However, given that a DCP is a mandatory consideration under section 79 (1)(a)(iii), but is not an environmental planning instrument, the court has held that where the relevant development control plan commenced after the development application has been made, it should be taken into account but not be given determinative weight. Similarly, the repealed provisions which applied at the time that the application was lodged will also be taken into account.

As such, while the savings provision in the draft DCP is not contrary to law, it would not prevent the court from considering relevant controls in place at the time the applicant was made, in addition to the draft DCP.

Recommend this be deleted as it is contravenes land law provisions which require a development application only consider legislation and statutory instruments that are current at the date of lodgement of the application.

In light of the legal advice the savings provision should be retained.

1.6 Aims of this Development Control Plan

The aims of this DCP are to:

· Regulate and control sex services premises and restricted premises appropriately to minimise amenity impacts upon adjoining land uses which reflect broad community attitudes and expectations.

· Discourage a concentration of sex services and restricted premises in close proximity to each other.

· Ensure high levels of both internal and external amenity are provided for sex services premises to ensure the safety and comfort of staff, visitors and neighbouring properties.

· Ensure that massage parlours and similar establishments are designed in such a way as to prevent either the easy conversion or use as sex services premises.

· Provide an appropriate framework to effectively regulate the operation of sex service premises through regular inspections, detailed provisions of development consent in the provision of plans of management and coordination with other relevant government agencies.

· Support the health and safety initiatives of NSW Health and WorkCover NSW in regard to sex workers and their clients.

· Prescribe the information to be submitted with a development application for sex services premises.

We are unaware of any published public Department of Planning Guidelines in respect of sex services premises or restricted premises. References to external documents should not be incorporated into the DCP. Delete paragraph and include new objective as follows: “To provide more detailed criteria for the development of sex services premises and restricted premises.”

The meaning of the phrase “reflect broad community attitudes and expectations” is ambiguous and problematic. Delete phrase unless Council has some study or survey of community attitudes they rely on.

What constitutes ‘close proximity’? Amend DCP so that it is clear what is meant by the term ‘close proximity’ - see comments in relation to Red Light District below.

PLEP and DLEP do not define massage parlours. Change reference to ‘massage parlour’ to ‘restricted premises’.

Replace with:

· Regulate and control sex services premises and restricted premises in appropriate locations so as to minimise amenity impacts upon adjoining land uses in the zone.

· Discourage a concentration of sex services premises and restricted premises in close proximity to each other.

· Ensure high levels of both internal and external amenity are provided for sex services premises and restricted premises to ensure the amenity and security of staff, and users or occupiers of the respective premises as well as neighbouring properties.

· Ensure that restricted premises and similar establishments are designed in such a way as to prevent either the conversion or use as sex services premises without obtaining development consent or operating outside their development consents. .

· Provide an appropriate framework to effectively regulate the operation of sex service premises and restricted premises, through detailed provisions of development consent in the provision of plans of management and coordination with other relevant government agencies.

· Support the health and safety initiatives of NSW Health and WorkCover NSW in regard to sex workers and their clients.

· In accordance with “Purpose of this Development Control Plan’, prescribe the information to be submitted with a development application for sex services premises and restricted premises.

Note: “regular inspections” are not required as Council has powers to inspect under the Act.

Objectives should generally be amended as sought by WorleyParsons as this achieves greater clarity, and also gives effect to the concerns of Mallesons.

The second bullet point should be amended as follows to resolve Malleson’s concern:

Discourage a concentration of sex services premises and restricted premises in close physical proximity to each other.

The aim (4^th bullet point) should be amended as follows:

Ensure that restricted premises and similar establishments such as massage parlours are designed in such a way as to prevent either the conversion or use as sex services premises without obtaining development consent or operating outside their development consents.

2. Development to which this DCP applies

Sex services premises comprise premises where sexual acts or sexual services are provided for payment. These may include:

(i) Brothels;

(ii) Safe house brothels for street-based sex workers;

(iii) Bondage and discipline parlours; and

(iv) Massage parlours (see note below).

NOTE: Premises described as providing massage related services involving sexual acts or sexual services will be considered as a brothel. However, please note that Section 16 of the Summary Offences Act 1988 makes it an offence for a person being the owner, occupier, or manager, or person assisting in the management of a premises held out as being available for: ‘massage, sauna baths, steam baths, facilities for physical exercise, taking of photographs or services of a like nature’ to knowingly suffer or permit sexual services.

The proposed definition of brothel is not consistent with the definition under the EP&A Act or in the SREP 28, PLEP, PCCLEP or the draft PLEP. Amend definition of brothel so that is consistent with the relevant planning instrument.

Based upon the definitions in the Standard Instrument massage parlours, or bondage and discipline parlours will only be sex services premises if they are brothels, which is defined under the Restricted Premises Act. There is no definition of massage parlour, bondage or discipline parlour in these instruments or in the Standard Instrument. Consider amending definitions of brothel/sex services premises or restricted premises in LEPs to include sub-categories.

Refer to bondage and discipline parlours as a sub-category of brothel.

Amend definition of bondage and discipline parlours to include a reference to sexual acts.

In its letter, section 3 pages 9 and 10, Mallesons states that when approving premises such as massage parlours and bondage and discipline parlours, Council should ensure that it exercises care in describing the permitted uses, and in framing the conditions that it imposes. Council may wish to consider including in the DCP a numbering of suggested conditions that would impose explicit limitations on use of such premises -- these could address matters such as the following:

· The premises must not be used for sex services

· The premises must only be used in accordance with the information provided in the development application (although a condition to this effect should only be included where the information and the development application is sufficiently clear).

· Physical controls that could assist in limiting the illegitimate use of such premises for sex services -- for instance, by providing that no shower stalls may be built in the rooms of a massage parlour.

‘Restricted Premises’ is defined differently in PLEP; PCCLEP and the draft PLEP. References to ‘strip club premises, sex in premises venues and swingers clubs do not fall within the current definition of restricted premises in PLEP. They arguably fall within the definition of restricted premises under the draft PLEP. Ensure the definition of Restricted Premises is consistent with the applicable planning instrument.

In Pederson & anor v Parramatta [2007] NSWLEC 61 the Court included "swinger's clubs" as a type of "recreational facility". Under the standard instrument such clubs would arguably be restricted premises. There is no definition of ‘swinger’s club’ in the draft DCP. Insert a definition of swinger’s club into the glossary incorporating the elements necessary to qualify as restricted premises.

Remove “please note that” as it is unnecessary.

Replace “suffer” with a more common term.

The proposed definition of brothels and sex services is proposed to be amended to better reflect legislative provisions. The essential element of a brothel, as defined in legislation and this DCP, is that it is a premise where payment is made for sexual services.

It is agreed that massage parlours, or bondage and discipline parlours will only be sex service premises if they are brothels. However, this is considered to be adequately covered by the explanation of sex services premises which states that, These may include -- -- --

There is no scope to amend the definition of restricted premises in LEPs to include subcategories as this is covered by the standard template.

It is agreed that restricted premises is defined differently in PLEP; PCCLEP and the draft PLEP. This matter can be resolved as follows:

· For the proposed stand alone draft DCP which falls under PLEP and PCCLEP strip club premises, sex in premises venues and swingers clubs can be considered as business or entertainment premises and subject to DCP controls.

· When the sex services provisions are incorporated in the comprehensive DCP strip club premises, sex in premises venues and swingers clubs can be considered as restricted premises and subject to controls as proposed.

Consequently, the following amendments should be made to Section 2 Development to which this DCP applies:

First sentence of first paragraph should be amended to: This DCP applies to sex services, premises including brothels, restricted premises and business and entertainment premises where adult entertainment is provided as defined in Parramatta LEP 2001 and Parramatta City Centre LEP 2007 and which may include premises as outlined below:

The term sex services premises should be amended as follows:

Brothels and sex services premises comprise premises, as defined in Parramatta LEP 2001 and Parramatta City Centre LEP 2007, where sexual acts or sexual services are provided for payment. These may include:

(i) Safe house brothels for street-based sex workers --.

The term ‘Restricted premises’ should be amended to: Restricted premises comprise premises which sell restricted materials such as adult bookshops.

After restricted premises the following should be added: Business and entertainment premises providing adult entertainment. These may include:

(i) Strip club premises

(ii) Sex on premises venues and

(iii) Swingers clubs

In addition, following the advice of Mallesons, the last sentence of the note for Sex services premises should be amended to: Conditions may be imposed on any development application:

· preventing the conversion or use of massage parlours and similar establishments as sex services premises

· ensuring that the premises must only be use in accordance with the information provided in the development application

· and by physical controls that limit the illegitimate use for sex services.

Where development consent is sought for premises for medical or therapeutic massage, additional information, as outlined may be required to demonstrate that measures are proposed to ensure compliance with this Act. This information will include:

· ABN number;

· insurance details; and

demonstration that the persons proposed to work on the premises are qualified or recognised in the treatment that they are making application for.

Recommend this section be removed as it should be in a different DCP and is likely to confuse the applicant.

It is considered that the provision should be retained as an advisory note for the applicants and operators of massage parlours. However, it is also agreed that there should be an additional reference to massage parlours in another section (ie. Section 5 Other Provisions) of the comprehensive DCP.

Conditions may be imposed on any development consent preventing the conversion or use of massage parlours and similar establishments as sex services premises.

Replace “on” with “in”.

However, it is unnecessary to state this when the use of restricted premises as sex services premises would be illegal by virtue of no consent.

It is considered reasonable for information purposes to state that a condition may be imposed preventing the conversion or use of massage parlours.

Sex on Premises Venue means premises that gain income from entrance and/or membership fees paid for the use of the premises for sex between the clients but are not premises where sex services take place, or are arranged in exchange for payment. Includes: swingers clubs and sauna clubs that accommodate sexual encounters.

This ought to require a Plan of Management.

To last sentence add “Such premises includes…”

Sex on premises venue are required to provide plans of management under the draft DCP. The additional minor amendment sought is supported.

Period of Consent

Council may limit the operation of a consent. However, this can only be done if a condition is imposed in the consent. Such a condition will be open to challenge and therefore must be capable of meeting the usual test applying to conditions:

· Be for a planning purpose;

· Be reasonable;

· Relate to the development.

The advice is noted and has been referred to the Development Services Unit.

Glossary of terms

Review definitions of Bondage and Discipline Parlours; Sex on Premises Venue; Striptease Club Premises to ensure that the elements necessary to qualify as restricted premises / sex services premises are identified in the definition.

An objective of the DCP is to prevent clustering of sex services premises and restricted premises, without the need to demonstrate that a ‘red light district’ will be created. Further, what is meant by concentrated? In Wei v Parramatta City Council [2008] NSWLEC 1157 at [28]:

"it is unlikely that the proposal would turn the Rydalmere area into a red light district as feared by some objectors. I have already explained that the other brothels in the locality are spread over five city blocks and none are within visual sight of this premises. It is not proposed that there be significant lighting or other means of drawing particular attention to the premises, and it seems to me that the experts’ opinions that it would be far from becoming a red light district, if this application [is] approved, can be supported."

Delete the term (red light district) where used throughout the document.

Amend section 5.6.4 Location Standards to specify a maximum number for each area.

Definitions have been reviewed. See section --.

It is agreed that the term Red Light District may be open to misinterpretation and can be removed without compromising the objectives of the DCP. However, it is considered impractical to set a limit for the number of permissible brothels that should be established in an area. It would be difficult to determine this number and to defend it on appeal. The existing separation distance standards should be retained, although these may also be open to challenge.

3 Submitting a Development Application

Development consent is needed for all types of sex services and restricted premises before they can legally operate. As a first step in the development consent process, proponents of sex services and restricted premises are strongly advised to consult with Council officers.

The following requirements detail the specific information that must be provided to the consent authority as part of any development application for sex services and restricted premises. These requirements are in addition to the information requirements for all development applications.

The Environmental Planning and Assessment Regulations 2000 (“the Regulations”) currently specify what must accompany a development application - Schedule 1. Council may seek to request additional information (cl54(1), failure by an Applicant to provide such information does not entitle a Council to reject the DA without determining it though it may give rise to a ground to refuse the application.

5.6.2(3) Location Plan. A location plan is to identify specified uses within 200m of the proposed sex services site. How is this distance to be measured? Amend by inserting the words “(measured as a radius from the closest boundary on of the allotment of the proposed sex services site)”.

Delete the second paragraph and replace with:

“The following additional information should accompany any application for development consent for sex services premises and restricted premises in order to enable Council to properly consider the development application.”

Delete reference to site plan as this merely repeats the requirements of the Regulations. If information as to uses of nearby properties is required, identify this as a separate item and link it with the distances specified within the PLEP.

Replace with:

Development consent is needed for sex services premises and restricted premises. As a first step in the development consent process, proponents of sex services premises and restricted premises are strongly advised to consult with Council officers.

The following requirements detail the specific information that must be provided to the consent authority and accompany any development application for sex services premises and restricted premises. These requirements are in addition to the information requirements for all development applications.

Amendments should generally be made as suggested.

The first paragraph would be replaced with:

The second paragraph would be replaced with:

It is agreed that reference to the site plan can be deleted.

5.6.2(3) Location Plan, second sentence should be amended as follows: A location plan is to identify specified uses within 200m of the proposed sex services site, measured as a radius from the closest boundary on or of the allotment of the proposed sex services site.

(1) Specific information as to the operation of the proposed use should be dealt with in the Statement of environmental effects, including:

· Number and role of all staff

· Description of the activities that are proposed to be undertaken at the premises

· Hours of operation

· Number of rooms in premises

· Identification of the rooms to be used for the proposed activities.

Amend to:

(1) Specific information as to the operation of the proposed use must be clearly set out in the Statement of Environmental Effects, including…

It is agreed that the clause should be amended as sought.

(2) Plan of management (refer to 5.6.3 of this section): which sets out necessary considerations to be addressed for the establishment and operation of all types of sex services premises.

This should explicitly state “restricted premises”. However note that definition of restricted premises in DCP is different from the Draft LEP.

This amendment is agreed to.

4 Guide to Plans of Management

The Plan of Management will be used both in the development assessment process and as a means to identify the way in which the premises will operate in compliance to conditions of consent. The Plan of Management will be incorporated as a condition of development consent. The Plan of Management should supplement the information provided in the Statement of Environmental Effects and the plans submitted with the development application. In addition to providing information to allow the assessment of the potential impact of the premises and compliance with the provisions of this DCP, the Plan of Management can be used by both managers and employees to outline roles and responsibilities and identify procedures for the successful operation and management of the premises. The Plan of Management should include the following essential information.

Business Details

(iii)Record keeping procedures for employees?”

The definition of Restricted Premises under Draft PLEP may make the provision of a PoM relevant, however, under PLEP a PoM for such premises is arguably an unreasonable requirement (because the definition Restricted Premises is more restrictive).

The details to be provided under the proposed PoM encompass internal operational issues. There is no reference to dealing with external environmental or social impacts.

Any condition of consent imposing the PoM should provide for the PoM to be updated and approved by Council.

Amend the Draft DCP so that the PoM is required to address complaints management including registering complaints regarding the operation of the premises or the behaviour of visitors arriving or leaving the premises and detailing how complaints will be dealt with.

What is a meant by record keeping procedures for employees? The availability of records of employees raises issues of privacy. In the absence of Council having a right to access this information, employers may not be in a position to release it. This issue may need to be investigated further.

Provide reference to “Building and Health Matters”.

Reference that the Plan of Management is to address the minimum requirements set out in the Public Health Act 1991 where relevant, and any required guidelines.

Whilst, the definition of restricted premises is more restrictive under PLEP they still fall under the definition of business or entertainment premises and can be subject to a requirement for a plan of management.

The details for plans of management are designed to encompass internal operational issues and issues dealing with external environmental and social impacts can be dealt with in the assessment of a development application.

Is agreed that the draft DCP should be amended to address complaints management. Under Business Details and after (iii) add a new (iv): The procedure for recording and dealing with complaints regarding the operation of the premises or the behaviour of visitors arriving or leaving the premises.

It is acknowledged that employers are not expected to release confidential information on their employees (see amendment suggested in row below).

(iv)All of the above and relevant approvals are to be made available at all times on the premises

What are the relevant approvals?

To whom are these details to be available? In what circumstances?

Specify the relevant approvals and who has a right of inspection. We suggest that the PoM be available to the public and be kept on the premises at all times.

Amend (iv ) to: All of the above information, approvals for the establishment of the premises, the Plan of Management are to be made available to the public and be kept on the premises at all times. Confidential information on employee details is not expected to be released to the public.

Safety and Security

There is no requirement that staff training, emergency evacuation procedures or surveillance of common areas be identified in the PoM.

While it is legitimate for a Council to have regard to health and safety issues the DCP provisions should not undermine or deal with matters that are properly the jurisdiction of other agencies - eg - NSW Health and Workcover.

It is agreed that amendments are generally required to address the matters raised.

Under the heading safety and security add: a new (d): The method of surveillance of common areas.

Under the heading Induction and Training amend (i) to: ‘Staff training and induction procedures and emergency evacuation procedures’.

It is not intended that provision (i) under the heading Health Access should undermine or deal with matters that are properly the jurisdiction of other agencies.

In addition, arising from Mallesons comment on 5.8 Safety and Security, Security Measures the following should be added under the heading Safety and Security: (e) Monitoring of alarms.

Health Access

(i)Access arrangements for the attendance of health services providers must be detailed”

It is not clear to us what this provision is intended to achieve. Further, there is no reference to Health and Safety Policies for workers.

Include a requirement that health and safety policies for workers be included in the PoM together with incident reports and accident register.

It is agreed that the provision should be amended by adding: (ii) Health and safety policies for workers together with incident reports and an accident register.

Additional Details for Sex Services Premises and Additional Details for Bondage and Discipline Premises.

In light of comments above, consider whether these uses need to be separately identified.

Amend so that the purpose of the section is clear.

It is agreed that there is no need to separately identify these uses in this section.

5 Planning controls for sex services and restricted premises

5.1 Location

Objectives

· To ensure sex services and restricted premises are located in appropriate areas where they do not impact adversely on the environment and in particular upon residential occupancies or other sensitive uses.

· To ensure that sex services and restricted premises are discreetly situated, sensitively located and are not prominent within an area.

· To optimise the safety and security of sex services and restricted premises and their users.

· To avoid the concentration of sex services and restricted premises in any one area.

The reference to “generally” creates uncertainty. Delete “generally” in the first line.

‘Sensitive uses’ are not defined, although are generally considered to be schools, churches, hospitals, etc.. Define “sensitive uses’ by reference to the LEP.

Restricted premises and sex services premises are prohibited in residential areas although the zoning map provided to us suggests that many of the areas where they are permitted adjoin residential areas. Rephrase this objective as follows:

To ensure that sex services premises and restricted premises are located in appropriate areas where they do not impact adversely on the amenity of the environment and in particular do not cause an adverse impact upon neighbouring properties, nearby residential occupancies or other sensitive uses.

We are uncertain as to the difference between ‘discreetly situated’ and ‘sensitively located’. Does Council mean ‘noticeable’ rather than ‘prominent’? Amend this objective for greater certainty.

There is no reference to workers in this objective. Amend the objective to include a reference to workers.

The objective makes no reference to the character of the area. Amend the objective by inserting the following at the end “which changes the current or is not in keeping with the desired future character of the area.”

Add “premises’ after sex services

It is agreed that these objectives should be amended as sought and as follows:

· To ensure that sex services premises and restricted premises are located in appropriate areas where they do not impact adversely on the amenity of the environment and in particular do not cause an adverse impact upon neighbouring properties, nearby residential occupancies or other sensitive uses.

· To ensure that sex services and restricted premises are sensitively located and are not noticeable within an area.

· To optimise the safety and security of sex services and restricted premises and their users and workers.

· To avoid the concentration of sex services and restricted premises in any one area which changes the current character or is not in keeping with the desired future character of the area.

Location Standards

Sex services and restricted premises must not be sited:

S.1 within a radius of 100 m of existing sex services and restricted premises. Council will limit congregation of sex services and restricted premises so as to form or potentially form red light districts.

S.2 within enclosed shopping malls/arcades.

S.3 within a radius of 100 m of a licensed premises being a hotel, public bar nightclub or the like.

S.4 within a radius of 50 m of a public transport facility being a railway station entry, bus stop, taxi rank or a ferry terminal.

NOTE: Distances referred to in this DCP and in Parramatta LEP 2001 in respect of sex services premises and restricted premises are to be measured as a radius from the boundary of the allotment upon which the premises are proposed.

The word standards and principles is used interchangeably in this section. Has further commented that a ‘design standard’ is not a ‘development standard’ and will not be subject to SEPP1. Recommends replacing the word ‘standards’ and ‘principles’ with control

See comments in relation to the definition of a red light district. There is no specification as to a maximum number of restricted premises or sex service premises in a particular area.

Consider inserting a reference to a maximum number of premises permissible within a given area (define area).

Change the reference to boundary in the NOTE to “closest boundary”.

PLEP prohibits brothels on land zoned residential or on land within 200m of land zoned residential.

Unlike the 200m residential buffer, there is no buffer distance for other zones. Consider whether a provision specifying a distance from a zone boundary permitting sex services premises where adjacent zone prohibits them is necessary.

S.2 potentially conflicts with cl 25(b) of PLEP. Delete the word ‘enclosed’.

S.4 repeats cl 24 (c ) of PLEP Delete S.4

Replace up to S2 with:

Sex services premises and restricted premises must not be sited:

S.1 within a radius of 100 m of existing sex services and restricted premises. Council will limit the location of sex services premises and restricted premises so as to prevent the forming or the potential to form red light districts.

Where the sex premises are located in Zone B1 Neighbourhood Centre, these should be subject to urban design controls, and include consideration of siting above the ground floor where relevant, and weighed up with disability access considerations.

It is agreed that the words ‘standards’ and ‘principles’ should be replaced by the word, ‘controls’.

It is agreed that the reference to red light district can be removed, as previously indicated. It is not considered necessary to insert a reference to a maximum number premises permissible within a given area (see previous comments).

It is agreed that the reference to boundary in the Note should be amended to ‘closest boundary’.

It is not considered necessary to impose additional separation distance requirements beyond those already stated in PLEP and the city centre LEP.

S. 2 should be amended as sought

S. 4 should be deleted.

5.2 Design of Premises

Objectives

The term ‘presence’ has not been judicially considered. Delete ‘presence’ from O.1

O.3 requires no adverse impact but it does not require that the design be in keeping with the character of the area. Why limit to ‘built environment’ ? Amend O.3 to require that the design be in keeping with the character of the area.

O.1 should be amended as sought.

O3 should be amended as sought and as follows: To ensure that the design and external appearance of the premises and any associated structures do not have an adverse impact on and are in keeping with the character of the area.

5.2 Design of Premises

Design Principles

P.1 The external appearance of sex services and restricted premises must respect the architectural character of the streetscape and not be a prominent feature in the street.

P.2 All entrances and exits to sex services and restricted premises should be designed to facilitate the privacy of staff and visitors without compromising personal safety (through avoiding the use of isolated back lanes and poorly lit areas).

P.3 The interior of sex services and restricted premises must not be visible from any place in the public domain. Where the interior of sex services and restricted premises may be visible from neighbouring buildings, adequate measures should be taken to screen the interior of the building, for example using blinds, screens etc.

P.4 Sex services and restricted premises must not display sex related products, sex workers, or performers, or nude or semi-dressed staff from windows, doors or outside of the premises.

P.5 Adequate design measures must be provided that ensure the safety and security of sex services and restricted premises staff and visitors and where appropriate shall include:

reception and visitor assessment areas that incorporate design measures and management procedures to ensure the safety and security of staff and visitors

design which minimises alcoves and entrapment spaces

adequate safety and surveillance systems.

P.6 Premises must not be designed or operated to have the appearance and function of a ‘fortress’ and in particular there is to be no physical obstructions to internal and external access.

P.7 Doors to working rooms must not be fitted with locking mechanisms.

P.2_This clause arguably conflicts with clause 5.6.4, Safety and Security P.3. - Recesses in the building form are to be avoided but privacy of staff and visitors is to be a design element. Review to ensure no conflict between the two requirements

Add in control relating to “shared access is not permitted”.

Add in control for adequate amenities (ie. shower, basins toilets) are to be provided for staff and visitors.

It is agreed that the principles should be amended as follows:

P.5 Adequate design measures must be provided that ensure the well-being, safety and security of sex services and restricted premises staff and visitors and where appropriate shall include:

reception and visitor assessment areas that incorporate design measures and management procedures to ensure the safety and security of staff and visitors

design which minimises alcoves and entrapment spaces

adequate safety and surveillance systems

adequate amenities (ie. shower, basins toilets) are to be provided for staff and visitors.

Is not considered that there is any conflict between P. 2 Design of Premises and P. 3 Safety and Security as raised by Mallesons. Privacy of visitors and staff should be able to be secured without provision of recesses in building form.

5.3 Parking

P.2 potentially conflicts with the design standard S.1 under Advertising Signs and Structures. If only one sign is permitted, does the signposting of the car park count as an advertising sign?

Clarify whether the signposting of the car park is in addition to the advertising sign referred to in Section Advertising Signs and Structures S.1

Section 5.6 Advertising Signs in Structures should be clarified that the signage permitted does not exclude signage for parking.

5.4 Hours of operation

Objectives

O.1 Ensure that sex services and restricted premises operate at times when they have the least impact on the community, the environment and nearby land use.

It is open to Council to limit the hours of operation of any business. However, an applicant may argue that the proposed limitation is unreasonable in the circumstances, unless an adverse impact on amenity can be demonstrated. Given the requirement for a PoM, if the plan of management addresses potential concerns and the Court considers such a PoM to be acceptable, the Court may grant longer hours then specified in the DCP, even if only for a trial period.

Insert additional objectives:

“To consider the amenity of the surrounding area;

To ensure the health and safety of workers and patrons

The comment is noted and additional objectives should be added as sought.

It is recommended that a ‘blanket’ restriction to hours of operation not be applied to all sex premises and restricted premises venues, but determined on consideration on (i) locality and (ii) an assessment of amenity impacts. The other DCP’s examined (refer Attachment C) do not contain specific hours that the premises are limited from operating. It is considered that an assessment of locality compatibility and amenity considerations is a more sound approach from a town planning viewpoint and likely to be taken as less discriminatory and supported by the Court.

It is likely that amenity impacts on surrounding uses and community are likely to be both different and greater in Neighbourhood Centres than industrial zones, because of the other permissible ‘sensitive’ uses in the zone. Therefore, Council could more easily impose conditions limiting the hours of operation of the sex services premises and restricted premises only in the Neighbourhood Centre zone to not operate between certain hours such as between 2am and 10am and 3pm – 8pm. In relation to the siting of these premises in the industrial zones, it will need to be ensured that they are in areas that are well lit and there is some natural passive surveillance for the security of employees and users of the premises as well as employees and users of other premises in the vicinity.

It is suggested this change in approach to be more focused on ‘location’ and compatibility as the main driver of amenity considerations, and that this will focus more on ‘public interest’ and well-being outcomes that ultimately underpins Section 79(C) and of Section 5(a)(ii) which provides “the promotion and co-ordination of the orderly and economic use and development of land” of the EP&A Act.

Both the legal and town planning advice emphasise that a blanket restriction on hours may not be reasonable and that in determining hours of operation account should be taken of locality and impact on amenity.

It is noted that the limitation on hours restriction between 2 a.m. and 7 p.m. was incorporated to prevent such premises from being a permanent place of accommodation for sex workers and staff.

The town planning and legal advice is generally supported and the provision of P.2 should be slightly revised to incorporate a degree of flexibility as follows:

Sex services premises and restricted premises must not operate between the hours of 2 a.m. and 7 a.m., unless such operation can be justified by the hours of operation and nature of adjoining uses.

5.5 Scale of Operation

Design Standards

S.1 No more than 10 employees (includes all staff, e.g. administration staff, sex workers, security guards, etc.) and no more than 8 sex workers are to be on the premises at any one time.

Refer to ‘Hours of Operation’ above – it is recommended the same argument/line of reasoning be applied.

This rationale, similar for hours of operation, is supported. It is also appreciated that Council was particularly concerned to place a limit on the number of employees to limit the scale of operation of sex services and restricted premises.

Therefore, the provisions should be slightly revised to incorporate a greater degree of flexibility as follows:

No more than 10 employees (includes all staff, e.g. administration staff, sex workers, security guards, etc.) and no more than 8 sex workers are to be on the premises at any one time, but employee numbers may be varied taking into consideration nature of adjoining land uses and possible conflicts with such uses.

5.6 Advertising Signs and Structures

O.1 To ensure advertising is discreet and does not draw attention to the use.

S.3 Signs may be illuminated…

The second element of this objective conflicts with the objective of advertising. Delete reference to “does not draw attention to the use”. Insert additional objectives as follows:

“ To encourage appropriately designed and suitably located signs for sex service premises and restricted premises.

To consider the amenity of the surrounding area.”

No detail regarding illumination is provided. S.3 - Specify whether neon or flashing lights are permitted.

O.1 should be amended as sought and additional objectives should be added.

Neon signs are considered to be acceptable but flashing lights could be a nuisance and have a detrimental impact. Therefore,

S 3 should be amended as follows: Signs may be illuminated, but flashing signs are not permitted, provided this would not result in adverse impacts upon the environment would amenity of the area. -- -- -

In addition, arising from Mallieson's comment on 5.3 Parking, S 1 Should be amended as follows: A maximum of one (1) external sign to premises is permitted and shall only indicate the name of the business operated and/or the address. However, additional signage for parking and traffic management may be provided.

5.7 Health and Building Matters

Objectives

· To ensure sex services premises comply with relevant health and building regulations.

· To promote the operation of sex services premises in a manner which will ensure the meeting of best practice health standards.

· To promote safe sex education to sex workers and their clients so as to minimise the risk of contracting sexually transmitted diseases.

· To ensure that reasonable working conditions are provided for sex workers.

Replace with:

· To ensure sex services premises and restricted premises where the DA includes seeking consent to “Sex on Premises Venue”, comply with relevant health and building regulations.

The objective should be amended as follows:

To ensure sex services premises and business and entertainment premises providing adult entertainment comply with relevant health and building regulations.

5.8 Safety and security

P.1 Sex services premises should not be located in isolated areas…

Security Measures - P.12-P.14

Council has restricted the location of sex services premises to industrial areas which by their nature are isolated in the evening. Is the reference to isolated a reference to undeveloped areas? Review this principle given the zones within which these premises are permissible.

The issues addressed in this section have an operational element. Consider requiring these issues to be addressed in the PoM.

It is agreed that design principle P.1 is impractical as the effect of LEP provisions is to restrict sex services premises mainly to industrial areas. This provision should be deleted.

P 12, which requires alarms to be monitored at all times, is considered the only design principle which should be added to the Section 2 Plans of Management.