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 As most Councils around NSW have started a process mandated by the State government to amend their planning controls, with some trepidation and where time permits and drafts are available via public exhibition for public comment, we have investigated the current status of a number of Councils. Of particular interest and concern is Marrickville and North Sydney Council’s new draft LEP (Local Environment Plan) and DCP (Development Control Plan). In reviewing these documents and having conversation with Council staff, we have identified some major concerns particularly in regard to the way in which they propose to regulate home occupation (sex services).   As a consequence, submissions are sorely needed to challenge the way in which they have, by default or carelessness, prohibited the land use entirely as is the situation for North Sydney Council and in Marrickville local government area, permitted this land use in limited zones requiring a development application (DA) when all other home occupations are permitted as exempt development i.e. not requiring a DA.

Before we talk more about what we have found, we thought it might be helpful to provide some basic information about Councils, their planning controls and the recent mandate to develop a new comprehensive LEP and DCP.

LEPs and DCPs are the principal planning documents which Councils use to administer and control development within their local government area (LGA). The Strategic Planning Department of a council (if they are a big enough to have one) is the Department that makes new planning controls such as LEPs and DCPs. In the case of the LEP which is law, it must be signed off by the Minister for Planning before it becomes law. The DCP holds less weight in a legal sense and provides guidelines for specific locations, building design and different types of development, brothels or sex services premises (SSP) being one such development.

In 2006, the State Government under the NSW Standard Instrument Order (2006) mandated that all councils must develop a new comprehensive LEP in accordance with the Standard LEP Instrument template. Existing LEPs will then be replaced by a new LEP developed by individual Councils right across NSW.  In respect to their DCPs, Councils have been requested to develop one only all encompassing DCP to cover development in the whole of their LGA rather than have a number of DCPs as currently exists. Some of these current DCPs focus specifically on the sex industry such as the City of Sydney Adult Entertainment and Sex Industry Development Control Plan.

While both North Sydney and Marrickville Councils have drafted new restrictive planning controls, this article focuses on North Sydney Council which has incorporated most of its old DCP for restricted premises (which included SSP) into its new all encompassing DCP. Not much has changed since their overly restrictive amendment in 2006 or thereabouts when they extended the separation distance between SSP to 500m – this takes you almost into the next council area and further limits opportunities for new SSP development. The updated version which includes controls around proximity to places of worship, hospitals, schools (including pre-schools), child care centres or other places frequented by children for recreational, cultural or similar activities or community facilities, bus stops etc. can be found at Section 6 Sex Services and Restricted Premises in the draft North Sydney Development Control Plan 2010, a copy of which can be found here:

Section 6_Sex Services and Restricted Premises in the draft North Sydney Development Control Plan 2010

We have also attached the draft LEP written instrument here:

North Sydney Draft Local Environmental Plan 2009_Written Instrument

The maps can be accessed via the Council website here.

What is particularly disturbing as these distance controls are pretty standard, albeit unnecessarily restrictive in other Council DCPs, is the directive that SSP “must not be located in an area where there is evidence of associated crime and drug use. To determine if crime in a locality is an issue, Council may refer the application (DA) to the NSW Police for comment”. With the sex industry decriminalised in 1995, and no evidence that it is intrinsically tied to crime and drug use, such a requirement is discriminatory and portrays a nexus that is without basis or evidence.  One of the primary intentions of the 1995 sex industry reform was to eliminate the systemic corruption of the industry by the NSW Police. In Martyn v Hornsby Council, the Senior Commissioner of the Land & Environment Court in developing planning principles for what he believed was the appropriate location for SSP noted in respect to drug use and crime “there is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application, this should be supported by evidence” Added to this is the requirement that SSP be located above ground floor level or street level – this is such an old and discriminatory control it’s hard to believe they are still using it. See submissions to North Sydney and Marrickville Councils in respect to access issues for people with a disability.

When reviewing a LEP to see how a Council intends to regulate sex industry premises (remember they don’t regulate our bodies, only bricks and mortar) one first looks for related definitions in the dictionary within the LEP. The dictionary is contained at the end of the LEP and identifies and describes land uses in an alphabetical order from, for instance, Aboriginal object, Advertising structure, Affordable Housing through to Transport Depots, Water and Resource Maintenance Facility – all the things that Councils regulate under their LEP.  Under the new draft North Sydney LEP you will see the definitions of sex services premises and home occupation (sex services) and North Sydney Council has identified and described these two land uses as is the requirement under the LEP template put out by the State government. However, this is where it all gets very murky. We believe it requires legal opinion and is somewhat difficult to explain but we will try.

Relevant definitions in draft North Sydney LEP:
• Sex Services Premises means a brothel but does not include home occupation (sex services)
On the face of it one could rightly assume that a home occupation (sex services) not being a brothel as defined in the definition would be able to be accommodated elsewhere in the LGA  and under the same provisions as other home occupations, particularly as there is a definition for Home Occupation (sex services) but that’s where it gets even more confusing when the provision of services are described as taking place in a dwelling that is a brothel. One minute it’s a brothel then its not. See below.

• Home occupation (sex services) means the provision of sexual services in a dwelling that is a brothel, or in a building that is a brothel and is ancillary to such a dwelling, by no more than 2 permanent residents of the dwelling and that does not involve:
(a) the employment of persons other than those residents, or
(b) interfere with the amenity of the neighborhood by reason of the emission of noise, traffic generation or otherwise, or
(c) the exhibition of any notice, advertisement or sign, or
(d) the sale of items (whether goods or materials) or the exposure or offer for sale of items by retail

BUT does not include a home business or sex services premises

Okay so now we have our definitions, we start to look at the various zones within the LEP in which these land uses (sex services premises and home occupation (sex services)) might be permissible with consent or as exempt and complying development (not needing development consent) or prohibited. The standard LEP template provides a list of zones which councils must adopt and range from residential, commercial core, mixed use through to public land and industrial land. In the case of SSP, they are permitted with consent in B3 commercial core and B4 mixed use and are prohibited in the IN2 Light Industrial zone. This is good news for commercial operators and good to see that Council appears to view industrial zones as inappropriate for sex services premises.

Moving along to zones in which home occupation (sex services) might be permissible or be permissible under exempt and complying development, one finds that in North Sydney and Marrickville they will be PROHIBITED in all ZONES.  North Sydney Council has effectively prohibited them entirely by making no provision to allow the use anywhere in the LGA – they simply don’t exist beyond a definition.  Marrickville Council has actually admitted in explanatory documents that they are going to prohibit them in all zones. At least the City of Sydney has decided on the basis of research and years of experience that they will permit  home occupation (sex services) as exempt and complying development the same way they treat other home occupations are permitted in their new LEP.

Members of NAUWU have made their concerns known and have written submissions – Please see below link for printable pdf of submission.  We urge anyone involved in the sex industry as an advocate or activist, peer educator, operator of a commercial or home based business to write to North Sydney and Marrickville Councils challenging the proposed amendments to their planning controls and call for an evidence based approach that upholds the health and safety and human and industrial rights of sex workers.. The more people who raise concerns/write submission the more likely we are to get our message across and maybe score a few wins for equitable regulation of the different types and scales of sex industry businesses.

Submission in response to the Draft North Sydney Local Environmental Plan (NSLEP) 2009 and Draft North Sydney Development Control Plan (NSDCP) 2010 Part B Section 6 Sex services and Restricted Premesis

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NAUWU would like to acknowledge  Julie Bates from Urban Realists and Saul Isbister from Integrated Sex Industry Solutions – Consultancy and Training Specialists (ISIS-CATS) for the endless hours they put into writing submissions and for supporting NAUWU by generously allowing us to place their work on the NAUWU website._

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