“Our good friend and learned ally, Mr.Richard Smyth town planner of renown has had an article published in the NSW Planner 2011 (see link at bottom of this introduction for article) critiquing the role of councils in developing overly restrictive development control plans (DCP) and how they use these DCPs to override their Local Environment Plans (LEP) when their LEP provisions appear to support, what some councillors consider ‘unpalatable’ developments. This includes brothels and Muslim prayer halls.
Richard also identifies, with concern, how the Land & Environment Court (LEC) gives much greater status to a DCP than was ever intended and has given a couple of excellent examples. I have included an example of my own at the end in respect to a DA for a SSP before North Sydney Council a few years back.
Richard has made very good use of the information Saul Isbister uncovered in Sutherland Shire’s submission to the NSW Standing Committee on State Development in April, 2009. Saul and I have highlighted this concern in a number of our recent submissions to the Planning Department and other stakeholders.
Here is the North Sydney Council example of how Councils move the goal posts via an amended DCP when they don’t like the way their current planning controls (LEP or DCPs) allow development in their local government area (LGA) and I speak here particularly of sex services premises (SSP)
In around 2006 I mounted a DA for a SSP in the North Sydney LGA. The site met all of the council requirements in their LEP and DCP for a SSP. Obviously, it was going to be a challenge, as all SSP DAs are but it brought with it further challenges as it was the first SSP to come before that Council. Of course, they had many other SSP in their LGA but until that moment in time, they had lived in blissful denial of the existence of a sex industry in their LGA. They had previously approved SSP under the guise of massage/health clinics imposing conditions of consent on the use that it should not provide sexual services. At no time did it explain however what a sexual service entailed i.e. that body rubs and slides and touching the genital area of a client meant you were providing a sexual or prostitution related service.
The long and the short of this is, test a council’s mettle around their planning controls and dig in for the fight of your life. North Sydney Council is not alone and many other Councils have taken similar action.
In this case the DA, while compliant with controls, was refused. An appeal to the Land & Environment Court (LEC) saw a win for my client, albeit, with a 12 month trial. By the time the matter got to Court, and in fact on the first day of the proceedings, the local paper was brought in by one of our legal team. It featured a lead story on the amendment to the relevant DCP now excluding SSP from being within 500m from each other. The old DCP had quite sensible location and design controls which we had met.
Before the Court had determined to approve our appeal, another SSP was approved by Council. It seemed they had suddenly seen the light but my suspicious mind said otherwise. One SSP would get approval and then they would feel vindicated in refusing all others as most would now be within 500m of this Council approved SSP. And, would you believe, It was just on 500m away from my client’s property. This meant that being within the new 500m ‘exclusion’ zone, my clients were again fighting for their existence when lodging the new DA after the 12 month trial and the hugely expensive fit out to meet the conditions of consent.
Measurements finally indicated that the two SSP were within 502m approximately of each other – just made it!!! The new DA was finally approved. This experience, at great cost to the clients through two development applications, a court case, community backlash and vilification, a trial period and expensive fit out over a 2 year period is surely not what the architects of the 1995 reforms had envisaged I’m sure.
These are good examples of what is wrong with the 1995 sex industry reforms in the hands of local government without guidance in the form of the Sex Services Premises Planning Guidelines and public health watchdogs as once existed. Save for a few good men and women and friends like Richard Smyth, Christine Harcourt and Basil Donovan who have made it their business to challenge this abominable state of affairs, many local councils have reintroduced risk to sex worker health and well being without challenge.
Such wanton wickedness must not be allowed to continue.”
Julie Bates
Richard Smyth in NSW Planner 2011_Use and abuse of Development Control Plans (DCPs)
*NOTE: NAUWU would like to thank the author of the attached article Mr. Richard Smyth of Smyth Planning for giving his consent for the article to be published on our website. Mr Smyth’s article appeared in NSW Planner, December, 2011.
We would also like to thank a NAUWU peer Julie Bates for writing the introduction piece to the article and giving us some back ground history as to why this article highlights such an important issue.
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