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									            The “Martyn Criteria”
                    Martyn v Hornsby Shire Council


18. The following are criteria for locating brothels

       Brothels are a legal land use that benefits some sections of the commu
nity but offends others. Most people believe that the exposure of impression-
able groups like children and adolescents to the existence of brothels is unde-
sirable. The aim should therefore be to locate brothels where they are least
likely to offend. However, criteria for locating brothels should not be so oner-
ous as to exclude them from all areas of a municipality.

     Brothels should be located to minimise adverse physical impact, such as
noise disturbance and overlooking. In this aspect they are no different from
other land uses.

      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.

       Brothels should not adjoin areas that are zoned residential, or be clearly
visible from them. Visibility is sometimes a function of distance, but not always.

       Brothels should not adjoin, or be clearly visible from schools, educational
institutions for young people or places where children and adolescents
regularly gather. This does not mean that brothels should be excluded from
every street on which children may walk.

     The relationship of brothels to places of worship (which are likely to attract
people who are offended by brothels) is a sensitive one. The existence of a
brothel should not be clearly visible from places where worshippers regularly

      There is no need to exclude brothels from every stop on a public transport
route. However, it would not be appropriate to locate a brothel next to a bus
stop regularly used by school buses.

     Where a brothel is proposed in proximity to several others, it should
be considered in the context that a concentration is likely to change
the character of the street or area. In some cases this may be consistent
with the desired future character, in others not.

    The access to brothels should be discreet and discourage clients
gathering or waiting on the street. Apart from areas where brothels, sex
shop and strip clubs predominate, signage should be restricted to the
address and telephone number.
Industry Feature

  Beauty School Dropout
  the case of the Martyn development application
  with Julie Bates of Urban Realist Planning and Health Consultants

 This year marks the 10th anniversary of legislative          that restrict where brothels can be placed.
 reform in the sex industry. However, there is little to      Unfortunately in 1996 the then Minister for Urban
 celebrate and need for continued vigilance in the face       Affairs and Planning allowed councils to limit brothels
 of ongoing attempts to introduce regressive controls         to industrial estates. A number of local councils gained
 which are contrary to and inconsistent with the spirit       such dispensation and today we see brothels often
 and intent of the 1995 reforms. Even when a local            restricted to industrial zones and, depending upon the
 council appears to have no controls regulating the           area, commercial zones.
 location of brothels (in a LEP) and does not separately
 identify brothels (in a DCP), do not be lulled into a        Even within zones where brothels are permissible,
 false sense of development application (DA) outcome          planning instruments may impose additional location
 certainty.                                                   constraints. Such constraints typically require
                                                              separation distances to be maintained between the
 Apart from the obvious need to remove the sex industry       brothel and a range of “sensitive uses”. The lists of
 from the domain of criminal law and thus reduce police       “sensitive uses” usually include churches, hospitals,
 and other corruption, the underlying intent of the 1995      schools and places regularly frequented by children
 reforms to regulate the industry in the same way as          for recreational or cultural activities.3 Some local
 any other commercial use of land has largely failed.         councils have added a range of other uses such as
 As well intentioned as this was, regulatory responsibility   bus stops, railway stations, educational
 was handed to local government without any guidelines        establishments and residences. The required
 or support as to how they might go about this. And           separation distance will vary, typically in the range of
 therein lies the problem - while we still await the much     75 to 500 metres. It is vital at the planning stage to
 anticipated Sex Services Premises Planning Advisory          find out about any location controls applying in the
 Panel (SSPPAP) guidelines, councils and court officials      local government area. Not all controls are mandatory,
 are devising their own restrictive guidelines and            but even where they are not, compliance with the
 planning controls largely based on the tired old             controls will give you a better than average chance of
 typecasting of the “gangster/whore/pimp/unruly               approval.
 customer” theory fuelled by recent social and religious
 conservatism.                                                In the Martyn case there were no location controls for
                                                              brothels in Hornsby Shire. The Hornsby Shire Local
 At a Pennant Hills Beauty School in the Shire of             Environmental Plan 1994 (LEP) didn’t even define
 Hornsby, and in the metaphoric backyard of John              “brothel”, so brothels had to be treated under the more
 Howard, they’re no doubt celebrating Council’s recent        generic term of “business premises”. There was no
 victory in the Land and Environment Court. The court         development control plan (DCP) dealing with brothels.
 upheld council’s earlier refusal to grant development        The applicant had done her homework in determining
 consent for a small suburban brothel on Pennant Hills        the absence of such controls before purchasing her
 Road (the Martyn case).1 The key ground for refusal          property and rightly expected a favourable outcome.
 was the presence next door of the aforementioned
 beauty school, attended by young women. The court            In the absence of location controls in the planning
 found this to be inappropriate. Some parents were            instruments of Hornsby Shire, the court came up with
 concerned that their daughters might prefer to work at       its own list of nine criteria for locating brothels (“the
 the brothel where it was presumed they could make            Martyn criteria”). It is hard to know what use the court
 more money and that they might be coerced by the             will make of such guidelines in subsequent cases.
 “brothel madam” on their way to beauty school. The           Each planning appeal has to be determined on its own
 court also thought that parents wouldn’t want their          merits, so it’s difficult to argue that the court is bound
 daughters attending the beauty school and, as a              by some decision on the merits of another case
 consequence, the beauty school might suffer an               (known as a precedent). However, it might be
 economic impact.                                             expected that those who appear for local councils will
                                                              be presenting the Martyn criteria to the court in
 Site suitability is a key consideration when planning a      planning appeals about brothels. The cautious brothel
 brothel development application. Many local                  developer will be adding the Martyn criteria to the mix
 government areas in NSW have planning instruments            of site issues in the planning stage.
The Martyn case is also
interesting for the determining weight that the
court gave to the proximity of a beauty school
for young women. It is an emerging trend in
the court’s consideration of brothel applications
for proximity to any youth services to count heavily         Ten years on from the supposed removal of criminal
against the application. In Soueid v Leichhardt              law barriers to brothels, the battleground has shifted
Municipal Council,1 the court was motivated to refuse        to the planning arena. It has been my experience that
consent by reason of the proximity of the proposed           site selection and public interest (numbers of local
brothel to a home occupied by carers who accepted            objectors) can tilt the field either strongly for or strongly
children in crisis. The court thought it in the public       against an applicant. The process of site selection is
interest that such an arrangement not be put in              not just a matter of permissible zoning but will likely
jeopardy by the presence of a brothel. In this and other     extend to: maintaining separation distances from
cases, the concern seems to be not with proximity of         “sensitive” uses; complying with the Martyn criteria;
the brothel to the children per se, but in the possibility   ruling out the possibility of jeopardising ‘important’
that such proximity might result in the loss of the          services; and gaining support from local land owners
service in the locality (i.e. if the brothel is granted      and occupiers before lodging a development
development consent, it is thought that the other            application.
businesses may suffer economic decline as
customers go elsewhere, afraid to be in the vicinity of      Footnotes
                                                             1 Martyn v Hornsby Shire Council [2004] NSWLEC 614.
a brothel).
                                                             2 Mirroring the provisions of section 17(5) of the Restricted Premises Act 1943.
                                                             3 [2004] NSWLEC 343.
In Zhang v Parramatta City Council,2 the court was
inclined to refuse consent by reason of a youth pre-
employment vocational training facility located down                 Julie Bates is the principle of Urban Realists
the road. The application was only saved in the end                  Planning & Health Consultants who provide
because the government agency responsible for                        advice and support for sex premises estab-
funding the training facility was consulted and took                   lishment, the development application
no objection to the proposal. This outcome may                               process, and court appeals.
provide a glimmer of hope as to how to manage
applications with a site issue.

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