The “Martyn Criteria” Martyn v Hornsby Shire Council PLANNING PRINCIPLE: LOCATION OF BROTHELS 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 gather. 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  NSWLEC 614. a brothel). 2 Mirroring the provisions of section 17(5) of the Restricted Premises Act 1943. 3  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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