SWOP: Sex Workers Outreach Project. Inclusiveness, Respect and Self Determination.

Local councils and sex services premises

Local councils are responsible for regulating sex services premises in their area. Sex services premises must comply with the local council’s planning policies and may need to apply to council for permission (consent) to operate the business. They apply by lodging a development application (DA).

Councils focus on:

• the type of premises
• the operation of the premises
• the impact on the local amenity, on the building, on its location and on the health and safety of staff.

Who works in the council

Councils consist of:

• elected councillors, such as the mayor, who make final decisions about ‘brothel planning policies’ and DAs, and
• council staff such as:
  • town planners, who write planning policies and assess DAs
  • health inspectors
  • fire safety inspectors
• rangers or compliance officers who investigate complaints, land uses, or monitor compliance with conditions such as hours of operation.

Brothel planning policies

Planning regulations for the local sex industry may be found within Local Environment Plans (LEP) or Development Control Plans (DCP). Some councils have specific planning policies for sex services premises, and others use the same policies for all commercial business.

Council planning policies usually identify the:

• types of sex industry business covered by the policy
• zones where they can be established—such as commercial or industrial zones
• zones where they cannot be established—such as residential zones
• building, design, and health and safety regulations
• how to get council permission to operate, if necessary.

Consent status of brothels

The consent status of sex services premises can be classified by councils as:

• approved (‘legal’)—operating with consent as sex services premises
• unauthorised—operating without consent, but may be permissible in that location
• being assessed—awaiting outcome of a DA
• prohibited—operating without consent and not permissible in the zone or location
• permissible without an application—land use complies with council policy so a DA is not required.

How to find out if your workplace is affected by the local council’s planning policies

To find out if your premises is affected by the local council’s planning policies you can:

• read the relevant planning policies—Local Environment Plans and Development Control Plans are available on council websites or, at a small cost, from the planning department of the local council
• ask council planning officers about the existing consent for premises or the policies that apply over the phone, by mail, email or by appointment—do this with care as the staff may be required to act on information you share with them about unauthorised or illegal premises
• get advice from professional town planners about whether your business is lawful, or can become lawful, in a particular building or location in that local council area.

NOTE: The council can use any information you give them as evidence against the business.

Where sex services premises can generally operate

Most council brothel planning policies do not recognise the different types of sex services premises and consider brothels, a private sex worker’s premises and massage parlours as the same type of business.

Not every local council is ‘brothel friendly’. Their planning policies may limit where brothels can be located and how they can operate more than for similar types of businesses. Councils often say sex services premises can only operate in industrial zones and sometimes in commercial zones. In most councils they are not allowed to operate in residential zones. So private workers working from their own premises may be considered unauthorised or prohibited ‘brothels’.

SUGGESTION: Before you apply to council for a DA to set up new sex services premises or for approval for existing premises, get advice from a qualified and experienced planner or lawyer.

How to get council approval for sex services premises

There are several steps to getting development consent or approval. The development assessment process includes:

•  lodgement of the DA
•  public notification of the DA
•  review of submissions received in exhibition period
•  development assessment to planning controls
•  planners assessment and determination
•  council may review and amend determination.

Development application (DA)

Most local councils require a DA to be lodged to gain development consent to operate as a sex services premises. For a DA you need:

• a development application form
• a description of the type of busines
• details of the business size, opening hours, parking arrangements, signs
• the name of the company or person applying for permission
• the property owner’s consent shown by their signature on the DA
• floor plans to scale
• a description of the impact of the business on the local area.

Council advertises the application

After you lodge the DA, the council advertises it in the local press and calls for public comment.  Council’s assessment should address the relevant planning issues raised in the application and submissions from the public. Moral concerns about brothels are not relevant to the planning assessment. But they have been known to influence the final decision of the councillors.

NO CONFIDENTIALITY: Your application to council is not confidential—it is advertised so the public can respond to it. But the application does not have to be lodged by you and can be lodged on your behalf by another party.

Development assessment

The majority of DAs are determined by council planning staff. In some councils all sex services premises DAs - or DAs that attract a significant number of complaints - may be determined by the councillors at a council meeting.

Determinations of DA can include:

• approval—grant development consent
• deferral—request further consultation/information
• refusal—development consent not granted.

Development consent attaches to a building or land, not to a person

Council approval is given to the building or land, not to the operator of the premises. Some operators have done the work and spent money to get council development consent, only to find that the building owner won’t renew their lease or plans to sell the building or land for use as an authorised brothel. Business operators cannot relocate the consent to set up a business in other premises—the approval stays with the building.

Development consent is usually permanent

Development consent is usually permanent—unless the consent contains a time period after which the consent will expire. Development consent can also:

• expire if not correctly activated
• be superseded if another consent is granted by council, or
• be surrendered to council.

Where there is evidence of adverse impacts relating to the operation of a sex services premises, Council can seek a court order to restrict the operator from using the consent. But these powers are rarely used. If this did occur, another operator may continue the use of the premises as a brothel.

An existing business is shut down if approval is not given

Premises operating without consent can face legal closure action by Council. You can request council review the decision and/or appeal in the Land and Environment Court against a decision to shut down your business.

For more information: See 'Closing down sex services premises' to read about closing down sex services premises.

Approval from council to operate sex services premises

Some premises may need council approval to operate as sex services premises. Others—such as escort agencies or home occupation/private sex worker premises permissible without a DA—may not.

Home occupation private worker ‘brothels’

In a few council areas, you do not need approval for home occupation private worker ‘brothels’. They may be ‘exempt and complying development’ under the council’s planning policies.  This is different in each council area, so home occupation or private sex workers will need to check their local councils ‘brothel planning policy’.

Commercial scale sex services premises

Commercial scale sex services premises need development consent from the council—unless the premises are in a zone where brothels are permitted without development consent. Premises that need, but do not have, development consent from the local council may face legal action to close down.

Operating without council approval

If a sex industry business requires but does not have approval from the local council then the council can request that the business:

• cease the unauthorised use within 5-28 working days or
• lodge a DA for the sex services business and stop operating the sex services business until the DA is approved.

If the premises is not closed, the operator and building owner could face criminal charges. As the operator of a business you need to balance the potential cost of fines, court costs or orders to close against the cost, benefit, and/or risk of seeking and gaining approval.

If you are a sex worker who works at but does not own a sex services premises closed by council, you are not liable for any fines or charges.

Operating outside the terms of an approval

If a business already has council approval but is operating outside the terms of the approval—for example, by operating for longer than the approved hours—council can ask the owner to fix the problem or face further action.

If a business already has council approval for one use—such as a massage-only service—but is operating as another use without consent—such as a sex services premises—then council can take legal action to cease the unauthorised use.

Council action can include inspections, verbal and written requests to change business practices, fines, orders to close, legal action and in extreme cases withdrawal of the approval. If a business owner disagrees with council’s actions they can request an internal review and/or take the matter to the Land and Environment Court. 

Case Study: Four brothels

Four brothels in the same area received a letter from council stating they ‘were a brothel operating without council approval’ and should ‘cease operating or lodge a DA with council to gain approval’. As businesses providing commercial sexual services they were now classified under council planning policies as ‘brothels’ and therefore required council approval to operate.

(1) The operator of an existing unauthorised brothel decided to lodge a development application to operate as a ‘brothel’ after:

• reviewing council’s policy
• reading SWOP’s resources
• consulting council planners and
• consulting a town planner.

Despite some opposition from local groups, the application was approved because it complied with the council policy. The approval placed restrictions on the opening hours and number of work rooms and required the operator to make design changes and enhance staff facilities, safety, health information and equipment, lighting, fire exits, and sharps waste management systems. The value of the property and the commercial lease was increased as an ‘authorised brothel’.

(2) The operator of an existing unauthorised brothel lodged a development application to gain consent as a brothel. Despite complying with council’s policy, the application was rejected due to opposition from local groups. The operator had the choice of:

• appealing to the Land and Environment Court
• terminating the lease at a loss, or
• continuing to operate without approval—even though council now knew of the business operator’s intentions.

After choosing the third option, the premises closed following legal action by council.

(3) The operator of an existing unauthorised brothel in a residential building continued to operate without consent. The premises closed following complaints from the strata management to the owner of the premises and threat of possible legal action from council.

(4) The operator of an existing unauthorised brothel lodged a development application to gain consent - but as a massage parlour. The application was approved as it complied with the council policy. The approval placed restrictions on the use of the premises as a brothel, meaning sexual services could no longer be offered. Continuing to provide sexual services would put the business at risk of legal action by council.

SUGGESTION: Seek the advice of a property lawyer before signing a lease.