Council considers High Court ruling on brothels
15 March 2006
Council considers High Court ruling on brothel bylaw
Auckland City is today considering a High Court decision, which rules that its bylaw relating to brothels and commercial sex premises is invalid.
The ruling follows a case brought by JB International, the owners of Club 574 in Epsom, which was heard at the High Court in Auckland in October last year.
JB International challenged the validity of Part 30 of the council's consolidated bylaw relating to brothels and commercial sex premises.
It also challenged a council Hearings Committee decision denying Club 574 dispensation to operate as a brothel in a residential area.
The council's bylaw states that, among other things, brothels are not to be sited in residential areas, or within 250 metres of a residential zone, a school, a place of worship or a public community facility.
In a written decision, Justice Heath quashes the bylaw and sets aside the decision not to grant dispensation for Club 574 to operate.
Justice Heath acknowledges that the bylaw does not "prevent wholly the operation of brothels", but he believes the limitations placed on the location of brothels, especially small owner-operated brothels, are too great.
The chairperson of the Planning and Regulatory Committee, Councillor Glenda Fryer says the council will have to consider the implications of Justice Heath's decision.
"This decision has major ramifications and the council will clearly have to examine the decision carefully and consider all the options available.
"One of those options is to lodge an appeal against this decision, but another option is to draft a new bylaw which takes into account the points raised by Justice Heath," Ms Fryer says.
She says the council acted in good faith when it drafted the bylaw relating to brothels and sex premises.
"The bylaw was developed to take into account the needs and wishes of Auckland City residents and ratepayers along with the business needs of brothel owners.
"We tried to balance those competing interests and thought we had the balance right, but the Judge clearly thought otherwise."
Ms Fryer says the council believed it had a public mandate for its bylaw because more than 80 per cent of those who made a submission on the bylaw supported it or wanted a more restrictive regime introduced.
Justice Health's decision will be considered by councillors who will vote on a way forward.
Auckland City Environment's principal planner, Andrew Gysberts, says the judgement means the council now has to rely on its District Plan to control the location of brothels and sex premises.
The District Plan outlines controls for all businesses and determines where they can and cannot operate.
Under the District Plan, brothels are classified as entertainment facilities and could therefore operate in some business zones and the mixed-use zone. Large brothels could not operate in residential zones, but small owner-operated brothels would be allowed to operate in residential zones.
In addition, the Prostitution Reform Act also allows the council to consider the likelihood for "nuisance and serious offence" or incompatibility with "existing character" when considering resource consent applications from brothels or sex premises.
Mr Gysberts says signs advertising brothels and sex premises could still be controlled through the council's signs bylaw.
He says the council is currently considering seven applications for dispensation to operate a brothel or sex premise and these will no longer need to be processed.
Mr Gysberts says the council will write to all of those applicants and inform them of the High Court decision.
* Auckland City adopted Part 30 of the consolidated bylaw to manage brothels and commercial sex premises in December 2003, following the decriminalisation of prostitution with the introduction of the Prostitution Reform Act.
* Auckland City's bylaw stipulated that in the Isthmus brothels could not be sited in a residential zone or within 250 metres of a residential zone, a school or a place of worship, a community facility, a major public transport interchange, within 75 metres of an existing brothel or on the street frontage of primary shopping centres.
* The bylaw stipulated that in the Central Area brothels should not be located in the following precincts: Residential, Tertiary Education, Viaduct Harbour, Britomart, Western Reclaimation, Public Open Space, Port, Transport Corridor, Aotea or Karangahape Road (except for certain sites).
* The bylaw also detailed rules and regulations with regard to signage for brothels and sex premises.