SUBJECT LAND: Unit 2, 5 Melverton Drive, Hallam

MEDIUM NEUTRAL CITATION: [2002] VCAT 849

1. In relation to permit application no. P423/01, the Responsible Authority's decision to refuse the grant of a permit is set aside. A permit is granted for an adult sex bookshop and a reduction in car parking in accordance with the endorsed plans at Unit 2, 5 Melverton Drive Hallam. The permit must contain the following conditions:

1. Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with those submitted as part of the application but amended to show:

a) The designation of those parts of the building to be used for office, display and sale of goods, storage and car parking.

b) The provision of external security lighting for the car park area.

2. No "indecent or obscene word, figure or representation", or "an objectionable publication" or "an objectionable advertisement" as defined in the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, must be exhibited in, displayed in, or be visible through, the windows or doors of the premises.

3. The use permitted by this permit is to be carried out in accordance with the endorsed plans which are not to be altered except with the prior written consent of the Responsible Authority.

4. The use may only be open to the public between the hours of 9.00am and 12.00 midnight.

5. The maximum number of staff members (including the owner of the business and manager) on the site at any one time must not exceed two persons.

6. Areas set aside for parking as shown on the endorsed plan must be made available for such purpose and must not be used for any other purpose.

7. The car spaces available within the building must be made available for staff car parking and be used for no other purpose.

8. This permit will expire if the use permitted by this permit is no commenced within two (2) years from the date hereof or is discontinued for a period of two years. The time within which the use must commence may on written request made before or within three months after the expiry of this permit be extended by the Responsible Authority.

2. The Responsible Authority is directed to issue a permit in accordance with the order.

Ms C McMaster, Town Planner, appeared for the Responsible Authority.

Mr J Coomes, Planning Consultant, appeared on behalf of the applicants.

1. This was an application under s. 77 of the Planning and Environment Act 1987 seeking the review of the Responsible Authority's decision to refuse the grant of a permit with respect to permit application no. 423/01. The permit application seeks permission for an adult sex bookshop and a reduction in car parking at Unit 2, 5 Melverton Drive, Hallam.

2. The permit application was lodged with the Responsible Authority on 5 July 2001. On the 23 July 2001, the Responsible wrote to the applicant and requested further information, namely a copy of the Certificate of Title for the land and information to justify the reduction in car parking. The information requested was lodged with the Responsible Authority on the 1 August 2001.

3. The Responsible Authority subsequently required notice of the permit application to be given and in response it received five objections. The objectors are the owners and/or occupiers of industrial/commercial properties adjacent to the subject land and the Fountain Gate Christian Centre located in Melverton Drive. The grounds of objection were summarised as follows in the officer's report to the Responsible Authority dated 23 October 2001:

4. Despite receiving a report from its officer which recommended that the application be approved, on the 23 October 2001 the Responsible Authority made its decision to refuse application on the following grounds:

1. The proposed use is contrary to the Municipal Strategic Statement, in particular it is not consistent with the objectives for an identified gateway location.

2. The proposal is contrary to Council's Industrial Development Policy.

3. The proposed use is not compatible with the surrounding uses.

4. There is insufficient car parking provided for the proposed use.

5. The application for review was filed on the 2 November 2001. The grounds of the application are:

1. The proposed use is contrary to the Municipal Strategic Statement, in particular it is not consistent with the objectives for an identified gateway location.

2. The proposal is contrary to Council's Industrial Development Policy.

3. The proposed use is not compatible with the surrounding uses.

4. There is insufficient car parking provided for the proposed use.

6. At the hearing, Ms McMaster and Mr Coomes tabled and spoke to written submissions. They also presented various other documents including photographs of the subject land and surrounding area, zoning maps and extracts from the planning scheme. All of this material has been considered and is retained on the Tribunal's file.

7. The parties were recalled to appear before me on the 12 March 2002 at which time I advised them of my decision and gave an outline of my reasons. I now confirm these reasons in writing.

8. During the course of the hearing Mr Coomes applied to amend the permit application so that the permission being sought also requests a reduction in car parking. Ms McMaster offered no objection to this amendment. I allowed the amendment pursuant to cl. 64 of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1987.

9. The subject land is part of a multi-unit industrial complex located on the south-east corner of Hallam South Road and Melverton Drive, Hallam. The complex comprises 6 factory units, a convenience shop and 46 on site car parking spaces. The complex has been subdivided with each tenancy on its own title with the car parking located on common property.

10. Unit 2 within the complex is the land which is the subject of the application. Although the subject land has a Melverton Drive address, Unit 2 is one of three tenancies fronting Hallam South Road. These three tenancies are well setback away from the road given the existence of a 10 metre wide landscape strip, car parking and the associated access aisle in the front setback area. A series of medium sized shrubs exist along the front landscape strip.

11. The other two tenancies fronting Hallam South Road are occupied by a locksmith and a convenience store. I note that the convenience store is open Monday to Friday closing at around 3.30 p.m.

12. Land on adjoining and surrounding properties is generally used for industrial and commercial purposes. I note that the Fountain Gate Christian Centre is located further to the east along Melverton Drive, about 150 metres from Unit 2.

13. The permit application seeks permission to use the existing building for the purpose of an adult sex bookshop. No external alterations to the existing building area required.

14. The plans accompanying the application show that the bookshop itself will occupy an area of about 155 square metres with the balance of the building used for the provision of two car spaces. Fifteen car spaces are available in the area immediately at the front of the proposed bookshop.

15. It is proposed that the bookshop will be open to the public 7 days per week between the hours of 9. 00 am and midnight. Two staff will be on the premises. Advertising signs will be the subject of separate applications.

16. Pursuant to the Casey Planning Scheme, the subject land is located within the Industrial 1 zone, the provisions for which are found at clause 33.01. The purpose of the zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.

17. "Adult Sex Bookshop" is a section 2 or "permit required" use within the zone. This is provided that it is located at least 200 metres from a residential or Business 5 zone, land used for a hospital or school or land within a Public Acquisition overlay to be acquired for a hospital or school. It was common ground that the subject land meets these requirements.

18. Pursuant to clause 52.06-1, car parking at the rate of 8 spaces per 100 square metres of floor area must be provided before the use of the land for an adult sex bookshop (which is embraced within the definition of shop under the planning scheme's nesting provisions). However, a permit may be granted to reduce or waive this requirement.

19. Relevant decision guidelines are set out at clause 65.

20. The planning scheme policies which are most relevant to the consideration of the proposal are as follows:

To encourage developments which meet community's needs for retail, entertainment, office and other commercial services and provide net community benefit in relation to accessibility, efficient infrastructure use and aggregation and sustainability of commercial facilities.

To ensure availability of land for industry to facilitate the sustainable development and operation of industry and research and development activity.

* Clause 21 - Municipal Strategic Statement (in particular clause 21.03 Vision - Strategic Framework, clause 21.05 - The Built Up Area, clause 21.11 - Employment, clause 21.11 - image, Infrastructure 21.14)

* Local Policies at clause 22.09 (Industrial Development Policy) and 22.15 (Good Design Policy)

21. After having considered the submissions presented by the parties, the relevant provisions of the planning scheme and the details of the proposal, it seems to me that the key issues in this matter are:

* Is the proposed use of the land contrary to the purpose of the Industrial 1 Zone?

* Is the proposed use of the land contrary to the planning scheme's policies?

* Is the proposed use compatible with nearby and surrounding uses?

* Does the subject land have the appropriate locational attributes which renders it suitable for the type of use proposed?

Is the proposed use of the land contrary to the purpose of the Industrial 1 zone?

22. In relation to whether the proposed use is contrary to the purpose of the Industrial 1 Zone, it would be fair to say that the proposed use is not one which is specifically identified or encouraged by the purpose of the zone per se. However, this does not mean that it is a use which is incompatible with the zone purpose or inappropriate within the zone. It is relevant to consider that although retail uses are, in the main, prohibited within the Industrial 1 Zone, "adult sex bookshop" is one of the few exceptions to this rule.

23. Given that the planning scheme provides discretion for a permit to be issued for the proposed use, it should follow that the scheme's provisions are such that it is envisaged that there will be circumstances that this type of use will be acceptable within the Industrial 1 Zone and not contrary to its purpose. If this were not the case, then the use would be prohibited.

24. Given the discretion available in the planning scheme, it cannot be concluded that the proposed use is at odds with the purpose of the zone simply because it is not an industrial purpose. The planning scheme's provisions contemplate that there will be circumstances when this use will be acceptable, and as such, it is necessary to examine the detail of the proposal and the planning scheme's policies and decision guidelines for this assessment to be made.

Is the proposed use of the land contrary to the planning scheme's policies?

25. In relation to whether the proposal accords with planning policy, it is true that the planning scheme's policies encourage the retention of industrial land for manufacturing and associated purposes. However, this is not to say that the land cannot be used for other purposes which are appropriately located within the Industrial 1 Zone.

26. In particular I do not consider that the use of the subject land for an adult sex bookshop will conflict with those policies which encourage the retention of industrial land for such use. The reality is that the proposal is a retail use which is not out of place next to its immediate neighbours, namely the convenience shop and locksmith. Furthermore the proposed use is to be contained within the existing building and this building can be re-used at some stage in the future for a manufacturing use in the event that the adult sex bookshop ceases to operate.

27. The objectives of the "Industrial Development Policy" at clause 22.09 do not say that land zoned for industrial purposes must only be used for such purpose, but rather that such land should "primarily" be used for industrial and related purposes. It seems to me that the scope exists in the policy for other uses which are appropriate to industrial areas to be established. This is one such use.

28. I do not see how the proposed use of this building will prejudice the use of the subject land or nearby land for industrial purposes. Indeed I note that no objection has been received from any of the other occupants/owners of factory units within the same complex which are the most proximate and therefore will have the greatest level of interaction with the proposed use.

29. In so far as the Responsible Authority asserted that the proposed use is inappropriately located in a "gateway location", I do no find this to be the case. It is clear that the subject land is not located within one of the identified gateway locations set out in the MSS Framework Plan. In any event, the land is hardly located in an area which could be reasonably described as a municipal "gateway". The land is not located at a major entry point into the municipality or major intersection but rather within a multi tenancy industrial development, well set back from the street and largely obscured from the Hallam South Road by the vegetation within the landscaping strip that runs along the frontage.

30. In my view, the subject land is located in a discreet location and as such the use will not be prominent. The proposed adult sex bookshop will sit comfortably with its other commercial neighbours. It will not be highly visible per se and no valid reason was advanced to me by the Responsible Authority to back up the assertion that this use will adversely affect the municipality's image.

31. I find that the proposal does not conflict with the planning scheme's policies.

Is the proposed use compatible with nearby and surrounding uses?

32. Turning to the issue of whether the proposed use is compatible with other land uses in the area, I have already expressed my views with respect to those properties immediately surrounding the land.

33. However, it is appropriate that I specifically turn my mind to whether the proposed use is acceptable given the Fountain Gate Christian Centre is located some 150 metres way in Melverton Drive.

34. In the first instance, it relevant to note that this Tribunal and its predecessors have consistently held that moral and/or religious objections are not relevant factors to be considered in the assessment of town planning applications. On this point I rely to the principles set out in Mayfair Chain v Wyndham City Council (2000/15659 unreported), Pituri Pty Ltd v City of Melbourne (185 3 PABR 200 at 216) and Mayfair Chain v Hume City Council (2001/651). The simple fact of the matter is that the laws approved by parliament provide for planning schemes which allow a permit to be issued and as such, the proposal must be considered on its merits having regard to planning considerations.

35. In any event I consider that there is sufficient separation between the Christian Centre in Melverton Drive and the proposed adult sex bookshop. The factory unit to be used for the adult sex bookshop and the Christian Centre have their "sense of address" to different roads, they are not in direct view of each other and each has its own parking area. I find that the subject land and the church two locations are sufficiently separate to avoid any potential conflict between the persons visiting either site.

36. Turning to the issue of parking, it was asserted by Ms McMaster that the proposed use requires the provision of 20 car parking spaces based on the entire floor area of the building comprising Unit 2. I must say that I consider the car parking analysis presented on behalf of the Responsible Authority to be somewhat unfair given that the floor area upon which the car parking calculations are based includes the area within the building which is to be used for staff parking. It is simply inappropriate that the area set aside for parking be included as part of the area that generates parking demand.

37. It is reasonable and appropriate to consider the area that is to be used in association with the adult sex bookshop (ie. the area that will actually generate car parking) in carrying out the calculation. In this case the retail/office/storage component of the proposed adult sex bookshop will occupy an area of about 155 square metres. According to the table at Clause 52.06 about 12 car parking spaces will be required for this particular use. The proposal involves the provisions of two spaces within the building itself and it was acknowledged by the Responsible Authority that the subject premises can lay claim to about five spaces within the car parking area serving the complex as a whole. This equates to the provision of seven spaces at a rate of about 4.4 spaces per 100 square metres of floor area. I also note that the car spaces serving the complex are in common property and shared by all units.

38. Whilst there was no specific evidence presented to me on car parking matters, I accept Mr Coomes' submission that the provision of seven car parking spaces at a rate of about 4.4 spaces per 100 square metres to be reasonable for this particular use. By and large the provision of this number of spaces is not dissimilar to that which is being provided for adult sex bookshops in Debenlee Pty Ltd v Casey City Council (P51557/2001 unreported) and the Mayfair Chain v Hume City Council case previously cited. Furthermore this particular site has the advantage that it provides dedicated staff parking in a safe and secure location and also shares communal car parking. When industrial uses cease to operate it is likely that the peak operation of this particular adult sex bookshop will occur. As such customers will have access to an abundance of on-site car parking.

39. In the circumstances I consider that the amount of car parking to be provided is satisfactory and it is appropriate to grant permission for the reduction requested.

Does the subject land have the appropriate locational attributes which renders it suitable for the type of use proposed?

40. It follows from the above that I consider that the subject land has the appropriate locational attributes given:

* the proposal involves a retail use which is not incompatible with the industrial zoning of the land;

* the land has its frontage or "sense of address" to a main road;

* the building is well set back from the street and it is screened by vegetation located within a substantial landscape buffer;

* the premises will not be prominent when viewed from the public domain;

* the land is not located in a high pedestrian environment;

* the land is not in an identified gateway location for this municipality, and

* the proposed use is not incompatible with that of other nearby tenancies within the complex and area generally.

41. Having regard to the planning merits of the proposal, I am of the view that a permit should issue and accordingly the Responsible Authority's decision is set aside.