Foote v Hobsons Bay CC & Ors [2002] VCAT 1554

1. Before the use starts, three copies of amended plans to the satisfaction of the Responsible Authority and drawn to scale and dimensioned, 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 the plan tendered at the hearing of Application for Review No. P1999/2002 (and signed by the Tribunal for the purpose of identification) but modified as follows:

(a) car spaces numbered 17 & 18 annotated to indicate that they are available for use in association with the use approved by this permit.

(b) the location, specifications and wording of a sign which will advise of the exclusive use of the abovementioned car spaces in association with the approved use.

(c) the location and specifications of lighting to illuminate the rear entry to the building and the car spaces.

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

3. The signage hereby permitted shall be erected and maintained to the satisfaction of the Responsible Authority

4. The loading and unloading of vehicles, and the delivery of goods to and from the premises, shall at all times be conducted in a manner which causes minimum interference with other vehicular traffic.

6. Goods and products must not be displayed so as to be visible from anywhere outside the premises.

7. There shall be no public access or egress from the rear of the building.

8. No form of public address system is to be used on the subject land except one which is audible only within the subject premises.

9. No live entertainment, dancing or performances are to be carried out on the premises.

10. The use permitted by this permit must not adversely affect the amenity of the neighbourhood including through;

a) the transport of materials, goods or commodities to or from the land:

b) the appearance of any stored goods or materials; or

c) the emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

11. Before the commencement of the use permitted by this permit areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be line-marked to indicate each car space and illuminated to the satisfaction of the Responsible Authority.

12. Areas set aside for the parking as shown on the endorsed plans must be kept available for these purposes at all times and must be subsequently maintained to the satisfaction of the Responsible Authority.

13. The car spaces annotated on the endorsed plan shall only be used by the operator under this permit or staff associated with the business conducted on the premises.

14. The operator under this permit shall at all times make reasonable endeavours to ensure that the gates from 241 Koroiroit Creek Road to Racecourse Road are locked after 6.00pm on each day, and at all other times when the other industrial units are not being used, to assist in the security of the industrial units, unless an alternative arrangement is approved in writing by the Responsible Authority.

15. The use approved by this permit must only operate between the hours of 10.00am and 12 midnight, seven days per week, unless otherwise approved in writing by the Responsible Authority.

16. This permit will expire if the use permitted by this permit is not commenced within one year from the date of 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.

Mr Luka Mrkonjic, town planner, represented the Responsible Authority.

Ms Christine Lockey, Respondent/Objector, appeared in person.

A Statement of Grounds was received from Mr Gavin Tyack & Mr Jamie Cave. It has been taken into account although they did not appear, nor were represented, at the hearing.

Ms Amanda Johns, Solicitor of Minter Ellison, appeared for the Applicant for Review/Applicant for Permit. She called Mr Peter Small, town planning consultant, and Mr Stephen Hunt, traffic engineer, to give expert evidence.

The written submissions of Mr Mrkonjic and Ms Johns, the reports of the expert witnesses, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

1. This is an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Hobsons Bay to refuse to grant a permit (in Application No P02/070) for the land at 7/241 Kororoit Creek Road, Willamstown to be used as an Adult Sex Bookshop, for associated business signage and for a reduction in the car parking requirement.

2. The subject site is located on the south east corner of Kororoit Creek Road and Racecourse Road in an area known as the "North Williamstown Industrial Estate".

3. The premises from which the proposed use is to be conducted is one of nine industrial units on the subject land. They were approved by planning permits issued in 1977 and 1985. They are used for a variety of purposes, including warehousing, motor vehicle repairs, light industry and washing machine repairs. There is an informal car parking area, which is also used for the outdoor storage of various goods, behind the six units which front Kororoit Creek Road. It has access from Racecourse Road via a gated accessway.

4. The subject premises (Unit 7) is at the eastern end of the units and has a total floor area of 164.33m2. A rear door provides access to the car parking area. The premises abut the frontage. There is a pedestrian entry and a roller door.

5. It is proposed to use the premises for an Adult Sex Bookshop. The proposed hours of operation are 10.00am until 12 midnight, seven days a week. Existing floodlights along the top of the façade are proposed to illuminate two business signs with a total area of 6m2. The tenancy arrangement provides for the use of two car parking spaces at the rear of the premises. No buildings and works are proposed.

6. Under the Hobsons Bay Planning Scheme the subject site is zoned Industrial 1 and affected by a Design and Development Overlay (DDO).

7. Pursuant to Clause 33.01-1 within an Industrial 1 Zone a permit is required for the use of land as an Adult Sex Bookshop. The proposed use must satisfy a condition regarding the location of the use in relation to land zoned for residential purposes and land used (or proposed to be used) for a hospital or school. The proposal complies with those locational requirements.

8. Mr Mrkonjic advised that as the proposal does not involve buildings and works the requirements of the DDO are not "triggered".

9. Clause 52 relates to control over advertising signs. In an Industrial 1 Zone (Clause 52.05, Category 2) a permit is not required for a "Business Identification Sign" if the area of all signs does not exceed 8m2. However, a permit is required for a "Floodlit Sign".

10. Clause 52.06 relates to car parking. There is no specified rate for the proposed use, however, car parking for a shop is specified at 8 spaces per 100m2 of floor area.

11. Clause 65.01 of the Planning Scheme directs the Responsible Authority, and this Tribunal, to consider certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

12. Relevant provisions of the State Planning Policy Framework referred to by the parties or expert witness are Clause 17.03 (Industry) and Clause 19.03 (Design and Built Form).

13. The purpose of the Industrial 1 zone, stated at Clause 33.01, 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.

15. Council's Municipal Strategic Statement ("MSS") is at Clause 21. The parties and expert witnesses highlighted the relevance of Clause 21.09 (Industry). Mr Mrkonjic highlighted Objective 2 - "To promote and provide a high amenity environment" - and the strategy to "Encourage existing industries to improve their sites and operating conditions to contribute positively to the image and amenity of the municipality".

16. There is a local policy relating to Industry at Clause 22.02.

17. The Application for Permit was lodged on 1 February 2002. Following the giving of notice of the application six objections were received. Mr Mrkonjic summarised the grounds of objection as follows:

The grounds of objection relate to concerns about the nature of the use (adult sex book shop) and the potential detriment that such a use would have on their businesses, car parking concerns, safety issues, the lack of lighting and concerns that their premises will be less secure as the proposal would require operating times significantly longer than the hours that existing businesses operate.

18. The planning officer's recommendation that the application be refused was adopted by the Council's delegate. A Notice of Refusal to Grant a Permit was issued on 17 July 2002, with the following grounds:

1. The proposal is contrary to the Hobsons Bay Planning Scheme, especially having regard to the Local Planning Policies of the Municipal Strategic Statement.

2. The proposal would be detrimental to the proper orderly planning and development of the area, and would adversely affect the amenity of the area.

3. The arrangements made for the parking of vehicles and the method of access is unsatisfactory.

4. The proposal will generate a car parking demand that is inappropriate for the premises.

5. The proposal is unsuitable having regard to the existing conditions of the land, having regard to safety, accessibility and surveillance.

19. The application for review, lodged on 29 July 2002, stated the following grounds:

1. The proposed use is appropriate to the subject site and surrounding locality.

2. The proposal will not cause detriment to the amenity of adjoining properties or to the amenity of the neighourhood.

3. The proposal will have no detrimental impacts in terms of safety, accessibility or surveillance.

4. The proposed use will not generate a high demand for car parking.

5. Sufficient on-street parking is available in close proximity of the site to accommodate the level of demand for parking generated by the proposal.

6. The proposal is consistent with the provisions and policies of the Hobsons Bay Planning Scheme.

7. The proposal is consistent with the proper orderly planning and development of the area.

20. At the hearing Mr Mrkonjic spoke to a written submission. Ms Lockey gave oral submissions and then left. Ms Johns lead the evidence of Mr Small and Mr Hunt. Mr Mrkonjic had the opportunity to cross-examine the witnesses. Ms Johns then spoke to her written submission.

21. After the conclusion of the presentations, and a luncheon adjournment, I indicated that I was prepared to give a statement of oral reasons for the view I had formed that the application for review should be allowed and a permit issued for the change of use.

22. The following is a record of the oral statement of reasons presented to the parties:

In the light of the submissions of the parties and the evidence of the expert witnesses I have concluded that Application for Review P1999/2002 should be allowed. I intend to order that a permit be issued for a change of the use of the land for the purpose of an Adult Sex Bookshop, floodlit business signage and a reduction in the car parking requirement pursuant to Clause 52.06, in accordance with plans to be endorsed.

The decision is not formally made until it is done so in writing.

The conditions I intend to impose are based on those tendered by the Responsible Authority and modified following discussion at the hearing. With the consent of the parties the full text of the conditions will be included in my order.

I first wish to comment on what is not contentious. Any moral objections, raised by some of the Objectors, are irrelevant. The proposal is for a retail use. There has been no evidence that it is likely to result in any offensive behaviour or that the content of the business signage should be restricted.

The proposed location complies with the required separation distances from sensitive uses.

The proposed use is appropriate in an Industrial 1 Zone. For the reasons advanced by Mr Small I appreciate that this is a preferred location (or an easier option) for operators compared to a retail area.

I wish to comment on the apparent primary reason for Council's refusal of the proposal. I understand that the Council wishes to put "pressure" on the landlord to upgrade what is seen as a sub-standard industrial site. I do not consider that the denial of approvals to change the use of land will facilitate this. I agree with Ms Johns' analysis that this is a misconceived approach to "orderly planning". There is at least one enforceable planning permit which requires landscaping and has an endorsed plan showing car parking spaces. There is no time bar to the enforcement of the conditions of a permit. If arguments are made that there are existing use rights for a "junkyard" in the car parking area such rights would need to be established. They do not override permit conditions.

I appreciate that enforcement action is a "hard line" to take. The Council obviously recognises the magnitude of the implications in this case. There is apparently a reluctant landlord, there would be substantial cost involved given the condition of the site and there may ultimately be a change of tenancies. I understand that the Council's forthcoming Industrial Strategy may address some of these matters although it has not been made clear how this will be done. In the meantime the Council is prepared to accept the status quo.

In that context I do not consider that it is reasonable that a prospective tenant should be "punished" due to the existing condition of the land. I accept Ms Johns' submission that it is not up to the prospective tenant to "fix" the historic problem. A use that does not substantially rely on the problematic rear of the site will not affect the existing situation. In any event, the proposed use will not increase the "problem". Indeed, the issue of a permit provides an opportunity to impose conditions requiring the line marking of associated car spaces and the cleaning up of at least a small area at the rear of the premises.

As the operator would be subject to a lease arrangement which could be terminated allowing the use does not preclude a future change to the use of the land, including the reversion to an industrial use.

I consider that the proposed use is appropriate given the Industrial 1 zoning of the land. This was recognised by Senior Member Byard in Mayfair Chain Pty Ltd v Wyndham CC (Application for Review 2001/15659, unreported). I recall that I cited with approval Senior Member Byard's view in another case concerning land in Hoppers Crossing. An Adult Sex Bookshop is a form of retailing expressly contemplated in the zone and is not inconsistent with the purpose of the zone.

There is little in the way of local policy which is directly relevant to the proposal. Mr Mrkonjic has cited an objective of the MSS to encourage existing industries to improve their sites and operating conditions. As noted earlier the proposed use could marginally assist in the achievement of that objective.

I accept Mr Small's evidence that the proposed use will not have adverse impacts on the predominant industrial uses. Its peak times of activity are unlikely to be when the other businesses are operating. The comings and goings of patrons are unlikely to impact on other businesses.

Contrary to Mr Mrkonjic's submission I do not believe it will be the desire of patrons or the operator to have "discreet" access via the rear of the premises. Patrons will enter through the front door. There could be a permit condition requiring this. There could also be a standard condition restricting the display of stock. Apart from the existence of the signs most people would be unlikely to know the use was occurring.

On the matter of parking I accept Mr Hunt's evidence that it is appropriate to reduce the Clause 52.06 requirement. At most times there will be a high level of on-street availability of spaces, either on Kororoit Creek Road or on nearby Ganton Court. I acknowledge that the requirement in the Scheme for a Shop is higher than for the uses upon which the development was originally assessed. However, in the light of Mr Hunt's evidence I think that the provision of two

on-site spaces (for the operator and staff) is acceptable. The spaces could be devoted to the proposed use. They are convenient. Patrons could rely on on-street spaces. As noted earlier, clearing and line marking of the spaces would represent a small first step in cleaning up the larger site. The issue of parking on road reserves requires a comprehensive strategy, linked to enforcement of conditions pertaining to the land.

There are existing lights along the façade. It is appropriate that they be used to illuminate the proposed business signs. The signs are appropriate in size and type to identify a legitimate business.

Are hearing from Ms Lockey I fully appreciate the concerns relating to security. There should be lighting near the proposed car spaces. I accept Ms Johns' submission that there is a problem, however, with linking the operator of the proposed use to the locking of the gate to Racecourse Road. The operator could not be held responsible for this. Nevertheless, it must be acknowledged that the proposed tenant would have a common interest with the other tenants in maintaining a secure environment. A condition requiring the operator to make "reasonable endeavours" to maintain security is probably the most that can be done.