Martyn v Hornsby Shire Council

CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614 Mudie v Port Stephens Council [2007] NSWLEC 628

DATES OF HEARING: 18/02/82007, 25/02/2007, 27/03/2008 and 15/04/2008

APPLICANT Mr R O'Gorman - Hughes, barrister

LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Background.

1. Mr Anthans has appealed against councils refusal of a development application for an adult bookshop on the 1st floor premises located at 27 Sydney Road, Manly.

2. The issues identified for the appeal concern: o site suitability, o social and economic impacts, o signage, o public interest. The site.
3. These premises are contained within Lot B DP 318834, which is located within the Manly commercial centre and accessed from Roycroft Lane. This lane, or effective arcade connects Sydney Road to Market Lane, where the central library is located diagonally opposite.

4. Other commercial uses within the subject building include a bookshop, real estate agent, shoe repairs and café. There is another adult bookshop situated on the 1st floor of the arcade from The Corso to Market Lane.

5. After the close of the OSH proceedings, the Court was informed that the common toilets for all the tenants were located within the subject 1st floor premises. The applicant amended the proposal by incorporating a new toilet on the ground floor and the parties were then invited to make further submissions concerning any amenity impacts arising from the use of this facility.

The proposal. 6. The proposal involves the alteration of the use of the commercial premises to an adult bookshop with: o Operating hours not exceeding: Sunday - Wednesday; 9 a.m. to 9 p.m. Thursday - Saturday; 9 a.m. to 10 p.m. o Replacement of the existing arcade entry door with a roller security door. o Undertake internal partitioning to create a display area comprising approximately 90 sq m and a store room/office of approximately 57 sq m. o Install a security customer entry system at the top of the stairs. o Install CCTV at the entry to monitor security. o Install an under-awning sign in Sydney Road with dimensions of 2000mm x 500mm and business identification, o Install a ceiling sign in the arcade at entry door, o Lock and provide a translucent glazing to the windows fronting the lane and library. o Operate the business in accordance with a Plan of Management (PoM).

7. Manly Local Environmental Plan 1988; under which the site is zoned Business and subject to the zone objectives listed in cl 10. The proposal is permissible with consent.

8. Manly Development Control Plan for Advertising Signs, 1993. The evidence.
9. Detailed evidence was presented by: o Mr D Rohloff, Council town planner. o Mr C Blyth, Consulting town planner. o Ms V Smith, Manager library.

10. A number of objectors presented their concerns regarding the suitability of the site, likely social and economic impacts and unsatisfactory signage. Site suitability
11. Mr Rohloff's primary concern is that the premises are located in a highly public area, which is likely to expose the public to offensive material. As he considers the arcade is the main thoroughfare between Sydney Road and the library, the presence of the bookshop is likely to disrupt its pedestrian movements through the arcade. This concern was also expressed by a number of the other objectors.

12. Against this, Mr Blyth says that access into the premises will be controlled and only available to persons over 18 years of age, all display of products is within the upstairs retail floor area, which is not visible from outside the premises. He says that there are many other paths of travel leading to the library, other than Roycroft Lane and does not consider there is any evidence that the proposed use would jeopardise or lead to a reduction in use of the lane/arcade, when the only evidence of the adult bookshops presence would be a sign.

13. For my consideration of this issue, I note that adult bookshops are permitted in the town centre business zone and there are no specific development controls on the location of such restricted premises. Under these circumstances, it is apparent that some members of the public are likely to travel past any restricted premises in the town centre. This is the case with the other adult premises " Good Vibrations", situated in the nearby arcade off The Corso. No significant evidence of adverse public amenity was presented regarding the operation of this establishment.

14. From my observations at the view, Roycroft Lane arcade is relatively narrow and not a particularly attractive pedestrian thoroughfare in my opinion. Whilst it does provide direct access from Sydney Road to the library, nevertheless there is an alternative access via Market Lane. This route also provides more open and attractive access to the council carpark and other businesses fronting the Market Lane.

15. In the absence of specific locational controls, the planners agree that there is a general hierarchy in the town centre of commercial preference, whereby The Corso could be classified as the primary commercial location, Sydney Road could be classified as a secondary location and on this basis, Roycroft Lane would be of a secondary/tertiary commercial location, which attracts considerably less pedestrian movements.
16. Accordingly, I am satisfied that the subject premises are in a secondary/tertiary location and that the entry arrangements to the premises are discreet, subject to appropriate signage. Therefore I consider Mr Blyth's opinion that the site is suitable for the proposed use, subject to compliance with appropriate conditions, is reliable. I do not accept Mr Rohloff's opinion that the presence of the proposal is likely to have any material effect on pedestrian movements in this neighbourhood.

17. Notwithstanding this, I have considered the submissions made in respect of proximity to the library. Ms Smith provided details of the list of services offered and this includes several sessions for smaller children and other programs or older children.

18. However, it seems to me that many of these children attending the library will be under some form of adult supervision in the town centre. Consequently, I do not consider likely that children will be required to pass the premises or congregate in Roycroft Arcade, taking into account the alternative routes available to the library.

19. In particular, I note that the council's multilevel car park adjoins the library and provides direct access from level 6. Therefore it is likely that many children would have supervised access to the library from the car park or alternative access from Sydney Road along Market Lane, which in my opinion this a more attractive access than through the secondary/tertiary Roycroft Arcade. Social and economic impacts
20. Objections were lodged by some of the occupants/owners of nearby properties about possible socio-and economic impacts on their businesses and clients. However no substantive evidence was presented regarding any adverse economic impacts, which I consider it would lead to the refusal of the application, in this designated commercial area.

21. I understand that the main concern in this regard is that the under awning signage in Sydney Road could have some psychological effects on people using the area for medical/counselling services. However, I consider that this can be reasonably addressed by way of only allowing discreet, diectional signage in accordance with the DCP.

Signage 22. The proposed signage involves replacement of the under awning signage in Sydney Road and also a smaller ceiling sign in the arcade, at the entry door. As noted, I am satisfied that an appropriate, replacement identification sign can be erected in Sydney Road, which complies with the DCP and is consistent with other under awning signs.

23. Whilst I accept council's submission that only a less obtrusive sign should be allowed in the arcade such as a wall flag, nevertheless I consider it appropriate to erect a smaller ceiling sign, which clearly identifies and distinguishes the entry to the restricted premises. I do not consider this would adequately be achieved by installation of another small wall flag similar to the neighbouring tenancies. The ceiling sign should have maximum dimensions of 2000mm x 500mm.

Toilet facilities 24. The issue concerning access to toilets arose late in the proceedings. The proposal includes upgrading the existing toilets on the 1st floor, which apparently have been available to other tenants and their customers. However the maintenance of this facility is severely compromised by the proposal because the other tenants/customers, likely including children who want to access to this facility would have to enter the restricted premises, non-public area, which would be unacceptable.

25. In response to this concern the application was amended to incorporate a new toilet on the ground level, adjacent to the bookshop entry. Whilst still maintaining its opposition to the overall proposal, council submitted no particular objection to this amendment. Accordingly I am satisfied this alternative toilet access is acceptable, subject to its compliance with the BCA, clear identification signage and appropriate arrangements being made for access for all tenants. Other authorities
26. A number objections and submissions concerning likely the impact on children using the arcade were made and reference to other cases as follows. In the matter of Martyn v Hornsby Shire Council [2004] NSWLEC 614, planning principles were stated for the location of brothels. However, it seems to me that those principles are not directly applicable in the subject matter because it referred to a brothel, (which is arguably a more sensitive use than an adult bookshop with security entry) and its proximity to residential areas and places where children are likely to congregate.

27. Whilst children visit the subject library, there are several alternative entry routes other than Roycroft arcade, which are more attractive. I do not consider the character and context of this arcade is such that it is a place where children are likely to congregate. In this regard I rely on Mr Blyth's opinion that the separation distance to the library is satisfactory.

28. Reference was also made to Mudie v Port Stephens Council [2007] NSWLEC 628, which concerns an adult book shop in Nelson Bay. It seems to me that the facts and circumstances are different there because of its proximity to other sensitive land uses and that the street would have a limited retailing or commercial character. Instead, the judgement states that the character has " an increasingly greater intensity of dwellings resulting in a more residential character - a character incongruous for restricted purposes". That is not the case in the current matter.

Conclusions 29. Having considered the evidence, the submissions and undertaken a view, I am satisfied the application merits conditional consent.

30. This conclusion is consistent with the evidence of Mr Blyth, which I rely upon. The planning controls only allow adult bookshops in the business zone, as in the current application. I consider this an appropriate location because the 1st floor situation is a secondary/tertiary location in the town centre and its access will be discreet and security controlled. There was no substantive evidence that use would cause adverse economic impacts.

31. However, I consider it important that appropriate conditions of consent be imposed so that the public interest is protected. This includes the security entry door - with entry buzzer notification, CCTV coverage and the installation of a 1.8m high visibility screen in the entry vestibule to form a sight barrier to the product displays. I also note that the rear windows fronting the lane must be sealed and permanently screened.

32. Insofar as the council submits that there should a 1 year trial period, I do not consider this reasonable in the circumstances of the case. I am satisfied that compliance with the conditions of consent and plan of management should result in reasonable satisfaction of the relevant planning controls and acceptable environmental impacts. I have also had regard to the applicant's submission that section 3 of the Restricted Premises Act 1943, allows the Supreme or District Court to make a declaration where specified anti-social behaviour, including disorderly or indecent conduct occurs. Court Orders
33. The Court orders: 1 The appeal is upheld. 2 Development consent is granted to DA 325/07 for the change of use to an adult shop and signage at 27 Sydney Road, Manly is granted subject to the conditions in Annexure 'A'. 3 The exhibits may be returned except for A, B, C, D, 1, 7 and 9.

      R. Hussey
      Commissioner of the Court
      ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.