Victorian Civil and Administrative Tribunal|2001-07-02|Before: Mayfair Chain P

Mayfair Chain P L v Hume CC and Sleepcraft Distributors [2001] VCAT 1470 (2 July 2001)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Planning List - S. 77 Planning and Environment Act 1987 - Hume Planning Scheme - Industrial 1 zone - Adult Sex Book Shop - aversion on cultural grounds - aversion on moral and religious grounds.

SUBJECT LAND: 2/1968 Sydney Road, Campbellfield

Medium Neutral Citation [2001] VCAT 1470

1. In relation to permit application no. P6574, the Responsible Authority's decision to refuse the grant of a permit is set aside. A permit is granted for an adult sex book shop, advertising signs and a reduction in car parking in accordance with the endorsed plans at 2/1968 Hume Hwy, Campbellfield. 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 yet amended to show:

a) a reduction in the size of the plastic fixed sign facing Ainslee Road so that the advertisement are does not exceed 10.5 square metres.

b) The provision of external 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. Not less than eight (8) car parking spaces must be provided for the use hereby permitted to the satisfaction of the Responsible Authority.

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

6. Goods and products must not be displayed so as to be visible from any public road, thoroughfare or accessway.

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

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.

3. Costs reserved. Within 14 days the applicant for review must advise the Registrar whether it wishes to pursue the application for costs. A copy of such advice to be served on the Responsible Authority. In the event that the application for costs is pursued, the matter to be listed before a legal member.

Mr M Nelthorpe, Town Planner, appeared for the Responsible Authority.

Mr I Sahin, Factory Manager, appeared on behalf of Sleepcraft Distributors Pty Ltd.

Ms R Wilson, Solicitor, appeared on behalf of the applicant.

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. P6574. The permit application seeks permission for an adult sex book shop, advertising signs and a reduction in car parking at 2/1968 Sydney Road, Campbellfield.

2. The Responsible Authority refused the permit application on the following ground:

1. The site is inappropriate for the proposed use as it may cause offence to people employed in the adjacent businesses.

3. The application for review was filed on the 3 January 2001. The grounds of the application are:

1. The site is appropriate for the proposed use.

2. The single ground of refusal by the Hume City Council on the basis that it "may cause offence to people employed in the adjacent businesses" has no tenable planning basis as

* The factory in question is being constructed and consequently there are no current employees at this factory site; and

* The alleged possible offence to the cultural and religious beliefs of future Islamic women employees of this "to be constructed" factory is not a relevant planning consideration.

4. The application documentation also seeks the awarding of costs against the Responsible Authority.

5. At the hearing, Mr Nelthorpe and Ms Wilson tabled and spoke to written submissions. Mr Sahin made oral submissions. The parties also presented various other documents including photographs of the subject land and surrounding area, zoning maps and information relating to the nature of the proposed use. All of this material has been considered and is retained on the Tribunal's file.

6. Ms Wilson advised that application also seeks the award of costs against the Responsible Authority. On this issue, Ms Wilson said that she intended to make submissions relating to the interpretation of the legislation relating to the award of costs and that these would give rise to questions of law. Ms Wilson requested that the costs application be the subject of a separate hearing before a member of the Tribunal who is a legal practitioner. It was agreed that the costs application would be set down for hearing after the decision with respect to the merits review of this matter is issued.

7. Ms Wilson also advised that whilst preparing her submissions, she became aware that permission is also required for a reduction in the car parking requirements set out at clause 52.06. Ms Wilson requested that the permit application be amended to include the reduction is in car parking as part of the permission being sought. Mr Nelthorpe and Mr Sahin 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.

8. During the course of the hearing Mr Nelthorpe advised that the permit application, in so far as it relates to the proposed advertising signs, had not been referred to VicRoads as required under the planning scheme. After the parties completed the presentation of their submissions, I gave a direction requiring the Responsible Authority to forward the application to VicRoads for comment. The parties were give leave to make further written submissions in light of any comments forwarded by VicRoads.

9. By letter dated 10 May 2001, VicRoads advised that it has no objection to the proposed advertising signs. No further submissions were received on this issue.

10. In accordance with the Tribunal's usual practice, after the parties completed their submissions, draft permit conditions were discussed. During this discussion, Ms Wilson agreed to prepare a draft condition relating to the display of goods within the shopfront area. I gave directions for the draft condition to be filed and served and the parties were given leave to make further written submissions. Further submissions on this issue have been received form the Responsible Authority and the applicant.

11. Mr Nelthorpe described the subject land and surrounding area as follows in his submission:

"The appeal site is a 465m2 single storey tenancy within an industrial building located on the east side of the Hume Highway service lane, immediately south of Ainslie Street,, Campbellfield. It is one of a group of 8 tenancies, 4 of which front the Hume Highway and 4 of which front Ainslie Street. The appeal site has a 12 metre frontage, a 30 metre depth and has a side abuttal to Ainslie Street. Effectively, the appeal site wraps around a smaller tenancy on the corner of the site (See locality and site maps).

The building is constructed of rendered tilt slab concrete panels with shop front style windows There is a single door providing entry at the frontage of the appeal site and a roller door and side door providing access from Ainslie Street. The interior of the appeal site is broken into a small office across the frontage and an open space to the rear.

A car park shared by the 4 tenancies fronting the Hume Highway is located immediately in front of these tenancies. This car park is accessed by crossovers at Ainslie Street and the service lane of the Hume Highway. There is no separate pedestrian access between the car park and the frontage of the building. A 3 metre wide landscaping strip is provided inside the property boundary between the car park and the nature strip.

The Hume Highway in this location is the spine of an industrial corridor spanning (within the municipality) from the Western Ring Road to Craigieburn,

The east side of the Highway immediately adjacent to the appeal site is characterised by a mix of large industrial tenancies (on sites of approximately 4000m2 ), small factory/warehouses similar to the appeal site, car and truck saleyards and trade supplies and convenience retail outlets. The Sleepcraft factory/warehouse is under construction on a large site immediately to the south of the industrial building containing the appeal site. Generally the tenancies on the east side of the Highway are setback in excess of 20 metres from the property boundary with that setback being used for car parking and landscaping. The exception is the building immediately to the north of Ainslie Avenue that is setback less than 6 metres from the properly boundary.

The west side of the Highway immediately adjacent to the appeal site is occupied by Ford Australia's Broadmeadows site. This site has substantial landscaped setbacks and a series of large factory buildings. The Ford holding spans from Barry Road in the south to opposite the appeal site.

The Highway is a divided road in this location with a sizeable median strip and service lanes on both sides. The central median strip is landscaped and contains some mature shrubs. The median strips between the main carriageways and the service lanes is grassed only. There are no footpaths either side of the Highway in this location.

The area is undergoing considerable growth and redevelopment. A number of the large industrial tenancies are less than 5 years old, industries such as Scania have consolidated their holdings in Campbellfield in the last 2-3 years, the K-Mart complex at Camp Road (to the south) is undergoing a $15 million expansion and Ford has announced the construction of a 55 hectare business park on their 'back paddock' immediately behind the existing complex."

12. I note that references in Mr Nelthorpe's description to Ainslee Street should be to Ainslee Road.

13. Ms Wilson set out the details of the proposal as follows in her submission:

"The proposal is to use warehouse 2, a warehouse in a building that contains three warehouses and one cafe/take away food outlet, as an adult sex bookshop to trade 24 hours a day, seven days a week. The subject warehouse has its frontage to the service road that is parallel to the eastern lanes of Sydney Road (near the corner of Ainslie Road). The subject warehouse is asymmetrical, adjoining the northern and eastern walls of the cafe, with its roller door and storage area located in Ainslie Road.

One internally illuminated sign, 1.5m X 7m (10.5m2) [amended from 1.75m X 8.4m (14.7m2)] in dimensions, with the business name "Sexyland" on the Sydney Road frontage.

One fixed plastic sign (29m_2) with the words "Sexyland Adult Superstore" on the Ainslie Road side of the warehouse building._

The proposed siting and size of the signage on the Sydney Road frontage accords with the signs for the other warehouses in the warehouse building.

The subject warehouse has a total floorspace of 465m2, which includes office, lunch-room, toilet, and storage/loading bay areas. It is proposed to use 373.4m2 for the retail area, with the remaining area being used as follows:

There will be only one customer entry, from Sydney Road. Loading will be from Ainslie Road through the roller doorway.

The subject warehouse is setback approximately 44m from the three eastern lanes of the Hume Highway. Between the Hume Highway and the subject site are:

* a 9m wide service road (one way in a north-south direction)

* an 18m setback for carparking in front of the subject site

The warehouses building has 31 on-site car spaces on the Sydney Road frontage and 6 on-street car spaces on Ainslie Road. The on-site car spaces are marked with the factory number they are assigned to, viz.

It is proposed that one staff member will operate the shop at any one time. This level of staffing is consistent with staffing at the two other "Sexyland" shops run by my client in other municipalities, i.e.

* Factory 3, Lot 1, 413-415 Old Geelong Road, Hoppers Crossing and with the future shop for which a permit was recently granted by the Tribunal at Showroom 2, 1-5 Marshall Road, Airport West."

14. Pursuant to the Hume 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.

15. "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.

16. Pursuant to clause 33.01-5, the zone is in category 2 with respect to the advertising sign requirements at clause 52.05. The specific provisions for advertising signs on land to which the category 2 applies are found at clause 52.05-8. Under the provisions of clause 52.5-8, an internally illuminated sign requires a planning permit if it has an advertisement are exceeding 1.5m_2_ as is the case with respect to the sign facing Sydney Road. The sign facing Ainslee Road falls within the definition of "panel sign" and also requires a planning permit. The relevant decision guidelines for advertising signs are set out at clause 52.05-2.

17. 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) may be commenced. However, a permit may be granted to reduce or waive this requirement.

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

19. 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 21.03 sets out objectives and strategies for different precincts within the municipality. The subject land is located within Cooper Street precinct of the Somerton Area, the provisions for which are found at clause 21.03-7. The objectives for the Somerton Area are:

To create a vibrant and attractive industry and employment corridor which integrates good urban design, effective use of physical infrastructure and the significant natural environment of the Merri Creek and nearby grasslands.

To promote the neighbourhood as a gateway to the City of Melbourne.

20. The Responsible Authority required notice of the application to be given and in response it received two objections, one from the Ford Motor Company and the other from Sleepcraft Distributors Pty Ltd. The grounds of objection were summarised under the following main headings in the Council officer's report:

* Establishment of an Adult Sex Bookshop would undermine corporate equal opportunity policy (Ford)

* The proposed bookshop would have an adverse affect on the corporate image on our company (Sleepcraft)

* Company employees will be offended and will feel uncomfortable with the location of the bookshop nearby (Sleepcraft)

21. After having considered the submissions presented by the parties, it would seem that the Responsible Authority's sole ground of refusal is essentially based around concerns that the proposed use would cause embarrassment or discomfort to female employees of the Sleepcraft factory/warehouse (under construction) located near the subject land.

22. In support of the Responsible Authority's ground of refusal, Mr Nelthorpe relied on three propositions.

23. First, Mr Nelthorpe said that the proposed use is one which is discretionary within the zone, and as such, the provisions of clause 65 require that the Responsible Authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines in the clause. The decision guidelines require that consideration be given to the policies set out in both the SPPF and the LPPF. After setting out a number of the planning scheme's policies, Mr Nelthorpe submitted that:

The general conclusion to be drawn from the planning policy framework are:

That a responsible authority should aim to achieve acceptable outcomes in its planning decisions;

That the Hume Industrial Corridor is a significant focus of attention in Council's planning scheme; and

That Hume is culturally diverse and that this diversity should be celebrated.

24. Second Mr Nelthorpe referred to the Tribunal's decision in HGC Administrative Services v City of Greater Dandenong and Dandenong Centre Chamber of Commerce and Ors (1996/5742 17ATTR 153) and Fallon v Moonee Valley CC and St Thomas Anglican Church (1998/68843 3VPR editorial comment 1). In the Dandenong case the Tribunal held that it was contrary to the orderly and proper planning to locate an adult bookshop in a shopping centre situated prominently on a major highway. In the Moonee Valley case, the Tribunal refused permission for an adult bookshop on the basis that the proposal made no contribution towards achieving strategic aims set out in the planning scheme. He argued that the principles which the Tribunal held in these cases were applicable to the matter before me.

25. Third, Mr Nelthorpe referred to the "cultural sensitivities" in the Turkish Islamic community. Mr Nelthorpe said that "it is apparent that day to day life and culture is strongly merged with traditions and practices that stem from the Islamic faith". He said that the Iman (or priest) of the King Street mosque, had advised the Council that the need to pass an adult bookshop would cause considerable angst for those members of his community that would be required to do so. The objections received from Sleepcraft Distributors Pty Ltd supported this. As such, Mr Nelthorpe said that, if established, the existence of the proposed adult bookshop would cause discomfort and embarrassment to the employees of the Sleepcraft factory. He said that the Iman had explained that Islamic people would be reluctant to loiter near of walk past an adult book shop for fear of being seen , and there would be considerable long term disharmony if it were known or perceived that either the husband or wife were in or near such a premises.

26. Mr Sahin expressed concerns on two issues. The first concern was in relation to the impact on staff, particularly the offence and embarrassment that would be caused to Islamic women. Second, Mr Sahin also expressed concerns about the impact on the image of the Sleepcraft business. He said that many clients would attend the factory to view and order products, and as such, he expressed concern that the proposed use may cause some offence to them. However, it is relevant that after the hearing, by letter dated 9 May 2001, lawyers acting on behalf of Sleepcraft Distributors Pty Ltd advised that they had been instructed by their client to "discontinue its objection to the Application for Review".

27. In response, Ms Wilson submitted that when assessed on its proper town planning merits, the proposed use and development is one which is appropriate and compatible with the surrounding area. She argued that the proposed use is not incompatible with the zoning of the land and that the land itself has a number of "locational advantages", particularly its remoteness from residential areas, churches, children's venues and community centres and that it is not located in an area where there is high pedestrian traffic. Furthermore Ms Wilson said that the external appearance of the premises would be such that it would be able to sit discretely and unobtrusively in the area given its location within the middle of a number industrial/commercial premises.

28. On the issue of community apprehension or concerns about the proposed use, Ms Wilson argued that spatial restrictions apply to the location of adult sex book shops under the planning scheme and these exist to address this very issue. She said that the proposal meets these provisions.

29. Ms Wilson went on to distinguish the circumstances of the proposal now before me to those of the Dandenong case to which Mr Nelthorpe referred. In particular Ms Wilson said that unlike the Dandenong case, the subject land is not located within a District Centre and not in a location in close proximity to banks, churches of facilities where teenagers are likely to be present.

30. Ms Wilson also argued that the Responsible Authority's sole ground of refusal cannot be sustained as a valid ground for refusal. Ms Wilson submitted that the Responsible Authority's ground of refusal has been worded as a "catch all" extreme "aversion ground" to essentially "get around" the planning irrelevancy of the moral and religious effect of the proposal on adjacent employees. She said that although the ground states that the proposed us_e "may cause offence"_, that such offence was clearly based on the moral and religious grounds that were raised in the objections.

31. In support of her submission that moral and religious considerations are irrelevant, Ms Wilson relied on the views expressed in decisions of this Tribunal and its predecessors. The most recent of these is Mayfair Chain Pty. Ltd v Wyndham City Council (200/15659 unreported) where Senior Member Byard, said:

"... those objections appear to have centred on moral and religious objections which are not relevant to a town planning consideration of the proposal."

32. Ms Wilson submitted that the Tribunal's function is to consider the proposal on its merits having regard to legitimate planning issues.

33. After having considered the submissions presented by the parties, it is difficult for me not to take the view that the Responsible Authority has essentially decided to refuse this application based on moral and religious considerations. It is evident from the discussion in the planning officer's report that the Responsible Authority was well aware that moral objections are not relevant. Whilst Mr Nelthorpe attempted to "camouflage" the Responsible Authority's refusal as one based on the "cultural sensitivities" of those members of the Turkish Islamic community who will work near the subject land, it seems to me that religious beliefs and morals are at the heart of the Islamic culture. Mr Nelthorpe admitted as much when he said that "....it is apparent that day to day life and culture is strongly merged with traditions and practices that stem from the Islamic faith." Furthermore this point is also demonstrated by the fact that the Responsible Authority sought advice from a religious leader, namely the Iman of a local mosque.

34. This Tribunal and its predecessors have considered and consistently held that objections based on moral and religious grounds are not relevant to the town planning consideration of a particular proposal. This is principle is clearly stated in the Tribunal's decision in Enterprising Enterprises Pty Ltd v City of Werribee and Kinrade and Others (1992/33853 10AATR cited 9) when it said:

Almost all objections related to the moral effects of the proposal on the Werribee community in general. The Tribunal and its predecessors have on frequent occasions concluded that moral effects are not a relevant consideration when considering specific applications for a planning permit. The planning implications are the relevant issue to be considered.

35. The prospect that someone, somewhere will be offended or have an aversion to the proposed use is always present. However, as the former Planning Appeals Board found in Pituri Pty Ltd v City of Melbourne (1985 3 PABR 200 at 216) in relation to the "aversion factor':

"The Board has no doubt that some ordinary, reasonable members of the community have an aversion to prostitution and to the use of premises as a brothel. No doubt this is one of the reasons why brothels (unlike funeral parlours) are prohibited in residential areas. Never the less the Board believes the aversion factor can be overstated. Taken to its extreme no planning permit would issue for a brothel because there is always going to be a likelihood that some person could be offended by a brothel."

36. The general thrust of the Board's comments apply to this case. I accept that an adult bookshop will cause offence to some members of the Turkish Islamic community. However, the same could be said about persons from other backgrounds who work in the area. They too, because of the moral and religious beliefs associated with their respective cultures may also find the proposed use to be offensive. However as the Board found in Pituri, taken to its extreme, no planning permit could be issued for an adult sex book shop because there is always going to a likelihood that some person could be offended.

37. Overall, I do not find that the Responsible Authority's sole ground of refusal is a valid basis for the rejection of the proposal. The reality is that under the planning scheme, the proposed use is one which is discretionary within the zone. As such whether a permit is granted must therefore be considered against the relevant town planning criteria. Moral and religious considerations have quite clearly been found to be irrelevant.

38. Because discretion exists, this does not mean that a permit should issue as a matter of course. Rather, clause 65 sets out the relevant planning considerations to be taken into account. This forms the basis for the proper consideration of the proposal.

39. In this case it is relevant that in response to my questions, Mr Nelthorpe advised that:

* The proposal is not in conflict with the purpose of the Industrial 1 zone.

* The location of the premises with its frontage to the service road on a busy highway is not inappropriate.

* The proposal will not result in any traffic problems.

* Other than the "offence" that may be caused because of "cultural sensitivities", there are no other adverse amenity impacts.

40. This assessment was, by and large, consistent with the submissions presented by Ms Wilson. In addition, despite setting out the details of various planning scheme policies and strategies, Mr Nelthorpe did not explain how this proposal would result in any of them being contravened or how it would prevent or prejudice their objectives being achieved. I am not surprised at this because I do not consider that the proposal is in conflict with the planning scheme's policies and strategies.

41. I also find the circumstances of Dandenong and Moonee Valley cases cited by Mr Nelthorpe to be of limited relevance to the consideration of this proposal given that they involved land within District Centres. The industrial context of the land in this case is quite different to that of land within a District Centre.

42. Having considered the merits of the proposal I find myself in agreement with the submissions presented by Ms Wilson. I consider that the location of the proposed use is acceptable. The proposed use is not in itself inappropriate within an industrial zone. It is a retail use which, unlike most others which are prohibited, has been made discretionary within the Industrial 1 zone provided that the land is located the 200 metres away from specified uses and zones. The proposal meets these requirements. The premises are not located in a prominent gateway in the "Hume Industrial Corridor". Rather the subject land is well setback away from the main highway, nestled in between other commercial/industrial uses and located where pedestrian traffic volumes are low. The land is remote from residential areas, schools, churches and other community facilities. Adequate car parking is provided and there was no evidence of traffic problems or any other adverse amenity impact. It is not difficult to see why the Responsible Authority was unable to refuse the application an any other ground given that the proposed use is acceptable when assessed against the relevant town planning considerations.

43. In relation to the proposed advertising signs, I note that the Responsible Authority and VicRoads did not submit that they are inappropriate. However, I consider that the large panel sign to be erected on the wall facing Ainslee Road is unnecessarily excessive in size. A smaller sign, similar in size to that proposed at the front of the premises is appropriate as it is more consistent with the general theme of advertising signs in the area. This change to the size of the sign can be implemented through permit conditions.

44. Accordingly, having regard to the planning merits of the proposal, I am of the view that a permit should issue. The Responsible Authority's decision is set aside. And a permit is granted.

Environment Act 1987

(Publications, Films and Computer Games) (Enforcement) Act 1995

Civil and Administrative Tribunal Act 1987

Mayfair Chain P L v Hume CC and Sleepcraft Distributors [2001] VCAT 1470

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Mayfair Chain P L v Hume CC and Sleepcraft Distributors [2001] VCAT 1470 (2 July 2001)

Parties

Legislation Cited (3)