Victorian Civil and Administrative Tribunal|2000-05-31

Mayfair Chain Pty Ltd v Wyndham CC [2000] VCAT 1247 (31 May 2000)

PLANNING LIST Application for Review No. 2000/15659

Planning, Planning List, Adult Sex Bookshop, Industrial 1 Zone.

This review is allowed and a permit is granted for an Adult Sex Bookshop subject to the following conditions:-

1. Before the use starts 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 drawn to scale with dimensions and three copies must be provided. The plans must show:-

(a) the layout of the premises within indications as to the activities to be carried out in particular areas;

(b) the location of associated car parking spaces and accessways;

2. 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.

3. 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.

4. 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.

5. No signs may be erected without the prior written consent of the Responsible Authority.

6. Flashing or intermittent lights must not be displayed on the subject land except with the prior written consent of the Responsible Authority.

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

8. 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.

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

10. This permit will expire if the use permitted by this permit is not 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.

Mr Keven Hasall, town planner of the City of Wyndham, appeared for the Responsible Authority. He presented written and oral submissions.

Ms Roz Wilson, solicitor and town planner, appeared for the Applicant Mayfair Chain Pty Ltd. She presented written and oral submissions.

Various plans, photos and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.

Industrial 1 Zone under the Wyndham Planning Scheme.

1. A retail use is contrary to the purpose of the Industrial Zone;

2. Approval of the Adult Bookshop will be detrimental to surrounding uses in the area which are primarily industrial buildings and uses;

3. The proposal does not accord with Council's stated objectives for the municipality as outlined in the Municipal Strategic Statement, the Quality Community Plan, and the Corporate Plan.

1. The proposed use is not contrary to the purpose of the Industrial 1 Zone.

2. The proposed adult sex bookshop would not be detrimental to surrounding uses in the area.

3. The proposal is not in conflict with Council's stated objectives for the municipality as outlined in the Municipal Strategic Statement, the Quality Plan, and the Corporate Plan.

1. This proposal is for an Adult Sex Bookshop to be located in Warehouse 3 of a block of five warehouses in one building stretching down the length of this industrial allotment. A driveway with parking spaces runs down one side of the allotment providing access to the various premises, including the review site. The review site has a frontage to this driveway. It is located approximately 60m from the road frontage to Old Geelong Road. It has no exposure other than its frontage to this access driveway.

2. A somewhat similar modern warehouse development is located on the adjoining land to the east. The land is in an Industrial 1 Zone along the north side of Old Geelong Road. The premises along that side of Old Geelong Road are separated from it by a service road. They include quite a number of the sort of retail premises (previously known in planning circles as "peripheral sales" premises) which require large display and storage areas. Also, a number of other premises where industrial work is carried out, include facilities for selling goods on site. The streetscape has an appearance of something in the nature of an industrial/ retail area. In the area to the north of Old Geelong Road there are further industrial allotments in a tract of industrial land leading north to the Melbourne Water sewer. That area is served by Industrial Avenue, Horne Street, Richards Road and Dunlop Road.

3. After hearing the parties and considering their evidence and submissions I announced my decision. That decision was that the review should be allowed and a permit granted. I then gave oral reasons. I will not attempt to repeat here all that was said in giving those reasons, but will give an outline summary.

4. The first ground of refusal is that a retail use is contrary to the purpose of the Industrial 1 Zone. It is not really true to say it is contrary to the purpose unless it prevents that purpose being achieved. The purpose does not envisage that no non industrial or no retail uses will be tolerated. It does seek to retain the land in the zone generally for industrial purposes. However, it is recognised that some retailing, specifically to serve the needs of the area and people working in the area, can be appropriate. There is, for example, a sandwich shop located fairly close to the review site.

5. The proposed adult sex bookshop does not particularly serve the needs of the industrial area, but neither is it incompatible with the area and the planning scheme, to some extent, recognises this zone as a possible appropriate place for such a use. Shops are prohibited in the zone save for several particular exceptions including an adult sex bookshop. That contemplates the possibility of such a facility in this zone, subject to the location being suitable from other points of view.

6. This review site is fairly discreetly tucked away, even from Old Geelong Road. It is quite a suitable site for an adult sex bookshop and is likely to cause a minimum of embarrassment or inconvenience to anyone.

7. I do not accept that the proposal is detrimental to the surrounding uses of the area. It is likely to have only a minimal impact on surrounding uses, and this may be reflected in the circumstance that there was no objection in relation to the proposal from the owners or occupiers of premises close enough to be affected by the proposal. There were two objections, but they arose from people with an interest in premises in Industrial Avenue who are not, in my opinion, likely to be affected in any material way. Furthermore, those objections appear to have centred on moral and religious objections which are not relevant to a town planning consideration of the proposal.

8. The third ground of refusal suggested that the proposal does not accord with the Council's objectives in its Municipal Strategic Statement, its Quality Community Plan and its Corporate Plan. Sofar as these last two are concerned, the passages quoted are quite general so-called "motherhood" statements. They are so general and wholesome that no one could disagree with them. They are followed, in the written submissions on behalf of the Responsible Authority, with an assertion that the proposal would be contrary to these very general objectives. I found myself asking why this was so, and unable to find any satisfactory answer. Such assertions are really tantamount to saying that adult sex bookshops are a use of such a sort that they are always and everywhere inappropriate. Such a contention cannot, in my opinion, be maintained in such a general form as to be applicable to the whole of the City of Wyndham. Such a use may certainly be inappropriate in some locations but I am not disposed to uphold a ground of refusal which, upon examination, emerges as a mere general opposition to what has to be accepted as a lawful use which should be able to be accommodated somewhere. It is really hard to think of a type of location more appropriate than this.

9. In a similar way the Municipal Strategic Statement contained high sounding and wholesome general statements about enhancement of the image and appearance of places in the municipality without descending to particulars . There is reference to Clause 21.05-10 of the Planning Scheme discussing "Re-focusing of Wyndham to improve the public perception of the municipality as a clean and attractive environment". Clean here must mean physically clean, rather than morally clean. There is nothing unhygienic about this new premises. Also the MSS " discourages activities which conflict with these community expectations of Wyndham".

10. Whilst no one is likely to be opposed to such worthy objectives, the question arises as to whether this particular proposal in its particular locality offends them. I do not think that there is any basis for saying that it would, having regard to its secluded location and limited impact and to the circumstances that this is an area serviced by motor cars where pedestrians would not be passing by. Furthermore, conditions can be employed to prevent possible excesses such as in relation to outdoor advertising signs, display or outdoor decoration of the premises. It was common ground that further planning permission would be needed for any outdoor signs.

11. The Municipal Strategic Statement does contain a proposition that retailing should be more towards the western end of this strip along the northern side of Old Geelong Road, but the particular sorts of retailing that exists in this region are more or less distributed along the road with merely some concentration towards the west end . The reason for this policy proposition is not at all apparent and it applies to retailing generally, rather than this particular variety of retailing. This policy proposition, of course, does not amount to a prohibition and it appears to be significantly superseded by the prior establishment of the existing retailing along and at both ends of the north side of Old Geelong Road in the vicinity. In any event, this proposal would have but minimal impact on the road, the service road and the streetscape generally. I concluded that this did not amount to a sufficient justification for requiring the refusal of the proposal.

12. I also reject the suggestion that this proposal would cause an unacceptable clustering of sex related land uses. There is no other existing adult sex bookshop in the locality, or, indeed, in the whole municipal district of Wyndham. The Tribunal has granted a permit for a brothel at the northern end of Dunlop Road, but that is a considerable distance away and not, in my opinion, relevant.

13. For the reasons given at the conclusion of the hearing I indicated that the review would be allowed and a permit granted. Contrary to the directions of the Tribunal, no draft set of conditions was available at the hearing, but a draft set of conditions has since been tendered by leave on terms that occasioned the Applicant an opportunity to make comments thereon in writing. The conditions are based on that draft.

14. I have deleted a condition proposed by the Responsible Authority to the effect that the use is not to "in the opinion of the Responsible Authority" adversely affect the amenity of the locality. I think this is rather an arbitrary condition and of doubtful validity.

15. The Responsible Authority sought to include a note at the foot of the conditions in the following terms:-

"NOTE: In the event that this permit expires or the subject land is proposed to be used or developed for purposes different from those for which this permit is granted, there is no guarantee that a new permit will be granted and if a new permit is granted then the permit conditions may vary from those included on this permit having regard to changes that might occur to circumstances, the planning scheme or policy."

I see no objection to the inclusion of notes of this sort containing a warning or reminder, but I think the wording of this one is rather confusing. If such a note is included in this case I think it should be in the following terms:-

"NOTE: In the event that this permit expires, there is no guarantee that a new permit will be granted and if a new permit is granted then the permit conditions may vary from those included on this permit having regard to changes that might occur to circumstances, the planning scheme or policy."

Environment Act 1987

Mayfair Chain Pty Ltd v Wyndham CC [2000] VCAT 1247

At a glance

Court

Decision date

Source

Judgment (46 paragraphs)

Mayfair Chain Pty Ltd v Wyndham CC [2000] VCAT 1247 (31 May 2000)

Parties

Legislation Cited (1)