Mortimer v Sutherland SC

Land and Environment Court (NSW)|2005-06-07

CITATION : Mortimer v Sutherland SC [2005] NSWLEC 349

APPLICANT Andrew Mortimer

PARTIES : RESPONDENT Sutherland Shire Council

Sutherland Shire Local Environmental Plan 2000 Cronulla Centre Development Control Plan Sutherland Shire Draft Local Environmental Plan 2004 Advertising Signs and Structures Development Control Plan LEGISLATION CITED: Council Development Control Plan 9.3/11 Crimes Act 1900 Classification, Publications, Films and Computer Games Act 1995 Environmental Planning and Assessment Act 1979

Martyn v Hornsby Council [2004] NSWLEC 614; CASES CITED: Liu v Fairfield City Council [1996] NSWLEC 272

APPLICANT Mr Pickles, barrister of Walker Taylor Edwards Smith

RESPONDENT Mr Reilly, solicitor of Sutherland Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10004 of 2005 Andrew Mortimer v Sutherland Shire Council

1 This is a Class 1, Appeal No. 10004 of 2005, between Andrew Mortimer and Sutherland Shire Council in regard to the refusal of a proposed adult book store, or termed sex shop under the Sutherland Shire Local Environmental Plan at No. 39A The Kingsway, Cronulla. 2 The store was on the first floor of a two-storey building. Below it on the ground floor was a sports surf and ski shop. The door into the surf and ski shop was immediately beside the door to the stairs leading to the first floor. Both doors were in a recess off the public footpath. On the side boundary wall of the recess facing the ski shop door and beside the adult book store entry was a large electrical switchboard. The proposal is to have in large letters on the door of the switchboard the words "Cronulla Adult Superstore Restricted Premises". The telephone number was also to be put on. A floodlight would illuminate the sign. Above the door into the stairs was a large glass fan light. The proposal was to have the words on it "Adult Book Store, No. 39A". 3 During the hearing a proposed fin type wall sign on the first floor of the building was deleted. The book store was to be the only tenant of the top floor. During the hearing the Court was told the internal partitions on the top floor would be removed, except for the toilet and shower rooms and the kitchenette. The enlarged room would create a display area. The windows to The Kingsway were to be obscured by one means or another with no signs proposed in them. A rear glass sliding door and small deck were to have a lattice screen to prevent views into the adult book store from apartment buildings at the rear. 4 The service counter shown in the plans near the kitchenette at the rear of the first floor was in the original proposal to be extended to form a service counter. However, during the hearing it was indicated that this was not a good control point for customers entering and leaving the shop. The applicant said that the service counter would be moved to be near the door at the top of the stairs so that people entering could not see into the shop and so entry and exits were controlled. 5 The required restricted premises signs regarding persons under eighteen years old and persons intoxicated or otherwise substance affected were to be placed on the walls of the stairwell. 6 The hearing was held on site. Appearing for the respondent were: - Mr Reilly, solicitor of Sutherland Council Legal Office, - Mr K Nash, Consultant Town Planner and objectors attending on site were: - Senior Constable C Pickard of Miranda Local Area Command; - John Kennedy, Cronulla Veterinary Clinic of 41 The Kingsway, Cronulla; - Patricia Kennedy, Veterinarian of 41 The Kingsway, Cronulla; - Adam Coffey of 202 Attunga Road, Yowie Bay; - Nicole Coffey of 202 Attunga Road, Yowie Bay; - Joan Taplin of 59 Taloombi Street, Cronulla; - Kevin Taplin of 59 Taloombi Street, Cronulla; - Lynne Watson of 107 Garnett Road, Miranda; - Fifi Theresa Hale of 29 Seaforth Avenue, Cronulla; - Donna Lowe of 17/55 The Kingsway, Cronulla; - Richard Humphrey of St Andrews Church, Cronulla; - Nicola Jarman, 18 Gow Avenue, Port Hacking; - N Vandergraaf of 477 Boss Road, Jannali; - Albert Young of 19 Kingsbury Place, Jannali; - Malcolm Kerr of 438 Willarong Road, Caringbah, - Anne Van Buren of 16 Lucas Street, Cronulla; - Gabriel McMullen, head of surgery Sutherland Hospital, 23 Kiora Road, Yowie Bay; - Laurence Watson of 107 Garnett Road, Miranda; - Mike Linnington of 342A The Boulevarde, Gymea; - Anne Smith of 89 Woolooware Road, Cronulla; - Yvette Winn of 8 La Boheme Avenue, Caringbah; - Nick Winn of 8 La Boheme Avenue, Caringbah; - Neil Keller of l/14 Central Road, Miranda; - Fay Verdich of 14 South Street, Gymea and - Malcolm Smith, PO Box 407 Caringbah, New South Wales. - Beth Smith of 89 Woolooware Road, Cronulla; - Nell Nelson of 498 The Boulevarde, Kirrawee; - Denise Easton of 53 Short Street, Oyster Bay;

7 Appearing for the applicant were: * Mr A Pickles, barrister, * Mr Mortimer, applicant, * Mr A Minnaard, consultant town planner, and * Ms M Rattenbury.

8 Appointed by agreement of the parties to be a court expert was Ms K Gordon, town planner. 9 The issues in the appeal were: Location and Impacts (1) The proposal is unsatisfactory in view of its location, impacts upon the character and social environment of the area and having regard to the following: (i) Non compliance with objective 1(C) of the 3A general business zoning cl 47 of the Sutherland Local Environmental Plan 2000 in that the use is inconsistent with and will undermine the viability of the business centre. (ii) The use does not satisfy the principal objective in cl 1.4 of the Cronulla Centre Development Control Plan or the following guideline principles. Principle 1 . Development should ensure that Cronulla retains its core character distinguished by its village atmosphere and lifestyle. Principle 2 . Development should generate a safe environment. Principle 3 . Development should contribute through enhanced attractive and safe streetscapes and townscapes to the character and identity of Cronulla and the comfort, health and quality of life of Cronulla's residents. (iii) The use is not one of the preferred dominant land uses identified for the mixed uses area in cl 2.1 of the Development Control Plan and is not compatible with desired uses such as community facilities. (iv) The location of the use is inappropriate having regard to cl 2.5 and 3.5 of the Development Control Plan given its close proximity to the identified gateway to the west in the vicinity of Gosport Street and the importance of this part of The Kingsway and contributing to the initial image and character of the area developed by travellers. (v) The nature of surrounding uses, including the Masonic Lodge, Cronulla Youth Hostel, the Cronulla Mall, sensitive land uses such as those involving family and community oriented activities, local churches and residential uses and having regard to the number of children who frequent the area. (vi) Non compliance with the development principle in cl 2.15.1 of the DCP and objective (B) in cl 9 of the advertising signs and structures development control plan signage should visually respect its context and contribute to the character of surrounding development and Cronulla generally. (vii) Non compliance with objective (E) in cl 26.8.2 of the Sutherland Shire Draft Local Environmental Plan 2004. Advertising (2) The proposed sign is unsatisfactory having regard to the existence of another above awning sign on the building and the sign does not comply with cl 10(E) of the Advertising Signs and Structures Development Control Plan in that signs above awnings are not permitted. Public Interest (3) The proposal is not in the public interest, particularly having regard to the considerable public opposition and the anti-social behaviour experienced in the area. Objections (4) Matters raised by the objectors. 10 The applicant contested the applicability of DCP 9.3/11 edition 3 for Brothels and Sex Shops. The exhibited DCP had stated it would not come into effect until 19 April 2005. The respondent countered that in considering the results of the final exhibition the council resolved to adopt the Development Control Plan and notify in the press. Upon notification the Development Control Plan became operational. The date of notification was the date of this hearing. 11 I concluded the Development Control Plan did apply in this appeal and directed the experts Mr Nash, Ms Gordon and Mr Minnaard to conference on the implications of the Development Control Plan and produce a joint report forthwith. This was tendered in exhibit 17. The aspect of the Development Control Plan their report focused on was the small section on adult book shops called Sex Shops in s 7: (1) Siting and Location Sex Shops. Development for the purpose of a sex shop may be carried out only with the development consent. A sex shop must not be located (i) Within 50 m of any form of residential (excluding (9a) mixed residential/business zone) open space or special uses zone or land where the activity is identified as a sensitive land use. Sensitive land uses include but are not limited to, place of public worship, churches, schools, transport nodes, residential dwellings, childcare centres, family health centres, senior citizens centres, licensed premises (licensed under the Liquor Act 1982 ) and facilities and places typically frequented by families or children. (ii) Within a 100 m of the boundary of an existing legally operating sex shop. (iii) On the ground floor of retail or commercial premises. (iv) Within the immediate proximity to the residential entrances of a mixed development. (v) Where it may conflict with a residential amenity of a mixed development. (vi) On land owned by or under the care, control and management of the council. (2) Vehicular access and parking. A minimum of one parking space is to be provided for every 40sq m of floor space. (3) Advertising and display. All advertising must comply with the council's requirements for general industrial or general business and mixed residential business zones in the development control plan for advertising structures and signs.

12 In addition to these council requirements all brothels and sex shops must comply with the requirements of the Crimes Act 1900 s 578(E) and Classification (Publications, films and computer games) Enforcement Act 1995.

13 It was noted that under the Sutherland Local Environmental Plan the use was permissible only in the 3A General Business Zone and the 9A Mixed Residential Business Zone.

14 In summary, the three experts concluded that within 50 m of the door of the shop there are: below on the same site a ski and surf shop, on the west side of the site a veterinarian clinic with a residence above and beside the vet clinic was a Masonic Temple and beyond that a restaurant. On the east of the site was a pizza take-away shop, next was a bicycle shop, then an entrance foyer to apartments above the bicycle shop and a video store on the corner of Croydon Street and The Kingsway. They agreed that taking a radius of 50 m from the shop was inappropriate. They agreed that the proposal complied with (ii) (iii) and (vi) of the Development Control Plan and in respect of the apartments above the bicycle shop and the video store complied with (iv). 15 They could not agree on whether the veterinarian clinic was a place typically frequented by families or children, nor whether the residents above the veterinarian clinic should be given determinative weight due to its being so close to the sex shop. A gate to a side walkway was 7 m from the door to the sex shop and led to the main entry to the flat above the vet clinic. 16 Another residence above a shop at No. 38 The Kingsway across the street and a youth hostel at No. 34 to 42 were across six lanes of traffic and not considered by the experts to be impacted. 17 They agreed not enough was known about the use of the Masonic Temple to decide if it was a sensitive use. In fact the Masonic Temple had objected by letter in exhibit 11 folio 113 to the proposal, particularly due to its hall being used regularly for ballet and dance lessons for young people. Mr Brunning, secretary for the Lodge Cronulla No. 312 UGLNSW, wrote that a unanimous meeting of 8 June 2004 objected to the proposal and attested to the frequency of use of the hall and nearby premises by young people. The letter mentioned the surf and ski shop and the restaurant.

18 Senior Constable C Pickard of the Miranda Command was the licensing supervisor for the locality and dealt with development applications that were of concern to police. He attended the hearing, and had prepared the written objection of the Police Command in exhibit 11 folio 91 for his commander, who had signed it. The particular concerns were; "(A) The Cronulla area is a high density area for young people visiting the beach. (B) The proposed premises is within a short distance from the Cronulla Masonic Lodge. (C) Police hold fears the proposed site will attract an undesirable clientele to the area causing further problems to the beach front with paedophile and pervert activity. (D) Police are of the belief the needs of the community are being adequately addressed by the adult sex shop situated on The Kingsway at Caringbah, which is a short drive from the site of the proposed application. (E) Police are concerned about the location of the proposed premises and its proximity to residential dwellings and accommodation. Currently there are residential units directly to the rear as well as to the east of the proposed site. Also there is a youth backpacker's hostel directly across the road from the location".

19 The senior constable was cross-examined on why undesirable people would be attracted to Cronulla to go to the sex shop. He agreed that most would probably be attracted to the beach and go to the sex shop as well. He also agreed probably there were already living in Cronulla persons that would use the sex shop. He said, it was reasonable for each locality to have such premises but they should be appropriately located. It was put to him the location of this proposal was not a busy part of Cronulla. He disagreed, saying many young people would come to the other sites next to and near the premises, especially at night and at weekends. The pizza shop was very popular. That being the case, and the sex shop amongst them, anti-social activity could be attracted.

20 Mr Coffey had the surf and ski shop below the proposal and had written objections in evidence. The business had been there 18 years and he had operated it for 10 years. He told the Court his primary clientele were families and teenagers, including children, school groups and surf clubs. Having been there so long the shop had built up a second generation of customers who now brought their children to hire from the shop. He had 600 pairs of skis and 100 snowboards that had to be fitted to each child or adult and in snow season most of it was hired each weekend. 21 In summer he sold surf and other sports clothing and equipment. 22 It was not unusual to have 400 children through the premises on a busy day he said. The advertising of the proposed sex shop had become known amongst his customers. Many had signed the petition against it and many had told him they would not bring their children there if it was approved. He was very concerned for the continued viability of his business. Being confronted by the signage as in exhibit C at the entry to the sex shop was unavoidable for his customers. His entry door and the sex shop door were both in the same recess in the shop front off the footpath. The two doors were less than a metre apart. Because of the layout of the shop front recess the sex shop door and the signage would be directly ahead of the ski shop customers as they walked to Mr Coffey's door. 23 It was put to him the council planning statute only allowed sex shops in a 3A General Business Zone and the 9A Mixed Residential Business Zone. He said he was not a town planner and it was his opinion such premises should be located somewhere less frequented by children. He took the hearing on an inspection of his shop and a considerable portion of the clothing and equipment on display was of sizes suited only to children. Mrs Coffey noted that sub 18 teenagers were often so grown physically that they took adult size clothing and equipment, so the majority of the stock was aimed at the younger market. Mr Coffey offered to show sales and rental records that included ages. He agreed, young people were accompanied by adults but repeat customers of early and late teens were often sent in without adults both for sizing and then collection of equipment. 24 He estimated out of peak season during any one week up to 400 sub 18 year olds would come through his shop, many just there to browse.

25 The veterinary surgeon, Mr J Kennedy, had his clinic next door to the site on the western side. He said his practice had been there for 17 years and was often visited by adults with children caring for their family pet. Also in the apartment above his clinic was a family with a 14 year old daughter. The parents had lived there for 16 years. His experience was that the dance classes in the Masonic Temple were for pre-school children and upwards and the ski and surf shop, the pizza shop, the bicycle shop and the video store all attracted young children to the immediate locality, most unaccompanied by adults. Mr Kennedy said the sex shop was an inappropriate use near them. 26 Mr Kennedy added that the immediate location of his and the other premises was on the brow of the hill, just as The Kingsway descended into the township and the beach front. He regarded it as a visual gateway to Cronulla town and he noticed the council's Cronulla Centre Development Control Plan also designated the location as a gateway. He said the majority of residents would think a sex shop use was an inappropriate image for a gateway to present.

27 Mrs Smith said, she lived in Woolooware, but Cronulla was its town centre and she did consider herself and family affected by the proposal. She noted the 400 plus signatories to the petitions in addition to the individual objections. She had collected another petition herself. She thought they represented a wide cross section of the community against the proposal. She said, her own personal opinion was that sex should not be sold as entertainment and that was what sex shops did. Her opinion was that that attitude led to the erosion of the social capital of community values and sex should be taught as a meaningful act of love between two people. 28 She noted that the applicant sought to say that the council's independent hearing and assessment panel review of the refusal had recommended approval. Mrs Smith had read the report and found that the IHAP committee, as it is called, had actually made two recommendations, the first saying "refuse it" and the second saying "approve it" so the IHAP committee had sat on the fence she said. In the event of approval the IHAP committee had said to restrict the hours of operation severely and to give the proposal only a 12 month trial permit and also to severely restrict signage.

29 The Reverend Humpheys had been asked to speak for all the churches in Cronulla that had also lodged written objections. He was Pastor at St Andrews on the opposite side of The Kingsway and a short distance west. He said sex shops reduced the value of personal relationships by accentuating individual self gratification. Relationships were about two people sharing. The statements about sex shops selling marital aids were a euphemism. They had never helped solve marital problems he said. 30 Living at the church and having four young children he was familiar with the site and its neighbours. He often walked to the shops and to the beach. He said the bike shop was a big attractor of teenagers and juveniles without adults. Both of those age groups did a lot of window shopping and they could be seen at the bike shop every day. 31 It was put to him that he would object to a sex shop anywhere in Cronulla. He said he would object to locations where children and teenagers had to walk past a sex shop to get to a video store, a bike shop, a sports shop, a children's dance academy and family restaurants or take-aways. He said just because the use was permissible in the zone did not mean this particular location was appropriate. There were other less busy and more discreet locations in Cronulla. It was put to him within the video store there were aisles leading to R rated videos near the children's section and posters with scantily clad women in view. He said that was not the same as X-rated material.

32 Ms Gordon gave oral evidence saying in the joint conference she and Mr Nash agreed the flat above the veterinarian clinic and the video store were sensitive uses under the Development Control Plan for brothels and sex shops. The veterinarian clinic itself had a component of sensitivity because it operated outside school hours when children would visit it at the same time the sex shop would be open.

33 Mr Minnaard had held that since sex shops were permitted in zone 9A Mixed Residential and Business Zone, that the flats above the bicycle shop and the video store could not be sensitive because it was a building of mixed use.

34 Ms Gordon and Mr Nash did not agree with that logic but did agree that the entry foyer to the flats was 40 m from the sex shop and that seemed far enough away to not cause a planning impact that might be the subject of s 7 cl 1 (iv) of the Development Control Plan. They agreed that the Development Control Plan s 7 cl 1 (i) the 50 m from a residential zone should be measured from the shop door, not a radius from the site, otherwise no sex shop would be possible in Cronulla as its 3A zone was quite narrow and a Development Control Plan could not create a prohibition contrary to a Local Environmental Plan. Given their interpretation of the Development Control Plan there were other sites in Cronulla that might be suitable for such a facility.

35 Mr Minnaard had put that his experience with veterinarian clinics was that adults usually took a pet in alone, not parents with children. On the dwelling above the veterinarian clinic Mr Minnaard noted the gate and passage beside the subject site to the front door of the flat was blocked with stored goods when he saw it, and there was a rear stair to the backyard that had a rear lane and car access. Also there was another side gate into the Masonic Temple land and a path to The Kingsway. He thought the accesses to the flat that were used by the residents were therefore remote enough from the sex shop to not cause a planning impact.

36 The three agreed that s 7, cl 1(i) in saying a sensitive use was a residential dwelling, it must mean a detached house otherwise s 7, cl 1(iv) and (v) with flats in mixed development would have no work to do.

37 Ms Gordon agreed that s 7, cl 1(v) concerning impact on residential amenity did not exclude particular impacts beyond 50 m from a sex shop but she said it did not apply in this case except for the dwelling above the veterinarian clinic. She said a statement of objectives for the clause would be of assistance because they inferred different impacts to the objectives at the start of s 7. In the absence of clarity the experts had agreed she said the best guide to sensitive uses was the reference to "facilities and places typically frequented by families or children". The interpretation that the experts placed on this clause in their evidence indicated that the word "children" included juveniles and under 18 teenagers who were unaccompanied by adults.

38 In regard to the veterinarian surgeon Mr Kennedy's reference to the Cronulla Centre Development Control Plan, and the locality being a gateway, Ms Gordon read the Development Control Plan and said the location was really the corner of Gosport Road and The Kingsway just beyond the Masonic Temple. But, in any case Ms Gordon said the controls were all about architectural form and landscape, preferred uses were not stated. Therefore, she did not think that particular control plan had any substantial bearing on the proposal.

39 In regard to the ski and surf shop Ms Gordon said it was a shop and she disregarded Mr Coffey's assertions of losing business as hearsay.

40 In coming to a conclusion on the appeal, I have to say the Council Development Control Plan 9.3/11 edition 3 Brothels and Sex Shops, is not clear. The expert planners revealed that using its terminology to determine suitable locations in regard to any residential occupancy at a distance from a sex shop is difficult. The matters on which they could agree was that the 50 m distance to any sensitive use should be measured from the public entry to the sex shop and not on a radius from the site. Also they agreed that the video shop was sensitive and that a sensitive use was best identified as facilities and places frequented by families or children. I take the latter term to mean unsupervised juveniles and adolescents under 18 years of age.

41 Mr and Mrs Eddie who lived above the veterinarian clinic had objected and their letter was in exhibit 14. They said it was too close to their home where they enjoyed living close to Cronulla Mall and the family activities available.

42 In submissions the respondent put that whether Mr Nash's evidence of the Eddie entrance being the gate 7 m from the sex shop, or Mr Minnaard saying it was the path in the Masonic Temple 15 m away, if either was used going to the Mall or the beach, and other facilities, the sex shop was next to the apartment and a sensitive use. Residents of the apartment could not avoid knowing and passing the sex shop. The Masonic Temple is a place of public worship as well as a dance academy for children and teenagers. The Masonic Temple objected to the proposal and they are sensitive uses just on the other side of the veterinarian clinic 15 m away. Two of the expert planners agreed the video shop and the veterinarian clinic were sensitive uses, one being next door seven metres away and the other just within the 50 m distance.

43 Mr Nash and the immediate neighbours of the sex shop gave evidence that, the ski and surf shop, the pizza take-away and the bike shop are all frequented by children, juveniles and teenagers, many of whom are unsupervised by adults.

44 While two of the experts discounted Mr Coffey's evidence almost out of hand, an inspection of the ski and surf shop demonstrated that the majority of their stock was suitable for persons under the age of 18 and a significant proportion of the stock was smaller sizes for children, say 14 and under. The applicant submitted that shops come and go and I should not put any weight on Mr Coffey's evidence that the viability of his shop would be threatened if the sex shop was approved. The respondent said Mr Coffey's business had operated on the site for 18 years and it had an established clientele predominantly families and children and teenagers. The respondent asked: should the test of the appropriateness of the sex shop location be whether or not Mr Coffey lost trade or went out of business or had to relocate. Even a 12 month trial would be unacceptable in those circumstances.

45 The respondent invited, and the applicant endorsed, that I see the location of the council approved sex shop at No. 322 The Kingsway, Caringbah. Both said it was a good location. The respondent put it was good because it was not a location that unsupervised children and adolescents would collect around. It was beside a Totalisator Agency Board shop front on one side and beside a public laneway on the other. On the opposite side of the lane was a financial institution. None of these were sensitive uses. 46 The applicant said No. 322 The Kingsway still had many children passing by when going to the shops or going to and from the railway station or the chemist shop. It was a prominent location the applicant said, right in the main street and hardly discreet so why suggest in the subject application that a different more discreet, location was desirable? 47 The respondent referred to Martyn v Hornsby [2004] NSWLEC 614, in which a planning principle was established for brothels saying inter alia that exposure of impressionable groups like children and adolescents is undesirable and they should be located where they are least likely to offend and should not adjoin places where children and adolescents regularly gather. 48 The applicant submitted those principles were for brothels, not sex shops. Further, the site was not near a bus stop or near another sex shop or brothel. There was to be limited signage and the proposal would not be dominant amongst the other premises adjacent and adjoining.

49 The respondent said a sex shop is not an ordinary shop, it is a premises administered under the Crimes Act 1900 and the Classification, (Publications, Films and Computer Games) Enforcement Act 1995. It is a place that needs to be appropriately located.

50 I was taken by the parties on a walk to the Cronulla Mall and it was a very busy location with people, including adults, children on skateboards, groups of young teenagers walking and talking, as well as people shopping, seated in outdoor restaurants, and on public seating in the Mall. I was shown walk throughs to the car park off Croydon Street and side streets that had much less activity. 51 I did look at No. 322 The Kingsway, Caringbah, and concluded that the respondent's submission was correct. Compared to the subject site there were no nearby obvious attractors of unsupervised children and adolescents. 52 Also I had regard to Mr Coffey's offer to open his sales and hire records to prove that adolescents and children comprised a major part of his customers. Neither party pursued that so his evidence is uncontested. As a result I accept that his particular shop can be characterised as a sensitive use. There is also the nature of the entry to the sex shop and the entry to the ski and surf shop. They are in the same recess in the small frontage directly off the public footpath. When seen on site I appreciated the evidence that any customer of the ski and surf shop must confront the sex shop signs and doorway within the small recess before turning to enter the ski and surf shop door. Any customer of the ski and surf shop who had a sensitivity to sex shops could easily choose to go elsewhere and take their children and adolescents with them. Added to this, it would be difficult to find another row of adjoining uses in a shopping centre that are such a group of attractors for unsupervised children and adolescents. The Masonic Temple, a place of public worship being used regularly as a dance academy for children, a veterinarian clinic, the ski and surf shop, a pizza take-away shop and a bicycle shop and a video store.

53 I am inclined not to give determinative weight to the Eddie home above the veterinarian clinic beside the subject site, because its commonly used entries are either the back lane for the car or the side gate into the Masonic Temple pathway, not the gate beside the site. By their objection however, there is obviously some perceived impact by the Eddie's upon their residential amenity. But being a flat above a row of shops means one has opted for proximity to retail and commercial uses and must expect some impact, although not necessarily of the kind related to a sex shop. Although not given determinative weight the proximity of that residence does add to the other impacts before the Court.

54 The new Council Development Control Plan for Brothels and Sex Shops coming into operation on the day of this hearing means it is a relevant control, but the generality of its provisions are difficult to apply except in so far as I have mentioned previously. The evidence in this case really stands on its own and any weight the Development Control Plan provides in its diminished status, is supplementary to that evidence. Under s 79C(1)(b)(c) and (d) of the Environmental Planning and Assessment Act 1979 a decision to approve or refuse this proposal should consider inter alia the likely impact, including social and economic impact in the locality, the suitability of the site for the development, the submissions made in accordance with the Act or regulations, and the public interest.

55 The Miranda Police Command does have concerns about the site. The police concern about the backpackers across the street and the flats above the shops, was not given weight by the expert planners, except two of the three planners did have concern for the flat next door. The police concerns that held most weight from Senior Constable Pickard's oral evidence was the popularity of the adjoining and adjacent uses with juveniles and the sex shop being in amongst them could attract anti-social elements.

56 The concerns of Mrs Smith and Reverend Humphrey related largely to moral concerns that the Court has set aside following Liu v Fairfield City Council [1996] NSWLEC 272. Nevertheless, Reverend Humphrey's evidence as a nearby resident added to that of the police and the other witnesses that this row of shops and facilities are very popular with unsupervised juveniles and adolescents. The other nearby objectors all added to this evidence. I accept there is likely economic impact to Mr and Mrs Coffey's business and that a 12 month trial of the sex shop to prove otherwise is an unreasonable test given the evidence. The permissibility of a use in a zone does not mean an approval is appropriate anywhere in the zone. Any approval is subject to tests under the council's applicable statutes and controls and under the Environmental Planning and Assessment Act 1979.

57 I have concluded that the evidence and the submissions demonstrate that the site is inappropriate for the sex shop, plus issue 1(v) are determinative in this matter and therefore the proposal is refused.

58 The orders of the Court are:

The appeal is dismissed.
Exhibits are returned to the parties except Exhibits A, B, C, D, 8, 10, 12, 13, 14 and 17.

      K G Hoffman
      Commissioner of the Court
      rjs/ljr

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Judgment (46 paragraphs)

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Cases Cited (2)

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