Mudie v Port Stephens Council

CASES CITED: Cresville Pty Ltd v Sutherland Shire Council [2005] NSWLEC 298; New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154

DATES OF HEARING: 22 August 2007 and final submissions 6 and 12 September 2007

APPLICANT Mr A. Pickles, barrister instructed by Storey and Gough LEGAL REPRESENTATIVES:

RESPONDENT Mr T. Robertson, SC instructed by Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This appeal arises from the refusal by the Port Stephens Council of Development Application No 16-2007-89-1 ("the development application") which is for the use of unit 1 at 9 Yacaaba Street, Nelson Bay ("the site") for the purpose of restricted premises pursuant to the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ("the Classification and Enforcement Act").

The proposal 2 According to the Statement of Environmental Effects that accompanied the development application (lodged on 8 February 2007), it is proposed to use the premises for the purposes of a retail adult bookshop, including formats of books, magazines, videos and CD's. It would also stock sex toys and fetish/fancy clothing. The shop is to employ three staff consisting of a front counter receptionist, a retail attendant and an office attendant. The shop is designed to prohibit the entry of any person under the age of 18 years and to ensure that no part of the premises where adult goods are stored is visible from outside as required by the Classification and Enforcement Act. A single under awning sign (1500 x 300 x 600mm) bearing the word "Funtasia" is proposed together with the necessary warning signs that are required by the Classification Enforcement Act.

3 The applicant's Plan of Management contains guidelines for the training of staff and the day-to-day operation of the shop that will operate between the hours of 10 a.m. and 9 p.m. Monday to Saturday and 10 a.m. to 8 p.m. on Sundays. It will not operate on Christmas, Good Friday or Easter Sunday. No advertising of products or materials will be displayed in areas visible to the public. Purchased items are required to be contained in non see-through bags before the customer can leave the shop. Staff and customers will be able to utilise the seven parking spaces - located at the rear of the shop - that have access off Yacaaba Street. Direct access to the shop from the carpark will be available. Deliveries of goods will be taken directly into the rear of the shop and boxes will not be allowed to be opened other than when completely inside the shop.

The existing building 4 The existing two-storey building is presently configured as a shop (vacant) at the ground floor level with a dwelling at first floor level. This arrangement is essentially the same as the adjoining (on the other side of the common driveway off Yacaaba Street) building that has shops at ground floor level and a dwelling at first floor level. Both dwellings are accessed from the rear via the driveway and carpark.

The locality 5 The site is located on the fringe of the Nelson Bay Central Business area midway between Tomaree Street and Donald Street. Yacaaba Street, in the vicinity of the site is developed with a range of residential and commercial purposes comprising: dwelling houses including residential flat buildings and shop top housing; a restaurant; a computer shop; Centrelink and Roads and Traffic Authority offices; charity shops associated with the Salvation Army, St Vincent De Paul and the Samaritans. In addition to the residential flat development comprising 110 dwellings that adjoins site at the rear and the nearby dwellings in Tomaree Street there are a total of 19 dwellings in this section of Yacaaba Street. There are an additional 52 approved dwellings for sites at both ends of this section of Yacaaba Street plus another eight approved dwellings closer to the site.

Advertising and council's decision 6 The application was advertised and more than 200 submissions plus petitions containing perhaps hundreds of signatures objecting to the proposal were received.

7 Those submissions were assessed in the council officer's report as essentially comprising: detrimental social impact on the community; increase in criminal and antisocial behaviour; conflict with existing activities in surrounding area location not considered suitable for restricted premises; visual impact affecting pedestrians and existing development in the immediate vicinity; and impacts on the existing amenity of the area.

8 The officer's report having considered those objections in the context of the applicable planning controls, the nature of surrounding land uses and the suitability of the site for the proposal concluded that the application is not considered to be contrary to the public interest and is thus recommended for approval.

9 On 5 July 2007 a Notice of Determination was issued advising of council's decision to refuse the application for reasons comprising:

1. The proposal is contrary to council policy given that council has initiated a draft local environmental plan to limit restricted premises to industrial zones only. 2. The proposal is contrary to public interest as evidenced in 218 letters of objection. 3. The proposal is considered to be in conflict with the residential land use adjoining and nearby the subject site. 4. The proposed site of the adult bookshop is considered to be an inappropriate location due to high pedestrian traffic in this sector of the Nelson Bay Centre.

10 When the hearing began on-site at least 16 of the objectors were given the opportunity of explaining their concerns, including representatives of the Eastern Tomaree Precinct, the Samaritans, St Vincent de Paul, Aqua Apartments and the owner of the adjacent Leading Edge Computers shop. I also heard from a number of residents who supported the proposal. Planning controls 11 The site is included in the 3(a) Business General A Zone under the Port Stephens Local Environmental Plan 2000 ("the LEP") and in this zone the proposed development is permissible with development consent. The applicable Port Stephens Development Control Plan 2007 ("the DCP") contains commercial and industrial development guidelines for the Nelson Bay commercial area but does not provide any relevant assistance in relation to restricted premises.

12 On 26 September 2006 (about four months prior to the lodgement of the development application) the council resolved to investigate amendments to the LEP …to restrict … restricted premises proposed to be located in close proximity to …residential properties and community facilities. The council subsequently resolved to prepare a draft local environmental plan ("the draft LEP") that would prohibit restricted premises (and brothels) within the shire in all zones except the 4(a) Industrial zone. Following the preparation of the draft LEP, the NSW Department of Planning ("the Department") was notified on 15 June 2007 to this effect.

13 By letter dated 13 July 2007 the Department advised the council that restricted premises are considered to be a retail use and should be permitted in business zones and that retail uses (other than those providing services for workers in the precinct) should not be permitted in industrial zones. In responding to council's concerns regarding restricted premises, the Department advised that a development control plan could be utilised to control such premises in business zones such that they are situated in the upper levels of buildings rather than at street level or in locations which are not close to other sensitive uses. Alternatively the Department would be prepared to support an amendment to the LEP that provides for restricted premises only being permitted above street level or provides other performance criteria for this use in the business zone.

14 In response the Council prepared and adopted on 28 August 2007 (after the hearing) a draft development control plan ("the draft DCP") that will amend the DCP so that it deals with brothels and restricted premises. The draft DCP amendment was placed on exhibition on 13 September 2007 for two weeks.

15 Whilst it can only be construed as a draft DCP, the council's policy or planning intent as now reflected in the draft DCP is plain and can be taken into account as a circumstance of the case and as a relevant public interest factor.

The draft DCP requirements 16 Section B14 of the draft DCP deals with brothels and restricted premises and is aimed at ensuring that such premises …do not cause disturbance or otherwise have a detrimental impact on the amenity of the host neighbourhood. The associated principles include the need to ensure that such premises are located at a …reasonable distance from other sensitive land uses.

17 The applicable controls provide that the entrance to a restricted premises …must not be located within 150 metres from the entrance of a dwelling on residential zoned land… or… within 200 metres from the entrance of any child-care centre, community facility, educational establishment, hospital or place of public worship. Also, restricted premises …must not be located on the street or ground level of a building… and the entrance to it …must be discreet and unobtrusive. They are also required to …be small in scale and respect the existing character of an area.

18 The nearest residentially zoned land adjoins the site at the rear and is developed with the above-mentioned 110 dwelling residential flat building known as the Aqua Apartments. This development is probably entirely within 150 metres of the proposed restricted premises, however the distance to the entrance to the site of these apartments, via Tomaree Street, is about 115 metres, and the door-to-door distance to some of the dwellings is probably within 150 metres. Also, a significant length of the residentially zoned land on the south side of Tomaree Street that is variously developed with dwelling houses and commercial premises is included within the prescribed 150 metres.

19 There are a number of existing and proposed dwellings within 150 metres of the proposed restricted premises in the 3(a) zone. The draft DCP effectively excludes these dwellings but it is unclear as to why dwellings in this zone which is described in the LEP as being...characterised by a mix of commercial uses and some associated tourist accommodation and residential uses…are treated differently (my emphasis). This ambiguity becomes particularly apparent when the 19 existing dwellings and the 60 approved dwellings in this section of Yacaaba Street are taken into account. An explanation for this can be found in Cresville Pty Ltd v Sutherland Shire Council [2005] NSWLEC 298, where Hussey C. dealt with an application for restricted premises in a general business zone. He observed (and I agree) that residential development in a business zone cannot expect the same level of residential amenity as that expected in a residential zone. This approach can be applied in this case particularly taking into account that restricted premises are prohibited in the nearby residential zone and permissible in the 3(a) zone in which the proposal is situated. However this must be tempered by the 3(a) zone's character which includes residential development and taking into account the number of existing and approved dwellings in Tomaree Street.

20 As for the requirement that restricted premises not be located within 200 metres of the entrance of any child-care centre, community facility, educational establishment, hospital or place of public worship, there was no suggestion that the site was within 200 metres of any of these land uses other than a community facility. The draft DCP does not define community facility but the definition of this land use as contained in the LEP can be applied. There the term is defined as...A building or place operated by a public authority or by a corporation which provides for the physical, social, cultural or intellectual development or welfare of the local community, but does not include a building or place defined elsewhere…There can be little doubt that Centrelink, a welfare agency, is operated by a public authority. Whilst the Salvation Army, St Vincent de Paul and the Samaritans facilities operate for the welfare of the local community I do not know whether or not they are corporations but I do not accept that this makes any relevant difference. All three of these organisations are located in close proximity to the proposed restricted premises and are certainly well within the 200 metres prescribed by the draft DCP.

21 Hence, given the proximity of the site to sensitive uses comprising existing and future dwellings and at least one community facility the location of the proposed restricted premises would not be in conformity with the draft DCP. Also by being situated at ground floor level it fails to meet the requirement that it must not be located at street level.

Expert evidence 22 The only expert evidence provided in relation to this matter was that of Ms E Davis-Meehan who is qualified in education studies majoring in philosophy and sociology. She is the managing director of a Hunter Valley based social research and strategic planning company. In preparing her report she utilised the information contained in council's file including the resident objections and also spoke to some of the objectors

23 Ms Davis-Meehan was of the opinion that relative to restricted premises the nearby residential uses and the Samaritans' shop are sensitive uses particularly taking into account that there are children residing in some nearby dwellings and that customers of the shop are often families with young children. The women employees of the Samaritans' shop will be particularly sensitive given that they access their shop via a shared driveway that separates the two buildings. Their carpark at the rear of their shop is adjacent to and not separated from the carpark associated with the restricted premises' carpark. The clients of the Centrelink office opposite are similarly sensitive as are the schoolchildren who regularly walk past the site and utilise the nearby bus stop.

24 In recognising the strong community opposition to the proposal she acknowledged that this is not based on a real threat of assault or criminal behaviour. Instead her negative conclusions are…based on tangible negative impacts associated with perceptions of safety and the need to take precautions about placing vulnerable groups such as women, children and the elderly at risk… She also explained that fear still exists even if it is founded on an irrational basis and that this fear will change behaviour - an adverse consequence of the proposal. She reached these conclusions notwithstanding that these fears may not to be realised.

Court's consideration 25 Regarding the physical form of the proposed restricted premises including its signage I understand this to be little different to that of the former gymnasium that occupied the premises although, despite being a shop it will not look like one in the sense of having display windows - the windows necessarily being obscured. Also the manner in which customers enter and leave the shop and the delivery of goods via the rear carpark can be expected to be little different to that associated with more conventional shop. Despite this I expect that the customers of the restricted premises could, on occasion, behave differently and possibly even offensively towards others. Another difference will be the proposed signage, especially that required by the Classification and Enforcement Act that will be able to be interpreted by most members of the community such that they understand the nature of the premises and the products to be sold therein.

26 In the case of New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 Lloyd J. considered an application for a place of worship that had been the subject of a large number of objections. In analysing the substance of these submissions he explained that …issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate…and acknowledged that…it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not be permitted on town planning grounds. He nevertheless emphasised that …the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area. Similarly a… fear or concern without rational or justified foundation is not a matter, which, by itself, can be considered as an amenity or social impact…

27 Plainly, taking into consideration the objections, the proposed restricted premises would, if approved cause offence to a significant number of people who live, work and pass through this locality. In this regard I accept that the expressed fears and concerns that form the basis of this offence for these people are indicative of a social impact and of an adverse effect on their amenity. In turn this will result in behavioural changes including avoiding the vicinity of the premises. In this context I have been persuaded by the evidence of Ms Davis-Meehan that the existing (and proposed) residences and community facilities, especially taking into account their close proximity, are land uses that are sensitive to restricted premises.

28 Considering the existing and approved land uses, Yacaaba Street will have an increasingly different character to other streets in the 3(a) zone. For example it will not have the retailing or commercial intensity of Donald and Magnus Streets, instead having an increasingly greater intensity of dwellings resulting in a more residential character - a character incongruous for restricted premises.

29 Considering together the likely social and amenity impacts, the existing and likely future character of this part of Yacaaba Street and Tomaree Street as provided for in the LEP and applying council's policy intent as reflected in the draft DCP, I am satisfied that the proposed restricted premises would be inappropriate in this location. I have therefore decided that the development application should not be approved and as a consequence the appeal should be dismissed.

      T A Bly
      Commissioner of the Court
      ljr

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