NKWWA Investments Pty Ltd v Dubbo City Council

New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; CASES CITED: Zhang v Ashfield Council [2004] NSWLEC 259 ; Marinos v Ashfield Municipal Council [2005] NSWLEC 2

APPLICANT Ms D Holm, solicitor of McKees LEGAL REPRESENTATIVES: RESPONDENT Mr D Olney, solicitor of Booth Brown Samuals & Olney

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11220 of 2005 NKWWA Investments Pty Ltd v Dubbo City Council

1 This is an appeal against the refusal by Dubbo City Council (the council) of a development application for a change of use of an existing industrial unit to restricted premises and for an advertising sign at 6/57 Douglas Mawson Drive, Dubbo (the site).

2 The site, its context and the history of the application are set out in the Statement of Basic Facts. 3 Briefly the site is one unit (Unit 6) within an existing industrial unit complex, comprising a total of seven units with associated car parking. The approval of the industrial complex included an eighth unit and further car parking, which has not yet been constructed. However, the owner has indicated his intention to do so in the future. 4 Unit 6 is located to the rear of the development with its main entry facing west to a driveway accessed off Douglas Mawson Drive. A similar industrial complex is located along the western side of the driveway. There is a vacant site to the east for which approval for a carwash has been granted. Further to the east is the Dubbo Presbyterian Church. On the opposite side of Douglas Mawson Drive is open space. The south of the site adjoins the main Western Railway Line.

5 The site is zoned 4(a) Light Industrial under Dubbo Local Environmental Plan 1998 - Urban Areas (LEP1998). Restricted premises are permissible with consent. 6 Clause 20(2) of LEP 1998 requires that the application must be advertised and submissions are to be considered. Clause 57 of LEP 1998 provides that:

The consent authority must not grant consent to development of land within Zone 4(a) or 4(b) for the purpose of a brothel or restricted premises, unless the building in which the development will be carried out complies with each of the following criteria:

a) It does not front or have direct access from an arterial road.

b) It is located at least 20m from a residential or business zone or corner store.

c) It is located at least 200 m from a school, church, public open space, or any other place where people are likely to congregate. 7 The proposal meets criteria a) and b) but does not meet c), in that it is located within 200 m of a church and open space. An objection under State Environmental Planning Policy No 1 (SEPP 1) has been lodged.

8 The key issue between the parties was whether the non-compliance with this standard and the SEPP 1 objection was justified.

9 The Court heard expert evidence from Mr L Winnacott, the Court Appointed town planner. 10 Resident evidence was given by: · Mr W Connor, · Mr B Kingsley Smith · Mr A Blanch. 11 The objectors are Ministers of the Dubbo Presbyterian Church and were concerned that the proximity of the premises would adversely impact on the operation of their church. They described the church as a family centred facility, which provides activities throughout the week, a number of which are targeted at teenagers and children.

12 The Church had undertaken surveys of its members. Parents and children had expressed concern about the location of the facility in close proximity to the Church and the park, which is also used by children attending the Church.

· parents being fearful of leaving children unsupervised due to the potential of unsolicited exposure to the material being sold in the premises by either people leaving the premises or by children being curious and venturing near the premises; · parents and children would feel uncomfortable knowing that the premises were nearby and may choose not to use the church in favour of other churches. · the church also runs counselling sessions for sex offenders and victims of abuse. It is inappropriate and insensitive to have the proposed premises in close proximity to where this counselling occurs.

14 Mr Winnacott provided a detailed assessment of the submissions in his report. He recognised the concerns of the objectors, but stated that the test to be applied is that stated by Lloyd J in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154, where his Honour stated:

that the subjective fears and concerns must have a rational basis and be amenable to objective assessment in order for any significant weight to be attached to them. 15 The principal concern of the objectors is the proximity of the premises to the Church and open space and the likelihood that the activities of the Church and the premises will coincide in an unsatisfactory manner.

16 The issue is essentially the same as whether the SEPP 1 objection to cl 57(c) is well foundered. Mr Winnacott reviewed the SEPP1 Objection and concluded that: · In the absence of any LEP objectives for the separation standards contained in clause 57 I consider these standards have been included for the purpose of ensuring a reasonable level of separation between the land uses specified. To achieve this objective I consider the most appropriate means of measuring the distances specified to be the walking distance from the front door of the premises to the land uses specified. In the case of the distance between the subject premises and the Presbyterian church I consider this to be a preferred method to a direct line or radius measurement from the rear wall of the subject premises to the church. This is because the church property is separated from the subject property by vacant industrial allotment which has the potential for development in accordance with the recent approval. Furthermore, when viewed from the church and the grounds of the church, the rear of the subject premises would give no indication of the use being conducted inside. · The subject premises (Unit 6) is located towards the southern end of the row of industrial units at No. 57 Douglas Mawson Drive. The front door of the unit will be located 106 metres from the front street. The front of the premises is recessed and partly enclosed and will not be readily visible from the street.

· The proposed sign will be flush with the front wall of the building and will not face towards the front street.

· The rear wall and doorway of Unit 6 is separated from the Dubbo Presbyterian Church property by a 35 metre wide vacant industrial allotment. I have made enquiries of Council regarding this property and I have been advised that it has recently been approved for development as a carwash. No signs are to be erected at the rear wall of Unit 6 facing the church. The rear of the premises will be indistinguishable from the rear of the other industrial premises on the subject property. · If the distance from the front door of the subject premises to the front entry pathway of the church is measured as outlined above, it exceeds the 200 metre standard contained in Clause 57. I consider that this is an appropriate means of undertaking the measurement. · The carpark for the church is located on the eastern side of the church property. Visitors to the church using this carpark or parking directly in front of the church in Douglas Mawson Drive would have no need to walk past the subject property or to observe the front of the subject premises. · I have made inquiries of Dubbo City Council regarding the public open space opposite the subject property. I have been advised that this area forms a drainage detention basin and is used for passive recreation. Even though football posts have been installed I have been advised that the open space is not used for formal sporting games. From my own observations over a period of three days including a weekend, I have not observed any persons using this area of public open space.

· The front door of the subject premises will be located 131.6 metres from the public open space. The sign on the front wall of the premises and the front entry will not be readily seen from the public open space area. · I have proposed a condition of consent that no display window be allowed at the front of the subject premises, thus further reducing any potential for the premises to be visually conspicuous when viewed from Douglas Mawson Drive or the public open space opposite.

17 Mr Winnacott's evidence was not challenged by council and I accept it.

18 The purpose of the standard in cl 57 is to achieve a "reasonable level of separation between land uses". Due to the location of the premises at the rear of the industrial complex facing away from the church and the park, and accessed off a driveway from Douglas Mawson Drive, there is no obvious sign or indication of the nature of the use that is visible from either the church or the park. The premises are likely to be accessed by car and parking at the rear of the site is provided. Consequently most users of the premises and users of the church or park will not come into physical contact. Users of the premises who park on the street or walk by their mere presence do not present a threat.

19 There is no evidence to indicate that users of the premises will behave inappropriately or that there will be unsolicited exposure of users of the church. In Zhang v Ashfield Council [2004] NSWLEC 259 Bly C states:

That in so far as the behaviour of brothel patrons might affect the amenity of an area, patrons should be considered as ordinary members of the community, hence any concerns about safety and security cannot be justified by assertions that brothel patrons are in this regard different to the rest of the community. 20 This opinion was reinforced by Watts C in Marinos v Ashfield Municipal Council [2005] NSWLEC 2 where he states: Despite this town planning evidence there was no expert sociological evidence to suggest that this adult bookshop or restricted premises would be a catalyst for anti social or criminal behaviour and I have given this aspect little weight. 21 I accept that the knowledge of restricted premises being near the church will cause fear and disquiet to many of its members, but I do not consider that, on the evidence before me, this fear is based on any real likelihood that the premises will result in anti social behaviour or conflict. The proposal and the conditions will ensure that it is discreet and not apparent from the street, the park or the church.

22 On this basis I find that the SEPP 1 objection is well founded and that the application warrants approval.

23 In relation to the conditions in dispute between the parties, I accept the conditions imposed by council and recommended by Mr Winnacott. The SEPP 1 objection is justified on the basis that the premises, which are closer than the standard permits, achieve the objective of the standard due to their discreet nature. On this basis, the signage should be limited to the one sign on the unit, with no sign on the street or window display area. To further minimise the potential for conflict with the church there is to be no Sunday trading.

24 In relation to the limited 12 month period, I accept that as the restricted premises, the church and the park are sensitive uses in close proximity to each other, that for abundant caution a trial period is appropriate to ensure that the premises operate and its impacts are consistent with the evidence provided to the Court. Order 25 The orders of the Court are therefore; 1) The appeal is upheld.

2. Development application for a change of use to restricted premises and advertising sign at 6/57 Douglas Mawson Drive, Dubbo, is approved subject to the conditions at Annexure "A".

3. The exhibits, except Exhibits 2, 3, B, C, D and E, may be returned.

              Annelise Tuor
              Commissioner of the Court
              rjs

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